Volume 220 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the City Court of Pana; the Hon. John H. Fornoff, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Brokers, § 75*—when defense to action for compensation is sufficiently pleaded. An affidavit of merits in an action to recover commissions for the sale of farm lands set up a good defense, which alleged that defendant had never agreed to pay any commissions for any land; that the purchaser was not procured by plaintiffs but that the lands were sold by others having no connection with plaintiffs, and that the latter were not the procuring cause of the sale.</p> <p>2. Judgment, § 161*—when default will he set aside. Bearing in mind the rule that after a default has been actually taken the judgment will not be lightly set aside because of the negligence of the attorney for the defaulted party, the refusal to extend the time to file an affidavit of merits which presented a good defense was an abuse of discretion where, although the attorneys for defendant were negligent in not asking for the extension when they filed a plea of the general issue, they did so before the entry of default.</p> <p>3. Attachment, § 12*—what constitutes nonresidence. A defendant was a nonresident within the meaning of the Attachment Act, where immediately after his marriage he and his family went to Missouri and the children attended school there, and where 2 years thereafter he removed to Florida and rented a house and where he still resided when the attachment in question was brought, and where he had no home in this State and had not lived in it as a resident since his marriage, but where defendant was a stockholder in an Illinois corporation and a partner in a firm located there and where his father’s residence, in this State, contained a room which defendant occupied when here.</p>

<p>Error to the County Court of Fulton county; the Hon. Hobart S. Boyd, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Criminal law, § 62*—when notice must he given. A petition for change of venue was properly refused where no sufficient notice was given to the State’s Attorney, as required by Rev. St. ch. 146, sec. 23 (J. & A. ¶ 11509).</p> <p>2. Criminal law, § 112*—-when proof of venue is essential. The proof of the venue as laid in an indictment is as essential as the averment of it and must be made by the State as part of its case to warrant a conviction.</p> <p>3. Criminal law, § 109*—what matters must he proved. In a prosecution for selling liquor in the City of Mattoon, proof that the Town of Matoon was anti-saloon territory at the time charged was not proof that the city was anti-saloon territory, and although the court might judicially know that part of such city is in the Town of Mattoon and part of it is in the Town of Lafayette, it could not without proof judicially know in what part of the City of Mattoon was the place where the sales took place.</p> <p>4. Criminal law, § 595*-—when conviction will he reversed. Failure to prove the venue in a prosecution for selling liquor in anti-saloon territory was reversible error.</p>

<p>1. Roads and bridges, § 45*—when commissioners must maintain passageway. Under a contract made between a farm owner and the commissioners of highways, settling the damage for building a highway across the farm, by paying a stated sum and in addition thereto agreeing to erect a substantial, well built, firm and durable cattle or stock passageway for the convenience and use of the premises in question, the commissioners were bound to keep and maintain such passageway, of the character and dimensions specified in the contract, as long as the right of way secured under the contract was used by the public as a highway.</p> <p>2. Roads and bridges, § 45*—when construction of contract by parties may be considered. While it is true that contemporaneous construction of the terms of a contract by the parties to it is not always conclusive where public interests are concerned, it is always permissible and often greatly helpful to note what the parties understood it to mean, and therefore the action of county commissioners in keeping a stock passageway erected over a highway constructed over the farm in question in repair was considered in determining the question whether, under a contract settling the damages to the farm and agreeing to build such passageway, the commissioners were bound to maintain it as long as the highway was used by the public.</p>

<p>1. Pleading, § 162*—what is effect'of failure to file affidavit of merits. Where an affidavit of merits does not set up a good defense to the action and the affidavit is stricken and leave to file a further affidavit is not asked and none is on file, the proper practice is to enter judgment for plaintiff as in cases of default.</p> <p>2. Bills and notes, § 352*—when defense in action on note is insufficient. Whether or not an affidavit of merits in an action by a bank receiver to recover on a note, setting up that the note was without consideration and was given as an accommodation only at the request of the vice president of the payee bank, for the purpose of becoming assets of such payee so that the latter might withdraw other negotiable paper then held by it without reducing the assets below the minimum required by law and the rules of the bank examiner, and for the further purpose of having the same show as an asset in reports made by the payee bank and furnished to its customers and others, was of no concern to the said receiver, although it was alleged that the bank for which he was receiver obtained the note with knowledge of the facts.</p> <p>3. Bills and notes, § 352*—when secret agreement as to note is no defense. An affidavit of merits in an action by a bank receiver upon a note did not set up a good defense which alleged that the note v^as executed in the performance of an illegal act to enable the payee to deceive the bank examiner and others, and that the note was without consideration and was given as an accommodation only , at the request of the vice president of the payee bank for the purpose of becoming assets of such payee so that the latter might withdraw other negotiable paper then held by it without reducing the assets below the minimum required by law and the rules of the bank examiner, and for the further purpose of having the same show as an asset in reports made by the payee bank and furnished to its customers and others, and alleged further that the bank for which plaintiff was receiver obtained the note with knowledge of' the facts and contrary to a secret agreement that the note should not be negotiated. ,</p> <p>4. Bills and notes, § 332*—when defense is not available. The maker of a note given for the purpose of assisting a fraud is estopped from denying its validity when it is sued on for the benefit of those to defraud whom it was made. •</p> <p>5. Bills and notes, § 260*—what agreement between original parties is not defense. The fact that a note reciting on its face that it was given for value received, that it is negotiable and payable without defalcation or discount, was negotiated contrary to a supposed secret agreement between the maker and payee, Was no defense against the receiver of a bank who in law was an innocent holder by indorsement before maturity.</p> <p>6. Action, § 17*—what defenses are not available. Courts will not listen to defenses based on the positively unlawful acts of a defendant.</p>

<p>Error to the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Error to the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Appeal and error, § 1652*—when error in instruction is not cured. The giving of an instruction in a case of injury resulting from a collision between street cars, which in effect directed a verdict for plaintiff and ignored the defense of release, was reversible error, which the giving of correct instructions could not cure.</p> <p>2. Railroads, § 485*—when lessor and lessee are liable for injuries. When the track of a railroad is leased to another to use and the lessee by its negligent use causes injury to a third person, the lessor is jointly liable with the lessee for the damages caused thereby.</p> <p>3. Release, 21*—what is effect of release of one wrongdoer. Where a person having a joint right of action for negligence against two persons settles with and releases one of those jointly liable, both are released.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Indemnity, § 21*—when defense of estoppel is not available. The principle of equitable estoppel had no application in favor of the surety on a bond given to the plaintiff railroad company to insure it against loss by reason of the surrender of bills of lading to the principal in the bond without paying for the shipment, where the only defense was that an agent of plaintiff had stated to defendant on a day named that there were no bills of lading upon which deliveries had been made, when in fact there were two with sight drafts attached that had not been settled for and which plaintiff was liable for under the bond, and where there was dispute as to what the agent did say, and in any event there was no showing of any injury to plaintiff.</p> <p>2. Estoppel, § 42*—what is essential to give rise to estoppel. No equitable estoppel arises in favor of a surety from a misstatement of facts as to liability unless such surety is shown to have suffered by reason thereof.</p>

<p>1. Appeal and error, § 1421*—when error is harmless. The rule that errors in rulings on the admission or exclusion of evidence or the giving, modifying or refusing of instructions will not cause a reversal of the judgment, where it is manifest that justice has been done and defendant has been deprived of no substantial right guaranteed him by law, applied in a'case for alienation of the affection of plaintiff’s wife, where defendant did not even deny the charges made against him in the declaration.</p> <p>2. Husband and wipe, § 281*—when verdict for alienation is not excessive. A verdict for $13,500 was not excessive in an action for alienation of the affections of plaintiff’s wife, as the jury in such cases may give punitive as well as compensatory damages</p> <p>3. Husband and wife, § 278*—what may he considered in ascertaining damages for alienation. In an action for the alienation of the affections of plaintiff’s wife, who was the mother of three children, the eldest 13 years old, the mental anguish of the husband, the loss of the affection of the wife as well as the loss of the services and society of the wife may be taken into consideration by the jury in fixing damages; and the husband was entitled to substantial damages even if no resulting expense or loss of service was shown, and the verdict for $13,500 was not interfered with, where the court could not say that the jury were influenced by passion, prejudice or other consideration.</p> <p>4. Appeal and error, § 1514*—when misconduct of counsel is harmless. Misconduct of counsel in an action for the alienation of the affections of plaintiff’s wife, although condemned, was not sufficient to warrant the reversal of the judgment, where defendant’s conduct was reprehensible in the extreme, and it was manifest that justice was done.</p>

<p>1. Insurance, § 120*—how policy is construed. A contract for accident insurance being prepared by the insurer cannot be extended by implication or inference against the insured but is to be construed strongly against the insurer.</p> <p>2. Insurance, § 410*—when insurer is liable for accident. Under an accident policy covering injuries "not caused or contributed to by illness or disease,” plaintiff was entitled to recover where his intestate, who became sick to the stomach from eating salted peanuts, went out on the platform of the railroad car in which he was riding and sat down and in some way got under the train and suffered the loss of his limbs, because the disease or sickness referred to does not mean every momentary indisposition that is suffered by the insured.</p> <p>3. Insurance, § 613*—when suicide need not be negatived. Under the rule that, in the absence of proof to the contrary, the presumption is that no person will take his own life and that every person is sane and that such presumptions have all the force and effect of evidence until overcome by proof, the burden was not on the plaintiff, in an action on an accident insurance policy, to show that his intestate did not take his own life.</p> <p>4. Insurance, § 452*—when proof of loss is waived. The giving of the written notice of an accident required by an accident insurance policy was waived where one in some representative capacity was sent by the insurer to investigate the claim and stated to plaintiff and his attorney that the insurer had sufficient proof of loss and that no further proofs would be necessary.</p> <p>5. Trial, § 268*—when special interrogatories are properly refused. It is not error to refuse to submit special interrogatories to a jury that do not- relate to the issues or that cannot be answered from the evidence, or unless some responsive answer could be made to them that would be inconsistent with some general verdict that might be returned.</p> <p>6. Appeal and error, § 1538*—when error in instruction is harmless. An objection to an instruction in an accident insurance case that it assumed that the loss of the insured’s feet was due to accidental means, and that it therefore ignored the contention that the insured in some way got underneath the cars in question with suicidal intent, was harmless even if it had been sound, where the tendency of the whole proof was to establish the fact that the injury did result from accidental means, and that there was no evidence tending to show that the injuries were self-inflicted.</p> <p>7. Insurance, § 432*—when double indemnity is recoverable. Under an accident policy providing for double indemnity in case of loss of both feet by the insured “while riding as a passenger in or on a public conveyance (including the platform, steps or running board thereof) regularly provided by a common carrier * * * of passengers,” plaintiff was entitled to recover the double indemnity where his intestate while riding as a passenger on a railroad train met with an accident by which both legs were cut off between the knee and ankle, and died 4 days later from shock and loss of blood.</p> <p>8. Insurance, § 432*—when right to double indemnity accrues. Under an accident policy calling for the payment of double indemnity to the insured if he should suffer the loss of both feet while riding as a passenger in a public conveyance, such indemnity accrued to the insured in his lifetime, where he lost both feet and died 4 days after the accident from shock and loss of blood; and if the insured had desired to limit its liability to cases where the insured should continue to live for any particular time after he lost his legs, it should have done so.</p>

<p>1. Insurance, § 609*—when plaintiff in action must show good health of insured. A provision in the application for a life insurance policy that the insurance shall not take effect unless the policy is delivered to and received by the insured during his lifetime and good health is a condition precedent, and it is incumbent upon one suing to recover on the policy to prove affirmatively that the insured was in good health at the time the policy was delivered before recovery can be had thereon.</p> <p>2. Insurance, § 329*—when Knowledge is essential to waiver. An insurer who did not know that the insured was not in good health at the time the policy was delivered cannot be held to have waived a condition precedent contained in the application that the insurance shall not take effect unless received by the insured while in good health.</p> <p>3. Insurance, § 833*—when ill health of insured prevents recovery. In an action to recover on a policy of life insurance, the application for which provided that the insurance should not take effect unless the policy was delivered during the lifetime and good health of the applicant, where it appeared that at the time the policy was delivered the insured was ill in a hospital with pneumonia and di.ed the day after the policy was delivered, there can be no recovery on the policy.</p>

<p>1. Creditors’ suit, § 60*—what may be scope of decree. A decree entered on a creditor’s bill resting on a judgment may order an execution for the amount found due by it and direct the levy on and sale of real estate which it finds, in effect, is in equity the property of the judgment debtor, though the title is recorded in the name of certain of the defendants to the creditor’s hill, notwithstanding there was no levy on such property under the execution issued on the judgment.</p> <p>2. Execution, § 6*—what property is subject to execution. The levy of an execution on property to which the judgment debtor has not record title is unavailing to create a lien, and a sale under such a levy does not pass title.</p>

<p>1. Contracts, § 345*—when person cannot sue for "breach of contract. One who has breached a contract to which he is a party cannot enforce it against the other or recover damages for the refusal of the other party to perform further after the breach.</p> <p>2. Sales, § 65*—how contract of sale is construed. Where a contract provides that the seller agrees to sell and the buyers agree to purchase “a minimum of $2,000 worth of tin packages or more as required by them which buyers will need for actual use in their business” between certain dates, is to be construed as binding the buyers to purchase and the seller to deliver its product to the minimum amount of $2,000, and, while not requiring the buyers to take in excess of the minimum amount unless their business requirements necessitate it, does not permit them, while the contract is in force, to purchase such goods elsewhere, and by so purchasing elsewhere the buyers breach the contract.</p> <p>3. Sales, § 61*—what is evidence of intent of parties. Where under a contract providing that the seller agrees to sell and the buyers agree to purchase “a minimum of $2,000 worth of tin packages or more as required by them .which buyers will need for actual use in their business,” the fact that during the life of the contract the buyers bought such commodity from others than the seller is cogent evidence that such purchases were needed by the buyers to meet their requirements within the meaning of the contract.</p> <p>4. Contracts, § 355*—what must he alleged and proved in action for breach of contract. One suing to recover damages for a breach of a contract must not only aver but must also prove that he is not himself in default as to the agreement for the breach of which the suit is brought.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>1. Master and servant. § 717*—when question for jury as to violation of custom arises. In an action under the Federal" Employers’ Liability Act to recover for the death of a car sealer who was killed by a switch engine backing against one of the two cars between which he was walking, catching him between the cars, where the evidence as to the existence of a custom for the switch engine bell to be rung before the engine was moved and as to the violation of this custom is conflicting, the existence of the custom and the violation thereof are for the jury.</p> <p>2. Master and servant, § 191*—when warning is necessary. Failure of the master to give the customary warning to his servant when in a position of danger is negligence.</p> <p>3. Master and servant, § 177*—when removal of warning sign is negligence. In an action under the Federal Employers’ Liability Act to recover for the death of a car sealer who was killed, while passing between cars in performing his duty in obedience t^to the yardmaster’s orders, by the impact of a switch engine against one of such cars, it was negligence on the employer’s part for the yardmaster to remove the red card from the end car on the track on which the car sealer was working, thereby notifying the crew of the switch engine that such cars were in readiness for moving and coupling up. ,</p> <p>4. Master and servant, § 335*—what risks are assumed by car repairer. While a car sealer’s work is dangerous and he assumes the risk of the extraordinary dangers incident to work of such character, he does not assume the risk of an unexpected negligent departure from the customary method of doing such work.</p> <p>5. Master and servant, § 335*—what increased rislcs are not assumed by ear repairer. In an action under the Federal Employers’ Liability Act to recover for the death of an employee, even if the employee knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable to negligence in pursuing the method, not to the method itself.</p> <p>6. Master and servant, § 579*—who has burden of proving assumption of risk. In actions under the Federal Employers’ Liability Act, the burden of proving assumption of risk is on the defendant.</p> <p>7. Appeal and error, § 1410*—what is effect of jury's finding. In an action under the Federal Employers’ Liability Act, where the evidence is such as to require the submission of the question of assumption of risk to the jury, their finding thereon will not be disturbed unless manifestly against the weight of the evidence.</p> <p>8. Master and servant, § 698*—when evidence shows no assumption of risk. In an action under the Federal Employers’ Liability Act to recover for the death of a car sealer, killed while performing his duties in obedience to the yardmaster’s orders, there being evidence that a switch engine backed against the cars on which he was working without any signal having been given and that it had so backed pursuant to notice from the yardmaster that the cars on that track were ready to be moved, held that such evidence was sufficient to support a finding that the car sealer did not assume the risk.</p> <p>9. Master and servant, § 779*—when instruction as to evidence is proper. In an action under the Federal Employers’ Liability Act to recover for the death of an employee, an instruction to the effect that plaintiff need prove his case by only slight preponderance of the evidence, held not erroneous.</p> <p>10. Limitation of actions, § 74*—when amendment is not subject to i limitations. Where the declaration in an action to recover under the Federal Employers’ Liability Act for the death of a car sealer caused by a switch engine backing against the cars on which he was working and catching him between them, averred in general terms the careless' and negligent management, operation, etc., of defendant’s cars, an amended count alleging the custom of ringing the bell on defendant’s engines and the violation of this in this instance, causing the accident, does not state a new cause of action, but simply sets forth the particular negligent operation complained of, and is not subject to the statute of limitations though the accident happened August 1, 1914, and the amendment was filed in January, 1919.</p> <p>11. Death, § 67*—when damages are not excessive. In an action under the Federal Employers’ Liability Act to recover for the death of an employee, a verdict of $12,500 is not excessive where the evidence shows that he was 44 years old, of good habits and good health, had earned $852.44 for the year preceding his death and left surviving him a widow and a child about 6 years old.</p> <p>12. Appeal and error, § 1514*—when remark of attorney is not prejudicial. In an action under the Federal Employers’ Liability Act to recover for the death of an employee by an accident occurring in August, 1914, the statement of the counsel in his argument on the trial, in January, 1919, that it was a matter of common knowledge that wages in all lines had increased, is not ground for reversal.</p> <p>13. Evidence, § 14*—what is matter of common knowledge. It is a matter of common knowledge that between August, 1914 and January, 1919, there had been a great increase in wages and in the cost of living.</p> <p>14. Master and servant, § 828*—what is basis of compensation for death. As to whether the basis of compensation in an action under the Federal Employers’ Liability Act should be the wages and cost of living at the time of the accident or at the time of the trial, quœre.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding Heard in this 'court at the March term, 1920.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kickham Soanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Landlord and tenant, § 274*—when deposit for rent may not be kept by lessor. Where a lessee according to the terms of a 12-year lease deposited $17,000 with the lessor, $8,500 to apply “as rent” for the first year of the term and $8,500 for the last year, and the lessee was dispossessed before the last year of the term by forcible detainer proceedings on account of the nonpayment of 3 months’ rent, the lessor was entitled to withhold from the $8,500 only the 3 months’ rent due, notwithstanding a provision in the lease, that should the lessees he guilty of a breach of any of their agreements "all sums of money paid by them upon said lease as rent, shall immediately he forfeited to said first party as liquidated damages,” since this was a provision for a penalty and not for liquidated damages.</p> <p>2. Landlord and tenant, § 274*—when tenant is not liable for abandonment of premises. A provision in a lease, that the lessee satisfy any deficiency in rent collected from a new tenant should the lessee “abandon or vacate,” has no application where the lessee is dispossessed by the lessor.</p> <p>3. Landlord and tenant, § 274*—when tenant is not liable for repairs under lease. A lessor is not entitled to a credit for sums disbursed for repairs, even though a lease provides that the tenant shall he liable for the cost of repairs, when it appears that the disbursements were not for such repairs as the tenant was required to make under the terms of its lease.</p>

<p>1. Landlord and tenant, § 88*—when tenancy from year to year is created. A tenancy from year to year is created where a tenant holds over, after the expiration of a former lease for one year, and pays rent at the old rate, nothing being said between the parties, and no agreement as to the time he shall hold being made.</p> <p>2. Landlord and tenant, § 478*—how tenancy from year to year is terminated. A tenancy from year to year cannot be terminated by a demand for immediate possession, but such tenant must be notified to quit in accordance with the requirements of the Landlord and Tenant Act, Hurd’s Rev. St. ch. 80, sec. 5 (J. & A. ¶ 7043).</p> <p>3. Landlord and tenant, § 478*—how notice to terminate tenancy must he served. The mailing of a notice to quit to a tenant from year to year is not service in compliance with the Landlord - and Tenant Act, Hurd’s Rev. St. ch. 80, sec. 10 (J. &. A. ¶ 7048), providing that such notice may be served by “delivering” a copy thereof to the tenant.</p> <p>4. Trial, § 199*—when directed verdict is improper. A directed verdict is improper where there is an important issue of fact to be passed on by the jury.</p> <p>5. Evidence, § 39*-—what presumption arises as to receipt 'of mailed matter. Testimony as to writing, stamping and mailing a letter raises only a rebuttable presumption that the addressee received the letter within a reasonable time thereafter.</p>

<p>1. Commerce, § 5*—what governs interstate shipments. Where shipments are interstate, the contract of shipment, federal legislation on interstate commerce, together with decisions of the federal courts construing the same, must control in the decision of all questions involved.</p> <p>2. Carriers, § 69*—what is liability of carrier of goods. Under the federal law a common carrier is an absolute insurer of the safety of goods transported except, loss resulting' from the act of God, the act of the public enemy, authority of law, the fault of the shipper, or the inherent nature or vice of the article shipped.</p> <p>3. Carriers, § 137*—when shipper has burden of showing loss due to carrier. While the question of diligence on the part of a carrier in an action for injury to goods shipped is ordinarily wholly immaterial, yet, where the condition of the goods as delivered is shown by the evidence to be such as to indicate prima facie that the injury was the result of one of the excepted causes, exempting the carrier, the burden is cast upon the shipper to show that the damage resulted from the negligence of'.the carrier.</p> <p>4. Carriers, § 138*—what evidence is admissible on issue of injury to goods. Where the evidence showed that the damage to a shipment of cantaloupes was caused by ripeness, softness and moldiness, evidence on the part of the carrier as to its due care was admissible as tending to show that the deterioration in the fruit was not caused by any matter or thing which could have been prevented by it.</p> <p>5. Carriers, § 138*—when evidence of refrigeration tests is inadmissible to show injury to goods. In an action against a carrier for injury to a shipment of cantaloupes, evidence of certain refrigeration tests, made in connection with shipments of cantaloupes other than those in suit, is inadmissible without first showing a similarity of the shipments in all essential particulars.</p>

<p>1. Commerce, § 5*—what governs interstate shipments. In an action against a carrier for failure to carry goods safely where the shipments are in interstate commerce, the Interstate Commerce Act, with the decisions of the federal courts and the provisions of the contract, are controlling, irrespective of local law.</p> <p>2. Commerce, § 3*—what is effect of Interstate Commerce Act. The provision of section 20 of the Interstate Commerce Act, that nothing in the act shall deprive the shipper “of any remedy or right of action, which he has under existing law," means the common law as declared by the federal courts.</p> <p>3. Carriers, § 69*—what is liability of carrier of goods. Under the common law and under the statutes as construed by the federal courts, a common carrier of goods is liable not for negligence alone, but also as an insurer in all cases except where the damage is caused by the act of God, by the public enemy, by authority of law, by fault of the shipper, or by result of the inherent vice or natural infirmity of the goods shipped.</p> <p>4. Carriers, § 138*—what evidence is admissible to show injury to goods. In an action against a carrier for damage to shipments of lemons delivered in a deteriorated condition, while negligence is not the gist of the action, evidence tending to show freedom from negligence, such as the route of shipment, its arrival in customary time, ventilation of cars and inspection of the shipment upon arrival by carrier’s expert, is admissible as tending to show that the injury was due to the inherent condition of the fruit.</p>

<p>1. Carriers, § 66*—when goods may be diverted in transit. At common law and under the Interstate Commerce Act, a consignee, consignor or owner of a shipment, has a right during the transit thereof to divert it to a new destination, and upon receipt of an order to that effect, the carrier is obligated to carry the shipment to the diverted destination.</p> <p>2. Carriers, § 188*—what is effect of diversion in transit as to liability of initial carrier. Where the initial and connecting carriers are parties to a transcontinental tariff which provides for a right of diversion to a new destination and the shipment is moved under such tariff, the original contract of shipment is not terminated by the exercise of such right by the shipper, and the initial carrier remains liable to final destination, even though the order for the diversion'is given to the connecting carrier.</p> <p>3. Carriers, § 141*—when instruction as to injury to goods is hot erroneous. The phrase "in good merchantable shipping condition,” used in an instruction, is not erroneous where the jury are informed by the evidence or the instruction what is meant by the phrase.</p> <p>4. Carriers, § 123*—when carrier is liable for improper ventilation. Where goods are shipped under “standard ventilation” and instructions of the shipper with reference to such ventilation are not carried out, the carrier is liable for damages resulting from such failure regardless of whether or not it was in the exercise of due care in handling the ventilation appliances, since its obligation as to “standard ventilation” is a contractual one and its liability is not based on a theory of negligence.</p> <p>5. Carriers, § 138*—what evidence is admissible to show injury to goods. Evidence of the examination of 13 boxes of different brands of oranges out of a total of 396 shipped is admissible to show the condition of the balance of the car where a thorough inspection of the entire car is impracticable.</p> <p>6. Carriers, § 138*—when evidence of market value is admissible in action for injury to goods. Evidence as to the market value of fruit at destination, without making any allowance for natural deterioration during the course of transportation, is admissible where it has been shown that but for the failure of the carrier to comply with standard ventilation instructions given by the shipper the fruit would have arrived in the good marketable condition in which it was delivered.</p>

<p>1. Commerce, § 5*—what rules govern interstate shipments. In an action against a carrier involving an interstate shipment, the rights of the parties must be determined by the Interstate Commerce Act, the contract of the parties, and the decisions of the federal courts.</p> <p>2. Carriers, § 69*—what is extent of liability of, carrier of goods. A common carrier is liable as an insurer for the safe transportation of goods except where the loss happens, by the act of God, by the act of the public enemy, by the act of public authority, by the fault of the shipper, or by the inherent vice or infirmity in the goods shipped.</p> <p>3. Carriers, § 48*—when oral evidence is admissible to contradict bill of lading. A bill of lading acknowledging the receipt of goods in apparent good condition is nevertheless only a receipt and can be contradicted by other evidence.</p> <p>4. Carriers, § 138*—what evidence is admissible in action for injury to goods. In an action against a carrier for loss of oil in transit, evidence showing that the barrels used absorbed a certain amount of oil, and testimony of experts that the inevitable effect of heat upon the oil was to cause it to expand in a way which would make the staves of the barrels give way was competent to show that the wooden barrels used were improper vessels for carrying the oil.</p> <p>5. Carriers, § 130*—what carrier may show to avoid liability for injury to goods. Where defects in a shipment are perfectly apparent, it is the carrier’s duty to refuse the shipments, and, having elected to carry them in a defective condition, the carrier will not be allowed to urge these defects as a defense; but this does not preclude the carrier from showing that the loss proceeded from a cause which existed but was not apparent when he received the goods.</p> <p>6. Carriers, § 140*—when injury to goods is question of fact. In an action against a carrier for loss of oil in transit, evidence tending to show that the loss was due to inherent nature of the oil and by defects in the barrels which were not apparent to the carrier raised an issue of fact for the jury and a directed verdict for plaintiff was improper.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>1. Receivers, § 22*—what is effect of receiver’s appointment as to contracts. The appointment of a receiver for a surety company does not cancel the contracts and obligations of the company then in force, although they are not at that time absolute and liquidated demands.</p> <p>2. Indemnity, § 11*—when statements in application are complied with. Where an application for a surety bond contained answers stating that the books and accounts of the officer would be audited and verified monthly, and yearly, by a finance committee and expert auditor, and the evidence showed that monthly statements of a bank were .checked by the finance committee as well as monthly reports by the officer, the promises as made were substantially kept and the surety company could not contend that the insured could not recover, even if it was conceded that the application was a part of the contract.</p> <p>3. Principal and surety, § 8*—what is liability of surety for damages. Where the surety bond provided that the principal would “render a true account of his office, and of the doings therein, * * * to the proper authority when required,” and that he would “faithfully account for all balances of money remaining in his hands at the termination of his office and deliver the same to his successor or to the person or persons authorized to receive the same,” the liability of both- principal and surety for dámages arising from breaches of these provisions was not conditional but absolute, and no demand on the principal for the money which he failed to pay was necessary to establish such liability.</p> <p>4. Principal and surety, § 37*—what does not operate as discharge of surety. Where plaintiff, who was secured by the bond of the defendant surety company, secured an additional bond in another company when a. receiver was appointed for the defendant, plaintiff’s action did not operate as a release of the security held from defendant.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Bernard P. Barasa, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Trial, § 132*—when argument of counsel is error. Where the questions whether defendant was guilty of negligence or the plaintiff guilty of contributory negligence, or whether both were negligent, were close and required on the part of the jury a careful consideration of all the testimony, and counsel for the plaintiff indulged repeatedly in utterances which were extreme and beyond the limits of fair argument and tended to arouse the prejudice and passions of the jury, such conduct, even though the court sustained objections to it, was sufficient reason for reversal of the judgment in plaintiff’s favor.</p> <p>2. Trial, § 132*—what statements of counsel in argument are erroneous. Statements of plaintiff’s counsel in his closing argument severely castigating defendant’s counsel whose conduct had been wholly proper, asking that defendant be punished for employing such an attorney and charging that in the absence of a defense, defendant’s counsel had sought to cast aspersion upon the plaintiff, held prejudicial.</p> <p>3. Trial, § 130*—what is proper argument of counsel. An attorney in his argument has the right to challenge the credibility of the plaintiff.</p> <p>4. Damages, § 124*—when verdict is not excessive. A verdict of $5,000, where plaintiff sustained a compound fracture of the tibia and fibula which prevented him from returning to work for 11 months and thereafter from following his former occupation, was not excessive.</p>

<p>1. Landlord and tenant, § 465*—when acceptance of payment of rent is waiver of forfeiture. Where, in a forcible detainer action, the defendants, who occupied the premises under a lease which provided for the payment of rental “in advance on the first day of each and every month,” mailed a check to the plaintiff on the fifth day of the month, which was received by him on that date, and the plaintiff had on the third day of the month served notice of forfeiture for nonpayment of rent, the act of the plaintiff lessor in receiving the rent constituted an affirmance of the lawful possession of the defendants’ lessee and terminated the lessor’s rights under the prior notice.</p> <p>2. Landlord and tenant, § 464*—effect of 'acceptance of delayed payments on right to require strict performance. Where the strict and exact performance in the matter of payment of rental under a lease at the exact time therein specified has been waived, for a portion of the time of such lease, and such delayed payments have been accepted without complaint for' a considerable time, reasonable notice thereafter of an intention to return to the strict and exact terms of the lease must be given before a forfeiture of the lease can be- declared.</p> <p>3. Landlord and tenant, § 464*—when slight delay in payment ’of rent not ground for forfeiture. A delay of 4 days in payment of rental "is negligible and not a substantial breach of the lease, where there is evidence of some indulgence between lessor and lessee in dealing with each other as to the payment of rent.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John A. Swanson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Landlord and tenant, § 331*—when equity will not preserve lien. A court of equity will not intervene to preserve a lien of a lessor upon money awarded as compensation to the lessees for a portion of the leased premises taken under condemnation proceedings, where it appears that there is no breach of the covenants of the lease, no, insolvency of the lessee or prospect of the same, no attempt to foreclose the equitable lien or ground therefor; no diminutions of the security but on the contrary probability of its enhancement in value.</p> <p>'2. Equity, § 1*—when equity will not intervene. Equity will not exercise its extraordinary jurisdiction when it will operate inequitably and oppressively.</p> <p>3. Receivers, § 4*—when receiver will not he appointed to preserve fund. Where a tenant has the legal right to a fund awarded as compensation for a portion of leased premises taken under condemnation proceedings, and will not receive its full rights under such proceedings until it has possession of the fund with the attendant right to use the same as it sees fit, and its damages from the deprivation of such right are greater than any which may result to the lessor by refusal of the prayer of a bill to have a receiver appointed for such fund, the bill will be dismissed for want of equity. ,</p>

<p>1. Corporations, § 172*—when stockholder must act to preserve rights. A shareholder must use due diligence in the assertion of his rights to entitle him to relief, in equity, against a wrongful diversion of corporate funds, and negligence on his part in instituting proceedings will deprive him of relief.</p> <p>2. Equity, § 78*—what constitutes laches. Delay which will defeat recovery on the ground of laches depends upon the particular circumstances in each case.</p> <p>3. Corporations, § 172*—when rights of stockholder are barred by laches. Where a cause of action arose over 13« years before a supplemental bill was filed by a stockholder charging directors with misappropriation of- corporate funds, when most of the directors charged had died and their estates had undergone varied changes, a demurrer to the bill was properly sustained on the ground of laches.</p>

<p>Appeal from 'the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from,the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Guardian and ward, § 18*—what contract of guardian is improper. Where bonds belonging to a ward were stolen, neither the guardian nor a surety company could, without the consent of the court, contract with the defendant to undertake the recovery of the bonds and give the defendant a lien for such services rendered; and an allowance for such services in a judgment in an action against defendant for conversion of the bonds was erroneous.</p> <p>2. Judgment, § 204*—when amount of judgment may exceed amount claimed. While the general rule'is that the amount of the judgment may not exceed the ad damnum, it is not error to include in a judgment rendered the amount of interest which has accrued thereon after the commencement of the suit, where such interest accrues by virtue of a statute, even though its allowance swells the judgment beyond the amount claimed in the pleading.</p>

<p>1. Evidence, § 350*—when parol evidence is admissible to add to contract. A separate parol agreement as to any matter, not inconsistent with the terms or legal effect of a written agreement and on which it is silent, may he shown where it appears that the written instrument was not intended to be a complete and final statement of the whole transaction between the parties.</p> <p>2. Appeal and error, § 1301*—what will be presumed as to evidence in trial by court. Where there is evidence in a record on which a court would have been justified in basing its findings, no improper or immaterial evidence will be presumed to have influenced the court in reaching a decision where the cause was tried without a jury.</p> <p>3. Sales, § 252*—when implied warranty exists. Where the buyer expressly or by implication makes known to the seller the particular purpose for which goods are required, and it appears that the buyer relies on the seller’s skill or judgment in manufacturing the article agreed to be purchased, there is an implied warranty that the article so agreed to be purchased shall be reasonably fit for such purpose.</p> <p>4. Sales, § 283*—when existence of implied warranty is for jury. Whether a buyer made known to the seller the particular use for which the goods were intended and whether the buyer relied upon the seller’s skill and judgment are both questions of fact.</p> <p>5. Sales, § 271*—when breach of warranty is established. Where plaintiff ordered oil stills, for use at its oil refining plant, from the defendant, who was a manufacturer of this particular kind of articles for the use in the business of refining oil and the evidence showed that the stills were not manufactured in accordance with the specifications prepared by the plaintiff’s engineer and did not’ stand the hydraulic pressure test provided for, there was a breach of the implied warranty that the stills would be reasonably fitted for the use for which they were bought.</p> <p>6. Sales, § 275*-—when return of goods shows no delivery. Where the buyer, within a reasonable time after the delivery of goods, returned the same to the manufacturer on account of defective material and defective workmanship, and informed the manufacturer of the specific defects, and the manufacturer accepted the return of the goods after such defects were pointed out, the property in the goods did not pass to the buyer at the time of delivery.</p> <p>7. Sales, § 275*—what tests may be made by buyer before return of goods. Where tests are provided for in the contract of sale, the buyer has a right to a full test and reasonable time in which to make it.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Appeal and error, § 1065*—what assignments of error are sufficient. Assignments of error that "the verdict is not justified by the evidence”; that “the verdict is against the law and the evidence”; that the trial court erred in overruling appellants’ motion at the close of all the evidence to instruct the jury to find the appellants “not guilty”; that “the verdict is excessive,” held to be sufficiently specific to raise the questions , argued that appellants were not negligent, that plaintiff was guilty of contributory negligence and that the damages were excessive.</p> <p>2. Carriers, § 359*—what is duty as to place of alighting. The general rule applicable to carriers of passengers; that all parts of their stations, platforms and approaches thereto must be kept in a safe condition, has only a limited application to street railway companies and cannot be extended so as to include the public street in which passengers are received and discharged, and over which the street railway has no control.</p> <p>3. Carriers, § 434*—when passenger is guilty of contributory negligence. A passenger who, in alighting from a street car, has as good an opportunity as the company’s servants to observe the conditions of a street and to know that such conditions are dangerous, will, in case he attempts to alight under these conditions, be held guilty of contributory negligence if injured.</p> <p>4. Carriers, § 476*—when street railroad is not negligent. Evidence held to show no negligence of a street car company allowing a passenger to alight at the end of its line where the streets were in a torn-up condition.</p>

<p>1. Conflict of laws, § 12*—what law governs contract. A contract is governed by the laws of the State where it is made.</p> <p>2. Common law, § 7*—when common law is presumed to be in force. Where a contract is made in a foreign State and the laws of such State do not appear in evidence, it must be presumed that the common law is in force there and applicable, even though a statute controlling similar questions exists in the State where the questions are tried.</p> <p>3. Bailments, § 9*—when bailment is governed by conditions on receipt. By the weight of authority, when a person accepts a ticket from a bailee in receipt for a parcel deposited with him, he is bound by the terms and conditions of that receipt in so far as he has reasonable notice of the same and so far as the same are reasonable.</p> <p>4. Bailment, § 9*—what condition of agreement is reasonable. A condition, on a ticket from a bailee in receipt for a parcel deposited with him for a charge of only 10 cents, limiting the liability of the bailee in case of loss to $25, is reasonable.</p> <p>5. Bailment, § 9*—when bailor is bound by conditions as to deposit. A person who deposits his hand bag at the check stand in a railway station has reasonable notice of a limitation of liability of the bailee in case of loss, where large placards, so situated that one exercising any degree of care could scarcely fail to see them, announce these limitations, and the ticket handed to him specifically points them out.</p>

<p>1. Insurance, § 140*—what is meant by other insurance. A rider in a life insurance policy, providing that payments under “all other policies” by whomsoever issued should he deducted from the amount payable under the present policy .has application only to other policies of the same general character, i. e., life policies.</p> <p>2. Insurance, § 86*—what is distinction between life and accident policies. There is a clear mark of distinction between life and accident policies according to the well-understood meaning of the words used to designate these policies; and while an accident policy is ordinarily payable in case of death by accident, that does not make it a life insurance policy.</p> <p>3. Insurance, § 120*—how policies are construed. Where the terms of-a life insurance policy are ambiguous, the construction must he adverse to the insurer and most favorable to the insured.</p> <p>4. Insurance, § 106*—when policy is not invalid. A provision in a policy on the life of a minor, grading the benefits in accordance with the age of the minor, reaching its maximum when he attains his majority, does not contravene section 208, ch. 73, Rev. St. (J. & A. ¶ 6514), providing that policies at maturity cannot he settled for less than the amount insured on tire face of the policy.</p> <p>5. Insurance, § 106*—validity of provision limiting amount of insurance on life of minor. A provision in a policy on the life of a minor limiting the amount of insurance will be enforced, it being in accordance with the sound policy that tends to curb excessive insurance on the life of children.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. George B. Holmes, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Automobiles and garages, § 2*—when parent is not liable for injury inflicted by member of family. Authority, express or implied, to use an automobile, creates no liability on the part of a parent for injury caused through the negligent driving of the automobile by a member of the family while using it for some personal purpose of her own.</p> <p>2. Automobiles and garages, § 2*—when automobile is used for private purpose by member of family. Where a daughter with the consent of the father used his automobile to call for her shoes which had been repaired, she was operating the automobile for a purpose of her own and was not engaged in the father’s business, though the father purchased the shoes and also paid for the repairs.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>1. Carriers, § 138*—what evidence is inadmissible in action for injury to goods. In an action against a railroad for breach of contract to safely carry a shipment, evidence of diversion orders, showing a contract between the parties different from the contract as averred in the declaration, is inadmissible.</p> <p>2. Pleading, § 404*—what evidence is admissible under pleadings. The plaintiff must prove his case as alleged in the declaration.</p> <p>3. Carriers, § 66*—when diversion of goods causes new contract. A written order by a consignee, diverting a shipment to a new destination upon its arrival at the destination named in the original contract of carriage, creates a new contract of carriage.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Error to the Criminal Court of Cook county; the Hon. Oscar Hebel, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Execution, § 302*—what evidence is admissible in seeking release from arrest. In a proceeding for a release from imprisonment under a capias ad satisfaciendum in a tort suit for assault and battery, the record of the judgment and all the files of the municipal court pertaining to the suit are admissible in evidence,</p> <p>2. Assault and battery, § 1*—when malice is gist of action. Malice is the gist of an action of trespass for an assault and battery.</p> <p>3. Execution, § 294*—when. debtor not entitled to release. A person imprisoned under an execution on a judgment in an action for assault and battery is not entitled to discharge under the Insolvent Debtors’ Act, as section 2 of the act (J. & A. ¶ 6199) expressly provides that the provisions of the act are not available to persons imprisoned under execution upon a judgment' recovered in an action of which malice was the gist.</p>

<p>Judgment, § 150*—when judgment will he vacated. Where garnishment proceedings had been partially heard before a judge and a complete defense established by the garnishee, and thereafter, without notice to the garnishee, the cause was called by counsel for the garnisher before another judge, without any disclosure to the court of the previous proceedings, and judgment against the absent garnishee was entered, such judgment was inequitable and the result of fraud and not due. to any negligence of the garnishee; and for such a case the Municipal Court Act, sec. 21 (J. & A. ¶ 3333), giving the municipal court jurisdiction to vacate a judgment 30 days after its entry, when it appears that the judgment is inequitable or the result "of fraud, accident or mistake not due to the negligence of the petitioner, supplies relief.</p>

<p>1. Insurance, § 436*—when proof of loss must he given. Where a policy insuring an automobile against theft provides for the giving of notice forthwith of the loss and for making a sworn proof of the claim, compliance with such terms is a condition precedent to the right to recovery, and under such policy it is incumbent upon the assured to give notice of his loss within a reasonable time.</p> <p>2. Insurance, § 615*—who has burden of showing proof of loss. The burden rests upon the assured to prove that a sworn proof of loss was furnished as provided by the terms of a policy of automobile insurance for theft, or that the insurer expressly waived such proof.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in. this court at the October term, 1920.</p>

<p>1. Boards of trade and exchange, § 15*—what is effect of change of rules. Where plaintiff employed defendants, members of the Board of Trade, to purchase corn for July delivery under a contract subject to regulations and customs of the Board of Trade and all amendments made thereto, and thereafter the board passed a resolution requiring its members to settle all contracts for July delivery at less than the market price, such resolution did not affect plaintiff’s contract and defendants were not relieved thereby from their obligation either to deliver the corn or to settle at the market price.</p> <p>2. Corporations, § 70*—what changes may be made in by-laws. While a corporation may amend its by-laws or adopt resolutions making reasonable changes in its business methods, it has no power to make changes which will affect injuriously the rights of strangers.</p> <p>3. Boards of trade and exchange, § 15*—how rules referred to in contract are construed. The provision in a contract making it subject to the regulations of the Board of Trade “and all amendments that are made thereto” cannot be construed to apply to amendments made subsequent to the contract, the wording of the provision being in the present tense and not expressly relating to the future.</p> <p>4. Boards of trade and exchange, § 15*—what amendments may be enacted. An amendment to a regulation of the Board of Trade, subject to which a contract is made, can affect only administrative matters and cannot deprive a party of a substantial vested right.</p> <p>5. Boards of trade and exchange, § 15*—what is effect of penalty for violation of rules. The incurrence of the penalty of forfeiting membership in the Board of Trade does not relieve members from fulfilling their contractual obligations.</p> <p>6. Principal and agent, § 105*—what is agent’s power as to contract. An agent has no right to impair a contract which he has made for his principal.</p> <p>7. Contracts, § 323*—when persons may sue for breach of contract. Where one party refuses to carry out the terms of a contract, the other may keep the contract alive, himself ready and able to perform, and at the end of the time specified for the performance sue and recover.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Equity, § 271*—sufficiency of verification. An affidavit that the statements and allegations in a hill are true in substance and in fact, “except as to those matters therein stated to be upon information and belief, and as to those matters he believes them to be true,” is an absolute verification of all the allegations of the bill except where the bill expressly states them to be upon information and belief.</p> <p>2. Injunction, § 183*—sufficiency of verification to support temporary injunction. Allegations in a bill stated to be upon information and belief and verified as such, though sufficient as pleading, are not sufficiently verified to support a temporary injunction.</p> <p>3. Equity, § 23*—jurisdiction to grant complete relief. A court of equity, having jurisdiction of the parties and of the subject-matter and having acquired jurisdiction to determine equitable rights of the parties in certain lands, can retain jurisdiction to determine their legal, rights and enforce legal remedies.</p> <p>4. Pleading, § 187*—sufficiency of allegations to support temporary injunction to restrain prosecution of forcible entry and detainer suit. Duly verified positive allegations in a bill that a court in chancery has acquired jurisdiction of the parties to a forcible entry and detainer suit to determine their rights in the lands, which suit is still pending and undetermined, and that one of the defendants in that suit has since brought the action at law against other parties who are in possession, are sufficient to require the circuit court to grant a temporary injunction to restrain the forcible, entry and detainer suit.</p> <p>5. Equity, § 188*—manner of obtaining relief for grievances arising while suit is pending. A party to a suit in equity having any grievance arising in the cause should apply for relief by cross-bill or otherwise in the equitable, action and not by a separate action at law.</p> <p>6. Equity, § 99*—parties to equitable action. Parties who have entered into possession of lands under a party to a suit in equity after the court had acquired jurisdiction of the parties and the property are in legal effect parties to the suit.</p>

<p>1. Words and phrases—“properly.” The word “properly” in a declaration alleging that a person “was lawfully and properly riding a bicycle in a certain public street,” includes the exercise of due care by such person.</p> <p>2. Negligence, § 126*—declaration as alleging freedom from contributory negligence. A declaration alleging that deceased “was lawfully and properly riding a bicycle in a certain public street” charges in legal effect that such person was in the exercise of due care.</p> <p>3. Automobiles and garages, § 3*—declaration as charging excessive speed. A declaration alleging that defendants’ automobile was negligently, wrongfully and improperly driven includes the element of excessive speed.</p> <p>4. Automobiles and garages, § 2*—negligence of driver. Evidence that an automobile was driven in the street at a speed of 25 to 30 miles per hour, and that no gong was sounded until the automobile was just upon a person riding a bicycle in the same direction in full view of the driver of the automobile, and that the driver just before striking the rider on the bicycle, threw in the clutch and speeded up, warranted the jury in finding such driver guilty of negligence.</p> <p>5. Automobiles and garages, § 2*—contributory negligence as question for fury. Where an automobile was driven in the street at excessive speed and did not sound its gong until right upon a bicycle rider in plain sight, it is a question for the jury whether such bicycle rider was guilty of contributory negligence in turning to the left instead of to the right when confronted with the sudden danger.</p> <p>6. Negligence, § 234*—preponderance of evidence. An instruction which stated in effect that plaintiff, in an action for negligence causing death, must prove his case by the greater weight of evidence, and that if the evidence bearing on his case “as alleged in his declaration” preponderates in his favor, though slightly, it will be sufficient to find in his favor, is not erroneous, where other instructions told the jury that no recovery could be had unless the deceased was exercising ordinary care for his own safety.</p> <p>7. Instructions, § 151*—when refusal to give not error. It is not error to refuse instructions fully covered by others which were given or -to refuse instructions which are long, involved and argumentative.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Prank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Equity, § 511*—proper form, for decree. Judgment that defendant “go hence without day’’ and that defendant have and recover from complainant its costs is not the proper form for a decree in chancery.</p> <p>2. Mortgages, § 17*—whether deed absolute in form is in fact a mortgage. The question whether a deed absolute in form is in fact a mortgage depends upon the intention of the parties at the time of its execution.</p> <p>3. Mortgages, § 31*—burden of proving that deed is a mortgage. The burden of proof rests upon a party asserting that an instrument, in form a deed, is in fact a mortgage and was so intended by the parties, but this does not necessarily require that there shall be no conflict in the testimony on the question’ nor is positive evidence of the intention required.</p> <p>4. Mortgages, § 32*—evidence that deed is intended as mortgage. The fact that the grantor in a deed absolute in form remains in possession of the property so conveyed, and controls it after the conveyance, is evidence tending to show that -the transaction was in fact a mortgage, as is also the payment of taxes by the grantor.</p> <p>5. Equity, § 210*—what is effect of demurrer. Upon demurrer all the allegations of the bill are to be taken as true, and where the allegations in an amended bill set out facts which, if true, showed that a deed was in fact a mortgage, and that complainant was entitled to an accounting, a demurrer should not have been sustained.</p>

<p>1. Witnesses, § 195*—use of photograph to refresh recollection. Where, in an action for personal injury to a switchman, a witness has testified that he has no way of refreshing his recollection as to a certain car number, it is not error to permit him after being shown a photograph, in which witness was shown, to answer the question, “Can you by an examination of the photograph refresh your recollection as to that car number?”</p> <p>2. Evidence, § 277*—photographs. In an action for personal injury to a switchman while switching a car to defendant’s place of business, photographs taken by the railroad’s photographer of the switch engine and the car in various positions so as to reproduce as nearly as possible the scene of the accident are competent, any objection going only to their weight as evidence.</p> <p>3. Evidence, § 296*—identification of waybill. A waybill of a car is sufficiently identified to warrant its admission in evidence, by showing that upon arrival at destination of the car it was stamped, the rate checked, and after the freight was paid it was kept for 2 or 3 days and then sent to the general offices of the railroad company.</p> <p>4. Appeal and error, § 1625*—error in excluding evidence cured by subsequent testimony. The exclusion of certain testimony, if error, is cured by allowing the party to cover the entire subject later by the same witness.</p> <p>5. Trial, § 63*—exclusion not error where proper foundation not laid. It is not error to sustain an objection to the question, “How did you travel, upon what kind of transportation?” where there is nothing before the court to show the competency or materiality of the question.</p> <p>6. Trial, § 104*—striking out answer not responsive. In an action for injury to a switchman where his cap was found at some distance from where he lay after the accident, and a witness testified that he found a piece of blue shirt near the cap, and that plaintiff wore a blue shirt, and thereafter was asked "Was it a light blue piece too?” and he replied “Yes, just the same kind,” it was not error to strike out the latter part of the answer as not responsive.</p> <p>7. Evidence, § 396*—opinion by nonexpert witness. It is not error to exclude the opinion of a nonexpert witness as to whether a piece of blue cloth, found near the place of an accident, was the same kind as the cloth in the shirt of the injured person, where it did not appear that the witness had sufficient knowledge upon which to base an opinion.</p> <p>8. Evidence, § 23*—presumption from common experience. It is a well-established rule of evidence that that which according to the common experience of mankind usually happens in the usual and ordinary course of business is presumed to have happened in a particular case until the contrary appears from the evidence.</p> <p>9. Evidence, § 23*—waybills and bills of lading as prima facie evidence. Waybills, bills of lading and other papers required by law to be issued by a railroad company are prima facie evidence of the facts recited therein.</p> <p>10. Evidence, § 23*—waybill as prima facie evidence. Where a waybill showed that a car was shipped from Powhatan, Louisiana, to a consignee at Rockford, Illinois, and that it was so transported and arrived at Rockford and was there turned over to a connecting carrier to be delivered at its final destination, it makes prima facie proof of such facts.</p> <p>11. Commerce, § 4*—local switching arrangement as affecting interstate character. The fact that a car is delivered to its final destination under a local switching arrangement does not determine that it is no longer in interstate commerce, such fact being dependent upon the circumstances of each case, and the fact that the switching tariff arrangement was filed with the Interstate Commerce Commission, and that the switching charges were paid by the railroads tended to show that the car was still in interstate commerce.</p> <p>12. Workmen’s Compensation! Act, § 4*—employment in interstate commerce. A switchman injured while switching a car of merchandise, shipped from another State, to the consignee’s place of business is not barred from maintaining a suit to recover for the injury by reason of the Workmen’s Compensation Act, since such injury was sustained while the car was engaged in interstate commerce.</p> <p>13. Appeal and error, § 1401*—sufficiency of evidence. The findings of the jury will not be disturbed on appeal where there is evidence to sustain such findings.</p> <p>14. Instructions, § 147*—selection from among several requested instructions no error where law is fully and clearly set forth.</p> <p>Where numerous lengthy instructions are tendered, many of which contain the same propositions of law couched in different language, the party cannot be heard to complain if the court does not select the one which states the law most clearly or most favorably, provided all material propositions asked are given and the law applicable is clearly and fully set forth.</p> <p>15. Damages, § 129*"—when not excessive. Where an able-bodied man 22 years of age, earning $125 per month, is injured so that his right arm is amputated, and he continues to suffer pain in his shoulder, and was earning only $87.50 per month at the time of the trial, a verdict for $15,000 is not excessive.</p>

<p>Instructions, § 111*—reference to pleadings. Where in an action for injury from collision of an automobile with an electric car, the declaration alleges only due care and diligence when crossing the track and fails to allege the exercise of care in approaching the crossing, and the contention of defendant is that plaintiff was negligent in approaching the track without seeing the car, it is error to instruct that: “If you believe from the evidence that the plaintiff, while in the exercise of ordinary care for his own safety, was injured because of the fault or negligence of the defendant. company, as charged in the first or second count of the declaration filed in this cause, then you should find the defendant guilty.’’</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Trial, § 193*—evidence and presumptions upon motion for directed verdict. Upon motion for directed verdict, the party against whom such motion is directed is entitled to the benefit of all evidence in the aspect most favorable to him and to all presumptions which may reasonably be drawn therefrom, and all contradictory or explanatory evidence must be rejected.</p> <p>2. Railroads, § 798*—duty to fence. The statute requires railroads to erect and maintain fences on both sides of their road, and this requires that such fences be erected along the lines of the right of way.</p> <p>3. Railroads, § 798*—duty to fence statutory. At common law railroads were not required to fence their right of way.</p> <p>4. Railroads, § 798*—kind of fence required along right of way. The statute does not specify the kind of fence required but it must he “suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad,” and its sufficiency is a question to he determined from the facts in each case.</p> <p>5. Railroads, § 798*—sufficiency of fence along right of way. A railroad company has sufficiently complied with the statute requiring it to fence its right of way, where it has built and maintains a fence which under ordinary circumstances will prevent the passage of animals not more than ordinarily unruly or breachy, and it will not he liable for injury to stock breaking through such fence unless guilty of wilful negligence.</p> <p>6. Railroads, § 798*—sufficiency of fence. A railroad which has built and maintained fences along its right of way is not liable for injury to cattle that, because of unusually high water which nearly covered the fence, by swimming over and breaking the upper wire have entered upon the railroad track.</p>

<p>1. Commerce, § 4*—when shipment interstate. A shipment between intrastate termini passing into another State en route is an interstate shipment and. is governed by the law pertaining to interstate shipments.</p> <p>2. Carriers, § 30*—terms of contract as fixed by law. Under the Interstate Commerce Act of 1887 and amendments thereto, the terms of the contract between consignor and carrier as to interstate shipments are fixed by law and the liability cannot be changed by contract.</p> <p>3. Carriers, § 201*—who is primarily liable for transportation charges. Where goods are delivered to a common carrier for interstate shipment, the consignor is primarily liable for the lawful transportation charges.</p> <p>4. Carriers, § 201*—nature of consignor’s liability for transportation charges. When goods are delivered to and accepted by a carrier for interstate shipment, the status of the consignor and carrier is fixed as debtor and creditor, and the right of the carrier to recover transportation charges does not depend upon delivery to the consignee, and such status cannot be waived by the carrier nor can the carrier be estopped from enforcing the consignor’s liability.</p> <p>5. Evidence, § 34*—presumption that a condition or status continues. Where a certain status or condition is once shown to exist, it is presumed to continue until the contrary is shown, unless change would occur in the natural course of events.</p> <p>6. Carriers, § 211*—presumption as to consignor’s liability. Where a consignor delivered a car of freight for interstate shipment which was accepted by the carrier, the consignor became primarily liable for transportation charges, and in the absence of evidence to the contrary such liability is presumed to continue and the carrier is entitled to recover.</p> <p>7. Evidence—presumption from common experience. It is a rule of evidence that that which according to the common experience of mankind usually happens in the regular and usual course of business is presumed to have happened in any given case until the contrary appears from the evidence.</p> <p>8. Carriers, § 77*—presumption of delivery. Where a car of stone was delivered to a carrier for interstate shipment and accepted by the carrier, it will be presumed that it reached the consignee in due course, and this presumption is strengthened where if appeared that the stone was thereafter paid for by the consignee, and in letters by such consignee to the consignor’s agent, relative to freight charges, no claim was made that the stone was not delivered.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Insurance, § 391*—limitation of liability under burglary policy. A policy of burglary insurance limited the liability in case of goods stolen from a show window by a person who shall have broken the glass thereof from the outside. Held, that this did not apply where the door of an island display window was pried open and goods stolen therefrom.</p> <p>2. Insurance, § 120*—construction of policy. In construing a policy of insurance, it is the duty of the court to ascertain, it possible, the intention of the parties from the written or printed words used by them in the contract.</p> <p>3. Insurance, § 120*—construction where contract plain and unambiguous. If the words of a contract of insurance are plain and unambiguous, it must be so construed as to give effect to the plain and obvious import of the language used unless to do so would lead to unreasonable or absurd consequences.</p> <p>4. Insurance, § 120*—what to be considered in construing policy. In determining the significance of language used in a policy of insurance, the situation of the parties, the nature of the subject-matter and the purpose sought to be accomplished may be considered by the court.</p> <p>5. Insurance, § 120*—construction of policy. The meaning of a contract of insurance may frequently be determined by resort to the doctrine of probability and reasonableness.</p> <p>6. Insurance, § 120*—construiiig policy. In construing a policy of insurance, the instrument should be read and considered as a whole.</p> <p>7. Insurance, § 129*—construction of burglary policy. An island display window facing the street and separated from the main store by an arcade open at all times, but the top of the island display window forming the floor of the second story, and its floor the ceiling of the basement, is not a “show case located outside of the premises” within the meaning of a burglary policy excluding goods in such show case. , - O</p> <p>8. Insurance, § 129*-—construction of burglary policy as to exclusions. Where a burglary policy excluded public entrances, public halls and public stairways from its provisions, an island display window facing the street and separated from the main floor by an arcade, which was always open to the public, is not excluded.</p> <p>9. Insurance, § 129*—construction of "burglary policy as to property covered. A policy of burglary insurance covering goods stolen from “the interior of a building” includes goods stolen from an island display window facing the street and separated from the main room by an arcade but the top of which formed the floor of the second story and its bottom the ceiling of the basement, since such display window comes within the usual definition of “interior.”</p> <p>10. Insurance, § 129*—construction of policy. The maxim “Mxpressio unius est exclusio alterius,” the expression of one thing is the exclusion of another, applies in the construction of a policy of insurance, and hence where a burglary policy covered goods in the entire premises except in certain specified places, goods in a display window not specifically excluded were covered by the policy.</p>

<p>Error to the County Court of Winnebago county; the Hon. Fred E. Carpenter, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Trover and conversion, § 27*—title necessary to maintain. In order to maintain trover, plaintiff must show in himself either a general or special property in the thing converted and a right to immediate and unconditional possession, not dependent upon any act to be done by him.</p> <p>2. Trover and conversion, § 27*—right to maintain. G had certain road machinery which R desired to buy. A sale was agreed upon and the purchase price was to be paid in cash. The price was not paid as R desired to see it work first. Nothing further was done and a few days later G sold to other parties. Held, that R could not maintain trover to recover the value of the property.</p>

<p>Error to the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Estates, § 4*—what constitutes a freehold. An estate in land of uncertain duration, not a fee, which may last a lifetime, is a life estate and a freehold.</p> <p>2. Appeal and error, § 126*—when controversy involves freehold. The Appellate Court has no jurisdiction over the establishment of a private road for a purpose .which may take a lifetime, or which may be permanent, since it involves a freehold.</p> <p>3. Appeal and error, § 198*—when Appellate Court has not jurisdiction of constitutional question. Where, on an appeal to a county court in a proceeding to lay out a road, the petition for which asks that a “private road be laid out,” the county court refuses to allow an amendment of the petition so as to make it for a road for “private and public use” and dismisses the proceeding on the ground that the petition cannot be construed as being for g road for “private and public use,” and that if it could be so read, the proceeding would not be authorized under the constitution, a constitutional question is involved of which the Appellate Court has no jurisdiction on an appeal from such judgment of dismissal.</p> <p>4. Appeal and error, § 1718*—effect of appeal to Appellate Court on constitutional question. An appellant who appeals to the Appellate Court deprives himself of the right to raise any constitutional questions, but he cannot thereby avoid such questions raised by the other party.</p> <p>5. Appeal and error, § 1107*—when appeal transferred by Appellate Court. Where an appeal involves a constitutional question, it will not be dismissed, but will be transferred to the Supreme Court under Practice Act, sec. 102 (J. & A. ¶ 8639).</p>

<p>1. Appeal and error, § 1306*—when proper replication presumed. In an action of replevin where defendant pleaded non cepit, non detinet, and property in another, and a special' replication should have been but was not filed to the third plea, and the record shows that the parties went to trial by agreement, a proper oral replication is presumed.</p> <p>2. Appeal and error, § 906*—when clerk cannot preserve propositions of law. The clerk has no power to preserve for review documents purporting to contain propositions of law submitted to the court which bear nothing to show that they were offered by any one nor who wrote the word “refused” on the margin thereof, nor to certify what action the court took thereon.</p> <p>3. Appeal and error, § 906*—when propositions of law not sufficiently preserved for review. Where error was assigned upon the refusal of propositions of law and, according to the abstract, appellant requested the court to hold certain propositions of law which the court refused to do and marked each proposition as refused, but in fact" no such statement is made in the record and no propositions of law are in the bill of exceptions, what there is in the record of that nature being in an entirely different place from that indicated by the abstract and consisting of certain documents in the form of propositions of law which were copied into the record by the clerk and had on the margin of each the word “refused,” with the file mark of the clerk upon them, .no ruling of the court on the propositions of law. is preserved for review.'</p> <p>4. Appeal and error, § 1489*—when admission of incompetent evidence not ground for reversal. That the court, in a cause tried without a jury, admitted incompetent evidence over objection, is not ground for reversal if the judgment is sustained by a preponderance of the competent evidence.</p> <p>5. Witnesses, § 48*—when objection to competency to be raised. A party aware of the fact which makes a witness incompetent must make the objection at the first opportunity, and cannot wait to see whether it is more profitable to let it stand than to exclude it.</p> <p>6. Witnesses, § 139*—when widow replevying property given her by deceased husband competent. In an action of replevin by a widow against a bank to recover possession of property left in a safety deposit box by her deceased husband, claiming the contents as a gift from him, the court properly held, in answer to an objection to plaintiff as a witness on the ground that the administrator was defending, that the administrator was not defending and that the court would hear the evidence and determine its competency.</p> <p>7. Witnesses, § 139*—when widow competent in action against third person. In a suit in replevin by a widow against a bank to recover property claimed by her as a gift from the husband and left by him in a safety deposit box, an objection to her as a witness to conversations with the husband on the ground that the suit involved a claim by her against the estate of a deceased person, was properly overruled because not founded on fact.</p> <p>8. Witnesses, § 48*—when general objection to competency insufficient. In a suit in replevin against a bank by a widow to recover property claimed by her as a gift from her husband and left by him in a safety deposit box, a general objection to the competency of plaintiff as a witness on the ground that she was the wife of deceased at the time of the transaction involved, was properly overruled, as she was competent for many purposes as against defendant bank.</p> <p>9. Witnesses, § 147*—when testimony as to fact of conversation with deceased competent. In a suit in replevin involving the right of a widow to property claimed by her as a gift inter vivos from her husband, it was not error to permit her to answer a question as to whether she had a conversation with deceased.</p> <p>10. Witnesses, § 48*—when objection for incompetency insufficient. In a suit in replevin by a widow to recover from a bank property left by the husband in a safety deposit box and claimed by plaintiff as a gift inter vivos, certain objections to plaintiff’s testimony and motions to strike answers, held, not to raise the question that plaintiff was incompetent, under section 5 of the Evidence Act (J. & A. ¶ 5522), to testify as to admissions or conversations of the husband.</p> <p>11. Appeal, and error, § 518*—duty of court to consider testimony not objected to as incompetent. In an action of. replevin by a widow against a bank to recover property left in a safety deposit box by her husband and claimed by her as a gift inter vivos, where the competency of plaintiff to testify as to conversations with her husband was not raised in the trial court, her testimony as to such conversations must be considered on appeal.</p> <p>12. Witnesses, § 147*—when wife competent to testify as to deceased husband’s handwriting. In an action by a widow to recover property left by her husband in a safety deposit box in defendant’s bank and claimed by her as a gift inter vivos, plaintiff was a competent witness as to certain letters being in the handwriting of her husband and as to her having received them by mail.</p> <p>13. Gifts, § 28*—when letters of deceased donor admissible to establish gift inter vivos. In an action of replevin brought by a widow against a bank to recover property left by her husband in one of defendant’s safety deposit boxes and claimed by the wife as a gift inter vivos, letters written by the husband to the plaintiff concerning such property were properly admitted in evidence.</p> <p>14. Gifts, § 29*—when evidence sufficient to establish gift inter vivos. In an action of replevin by a widow to recover property claimed by her as a gift inter vivos from her husband, evidence held to establish an oral gift of the securities; a gift of such securities by symbolical delivery by giving to her the keys to the safety deposit box in which they were kept; and a gift by letters written by him.</p> <p>15. Gifts, § 27*—when possession of keys prima facie evidence of ownership of contents of safety deposit box. Possession by a widow of bank books and keys to a safety deposit box containing securities, held, under the circumstances proved, to be prima facie evidence that she was the owner of the contents of the box.</p> <p>16. Appeal and error, § 264*—when argument on question not involved not considered,. Where uncontradicted evidence shows a gift inter vivos, it is unnecessary to consider argument of counsel upon the question of a gift causa mortis.</p> <p>17. Replevin, § 93*—what effect of plea of ownership in another following denial of plaintiff’s right. In an action of replevin by one claiming property by a gift inter vivos, a plea of property in a third person, the executor of the will of the deceased former owner, is mere matter of inducement to the denial of the right of property in plaintiff and does not raise a new issue, and an objection to testimony offered to show that the executor had a right to the property was properly sustained as being immaterial.</p>

<p>1. Vendor and purchaser, § 160*—what title of landowner where contract given for deed. The owner of land who enters into a contract for a deed therefor retains both the legal and equitable title, becoming a trustee of the title for the purchasers, and is not a creditor, incumbrancer or purchaser within the meaning of the Mechanics’ Liens Statute, but is the owner.</p> <p>2. Mechanics’ liens, § 112*—what rights of subcontractor where contractor defaults. Upon abandonment of a building contract by a contractor, the subcontractor, by virtue of paragraph 35, sec. 21, of the Mechanics’ Liens Act (J. & A. ¶ 7159), becomes entitled to the same rights as the contractor and, as to the owner, the 4 months’ limitation does not apply.</p> <p>3. Mechanics’ liens, § 33*—what liability of owner where contract made with purchaser under contract for deed. When the owner of land knowingly permits an improvement to be made thereon under a contract with a purchaser under a land contract, the provisions of section 1 of the Mechanics’ .Liens Law (J. & A. ¶ 7139) apply.</p> <p>4. Mechanics’ liens, § 150*—what rights of subcontractor against owner. A subcontractor, standing in the place of a contractor and clothed with a contractor’s rights against the owner of premises, may file his claim for a lien and bring suit for the enforcement thereof against the person who was the owner at the time of making the improvements at any time within 2 years after completion of the improvement.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1920.</p>