Volume 221 — Illinois Appellate Court Reports

<p>Error to the Circuit Court of Stark county; the Hon. C. V. Miles, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Pleading — when filing of amended, replication not authorized by extension of time to file original. Where, pursuant to an extension of time by the court, plaintiff filed a replication to a plea by defendant, plaintiff could not afterwards file another replication in reliance on such extension without further leave of court, and such a filing would be void.</p> <p>2. Appeal and error — when pleading filed without leave not considered. Where an amended replication is void because filed without leave of court, it is the duty of the Appellate Court to disregard it.</p> <p>3. Judgment — when demurrer to which order applicable to be specified. Where there were two pending demurrers to replications, a judgment order on demurrer should have been specified as to which demurrer was intended.</p> <p>4. Judgment — how . judgment construed where demurrer to which applicable not specified. Where two demurrers to replications were pending and the judgment order did not specify which was intended, but the language of the judgment order related to a demurrer to a single replication and one of the demurrers was to a single replication, while the other was to four amended replications, the court concluded that the former was intended-.</p> <p>5. Appeal and error — when position inconsistent. After submitting his case upon an assignment of error reciting that “the court below erred in sustaining the demurrer to the replication to the third plea,” plaintiff in error can hardly be permitted on a petition for rehearing to say that the court did not act upon, that demurrer but upon a different one.</p> <p>6. Judgment — when demurrer to replication on scire facias to revive judgment proper. Upon scire facias to revive a judgment for breach of promise of marriage, where the general object of the pleas was to set up a discharge in bankruptcy and the general object of plaintiff’s replications was to set up a seduction by defendant under the promise of marriage and to claim that the judgment was for said seduction, not merely for the breach of promise of marriage, so as to bring the judgment within an exception from the effect of a discharge in bankruptcy of judgments for wilful and malicious injury to the person of another, held that plaintiff’s replication contained no avernjent of fact which showed that damages for seduction were proved by way of aggravation of damáges in the breach of promise case or that could make any such proof admissible, and the court properly sustained a demurrer to such replication.</p> <p>7. Release — when construed as release for damages 6y sexual intercourse. On scire facias to revive a judgment for breach of promise of marriage in which it was sought to avoid a plea of discharge in bankruptcy by showing that the judgment included damages suffered by reason of wilful and malicious injury to</p> <p>•plaintiff’s person and property, held that a certain release set up in defendant’s plea and admitted in plaintiff’s replication did satisfy and discharge any damages by reason of any sexual intercourse between defendant and plaintiff prior to the date of the release.</p> <p>8. Pleading — when one good plea in Mr of several sufficient. Where there is one good plea in bar to the whole declaration, it terminates the suit even if other pleas are bad.</p>

<p>1. Civil Service — review of proceedings of commission. Upon, certiorari to review the proceedings of the Civil Service 'Commission, every element of jurisdiction of such commission must affirmatively appear upon the face 'of the return and no intendment or presumption will be indulged in favor of such jurisdiction.</p> <p>2. Civil service — review of proceedings of commission. Upon certiorari to review a removal for “cause” by the Civil Service Commission pursuant to Hurd’s Rev. St. 1919, ch. 24, par. 457 (J. & A. ¶ 1811), a showing of cause is jurisdictional and hence the return must affirmatively show facts constituting such cause.</p> <p>3. Civil service — sufficiency of return on review of commission. A return, upon certiorari to review proceedings of a Civil Service Commission for a removal for “cause” which merely sets out the charges, recites that evidence was heard and that respondent was found guilty “as charged,” is insufficient since “cause” is jurisdictional and facts must appear showing that such cause existed.</p> <p>4. Civil service — review of commission by courts. Since Hurd’s Rev. St. 1919, ch. 24, par. 457 (J. & A. if 1811) gives the Civil Service Commission power to recommend removal only “for cause,” its action may be reviewed to determine -whether “cause” existed though the commission may have wide latitude in determining such cause.</p> <p>5. Crab service — jurisdiction in removal ‘proceedings. While jurisdiction of the Civil Service Commission in removal proceedings may not depend upon the correctness of its decision, a return upon certiorari to review its proceedings must show facts proving that there was cause, and a mere statement that the charges were investigated and respondent found guilty is not sufficient.</p> <p>6. Ceetiobabi — laches in filing petition. Where a petition for certiorari to review removal proceedings by Civil Service Commission was filed within the period of limitation and the application for the writ was presented within three weeks thereafter, there was no undue delay though it was not decided until six months thereafter, the latter delay not being at the instance of respondent.</p> <p>7. Certiorari — nunc pro tunc order. A nunc pro tunc order quashing a writ of certiorari which appeared to have been entered from minutes kept by the judge and the clerk at the time the original order was directed to be entered is not open to objection.</p>

<p>1. Appeal and errob — When only question of law presented for review. Where there was no motion to exclude evidence or for a finding, no propositions of law submitted, no rulings of the court asked for or made, and the facts not disputed, the sole question on appeal is whether any question of law is presented for review.</p> <p>2. Appeal and errob — only questions preserved for review considered. The Appellate Court, being a court of errors, will consider only questions preserved for review and no duty devolves upon it to review the record and decide questions upon it de novo.</p> <p>3. Appeal and error — questions for review. Where there is no controversy as to the facts, and the only question is what judgment shall be entered thereon, such question is one of law which may be raised and preserved for review by demurrer to the evidence, by propositions to be held as law or by motion to find for the party, and if not so raised and preserved, the question will not be considered on appeal.</p>

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

<p>Sam deposit companies — when instruction on 'burden of disproving negligence erroneous. In an action in assumpsit to recover money alleged to have been lost while in, a safety deposit box in defendant’s vault, it is error to instruct the jury that after plaintiff has made out a prima facie case by showing the loss while so deposited, the burden was upon defendant to show by a preponderance of evidence that the loss was not caused by its negligence, since the burden was upon plaintiff to sustain the claim in her declaration that defendant failed to exercise ordinary care.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Howabd Hayes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>Appeal from the Circuit Court of Coofe county; the Hon. Thomas G. Windes, 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. Thomas G. Windes, 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. Riohabd S. Tuthiix, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. H. Ragsdale, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Saids — when purchaser justified in rejecting. Defects of a glaring character in an organ, causing it to produce unharmonious notes and sounds distressing to bearers, render''it not only unsatisfactory but useless as a musical instrument, and bence justify the purchaser in rejecting it and refusing to pay for it.</p> <p>2. Sales — when warranty of fitness for intended use implied. Where an organ is sold for use in a moving picture theater the law will imply a warranty that it is practically usable for the purpose to which the seller knew it was to be put.</p> <p>3. Sales — when seller placed in statu quo on rejection by purchaser. Where the purchasers of an organ for use in a motion picture theater, upon its proving unfit for use and upon failure of the seller to remedy its defects, notified the seller to remove it and upon refusal to do. so removed it, placed it in storage and sent the warehouse receipt to the seller, they sufficiently complied with the law making it obligatory upon them to put the seller in statu quo.</p> <p>4. Sales — when warranty may he shown by parol. A chattel mortgage given merely to secure the unpaid purchase price, and which by its terms could have no relation to warranties made by the seller, does not preclude parol evidence of the making of oral warranties at the time of sale, particularly warranties which the' law would in any event imply.</p>

<p>1. Pood — regulation lay federal Food Administrator. The deal ings between a maltster and a brewer for the sale and delivery oi malt during 1918 while the United State's was engaged in • the world war were subject to the regulation of the United States Pood Administrator.</p> <p>2. Sales — construction of contracts as to quantity. Contracts for the delivery of two quantities of malt, one within 90 days and the other within 120 days, delivery to meet the purchaser’s requirements upon orders, were both by their own terms and under Rule 5 prescribed by the Pood Administrator, for the furnishing of malt .to meet the requirements of the purchaser in its brewing business only.</p> <p>3. Sales — termination of contract by lapse of time and under rules of federal Food Administrator. Contracts for the delivery of malt, one lot within 90 days and another within 120 days as it should be needed by the purchaser, ended with the efflux of time both by the terms of the contract and under the rules of the Pood Administrator which provided that no licensee should contract for the salé of malt except such as required shipment or delivery within 120 days and that no malt should be delivered in quantities exceeding the amount required to fill the reasonable requirements of the purchaser’s business.</p> <p>4. Sales — rights under contract to supply needs of business. A brewer having contracts with a maltster for the delivery of malt which, by the terms of the contract as well as under the regulations of the United States Pood Administrator, was to be delivered only as needed by the brewer in his business, could not, after the needs of its business were supplied, demand delivery of the balance for the purpose of resale.</p> <p>5. Sales — what does not constitute an extension of period of contract by seller. The fact that defendant, after expiration of the time for delivery of malt to plaintiff under a contract limited to a definite period and requiring delivery only as needed in plaintiff’s business, filled an order for a car of malt was not evidence of an agreement for an extension of time for delivery.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Municipal CORPORATIONS — liability for injuries caused by ice permitted to form in ridges on sidewalk. Permitting ice and snow to accumulate in hard frozen ridges at a congested street crossing where the sidewalk was at an unusual height ahoye the pavement and to remain in that condition for such time as would constitute notice to the city is such negligence as will render a city liable to a pedestrian injured by falling thereon.</p>

<p>1. Patents- — when infringement not involved in suit in State court. Where a bill sought to restrain, defendants from wrongfully asserting any rights under a license contract for a patented article and sought damages for violation of the terms of the contract as well as forfeiture of the contract, there was no question in the case involving the infringement of letters patent or the assessment of damages for their infringement, and hence the state court had jurisdiction.</p> <p>2. Patents — when State court has jurisdiction over hill to rescind, license. One engaged in the business of manufacturing and selling an article under letters patent of the United States who had entered into a license contract with other parties whereby they were given exclusive rights under the patents to manufacture and sell the article for royalties, default in the payment of which should constitute grounds -for forfeiture of all rights and privileges under the contract and gave the licensor the right to seize all the goods, machinery and other assets held and owned by the licensees for the exclusive purpose of carrying on the manufacture of the article, could, upon default of the licensees, maintain in the State court a suit to rescind the contract and to restrain themfrom wrongfully asserting any rights thereunder.</p> <p>3. Patents- — when hill in State court does not seek relief for infringement. The fact that the owner of rights under letters patent, in seeking the rescission of a license contract and the determination of the rights of the parties thereunder, asserted that defendants had no subsisting rights under the contract after service of notice as required thereby is not, of itself, sufficient to deprive the state court of jurisdiction to grant the principal relief prayed for, as amounting to an attempt to secure relief for infringement of the letters patent.</p>

<p>Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Masker and servant — when employee within the Federal Employers’ Liability Act. An employee of a railroad company is covered by the Federal Employers’ Liability Act if, at tbe time of bis injury, be is engaged in interstate transportation or work so closely related to it as to be practically a part of it.</p> <p>2. Commerce — when employee engaged in interstate commerce. A railroad employee injured while engaged in tbe movement of a car incidental to its intended employment for interstate transportation is under the Federal Employers’ Liability Act. ,</p> <p>3. Commerce — when switchman engaged in interstate commerce. If a switchman 'was engaged in the movement of a caboose to couple it to an interstate train to which it had been assigned before the movement began and was injured during such movement, he was under the Federal Employers’ Liability Act.</p> <p>4. Commerce — when evidence sufficient to show engagement in interstate commerce. In an action for damages under the Federal Employers’ Liability Act for personal injuries received by a switchman while working as a member of a transfer crew which was at the time of the injury engaged in transferring cabooses belonging to other transfer crews, evidence held to warrant the jury in finding that plaintiff was engaged in interstate commerce at the time of his injury.</p>

<p>1. Deeds — what does not constitute an assumption of an in-cumbrance. The mere insertion in a deed of a statement that the grantee assumes an incumbrance on the premises is not sufficient to make the grantee personally liable under such incumbrance, in the absence of a showing of assent on his part.</p> <p>2. Deeds — what constitutes an assent to the assumption of an incumbrance. .The signing of a deed by the grantee or its delivery to and acceptance by him would show assent to a clause therein reciting the assumption of an incumbrance on the premises.</p> <p>3. Deeds — when payment of part of mortgage not an assent to recital of assumption of incumbrance. The fact that a grantee in a deed to whom it was never delivered paid something on account of a mortgage which the deed recited was assumed by the grantee indicated only a desire to remove the lien from the property and is no evidence of a personal assumption of the debt.</p> <p>4. Mortgages — burden of proving delivery of deed reciting assumption of mortgage. A complainant in a bill to foreclose a mortgage, having alleged delivery to defendant of a quitclaim deed containing an assumption of mortgage clause, was bound to prove such delivery.</p> <p>5. Mortgages — when assumption of incumbrance not admitted in answer on foreclosure. Where the answer of the defendant in foreclosure proceedings contained a general denial of liability and a specific denial that defendant was bound by the assumption of mortgage clause in a quitclaim deed, there was no admission of delivery of the deed to defendant.</p> <p>6. Appeal and ekrob — when exceptions to master’s report unnecessary. Where there was virtually no dispute as to the facts in a suit to foreclose a mortgage and the master’s finding as to the personal liability of defendant was a conclusion of law, exceptions thereto were not necessary.</p> <p>7. Mobtgages — when grantee not liable for deficiency. Complainant in a suit to foreclose a mortgage, having failed to prove delivery to defendant of a deed which contained an assumption of mortgage clause, or anything else from which her assent to such clause could he.implied, it was error to find her personally liable for any deficiency in the foreclosure sale.</p>

<p>1. LiAndloüd and tenant — when notice of expiration sufficient. Under a lease from the-first day of May, 1919, until the first day of May, 1920, providing for its termination by a 60-day notice by either party, a notice specifying April 30, 1920, as the date of expiration was proper.</p> <p>2. Landlord and tenant — time of expiration of lease. The word “until” is a word of exclusion and the words “until May 1, 1920” in a lease mean that the term expires at 12 o’clock at night on April 30.</p> <p>3. Landlord and tenant — when notice of termination sufficient. A notice that a lease “expires April 30, 1920, and will not be renewed” was a sufficient indication of intention on the part of the landlord to terminate the lease.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torbison, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Wuxiam N. Gemmill, ' Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>1. Bailment — wfien not established as to company supplying messengers. Evidence that plaintiff telephoned to defendant and merely asked for a messenger, stating nothing as to the service to he required of him, and delivered to the messenger a package to he delivered to one of plaintiff’s customers, the messenger then returning to defendant’s place of business only for the purpose of learning how to reach the address given him, had no tendency to prove a bailment.</p> <p>2. Master and servant — when relation established as to one temporarily in the service of another. Where defendant upon request from plaintiff furnished him with a messenger without knowing the service for which the messenger was desired and during the time of service the messenger was subject to plaintiff's control and instructions, the relation of master and servant existed between the messenger and plaintiff during the period of service.</p> <p>3. Bailment — when messenger service company not liable for misdelivery by ¡messenger. Where possession of a package given by plaintiff to a messenger furnished to it by defendant was obtained from the messenger by persons not entitled to it and was not recovered, defendant was not liable, in the absence of proof that the messenger was incompetent for the service required and that the defendant could, by the exercise of ordinary care, have known of such incompetence.</p> <p>4. Negligence — burden of proving incompetency of servant furnished for particular employment. In an action for negligence in furnishing an incompetent servant for a particular service, the burden of proving his incompetency and that defendant knew, or with the exercise of ordinary care would have known, of such incompetency, re'sts upon plaintiff.</p>

<p>Appeal from tlie Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920. Statement by tlie Court.

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

<p>1. Judgment — construction of warrant to confess judgment for rent. A warrant of attorney to confess judgment for any rent due and for costs and an attorney’s fee, contained in a lease in the usual form, applies only to rent accruing within the term demised and not for use and occupation after expiration of the term of the lease.</p> <p>2. Judgment — when warrant does not authorise confession of judgment for rent. Where a tenant, after expiration of a lease containing a warrant of attorney to confess judgment, held over under an oral agreement on a per diem basis, there was no authority in the court to §nter judgment by confession for rent accruing for the time for which the tenant held over and for an attorney’s fee, and a motion to vacate a judgment so entered should have been allowed.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Partnebship — when silent partner not liable for conversion by member of firm. Where the active partner in a real estate firm con verted, to his own use a note and trust deed left with the firm, without the consent or knowledge of the silent partner, and the evidence failed to disclose that the unlawful act was participated in in any way by the silent partner or that he profited thereby in any way or that the proceeds became a part of the partnership assets, the court properly directed a verdict for defendant, in an action of trover against the silent partner for conversion of the note and trust deed.</p> <p>2. Paktnership — conversion by partner as an aot not in usual course of business. Where the active partner in a real estate firm, converted to his own use a note and trust deed left with the firm, such wrongful act was not performed in the usual course of the firm’s business.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Witnesses — when testimony of wife competent as agent of husband. In an action in forcible detainer, held that the wife of defendant should have been permitted to testify to a conversation with plaintiff tending to show an admission of receipt of a notice mailed to him of defendant’s intention to renew the lease under the terms thereof, her testimony being admissible as agent of her husband under the exception to section 5, ch. 51, of the Statutes (J. & A. ¶ 5522).</p> <p>2. Landlord and tenant — when notice of intention to renew lease sufficient. The mailing of a notice of an intention to renew a lease, if received by the landlord, held sufficient.</p>

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

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

<p>1. Landlobd and tenant — right to terminate tenancy without notice on default in payment of rent. Under a provision in a lease that: “It is expressly agreed between the parties hereto that if default he made in payment of the rent' * * * it shall he lawful for the party of the first part * * * at any time thereafter, at the election of said party * * * without notice or demand of rent, to declare said term ended and to re-enter said demised premises,” the landlord could, upon default in the payment of rent, terminate the tenancy at his election without notice; and the bringing of a suit for possession was effective as such termination.</p> <p>2. Landlobd and tenant — application of provisions of lease waiving notice. A provision of a lease authorizing confession of judgment and providing that: “Said party of the second part * * * hereby expressly waiving all right to any notice or demand under any statute of this State relating to forcible entry and detainer,” is without application in a case where the landlord was basing his right upon another provision of the lease giving him the right to terminate the lease without notice upon default in the payment of rent.</p> <p>3. Landlobd and tenant — when insufficiency of five-day notice immaterial. In an action of forcible detainer, based upon.a provision of a lease authorizing the landlord to terminate the tenancy without notice upon default in the payment of rent, the fact that the landlord served upon the tenant a five days’ notice which was insufficient as such would not defeat the action.</p>

<p>1. ~3TREnl~ RAILR0AIYS-necessity for eccercise of care by boy riding on rear of wagon. While the negligence of the driver of a delivery wagon could not be imputed to plaintiff, a boy who was riding on the rear of the wagon with the knowledge of the driver and who was ii4ured when defendants' street car struck the wagon, yet he could not recover unless it was shown that be was in the arercise of ordinary care for his ow~ safety.</p> <p>2. SThnEIT RAILROADS-'When contributory negligence of boy in failing to jump front wagon on approach of car question for jury. Whether plaintiff, who was riding dn the rear of a delivery wagon, was in the euercise of ordinary care for his own safety in remaining on the wagon instead of jumping when he saw a street car near and approaching rapidly, held a question for the jury.</p> <p>3. Iusmucrious-'when jury not c~uthoriaed to go outside ~`vi-dence. An instruction in a negligence case that the jury should de~termine the weight of evidence from all the evidence "together with all the other facts and circumstances appearing upon. the trial" will not require interference with the judgment on the objection that it authorized the jury to consider matters outside of the evidence, especially where the jury were told in numerous other instructions that they must base their finding on the evidence.</p> <p>4. APPEAL A~i) EeEo~-w7~e1~ ~se 01 "shoula" instead of "may" in instruction harmless. Where ~no proper elements were omitted in instrucliug the jury what to consider and they were left free to consider all the evidence in the case, appellants were not prejudiced by the use of "should" instead of "may" in instructing the jury as to the elements to be considered by them,</p> <p>5. STEnST BAILROADS-When instruction on care of plaintiff not xIZdxZV 1 ited as to ti~ne. In an action for injuries to plaintiff received when defendants' street car collided with a delivery wagon upon which plaintiff was riding with the knowledge of the driver, an instruction that plaintiff must have been in the exercise of ordinary care for his own safety "before and at the time of the accident," was not objectionable as limiting the time within which plaintiff must have been in the exercise of ordinary care to the time of the accident and immediately before it.</p> <p>6. STREET on cOntrib'~tory iieg~ gence in intn~sting safety to ot7~ers prop erzy VOL CCXXI 16 i~se~Z. In an action for injuries received by plaintiff when defendants’ street ear collided with a delivery wagon upon which he was riding with the knowledge of those in charge thereof, it was not error to refuse an instruction to find for defendant if the jury found that plaintiff “intrusted his own care and safety solely and entirely” to the boys in charge of the wagon, and if they believed that constituted want of reasonable diligence, where the evidence did not warrant a finding that he intrusted his safety solely to the two boys .</p> <p>7. Negligence — when instruction on imputed negligence proper. In an action for injuries to plaintiff by collision -of defendants’ street car with a delivery wagon upon which plaintiff was riding with the knowledge of the driver, it was proper to instruct the jury that if the driver was negligent in driving the horse his negligence could not be imputed to plaintiff.</p> <p>8. Damages — when not excessive. In an action for personal injuries to a boy 11 years of age, consisting principally of a fracture of the neck of the left femur, resulting in great pain for a considerable time and a permanent shortening of the leg, and also a permanent injury to one eye, a verdict for $5,500 was not so excessive as to require interference by the Appellate Court.</p> <p>9. Damages — how determined for personal injuries. The amount of damages for personal injuries depends upon the circuinstances of the case and is not a matter of mathematical computation.</p> <p>10. Damages — consideration of depreciation in purchasing power of money in determining. In considering whether the damages awarded for personal injuries are excessive, the court cannot be unmindful of the fact that the money value of life and health is appreciating and the purchasing power of money depreciating in recent years.</p>

<p>1. Municipal corporations — complaint in action to recover penalty for violation of ordinance. A proceeding by a city to recover a penalty for the violation of an ordinance is quasi criminal and the complaint is not required to be, in substance, the same as a declaration or statement of claim in an action of debt.</p> <p>2. Municipal corporations — procedure in proceeding for violation of ordinance. In a proceeding for violation of a city ordinance for which only a fine was provided, the procedure followed by the trial judge as provided for in section 27 of the Municipal Court Act (J. & A. ¶ 3339), by examining the complaint made out by the officer making the arrest and further examining the officer himself and thereafter permitting the filing of the information in the name of the city, was the most, in any circumstances, that could be required.</p> <p>3. Municipal corporations — robe» statute as to bringing actions for fines or penalties in name of city complied with. Paragraph 1708, J. & A. Stat., providing that all actions to recover any fine or to enforce any penalty under any city ordinance shall be brought in the corporate name of the city as plaintiff, was complied with where the sworn complaint of the officer making the arrest was not filed in court until the judge examined it and the officer and then permitted the filing of it in the name of the city.</p> <p>4. Municipal cokpobations — right of private persons to institute proceedings for violation of ordinances. Section 102 of the Revised Code of Chicago of 1911, as to the prosecution of all actions for violation of the ordinances of the city, means that the prosecuting attorney shall have charge of such actions after they are begun and not that such proceedings cannot he instituted by private persons.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in' the Branch Appellate Court at the March term, 1920.</p>

<p>1. Bastards — nature and purpose of judgment. The judgment of a court against a defendant in a bastardy proceeding, requiring him to pay a certain sum of money, is not designed as a punishment but is for the purpose of providing support and maintenance for the child to prevent it from becoming a public charge.</p> <p>2. Bastards — statute applicable where amendment adopted between conception and birth of child. Where the birth of a bastard child occurred after an amendment to the bastardy statute went into effect, the rights and liabilities of the father are to be determined by the provisions of the act as amended, though conception took place prior to the amendment.</p>

<p>1. Executors and administrators — burden of establishing illegality of consideration for claim. Tlie burden of establishing that the consideration upon which is based a claim against the estate of a decedent was illegal is upon the estate.</p> <p>2. Corporations — illegality of contract between stockholders involving withdrawal of opposition to corporate action. Where the consideration for the promise of deceased to pay to a claimant against his estate a portion of an amount which deceased was to collect as a creditor from a corporation in which both were stockholders was the withdrawal by claimant of his opposition to the sale of the assets of the corporation, such consideration was contrary to public policy and void, it being admitted that such contract was not known of or assented to by the other stockholders, and the agreement will not be enforced.</p>

<p>1. Injunction — jurisdiction as precluding invalidity. Where the court issuing an injunction order had jurisdiction of the subject-matter and oyer the persons involved, the injunction order could not be void.</p> <p>2. Injunction — erroneousness of injunction not reviewable on appeal from, contempt order. Whether an injunction order was erroneous is a matter which cannot concern the court on an appeal which is not from the injunction order but from an order finding appellants to be in contempt for its violation, and punishing them therefor.</p> <p>3. Injunction — how far may be questioned in contempt proceedings. In proceedings in contempt for failing to obey an order of court, respondent may question the order only in so far as he can show it to be absolutely void and cannot be heard to say it was merely erroneous.</p> <p>4. Injunction — finding effect of erroneous injunction. Whether It was erroneous or not, an injunction order, as to which the court had jurisdiction of the subject-matter and the parties, remained valid and binding on all parties involved until modified or set aside upon appeal or writ of error.</p> <p>5. Injunction — what constitutes collateral attach upon. A contention that an injunction order violates certain provisions of the Constitutions of the State or the United States is a collateral attack which cannot be made on appeal from an order finding appellants in contempt for failure to comply with its provisions.</p> <p>6. Injunction — grounds justifying disobedience. One may refuse to obey an injunction order if it is absolutely void for want of power in the court to enter it, but cannot refuse to obey it on the ground that it was improvidently or erroneously entered, either because it violates the constitution or for any other reason.</p> <p>'••7. Appeal and error — necessity for appealing directly to Supreme Court on constitutional questions. Where matters involving a construction of the constitution are relied upon by an appellant, the appeal should be direct to the Supreme Court.</p> <p>8. Appeal and ebbok — waiver of constitutional questions by appeal to Appellate Court. Perfection of an appeal to the Appellate Court constitutes a waiver of constitutional questions.</p> <p>9. Aepeal and erkor — requisites of ‘presentation of error. The mere statement of an alleged error on a given point, without argument or the presentation of reasons supporting the stated contention, is not sufficient to .present the point for decision.</p> <p>10. Appeal and error — duty of appellant to analyze evidence. If appellants contend that “a careful analysis of the evidence in this case will sustain” them, they should set forth such careful analysis in their argument, as it is no part of the duty of the court upon appeal to search the record for errors, alleged hut not argued, hy reason of which the order or judgment appealed from could be reversed.</p> <p>11. Injunction — sufficiency of evidence to sustain finding of violation. On appeal from judgments finding appellants in contempt of court in violating! a temporary injunction order restraining them from interfering with appellee’s employers, hy congregating near its premises, annoying and assaulting its employees and calling them opprobrious names, the evidence examined and held to justify the finding of the court.</p> <p>12. Injunction — immateriality of purpose of acts constituting violation. Where the evidence established that appellants, following an injunction order restraining them from doing so and. service of notice thereof upon them, were guilty of congregating in front of the appellee’s place of business and interfering with its employees, it is immaterial what the object of their presence was.</p> <p>13. Appeal and error — review of evidence. Where the record contains1 much contradictory testimony, it is peculiarly the function of the trial judge, who sees the witnesses, to determine upon which side the truth is, and the Appellate Court cannot disturb the judgment or decree by reason of its view of the evidence, unless it is clearly manifest from the record that the greater weight of evidence does not support it.</p> <p>14. Injunction — discretion of court as to punishment for violation. The court granting an injunction is clothed with a large discretion in enforcing obedience to it and, in a proceeding for contempt for its violation, the extent of punishment to be inflicted rests in the sound legal discretion of the court with the exercise of which Appellate Courts will not interfere except for its abuse.</p> <p>15. Injunction — sufficiency of evidence to 'sustain punishment for violation. Evidence examined and held to justify the punishments imposed upon the various appellants for contempt of court in violating an injunction order restraining them from interfering with and intimidating the employees of appellee.</p>

<p>1. Cow spin act — 'picketing. There is no such thing as “peaceful picketing” and the very act of picketing constitutes intimidation and is unlawful.</p> <p>2. Injunction — right of court to consider continuance of picketing after previous rule to show cause. The conduct of respondents in continuing to picket the premises of appellee in spite of an injunction order restraining them from doing so, and of the decision of the court on a previous rule to show cause, is properly considered by the trial court as a challenge to the court as to whether or not its processes shall be respected.</p> <p>3. Injunction — when punishment for violation not excessive. Upon petition for a rule to show cause, charging respondents with violation of an injunction restraining them from picketing the premises of appellee and interfering with its employees, where the respondents consisted of three classes, those who had been found guilty of similar acts upon a previous rule to show cause, those who were witnesses at the previous hearing and in daily attendance upon that case, and those who had been neither respondents nor witnesses previous to the filing of the second petition, and where the violations of the injunction were flagrant and were not even denied, sentences of 15 days in the county jail and fines ranging from $75 to $175 were not too severe.</p>

<p>1. Bawks and banking — when person not liable as stockholder on certificate issued without his knowledge or consent. Tlie liability of a stockholder in a state bank may not be imposed upon one by including his name in a list of subscribing stockholders filed with the auditor of public accounts and recorded in the office of the recorder of the county, and by making out a stock certificate in his name, all without his knowledge and consent.</p> <p>2. Banks and banking — duty of -person certified to auditor as a subscriber to stock to disavow. One who was shown by the organizer of a state bank d certificate of stock in his name and was told that it was the stock of another person who wanted it issued that way, was immediately charged with knowledge of the fact that he had been represented to the state auditor as a subscriber to the stock of the bank to that extent and that, on the strength of that representation, the auditor had issued the bank’s charter which enabled it to transact business and, if he did not wish to confirm that situation, it was incumbent upon him immediately to notify the auditor to that effect.</p> <p>3. Banks and banking — liability of person permitting issuance of stock in his oion name for convenience of another. One who was shown a certificate of stock in a state bank which, was in his name and was told that tbe stock belonged to another who wished it to be made out in that way and was asked to receipt for it and assign it in blank, which he did, and left it to be transferred to the true owner, ratified the original issuance of the stock to himself and at once assumed the superadded constitutional liability on the stock so far as it might become necessary to liquidate liabilities of the bank accruing from the date of issuance of such stock until it was actually transferred on the books of the bank.</p> <p>4. Equity — liability for fees of master. In a suit on behalf of creditors of a bank to enforce the constitutional superadded liability of stockholders, the circuit court properly decreed the payment of the master’s fees by the defendants who filed answers denying the allegations of the bill and appeared before the master and unsuccessfully contested the suit.</p> <p>5. Appeal and error — right to complain of collateral orders. An appellant, from a decree finding him liable for the superadded constitutional liability of a stockholder in an insolvent bank, is not in a position to question on appeal an order of the trial court directing that the receiver pay out of the first money coming into his hands certain master’s fees and a sum to the solicitors for complainants, where the order was no part of the decree and it did not appear from the record that it was entered over appellant’s objection nor that an appeal was prayed from it.</p> <p>O’Connor, J., dissenting.</p>

<p>Descent and distribution — rwhen order of prolate court determining heirship final and appealable to circuit court. Where the probate court had jurisdiction, oí the parties and of the subject-matter of a petition contesting the court’s determination of heir-ship, and, after hearing, entered an order finding that a certain minor was not bom of deceased but was taken by her in infancy and reared as her child without being legally adopted, and therefore was not one of her heirs, such order was a final determination of that issue and was therefore appealable.</p>

<p>1. Municipal coepoeations — when breach of agreement as to moving building in conflict with condemnation decree not actionable. Where, by the decree in condemnation proceedings for the purpose of widening a street, the city acquired not only the right to possession of the portion of plaintiff’s premises which was condemned, but it also became the owner of the part condemned, including improvements, and was decreed to pay to plaintiff a certain amount in payment of any damages that might be caused to the portion of the improvements not taken by reason of the removal of the portion taken, a demurrer was properly sustained to an action by plaintiff for damages based upon an alleged oral agreement with th.e President of the Board of Local Improvements, whereby plaintiff was to be allowed time to move her building back to the new street line, and the demolishing of the condemned portion of the building regardless of such agreement.</p> <p>2. Municipal coepoeations — power of officers to enter into agreement in conflict with rights given by condemnation decree. The President of the Board of Local Improvements of the City of Chicago could not interfere with the rights obtained by the City of Chicago in condemnation proceedings by personally making any agreement or promise, either with or without a consideration, under-which the owner was to have certain rights with regard to the condemned property, contrary to the provisions of the condemnation decree.</p> <p>3. Municipal corporations — powers of President of Board of Local Improvements to enter into contracts. A statute providing that the President of the Board of Local Improvements shall have power “to execute contracts, vouchers, bonds, pay rolls, and all other papers, documents and instruments, necessary to carry this act and all proceedings hereunder into * * * effect” [Hurd’s Rev. St. ch. 24, § 512, J. & A. ¶ 1393], does not empower such president to mate such contracts personally as he may choose to hut simply to execute such contracts as may lawfully he made by the board.</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 March term, 1920.</p>

<p>1. Appeal ano bbbob — when findings of chancellor not disturbed. Where the chancellor has heard the testimony and had the opportunity o£ observing the witnesses while testifying, his findings upon disputed questions of fact will not he disturbed unless they are manifestly against the weight of the evidence.</p> <p>2. INJUNCTION — when finding of violation of order against intimidating employees sustained. Evidence examined and held to sustain the finding that respondents were in contempt of court in violating an injunction order against intimidating the employees of appellee, by committing an assault upon one of such employees.</p> <p>3. Injunction — when punishment not excessive. Sentences to 35 days in jail for contempt of court in committing an assault upon one of appellee’s employees in violation of an injunction ordep, held not too severe in view of previous convictions of violation of such injunction.</p>

<p>1. WoRkmen’s Compensation Act — when employer and employee presumed subject to act. Where plaintiff, in an action for personal injuries, and his employer are engaged in a business of an extra-hazardous nature and defendant is also engaged in such a business, all will be presumed -to be subject to the Workmen’s Compensation Act in the absence of proof of rejection of the act.</p> <p>2. Workmen’s Compensation Act — what essential to rejection 0† act. Proof of both the filing of a notice of rejection of the Workmen’s Compensation Act and of the posting or service of copies of such notice are essential to a rejection of the act.</p> <p>3. Workmen’s Compensation Act — right of action at common law against third person. In a common-law action by the driver of a truck for personal injuries received in a collision with defendants’ street car, where the evidence discloses that defendants, plaintiff and plaintiff’s employer are all subject to the provisions of the Workmen’s Compensation Act, it follows from the positive provisions of section 29 of such Act [Callaghan’s 1916 Stat. ¶ 5475(29)] that plaintiff could not maintain the action.</p> <p>4. Workmen’s Compensation Act — burden of proving rejection of act in action against third person. In an action by an employee against a third party for personal injuries where such third party, plaintiff and plaintiff’s employer are engaged in occupations which presumptively are within the Workmen’s Compensation Act, the burden of proving rejection of that act is upon plaintiff.</p> <p>5. Street railroads — when negligence not shoivn. In an action by the driver of a horse-drawn truck for personal injuries received in a collision with defendants’ street car, held that, even if a common-law action were maintainable, the evidence was not sufficient to show negligence on the part of defendants.</p>

<p>Commerce — when oiler returning home on hand car not engaged in interstate. Though the work of oiling cars in which plaintiff was engaged was a part of interstate commerce, he was not engaged in such commerce after his day’s work was ended and he was returning home upon a hand car belonging to the railroad company, but the use of which for the purpose was entirely optional on the part of plaintiff and his fellow employees, and an action for injuries received in a collision between the hand car and one of defendant’s engines could not be maintained under the Federal Employers’ Liability Act.</p>

<p>INSURANCE — effect of false representations as to matters known to agent. Where a certificate of life insurance, by express provision, contained the entire contract between the parties, representations which were intentionally , false, made in reply to interrogatories with respect to material matters and which misled the insurer into malting the contract, rendered the contract void although the agent who solicited the contract' knew of the falsity of such answers.</p>

<p>1. Municipal Court of Chicago — necessity -for allegation of due care in statement of claim. In a tort action of the fourth class in the municipal court, a judgment for plaintiff on the merits, on issues joined, will not be overthrown because plaintiff did not allege in his statement of claim that he was, at the time of the injury complained of, in the exercise of ordinary care.</p> <p>2. Municipal Court of Chicago — requisites of statement of claim. The Municipal Court Act does not require that, in an action of the fourth class, in tort, all the material or ultimate facts of a case should be stated or pleaded in plaintiff’s statement of claim.</p> <p>Barnes, P. J., dissenting.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

Interlocutory appeal from the Circuit Court of Cook county; the Hon. Geokge Fred Bush, Judge, presiding. Heard in the Branch Appellate Court. Statement by tbe Court. This is an appeal from an order of the circuit court of Cook county, entered November 16, 1920, overruling defendants’ motion to dissolve a temporary injunction issued June 10, 1920, against them, their attorneys, agents, etc., and continuing said injunction in force as modified.

<p>Appeal from the Circuit Court of Wayne county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>1. Appeal and error — when question as to necessity for showing title to office properly raised. In an action for salary as truant officer for the unexpired term for which plaintiff claimed to have been appointed," on the ground that she had wrongfully been discharged by the school board, the contention of defendant that plaintiff must show title to the office covering the time for which she claimed salary was properly raised by a motion for a directed verdict in favor of defendant.</p> <p>2. Officers — when office of truant officer created. In providing for the position of truant officer the legislature created an office as contemplated by section 24, art. V, of the Constitution of 1870.</p> <p>3. Schools and school districts — duties of truant officer. The duties to be performed by a truant officer are not to be fixed by contract but fixed by statute.</p> <p>4. Schools and school districts — duty as to appointment of truant officer. Under the statutes creating the office of truant officer (Hurd’s Rev. St. ch. 122, sec. 275, J. & A. ¶ 10313), the appointment of such officer is mandatory on the hoard of education, and if a vacancy occurs in such office it is the duty of the board immediately to fill the same.</p> <p>5. Schools and school districts — term of office of truant officer. The position of truant officer is a continuing one, at least for each school year.</p> <p>6. Schools and school districts — who has power to remove truant officer. As the statute providing for the appointment of a truant officer does not provide how that officer may be removed, the board of education which has the appointing power is the body authorized to remove such officer.</p> <p>7. School and school districts — power as to removal of truant officer. Though the time for which a truant officer is appointed is not fixed by statute, it will be held, as matter of law, that such an officer was appointed for the school year and, if so appointed, could not be removed during such term except for cause.</p> <p>8. Schools and school districts — right of truant officer to recover salary after discharge. Where plaintiff’s pleadings and testimony show that after certain conversations with the principal of schools on November 25 and 26, she never thereafter performed the duties of truant officer or tendered such services to the board of education or to any one else, and that she was discharged by the board of education December 2, she did not hold title to the office after that date and could not recover salary for the remainder of the school year.</p> <p>9. Officers — necessity for bringing action to test propriety of discharge before suing for salary. Persons discharged from a public office must first have determined, in a direct proceeding by mandamus or quo warranto, the question whether they were rightfully discharged before they can bring a suit to recover the salary that would have accrued had they continued in office.</p> <p>10. Officers — right to test propriety of discharge in action for salary. One who claims to have been wrongfully discharged from public office but who has not had that question determined in a direct proceeding is not entitled to recover in an action for salary for the remainder of the term of office, and cannot go into the question of the rightfulness of such discharge in such an action.</p>

<p>1. Appeal and error — sufficiency of objection to preserve question. In an action for malicious prosecution, where the only objection made to the introduction in evidence of the record of the proceeding out of which the action grew was that the restraining order entered by the court and which plaintiff was charged with violating was not offered in connection with the record, appellants cannot urge that the only purpose for which the record was admissible was to show the termination of the litigation.</p> <p>2. Malicious prosecution — admissibility of record in proceeding on which action is based. In an action for malicious prosecution on the charge of violation of an injunction, the onjy purpose for which the record of the proceeding in the injunction suit would be admissible in evidence would be to show the termination of the litigation, and it should be so limited.</p> <p>3. Malicious prosecution — when directed verdict properly refused. In an action for malicious prosecution, where the Appellate Court cannot say that the evidence on the part of appellee, taking it to be true, together with all the inferences fairly to be drawn therefrom, would not make out a case for appellee, the trial court, did not err in refusing to direct a verdict of not guilty.</p> <p>4. Instruction's — when erroneous as not requiring consideration of all the evidence. In an action for malicious prosecution, an instruction is erroneous which allows the jury to make its finding from the facts and circumstances given in evidence, without requiring the jury to take all of the evidence into consideration.</p> <p>5. Malicious prosecution — requisites of instructions on malice. In an action for malicious prosecution, while there may be circumstances and conditions surrounding the proof of want of probable cause which will make such proof sufficient evidence to warrant the jury in finding malice without direct proof of same, still, before the proposition is submitted, the jury should be fully instructed 'as to what facts and circumstances would warrant them in making such finding.</p> <p>6. Malicíous prosecution — question of probable cause as one of law. While it is for the jury to determine the facts in any given case, what constitutes probable cause in an action for malicious prosecution is a question of law.</p> <p>7. Malicious prosecution — ichen instructions erroneous. In an action for malicious prosecution, an instruction which directs the jury to find defendants guilty if they find the prosecution was without prohable cause without requiring the jury also to find them guilty of malice, is clearly erroneous.</p> <p>8. Malicious prosecution — when instruction on advice of counsel erroneous. In an action for malicious prosecution, an instruction that for advice of counsel to afford any protection to defendants the jury must believe that the advice was sought in good faith, “and that a fair, full and true statement of all the facts was submitted to the counsel,” was erroneous as it is only necessary that defendant give to his counsel a fair statement of all the facts and circumstances within his knowledge, or that reasonably might have been obtained by him at the time.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. Julius C. Kerb7, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>Appeal from the City Court of Bast St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>Appeal from the Circuit Court of Franklin county; the'Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>1. Appeal and errob — review 'in absence of propositions of law. When no propositions of law are submitted to the court trying a case without a jury, the only questions to he determined on assignment of errors are whether the court erred in its rulings on admission or refusal of evidence, and whether the competent evidence in the record sustains the findings and judgment.</p> <p>2. Appeal and erbob — review where facts stipulated. When there is a stipulation of facts in a case tried by the court without a jury, there can be no question of the court’s ruling on evidence, and the only question for the Appellate Court is whether the facts stipulated sustain the judgment of the trial court.</p> <p>3. SALES-^-wftai constitutes sufficient compliance urtth Bulk Sales Law. Where appellee purchased a café business, including a player piano, which had been purchased by a former proprietor on the instalment plan with a chattel mortgage securing the deferred payments, and did all that was required of him to comply with the Bulk Sales Law [Callaghan’s 1916 Stat. ¶ 10021(1) et seq.J by taking from his vendor a written statement under oath containing what purported to be a full, accurate and complete list of creditors, and nothing appears to indicate that he knew of the omission of the account of the seller of the piano and there is not a suggestion that he acted in bad faith, the court properly held, on trial of an attachment upon the piano, that the piano was the property of appellee.</p>

<p>1. ExecutoRS and administratobs — proof of ability of deceased to have paid claim. In a suit against the estate of a decedent on a claim for services extending over a long period under circumstances making it improbable that plaintiff would have worked for that length of time without receiving pay for her services, it was proper to show decedent’s ability to pay.</p> <p>2. Executors and administrators — proof of promptness of deceased in paying debts. In a suit against the estate of a decedent upon a claim for services rendered under circumstances making it improbable that plaintiff would have worked for so long a period without receiving pay for her services, it was error to refuse to allow proof of decedent’s promptness in1 paying his debts.</p>

<p>Appeal from the City Court of Madison county; the Hon. J. F. Giulham, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Appeal and ebbob — when recital of cleric that transcript is complete conclusive. On appeal from a judgment finding appellant in contempt of court for violation of an injunction, the recital of the clerk that the record is a complete transcript and that there is no certificate of evidence or deposition on file, must be taken as conclusive of the facts therein recited.</p> <p>2. Contempt — when judgment reversed for insufficiency of record. On appeal from a judgment finding appellant in contempt of court for violation of an injunction, where there is no recital of a finding of any fact whereon to base the judgment and the clerk has recited that there is no certificate of evidence or deposition on file so that it is impossible to find in the record the facts on which the trial court based its judgment, the judgment will be reversed and the cause remanded for further proceedings.</p>

<p>1. Appeal and error — necessity for assigning error. , If the court did not err in refusing defendant’s motion for a directed verdict, made at the close of plaintiffs evidence, appellant cannot avail itself of subsequent errors except by assigning them.</p> <p>2. Insurance — construction ■ of statute as to payment of premiums in advance. J. & A. Stat. ¶ 6513, relative to payment of premiums in advance excludes the first premium from its operation by expressly providing as to payments of premiums after the first.</p> <p>3. Insurance — power of agent to waive payment of first premium in advance. An agent of an insurance company has power to waive the payment in full of the first premium in advance, even in the absence of a clause in the policy providing for payment of less than the whole amount of such premium.</p> <p>4. Insurance — what constitutes notice of authority of agent to waive full advance payment of premium. A clause in a life insurance policy providing that the company will accept the premiums in semiannual instalments of 52 per cent or in quarterly instalments of 26% per cent of the annual premium is sufficient notice to a customer of an express authorization to its agent to waive full payment of the first premium in advance.</p> <p>5. Insurance — when statements deemed representations and not warranties. Under a provision in an insurance policy that “All statements made by the assured shall, in the absence of fraud, be deemed representations and not warranties,” any warranty made in any paper preceding the policy would, in the absence of fraud, be deemed a representation instead of a warranty.</p> <p>6. Insurance — when false answer as to pregnancy not fraudulent. The fact that assured was pregnant when she answered in the application that she was not would not malte her answer fraudulent unless she knew of her condition, and where a witness for the insurer testified that assured might have been pregnant and not have known it, it cannot be held that her answer was fraudulent.</p> <p>7. Appeal and ebkob — review confined to matters raised in motion for new trial. Matters not raised in appellant’s written motion for new trial, either by direct or general challenge, cannot be raised on appeal.</p>

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

<p>Appeal from the Circuit Court of Madison county; the Hon. Geokge A. Ceow, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Execution — right to have recitals of certificate of redemption corrected. The owner of tbe equity of redemption which had been sold under an execution, who obtained title within one year after the rendition of the judgment in question and redeemed from the sale, had the right, in a petition to quash the levy made under an alias execution sued out by the assignee of the judgment, and levied upon the property as the property of the judgment debtor, after such redemption, to show that the sheriff made a mistake in having the certificate recite that the judgment debtor, instead of such owner of the equity made the redemption.</p> <p>2. Execution — rights of purchaser of equity of redemption as to redemption. A judgment debtor had the right to convey her equity of redemption in realty prior to the expiration of one year from a sale, and the purchaser of such equity had the right, at any time prior to the expiration of one year from the date of the sale, to redeem, and when so redeemed could hold the property free and clear from the lien of the judgment, even though the bid at the sale redeemed from was less than the amount of the judgment.</p> <p>3. Execution — title and rights of grantee of equity of redemption on redeeming. Under Hurd’s ¡Rev. St. ch. 77, sec. 18 (J. & A. ¶ 6764), relating to redemptions from sale under execution, the only person entitled to redeem within one year is the judgment debtor or his assignee or grantee or' someone claiming under them, and therefore the judgment debtor can convey his equity of redemption free and clear of judgment liens at any time prior to one year from the date of the execution sale, and if the grantee of the equity sees fit within said year to redeem from the sale, he has the right to do so, and, having done so, could sell the premises free and clear of any balance that might remain unpaid on the judgment on which execution issued.</p> <p>4. Mortgages — effect of redemption by party not primarily liable. Where redemption is made by a party not primarily liable upon the mortgage debt, the mortgage lien having been exhausted, the property cannot be subject a second time to the satisfaction of any unpaid balance due on the mortgage.</p> <p>5. Execution — when may be quashed. It is the proper practice to quash an execution if, in the judgment of the court, the property was not subject to the lien of the execution.</p>

<p>1. Appeal and error — stipulation as curing error- in admission of evidence. Error, if any, in permitting plaintiff in a forcible detainer suit to testify that defendant was indebted to her in a stated sum for rent, was cured by a subsequent stipulation of the parties that the claim for rent should be withdrawn and that the suit should be prosecuted solely to ascertain the right of possession.</p> <p>• 2. Fobcible entry and detainee — ■when pr'emises sufficiently described. The identity of premises rented to defendant in a forcible detainer suit was sufficiently shown under the evidence, where the lease described them as 68 acres in the northeast quarter of section 6, town 4 north, range 8 west of the third principal meridian in Madison county, Illinois.</p> <p>3. Witnesses — when cross-examination unduly restricted. It was error in a forcible detainer suit to refuse to allow defendant to cross-examine plaintiff as to whether or not she had made a verbal lease on a part of the premises sought to be recovered, and in re-fusing to allow him to develop in full his evidence tending to show that the lessee in such verbal lease had shown the part leased to him in wheat.</p> <p>4. Forcible entry and ' detainer — when refusal of instruction erroneous. It was error in a forcible detainer suit to refuse an instruction offered by defendant setting forth what notice was necessary to be given by one seeking to terminate a tenancy from year to year, and submitting the question as to whether or not prior to the time of the notice in question had been served, plaintiff had forcibly taken possession of the premises, and stating that if possession had been so taken of such part plaintiff would not, as to such part, be entitled to recover.</p> <p>6. Forcible entry and detainer — when instruction improperly refused. An instruction was improperly refused in a forcible de-tainer suit, which stated that the burden was on plaintiff to show that the premises sought to he recovered were in possession of the defendant and he was withholding the same, and that if the jury believed that plaintiff leased a part of such premises to a third person who took possession before the commencement of suit, then, as to such part, plaintiff was not entitled to recover.</p> <p>6. Forcible entby and detainer — when instruction as to form of verdict erroneous. In a forcible detainer suit in which defendant claimed that plaintiff had verbally leased part of the- premises described in the complaint to a third person, it was error for the court, in instructing the jury as to the form of their verdict, to state that If the jury found for plaintiff the form of their verdict should he that plaintiff was entitled to the possession of the premises described in the complaint and that defendant unlawfully withheld the same, as thus the question as to whether plaintiff was entitled to recover only part was ignored.</p>

<p>1. Schools and school disteicts — when teacher entitled to salary where schools closed hy hoard of health. A teacher employed by a school district was entitled to compensation when prevented from teaching because of the school in question being closed hy the State Board of Health during a public epidemic, she having been ready, able and willing to teach, and the district having failed in the contract of hiring to protect itself from liability in cases of this character.</p> <p>2. Contracts — what is not an act of God. The closing of a school by the State Board of Health because of a public epidemic was not an “act of God” which relieved a school district from paying the compensation of a teacher for the period during which the school was closed because of such epidemic.</p>

<p>1. Railroads — care exercised by child in crossing trach. Whether or not a child nearly 8 years of age, who instead of crossing before the approach of a train, as she probably could have done in safety, waited until the last coach had passed and was then struck by a train coming from the other direction, used such care as a child of her age should have used, was a question for the jury.</p> <p>2. Railroads — when question of. wilfulness and wantonness properly submitted. Where under the evidence the accident in question occurred at a crossing which was apparently • the continuation of a public street, while defendant’s train was running in excess of the speed ordinance, it was not error to submit to the jury the counts of the declaration based upon wilful and wanton negligence.</p> <p>3. Railroads — when wilfulness and wantonness ' questions for jury. Violation of a speed ordinance at a railroad crossing which was so connected with and ■ so apparently the continuation of a public street as to be regarded by ordinary citizens as located in a public street, was sufficient basis to justify the court in leaving it to the jury to determine whether or not plaintiff was injured by the wanton and wilful negligence of defendant.</p> <p>4. Railroads — necessity for notice of passage of “flagman ordinance." Showing of notice to defendant railroad company of the enactment of a flagman ordinance was not a prerequisite to the admission of the ordinance in evidence.</p> <p>5. Railroads — duty to take notice of ordinance requiring flagman. A railroad company was bound to take notice of a flagman ordinance and was bound by it, where it appeared that such ordinance had been passed and published more than 2 years before the happening of the accident for which the suit in question was brought.</p> <p>6. Railroads — when ordinance requiring flagman need not recite necessity. A flagman ordinance was not required by its terms to find that it was necessary to place a flagman at the crossing in question, as a prerequisite to the submission to the jury of a count based upon such ordinance.</p> <p>7. Municipal corporations — when record of ordinance insufficient to show passage. Where the- record of a flagman ordinance did not disclose what thé motion was, and did not definitely describe the ordinance, such ordinance was not legally passed, and it was therefore error to refuse to exclude it and peremptorily instruct the jury as to the count based thereupon.</p> <p>8. Witnesses — when questions as to ill-feeling of strangers not witnesses improper. It was error in a personal injury suit to permit plaintiff’s attorney to ask defendant’s witnesses whether a woman, who was not a witness, did not have an ill-feeling to wards plaintiff’s family.</p> <p>9. Evidence — when testimony as to complaints by injured, person improper. It was error in a personal injury case to permit plaintiff’s father to testify to complaints made by plaintiff long after the injury in question.</p> <p>10. Evidence — when speculation as to future condition improper. It was error in a personal injury case to permit a medical witness to testify, speculatively, as to the future results of plaintiff’s injury to her mind and her sexual condition; and it was likewise error to permit plaintiff’s father to testify along the same line.</p> <p>11. Damages — speculative consequences. Consequences which are contingent, speculative or. merely possible, are not proper to be considered in ascertaining the damages in a personal injury case.</p> <p>12. Evidence — when clinical record made by nurse since deceased improperly excluded. The refusal to allow the introduction of the clinical record of a hospital was error where a physician had testified that he had obtained it from the bookkeeper at such hospital a few hours before he testified; that it was in the handwriting of a Sister who was a nurse at the hospital; that he had seen her write many times; and where it appeared that the Sister was dead.</p> <p>13. Evidence — admissibility of bill of exceptions. The bill of exceptions on a former appeal was improperly admitted in evidence at a subsequent trial for the purpose of showing that a notice of the passage of an ordinance in question had been given defendant’s agent.</p>

<p>Error to the Circuit Court of Madison county; the Hon. Loras Bernbeutek, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Drainage — when plea in mandamus to compel construction of bridge not demurrable. In mandamus against a river drainage district to compel the erection of a permanent bridge, it was error to-- sustain a general demurrer to a plea showing, among other allegations, that the district had already erected four bridges which were all destroyed by slides, and that to compel the district to erect another bridge at the point in question would bé fruitless and nugatory, although the petition set up a clear right to relief. .</p> <p>2. Mandamus — when writ not granted. The writ of mandamus is not granted as a matter of right although a clear legal right is established, where it can be seen that a good purpose cannot be accomplished or that it will fail to have a beneficial effect.</p> <p>3. Drainage — when plea setting up destruction of bridges by slides defective. A plea in mandamus to compel a river drainage district to erect a permanent bridge, setting up that a number of bridges had been erected at or near the point in question but were destroyed by slides, was defective in failing to allege that such bridges had been properly constructed.</p> <p>4. Mandamus — when plea insufficient. A plea in mandamus to compel a drainage district to erect a permanent bridge, which was general and was in form the general issue as in actions ex delicto was demurrable.</p> <p>5. Drainage — when plea alleging construction of bridge to be impracticable demurrable. A plea in mandamus to compel a drainage district to erect a bridge, alleging that it was not practicable to maintain a permanent bridge at the point in question where the highway crossed the ditch, because of the character of the soil, was demurrable.</p> <p>6. Drainage — when plea demurrable in mandamus to compel construction of bridge. A plea in mandamus to compel a drainage district to erect a bridge, denying that work in accordance with the plans and specifications adopted was of great and lasting benefit to all territory contained in the district and resulted in reclaiming a large portion of the land, and that the lands in the district sustained benefits in excess of the cost of such improvements, was demurrable.</p> <p>7. Drainage — when plea demurrable in mandamus to compel construction of bridge. A plea in mandamus to compel a drainage district to erect a bridge, which denied that since the construction of the ditch in question the children residing in the school district west of the ditch have been unable to attend school, and that the residents residing east have been unable to get to a stated place west of the ditch, was demurrable.</p> <p>8. Drainage — when plea insufficient in mandamus to compel construction of bridge. A plea in mandamus against a drainage district to compel the erection of a bridge, which denied that numerous requests and demands had been made upon defendants to construct a permanent bridge across the line of the public highway, was insufficient.</p> <p>9. Drainage — what is not good plea of estoppel in mandamus to compel construction of bridge. A plea in mandamus against a drainage district to compel the erection of a bridge, claiming that because the public usgd bridges which had been constructed south of the line of the highway in question, petitioners were estopped from insisting that a bridge be maintained at the point where the ditch in question crossed the highway, was not well taken as a plea of estoppel.</p> <p>10. Drainage — when plea of want of money insufficient in mandamus to compel construction of bridge. Allegations in a plea in mandamus against a drainage district to compel the erection of a bridge, that defendants had no money belonging to the district with which to construct a bridge at the point in question and that the district had no authority to levy an assessment for the necessary money, and that more assessments had already been levied than the court found the improvement would be, and that an assessment to build such bridge would be greater than the benefits, did not constitute a good plea.</p>

<p>1. Bills and notes — what is prima facie proof of ownership. Where, in an action by executors for the balance due on a note indorsed in blank, it was claimed that there was no proof that the note was owned by the indorsee at her death, the fact that such note was produced by the executors of the will of said in-dorsee was prima facie proof that it was found among the papers of the decedent and that she was the owner thereof at her death; or at least that at the time of instituting suit her legal representatives who brought suit owned it.</p> <p>2. Bills and notes — consideration of profits on sale of property taken in part payment. The maker of a note which was secured by a trust deed on property in a, foreign State, empowering the trustees in the event of a sale thereunder to execute to the purchaser a deed in fee simple, was not, in an action to recover the balance due over the amount realized at the sale under the deed, entitled to an accounting from the owner of the note who purchased at the sale, for the profit realized on a subsequent sale.</p> <p>3. Appeal and erboe — right to refer to record to ascertain holding of court. Although the Appellate Court could not in the absence of propositions of law question the correctness of the rulings of the trial court on the evidence, yet it could refer to the record to. ascertain what the court in fact held as to the evidence, and to determine whether or not the evidence presented tended to support a cause of action.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. P. Giltjtam, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Nuisance — sufficiency of evidence as to whether plant was located in residence or industrial section. Evidence reviewed in a bill to enjoin tbe use of defendants’ manufacturing plant and machinery and drop hammers so as to injure complainants’ premises, on the question as to whether or not such plant was located in a residence or industrial section, and the chancellor’s finding in favor of complainants not disturbed.</p> <p>2. Nuisance — effect of building home near manufacturing plant. Under the Illinois authorities the fact that- complainants, in a bill to enjoin the operation of defendants’ manufacturing plant, built their, home in the vicinity of defendants’ plant after it was in operation was not of itself a bar to the action.</p> <p>3. Nuisance — right to show am'ount of investment in plant constituting a nuisance. The refusal to admit evidence as to the amount of money invested in the plant and business of defendants, in a bill to enjoin the use of such plant in such a manner as to injure complainants’ premises, was not error.</p> <p>4. Equity — what does not constitute laches. In a bill to enjoin the operation of defendants’ manufacturing plant, where defendants ■ claimed that complainants were barred by laches, proof that the plant in question was operated only a portion of the time until the fall of 1916 and that the suit was instituted in March, 1917, did not warrant the inference that the annoyance was not intolerable when the suit was brought.</p> <p>5. Nuisance — when injunctive relief granted. Where the case in question for an injunction to restrain the operation of defendants’ manufacturing plant so as to injure complainants’ premises was so clear as to be free from substantial doubt as to the right to relief, and it was evident that a nuisance per se existed, equitable relief was granted without prior recourse to an action at law.</p> <p>6. Nuisastce — when manufacturing giant constitutes. A nuisance per se was established in the injunction proceeding in question to restrain the use of defendants’ manufacturing plant and heavy drop hammers so as to cause vibrations and jars and injure complainants and their premises.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gxllhaai, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Libel and slandek — when burden on plaintiff to prove malice. In libel based on a newspaper publication which was qualifiedly privileged and which purported to set forth an account of judicial proceedings, viz., the pending of an indictment by the grand jury and the giving of bail by plaintiff, which expressed no opinion and contained no words which per se expressed malice, but on the contrary announced plaintiffs express denial of the accusation, the burden was on plaintiff to prove malice, and, on his failing to do so, the trial court properly directed the jury to find defendant not guilty.</p> <p>2. Libel and slandek — when misstatements as to hail not libelous. In libel based on a newspaper publication purporting to set forth an account of a certain judicial proceeding, where the gist of the libel, if there was any, would have been the false statement that plaintiff was indicted for the crime mentioned and was compelled to give bail, and where the facts were admitted to be true, misstatements as to the amount of bail which plaintiff gave and as to the nature of the stock, the sale of which formed the basis of the crime charged, were immaterial, and formed no basis for libel.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Insane persons — review of proceedings to declare person incompetent. Under Hurd’s Key. St. ch. 86, sees. 1, 2 (J. & A. ¶¶ 7285, 7286), providing that in proceedings to declare a person incompetent and appoint a conservator for his estate, upon the return of the finding of the jury, unless a new trial shall he granted, the court shall enter an order in accordance with such finding, there was nothing for the Appellate Court to review in the proceeding in question, in the absence of such an order.</p> <p>2. Appeal and ebrob — what orders not reviewahle. Under Hurd’s Rev. St. ch. 110, sec. 91 (J. & A. ¶ 8628), providing that appeals and writs of error may he allowed to review final judgments, orders and decrees, a writ of error will not he allowed to reverse either a verdict or an order overruling a motion to set aside a verdict and grant a new trial; and in the absence of a final judgment, order or decree, there is nothing from which to prosecute a writ of error.</p>

<p>1. INSURANCE — when want of power of mutual company to create special fund no defense to action on assessment note. Where the policyholders in a Coal Operators Mutual Employers Liability Insurance Company, having incorporated under the Act' of May 16, 1905 (J. & A. ¶ 6581 et. seq.), as a mutual insurance company, adopted a resolution providing for the making of certain assessments, and that the money thus realized was to be put into a separate fund which should not be usable for current administrative expenses, but should go to pay deficits, one of such policyholders, which was a prospective beneficiary, and by its representative voted for such resolution, and subsequently paid part of the assessment levied against it and gave notes for the balance, and after paying part of them refused to pay the others, could not escape liability on the ground that the company had no power under the statute to create the special fund, because it voluntarily chose to agree to the plan.</p> <p>2. Insurance — claims and set-offs ~by policyholders in mutual company. A policyholder in a mutual casualty company, which was liable to an assessment for a fund to meet losses, could not prove its claim against the receiver of the casualty company for losses sustained and at the same time interpose them as a set-off in order to avoid paying its share of the losses for which it gave the notes in question.</p> <p>3. Insurance — claims and set-offs Tyy •policyholders in mutual . company. A policyholder in a. mutual company cannot set off his losses against his liability for losses.</p>

<p>1. INSURANCE — voluntary exposure under accident policy. Under a certificate, of membership in a travelers’ protective association providing that there shall he no liability in case of injuries caused wholly or in part by voluntary or unnecessary exposure by the insured to danger or obvious risk of injury, the question whether plaintiff’s intestate did or did not so expose himself was one of fact for the jury, where there was ample evidence to justify the jury in finding that he did not so expose himself.</p> <p>2. Insurance — what evidence admissible on claAm of voluntary exposure under accident policy. In an action against an accident insurance association to recover for death, where the policy provided that there should be no liability in case of unnecessary or voluntary exposure to danger or obvious risk of injury, where decedent was struck by an engine while he was walking at a curve in the tracks while the wind was blowing smoke down on the tracks where he was walking, it was not error to admit evidence as to other persons walking on the track.</p> <p>3. Insurance — construction of limiting clause in accident policy. A certificate of membership in a protective association, which provided that there should be no iiability for injuries caused by voluntary or unnecessary exposure to danger or obvious risk of injury, will be construed against the association, and the word “voluntary” given its usual and ordinary meaning.</p>

<p>Error to the Circuit Court of Greene county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Error to the Circuit Court of Douglas county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>1. DRAINAGE — discretion as to tile drains. Section 17 of tlie Farm. Drainage Act (J. & A. ¶ 4493), providing that preference shall be given to tile drains whenever these'will accomplish the purpose, is not mandatory, and the commissioners therefore have discretion to determine whether a tile drain is practical or not.</p> <p>2. Drainage — po,wer to review decision of commissioners as to tiling drains. A demurrer in mandamus to compel drainage commissioners to levy an assessment to clean out ditches and lay tile was properly sustained because, in the absence of fraud, the decision of the commissioners on the question as to whether a tile drain was practical or not was not subject to review.</p> <p>3. Drainage — what is not '¡rand in decision by commissioners on practicability of tile drains. Although the decision of drainage commissioners on the question of the practicability of tile drains may be reviewed in mandamus on the ground of fraud, a charge of fraud in the petition in question to compel the levying of an assessment for tile drains, in that the value of the petitioners’ lands was diminished because the open ditch did not provide an adequate outlet for the water of the district, was purely a conclusion of the pleader and in any event did not constitute the fraud and corruption contemplated by the law.</p>

<p>1. Sales — right to recoup damages for breach of warranty in action on check given for purchase price. Paragraphs 1 and 2 of section 15, the Uniform Sales Act [Callaghan’s 1916 Stat. ¶ 10021(18)], providing for an implied warranty of goods sold, paragraph 3 [Callaghan’s 1916 Stat. ¶ 10021(18)], providing that there is no implied warranty after an examination by the buyer, as to defects which ought to have been revealed by such examination, and section 69 [Callaghan’s 1916 Stat. ¶ 10021(72)] relating to remedies in case of breach, considered in an action for the amount of a check given for certain hogs, upon which payment had been stopped after a sale by the buyer for much less than the amount of the check, and held that under the circumstances, defendant was not barred from his remedy of recoupment for a breach of warranty, although he retained possession of the hogs and gave the check in payment.</p> <p>2. Sales — rights of purchaser for breach of warranty as affected by acceptance. Where in an action for the amount of a check given for certain hogs, upon which payment was stopped by defendant after he was obliged to sell at a loss because of plaintiffs breach of warranty, it appeared that the defendant had no knowledge of the physical condition of the hogs until after their delivery to a third party, and where plaintiff treated the transaction as a complete sale and refused, to take back the hogs after being requested so to do when they failed to pass government inspection, plaintiff could not be heard to insist that defendant should have refused to accept the hogs.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. T. M. Habéis, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. George A;- Sentel, Judge, presiding. Heard in this court at the October term,-1920.</p>

<p>Covenants — what not a breach of warranty of payment of taxes Taxes for the years 1909, 1910 and 1911, on property formerly exempt but conveyed to a nonexempt party in 1908, but not entered in the record of the board of assessors until 1912, when they were entered as back taxes, were not levied on the lots in question until subsequent to the year 1911, and did not constitute a breach of a warranty contained in a deed warranting to defend the premises against all lawful claims “except taxes * * * levied subsequent to the year 1911.”</p>

<p>1. Damages — deposit to secure agreement to arbitrate as liquidated damages. Where certified checks for $500 were deposited with defendant by both parties to an arbitration agreement which provided for submission of a certain controversy to arbitrators at a certain time and place and that “in the event that either of the parties shall fail, without a proper and lawful justification, to appear” at the time and place appointed, ready to proceed with the arbitration, the said sum of $500 shall be forfeited as liquidated damages, plaintiff, who appeared at such time and place and refused to submit the question to arbitration or to carry out the award made against him by the arbitrators, his only excuse being that he did not think he would get a fair deal and did not think the original instrument as drawn up was legal and binding, was not entitled to recover from defendant the amount so deposited.</p> <p>2. Aebitration and award — when agreement■ to submit to arbitration not revocable. Under section 3 of "An act to revise the law in relation to arbitrations and awards,” in force July 1, 1917, as amended in 1919 [Hurd’s Rev. St., ch. 10, Callaghan’s 1920 Stat. ¶ 474(3)], providing that “a submission to arbitration shall, unless a contrary intention is expressed therein, be irrevocable,” an agreement to submit a controversy to arbitration was not revocable at any time before the award was made at the will of either party.</p> <p>3. Arbitration and award- — when agreement to submit to arbitration not invalid. An agreement to submit to arbitration a particular controversy which has arisen is not invalid as an effort to divest the courts of their jurisdiction.</p> <p>4. Corporations — authority of agent to sign arbitration agreement. Where an arbitration agreement was first signed in the name of a corporation by a certain person and both parties thereafter ratified the agreement by sending cheeks ,to the stockholder and the corporation sent the person signing for it to attend the hearing as its attorney, it sufficiently appeared that he was authorized to sign the agreement for the corporation.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in the Branch. Appellate Court at the October term, 1920.</p>