Volume 222 — Illinois Appellate Court Reports

<p>1. Sales—when contract not invalid for want of mutuality. A contract made by a board o£ education for the delivery of coal for school purposes as required 'and ordered by the board was not void for want of mutuality where the contract was made pursuant to an advertisement for bids in which the approximate quantities required for the various school districts were named and the kinds of coal required for each school building specified and the proposals made were accepted by the board, the contracts executed and some deliveries made thereunder.</p> <p>2. Principal and surety—sufficiency of affidavit of merits in action by surety against principal. In an action by a surety company against its principal to recover for money paid in his behalf on a judgment against it for breach of a contract by the principal, an affidavit of merits based upon section 4 of chapter 132, Rev. St. (Cahill’s Ill. St. ch. 132, ¶ 4), alleging that the surety company did not notify him of the pendency of the suit against it nor move /to strike from the files the statement of claim or in any manner challenge the efficacy thereof but suffered judgment to go against it by default “so as to distress its principal, to wit: this defendant,” held properly stricken from the files.</p> <p>3. Principal and surety—when affidavit of defense insufficient to show principal’s right to recoup against surety. In an action by a surety company against its principal to recover for money paid to satisfy a Judgment rendered against it because of the default of defendant upon certain contracts, the affidavit of defense held not to state any facts showing any right of recoupment.</p> <p>4. i Principal and surety—when surety may recover of principal. A surety company may recover against its principal for a payment made by it in the discharge of a judgment rendered against it, although the principal was not a party, especially where the contract with the surety company provided that the vouchers or other evidence of payments made by the surety company should be conclusive against the principal of the fact and extent of his liability “whether said payments were made to discharge a penalty thereunder, * * * or whether voluntarily made or paid after suit and judgment against said company."</p> <p>5. Principal and surety—when provision malting voucher proof of payment by surety valid. A provision in a contract of surety-ship that the vouchers or other evidences of payments made by the surety company under its obligations of suretyship should he conclusive evidence against the principal of the fact and extent of his liability to the surety is not void as being against public policy.</p> <p>6. Principal and surety-—when pleading of defense rebutting prima facie evidence of principal’s liability to surety essential. Even if a provision in a contract of suretyship making the vouchers or other evidences of payments made by the surety company conclusive evidence against the principal of the fact and extent of his liability should be held to be against public .policy and to have the effect only of making such vouchers prima facie evidence of such liability, such fact will not be available to a principal who does not allege in his affidavit of merits any defense tending to rebut that prima facie evidence.</p>

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

<p>1. Banks and banking—when bank paying cheek on forged indorsement liable. Where an agent without authority to indorse checks made to his principal transfers to a hank for a valuable consideration a check which, on its face, is payable to the principal, and which bears the false or forged indorsement of the agent in the principal’s name, the bank becomes liable for conversion for the amount thereof.</p> <p>2. Appeal and error—when questions not raised below not reviewed. On appeal of an action against a bank for conversion of the proceeds of a check made to a principal and paid to an agent on his false or forged indorsement of the principal’s name, defendant cannot contend that there was no testimony to show that the agent did not account to plaintiff for the proceeds of the check where that issue was not raised on the trial and no proof was offered by the bank to show that plaintiff received any portion of the proceeds.</p> <p>3. Corporations—when contract of unlicensed foreign corporation made outside of State enforceable. Where a foreign corporation’s agreement with an agent in this State was that he should furnish to the corporation a contract signed by the customers for the purchase of its goods, it is to be presumed, in the absence of any testimony to the contrary, that a contract made through the agent with a customer did not become binding until approved by the corporation at its domicile, and hence was not a contract made within the State, but one made in interstate commerce, and valid and enforceable though the corporation was not licensed to do business in the State.</p> <p>4. Corporations—-what' not “doing business in the State” by foreign corporation. The facts that an agent of a foreign corporation had, at the time a contract was made by him with a customer, an office in the State and that in the office was a sign bearing the name of the corporation and its name was in the local telephone directory, did not show that the corporation was doing business within the State so as to render the contract unenforceable because it was not licensed to do business in the State, where it appeared that the agent paid the rent and all expenses of the office and it did not appear who authorized the placing of the sign in the office or the name in the directory.</p>

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

<p>Appeal and error—■when suit on appeal bond not maintainable. Where an appeal was dismissed for failure to file the record within the time prescribed by statute, and thereafter a writ of error was sued out to review the original judgment and was made a supersedeas, suit could not be maintained on the appeal bond for nonpayment of the judgment, and where the affidavit of merits showed that the nominal damages which might be recovered, consisting of costs and damages on the appeal, had been paid, the affidavit should not have been stricken.</p>

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

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

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

<p>1. Contribution—when verdict not conformable to evidence. In an action upon an alleged promise by defendant to pay his equal part of a certain indebtedness evidenced by a promissory note, the verdict was held to be excessive and not in conformity to any theory of the evidence.</p> <p>2. Contribution—when right exists. The right to contribution is one which accrues to one or more individuals who pay the debt to which all are bound, each one who pays having the right to recover from the others the amount which he has paid in excess of his share.</p> <p>3. Contribution—what essential to create right. A joint right to contribution can exist only when the parties have satisfied the debt jointly, as by their joint note or from a joint fund which they have provided for the purpose.</p> <p>4. Contribution—when joint action by individuals will not lie. Parties who individually make payment of a joint obligation cannot sue jointly for contribution from the other parties to the joint obligation.</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. Sales—when demand not prerequisite in action to recover back purchase price. In an action oí trespass on the case to recover money paid to defendants for corporate stock upon false and fraudulent representations by defendants as to the affairs of the corporation, the fact that plaintiff, prior to bringing suit made no demand on defendants for the return of her money and did not tender the stock in question will not bar her from recovery.</p> <p>2. Sales—measure of damages in action for fraudulent representations in sale of corporate stock. In an action for fraudulent representations inducing the purchase of corporate stock by plaintiff, the measure of damages is the difference between the value of the stock at the date' of the transaction and what it would have been worth had defendants’ representations been true.</p> <p>3. Sales—proof of value of corporate stock in action for fraud. When the market value of corporate stock cannot be ascertained, its value may be shown by showing the assets and liabilities, amount of dividends and character of the business, the management, the market price for its products, and other facts.</p> <p>4. Sales—evidence of value of stock in action for fraud. In an action for fraud in inducing plaintiff to purchase certain corporate stock, evidence of the market value of the stock at the time it was purchased was admissible.</p> <p>5. Sales—evidence of value of stock in action for fraud. The fair cash market value of unlisted corporate stocks may be established by the testimony of anyone dealing in such stocks who is qualified to give an opinion.</p> <p>6. Sales—when evidence as to market value admissible in action for fraud. In an action based upon the false and fraudulent representations of defendants inducing the purchase of certain corporate stock, where it appears that a witness had sold stocks for several years and had sold stock of the corporation in question and was familiar with its market value at the time plaintiff purchased her stock, it was error to exclude his evidence upon this question.</p> <p>7. Instructions—refusal as to one defendant and granting as to another as error. In the absence of any apparent reason why any rule of evidence applicable to one defendant should not apply to another similarly situated, the refusal of an instruction to disregard certain testimony as to one defendant while substantially the same instruction was given as to another defendant, was erroneous.</p>

<p>Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</p>

<p>1. Corporations—estoppel of stockholder and officer to question records. A stockholder and officer of a corporation who, upon selling all of his shares of stock and severing his connection with the corporation, executed an instrument providing: “I ratify, approve and confirm the minutes of the meetings of the stockholders and the. minutes of the meetings of the board of. directors as they are recorded in the records of said company,” was thereby precluded from questioning the accuracy of the record of a certain prior meeting with reference to a resolution declaring a dividend.</p> <p>2. Corporations—how records to he kept. A corporation can speak only through its records, and the record of its acts must be kept faithfully in order to protect the rights of stockholders and persons doing business with the corporation, and public policy requires that they be so kept.</p> <p>3. Corporations—how records may be impeached. Persons desiring to impeach the accuracy of the records of a corporation must do so in a direct proceeding to correct the record rather than by parol evidence in a collateral action, especially upon such a subject as the declaration of a dividend.</p> <p>4. Corporations—stockholders' rights as to dividends. Until a dividend has been declared, the stockholders have no legal right to any share in the profits of the company, but when the directors have taken action and declared a dividend, each has a right to share in the dividend in proportion to his stock, and the relation between the corporation and the stockholder becomes that of debtor and creditor.</p> <p>5. Corporations—effect of transfer of shares after declaration of dividend. When a dividend has been declared it becomes the separate property of the stockholder, wholly disconnected from his shares, and does not pass with the shares upon their subsequent transfer unless the contract of transfer expressly so provides, regardless of the date at which the dividend is made payable.</p> <p>6. Corporations—right of transferee of stock to subsequently declared dividends. When shares of stock are transferred without an agreement to the, contrary, the transferee will be entitled to all dividends declared thereafter though the profits out of which the dividends are declared were earned prior to the transfer.</p> <p>7. Corporations—effect of resolution declaring dividend. A resolution of a corporation declaring a dividend on the entire capital stock “payable in equal monthly instalments to the stockholders of record on the last day of each month during the year 1917,” indicates a clear intent on the part of the directors to make the dividend payable to the owners of the stock at the time of payment of the dividend.</p> <p>8. Corporations—stockholder transferring stock to corporation after declaration of dividend payable in instalments. Where a stockholder sold to the corporation, his shares of stock upon which a dividend had been declared, payable in monthly instalments during a period of one year, the fact that in the settlement that was made he was charged with a sum which had been overdrawn by him for dividends accruing after April 1 of that year amounts practically to an admission on his part that he was not entitled to any dividends after that date; and the further fact that the price paid for his stock amounted to its par value plus the dividend also tended to show that the dividend was taken into account in fixing the price paid for his stock and in adjusting the accounts between the parties.</p> <p>9. Corporations—when stockholder transferring stock to corporation cannot question previously declared dividend. Where a stockholder and officer of a corporation withdrew therefrom and sold his stock, to the corporation, held that, under the circumstances, good faith on his part should preclude him from questioning the power or right of the directors in declaring a dividend out of present profits and providing for its payment to persons who should be stockholders at the time deferred payments of the dividend should become due.</p> <p>10. Corporations—demand as prerequisite to suit to recover dividend on transferred stock. A former stockholder and officer of a corporation who sold his stock to the corporation and withdrew therefrom should have made a demand upon the corporation for a dividend claimed to be due him before commencing a suit therefor.</p> <p>11. Corporations-—when declared dividends pass on transfer of stock. Where the resolution of a corporation declaring a dividend payable in instalments during the period of a year clearly indicated an intent that the dividend should be payable to owners of the stock at the time the deferred payments should be made, and one who sold his stock to the corporation concurred in such a construction of its terms, an exception was warranted to the general rule that dividends belong to the owners of stock at the time of the declaration of the dividend.</p>

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

<p>1. Gabnishmént—right of garnishee to adjust account with debtor. By virtue of section 13 of the Garnishment Statute (Cahill’s Ill. St. .ch. 62, ¶ 13), a garnishee has the right, upon service of garnishment process, to adjust an account between himself and the judgment debtor and apply the amount due to such debtor upon the account.</p> <p>2. Garnishment—effect of payment to debtor by garnishee. Where, upon service of garnishment process upon a garnishee who also is a creditor of the judgment debtor, the garnishee does not apply the amount due such debtor upon his own account but pays salary to such judgment debtor thereafter, he admits an indebtedness to that amount and is liable therefor.</p> <p>3. Garnishment—when estimator not exempt as wage earner. One employed as an estimator whose duty is to ascertain prices for moving and storage, which constitutes the sole business of the employer, is not a wage earner within section 14 of the Garnishment Act (Cahill’s Ill. St. ch. 62, ¶ 14).</p>

<p>1. Municipal corporations—resignation of policeman and conviction of felony as affecting right to pension. Section 6 of the Act establishing the police pension fund (Cahill’s Ill. St. ch. 24, ¶ 834) does not apply to a policeman who had resigned and who, at the time of his conviction for a felony, had not yet received any benefit under the act because he had not reached the age of 50 years.</p> <p>2. Pardon and parole—effect as restoring right to pension. A certificate executed by the Governor of the State restoring one who had been convicted of a felony to his rights of citizenship under the provisions of section 49, ch. 108, Rev. St. (Cahill’s Ill. St. ch. 108, ¶ 65) is to all intents and purposes a pardon and restores the recipient to all of his civil rights, including the right to a pension from the police pension fund.</p>

<p>1. Carriers—ascertainment of reasonableness of time for transportation of live stock. What is a reasonable time for transportation of cattle is not susceptible of being defined by any general rule, but resort must be had to the circumstances of each case to determine what is a reasonable time.</p> <p>2. Carriers—presumption as to finding of unreasonable delay in carriage of live stock. In an action against a carrier for damage to cattle due to delay in transportation, where the jury finds for plaintiffs and no argument is made that the verdict is against the manifest weight of the evidence, it must be presumed that the jury found that the delays were unreasonable.</p> <p>3. Carriers—burden of proof as to stops in action for delay in carriage of live stock. In an action for damages sustained by rea son of delays in the transportation of cattle, the burden of showing that certain stops complained of were not regular scheduled stops, and of explaining them in case they were not regular stops, is upon defendant, unless plaintiffs, one of whom was traveling with the cattle, knew the reason for them.</p> <p>4. Carriers—instruction as to cause of injury to live stock in transportation. In an action for damages sustained to a shipment of cattle by reason of excessive heat, a request to instruct that, if the jury believed from the evidence that the sole cause of damage to the cattle was the intense heat they should find for defendant, was properly refused where plaintiffs’ contention was that the heat would not have damaged the cattle if the train had been kept moving instead of being stopped for unreasonable lengths of time.</p>

<p>1. Attachment—burden of proof as to nonresidence and indebtedness of defendant. Before it can he said that a writ of attachment in aid of suit against a nonresident was rightfully sued out, plaintiff is required to prove, not only that defendant is a nonresident, but also that it is, indebted to plaintiff.</p> <p>2. Attachment—when improperly allowed in aid in action against nonresident. If it is found that nothing is due plaintiff in an action against a nonresident, a writ of attachment in aid of such suit was wrongfully sued out.</p> <p>3. Attachment—what expenses recoverable in action on bond. In an action upon an attachment bond given in a suit against a foreign corporation, the expenses incurred in bringing witnesses to defend the principal suit on the merits may be recovered.</p>

<p>1. Vendor and purchaser—when unpaid interest on vendor’s mortgage recoverable in action for breach of warranty. Where land was sold under a warranty deed subject to a certain mortgage and the mortgagee brought a suit to- foreclose for the principal and for back interest that was due before the conveyance was made, in which suit the grantor intervened and defended unsuccessfully against the claim for interest, and such claim was included in the judgment of foreclosure, the vendee would be entitled, in an action for breach of warranty, in case there was a breach, to recover the amount of such interest claim though she had not actually paid out in money the amount of the claim.</p> <p>2. Vendor and purchaser—when vendor cannot deny, in action for break of warranty, that warranty included interest on mortgage debt. Where the grantor in a warranty deed of land, subject to a mortgage for a certain amount, intervened in a foreclosure suit against the grantee and unsuccessfully defended against a claim for back interest on the theory that no interest was due, he ought not, in an action upon the warranty, be permitted to stultify himself by saying- that the words in the deed stating that it was subject to the mortgage were merely descriptive of the mortgage and did not mean that no interest was due thereon at the time of the conveyance.</p> <p>3. Vendor and purchaser—what claims covered by warranty deed. One who conveyed premises by a warranty deed reciting that it is subject to a certain incumbrance, thereby warranted the premises to be free and clear from all other claims although the warranty only related to the equity of redemption which he had when he conveyed the premises,</p>

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

<p>1. Workmen’s Compensation Act—when conservator of insane person not entitled, to award. Where the care of an insane person had been provided for by the State at the time of his father’s death, his conservator was not entitled to the award made under the Workmen’s Compensation Act for the death of the father.</p> <p>2. Workmen’s Compensation Act—daughter’s right to award for death of father. A daughter who lived with and kept house for her father, handling his money and paying all the bills and having no other means of support, this relation being maintained until his death, was entitled, under section 7(b) of the Workmen’s Compensation Act [Cahill’s Ill. St. ch. 48, ¶ 207(b)] to an award made under that act for the death of her father.</p> <p>3. Interpleader—when executor not entitled to fees for filing. An executor is not entitled to any fees for filing an interpleader to have determined who is entitled to a sum awarded under the Workmen’s Compensation Act for the death of his testator.</p> <p>4. Equity—necessity for objecting and excepting to fees allowed master. A contention that the fees of a master in chancery were not properly itemized is untenable when no objections or exceptions were made on that subject.</p>

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

<p>Contempt—when false answer denying possession of third per• son’s assets not punishable as. Where a party has been ordered to appear and disclose what assets of another person he has in his possession, his answer under oath denying possession of any assets belonging to such person should purge him of any contempt; and if the answer is false, the proper proceeding is by indictment for perjury, not by punishment for criminal contempt.</p>

<p>1. Corporations—extent to which payment of stock in property good. A payment for corporate stock with property is good, only .to the value of the property.</p> <p>2. Corporations'—duty of subscriber to pay for stock. A subscriber to capital stock must pay therefor in full, in money or money’s worth.</p> <p>3. Corporations—credit for good-mil on exchanging stock in corporations. Where the property of one corporation is turned in as payment for stock in a new corporation, the crediting of a sum for the good-will of the old corporation is not warranted when its history is one of failure.</p> <p>4. Corporations—subscriber’s liability where property given in payment for stock. Where a subscriber for capital stock pays for his subscription in property that is overvalued, and the corporation agrees with him to take that property in full payment, the liability that is provided for in the statute (J. & A. ¶¶ 2425, 2442) remains in abeyance; and if subsequently the corporation ceases doing business, leaving debts unpaid, and goes into bankruptcy, the liability of the subscriber for the debts of the corporation, to the extent of the amount that his subscription is unpaid, becomes an affirmative, active, obligation, vesting in the trustee in bankruptcy, and may be sued upon only by him.</p> <p>5. Appeal and error—when failure to raise point in brief not cured in reply brief. A point not made in the original brief cannot be considered upon being raised in appellant’s reply brief.</p> <p>6. Corporations—where creditor cannot enforce stockholder’s subscription liability after conclusion of bankruptcy proceedings against corporation. As the right to sue upon unpaid subscriptions to the stock of a bankrupt corporation vests in the trustee in bankruptcy, a decree in a suit by a creditor for such balance dismissing the bill for want of equity will be affirmed where the record shows that the bankruptcy proceedings were concluded before complainant began his suit.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Suliivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Railroads—declaration alleging injury by overhead structure to person driving in street as stating cause of action. A declaration containing allegations that defendant railroad maintained a superstructure with girders over a street at a distance above the roadway which made it unsafe and dangerous, that plaintiff’s intestate was riding along the street on a wagon and was exercising ordinary care for his own safety, and that, as a proximate result of the premises, he collided with such superstructure and was killed, on its face set up a good right of action under the Injuries Act with respect to the common-law liability of defendant.</p> <p>2. Death—when allegation of inapplicability of Workmen’s Compensation Act not essential. In an action for the death of plaintiff’s intestate by his coming in contact with a superstructure maintained by defendant railroad over a street while he was riding on a wagon, where the declaration alleged no facts tending to show that deceased was under the Workmen’s Compensation Act, defendant’s contention that the declaration was faulty, in failing to allege that defendant was not under that act, is not tenable.</p> <p>3. Pleading—when declaration of substituted plaintiff in action for death alleging applicability of Workmen’s Compensation Act states new cause of action. Where an action was brought against a railroad for the death of plaintiff’s intestate due to striking a superstructure maintained by defendant over a street and the employer of deceased was, by leave of court, substituted as plaintiff on the ground that it and defendant and deceased were all under the Workmen’s Compensation Act, and sought to recover from defendant the amount it became liable for on account of the death of its employee, the employer’s declaration stated an entirely new cause of action.</p> <p>4. Workmen’s Compensation Act—distinction between right of action for death and employer’s right under Workmen’s Compensation Act against person causing injury. The causes of action in favor of a plaintiff suing at law for the death of her intestate due to the negligence of defendant, and of the employer of deceased against defendant for the amount of its liability under the Workmen’s Compejisation Act, are not causes arising under section 29 of that Act (Cahill’s Ill. St. ch. 48, ¶ 229), as the former has nothing to do with the Compensation Act.</p> <p>5. Workmen’s Compensation Act—when plea of statute of limitations to declaration by employer in action against third person subject to demurrer. In action by employer against third person causing injury, plea of statute of limitations is subject to demurrer where it does not appear either by allegations in the declaration or the plea, when the amount due under the Workmen’s Compensation Act was determined and fixed.</p> <p>6. Workmen’s Compensation Act—limitation of employer’s action against person causing . injury. An action by an employer against a third person for causing the death of an employee, for which the employer became liable under the Workmen’s Compensation Act, is governed by section 15, ch. 83 of the Statutes (Cahill’s Ill. St. ch. 83, ¶ 16) and the period of limitations is 5 years.</p> <p>7. ! Appeal and error—when objection to substitution of plaintiff not properly preserved. The propriety of a ruling by the trial court substituting an employer as plaintiff, in an action for the death of an employee due to the negligence of a third person, is not preserved for review where no bill of exceptions is filed in the case.</p>

<p>1. Partnership—sufficiency of evidence to establish holding-out as partner. In an action against one as partner to recover for goods sold and delivered to the partnership, evidence held sufficient to establish a finding that “defendant held himself out as a partner and was jointly liable.</p> <p>2. Partnership—what insufficient to relieve one holding out as partner from liability as such. The liability of one who held himself out as a partner is in no way changed by the fact that he told the person of whom he obtained credit that he did not wish the fact that he was a partner to become generally known because of his other business connections, as such fact could not reasonably be held to put the creditor on inquiry.</p> <p>3. Partnership—insufficiency of assignment to relieve partner from liability to creditor. An assignment, made by one doing business as a firm, which made no provision that the acceptance by the various creditors of their distributive, shares thereunder should operate as a receipt in full of their claims and a release of the balance, would not amount to a release by one accepting his distributive share of one who had held himself out as a partner and upon whose representation credit had been extended to the firm.</p>

<p>1. Insurance—sufficiency of evidence to show interest under participation certificate in open automobile insurance policy. In an action upon an automobile insurance policy, issued as an open policy to plaintiffs creditors, insuring them and the purchasers of motor vehicles and the makers and indorsers of notes secured by -liens thereon, plaintiff claiming under a participation certificate showing his interest in the policy, testimony of plaintiff held to have made a prima facie case notwithstanding the notation of cancellation of the original participation certificate introduced by him, which was produced by defendant.</p> <p>2. Insurance—admissibility of evidence to show cancellation of certificate of participation in open policy. In an action upon an open insurance policy issued to plaintiffs creditors insuring them and the purcha.sers Qf motor vehicles and the makers and jndorsers of notes secured by liens thereon and under which a participation certificate had been issued in favor of plaintiff, where defendant set up an alleged cancellation of such certificate, it was error to exclude testimony by the creditor tending to show its cancellation upon authorization by plaintiff.</p> <p>3. Principal and agent—agent’s competency to testify to acts and statements of himself and his principal. An agent is a competent witness as to what the principal may have said or done and, having testified as to that, he may further testify as to what he said or did himself.</p>

<p>1. Pleading—aider of defects in statement of claim by confession of judgment. In an action by an executor, such errors as may have existed by reason of deficiencies in the statement of claim, consisting of a failure to name either plaintiff or defendant therein except in the caption, and the absence of averments of the appointment of plaintiff as executor, were released by a confession of judgment.</p> <p>2. Judgment—blanks in power of attorney as affecting judgment by confession. Objections to a judgment upon a promissory note by confession, on the ground that the power of attorney to confess judgment was a nullity because it delegated no power to enter the appearance of any particular person or persons and failed to specify whether judgment was to be entered against either or both of the signers, held untenable although the appropriate words “us” and “our” were not written in their proper blank spaces.</p> <p>3. Judgment—when grounds for setting aside confessed judgment insufficient. A meritorious defense was not disclosed in a motion to set aside a confession of judgment upon a promissory note and for an opportunity to defend, although it was alleged in the affidavit that appellant did not receive any consideration for the signing of the note, where it was not alleged that the note was without consideration, as a consideration moving from a third person would have been sufficient to support the note.</p> <p>4. Judgment—insufficiency of affidavit in support of motion to set aside default. An affidavit in support of a motion to set aside a default judgment in favor of an executor on a promissory note, which alleged that the note had not been the property of testator but of a certain association of which defendant was a member, should have set up such facts as would have established the ownership as alleged.</p> <p>5. Judgment—when fact of equitable title to note in another not ground for setting aside judgment confessed thereon. Where the record established at least a legal title to a promissory note in an executor in whose favor a judgment by confession was rendered, a motion to set aside the default was properly denied, although the equitable ownership of the note may have been in another.</p>

<p>Mortgages—effect of expiration of redemption period under foreclosure of second mortgage and delivery of deed on rights under foreclosure of first mortgage. Upon expiration of the period of redemption under the foreclosure of a second incumbrance on property and the execution and delivery of a deed to the property by the master in chancery to defendant, the original mortgagors lost all interest whatsoever in the property and could not thereafter assert any right to the rents and profits derived therefrom, either before or during the running of the period of redemption under the foreclosure of the first incumbrance, and therefore a complainant representing their creditors cannot assert such rights.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Suiuvan, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Municipal corporations—power to pass ordinance levying special tax for work done under invalid ordinance. The authority given by section 8 of the Sidewalk Act as amended in 1907 (Cahill’s Ill. St. ch. 24, ¶ 1052) to pass a new ordinance levying a special tax for work already done under an ordinance which has been set aside by a court cannot be exercised if the previous ordinance was void.</p> <p>2. Municipal corporations—effect of invalidity of ordinance for levying tax on property not benefited by improvement. An ordinance for the laying of sidewalks and the levy of special assessments therefor, which is set aside on the ground that the municipality was without the power to pass it because it imposed the cost of the improvement upon property in no way benefited thereby, is void, not merely defective, and a special tax for work done thereunder cannot thereafter be levied under the authority given by section 8 of the Sidewalk Act as amended in 1907 (Cahill’s Ill. St. ch. 24, ¶ 1052).</p>

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

<p>Appyal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1920.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.' Heard in the Branch Appellate Court at the March term, 1921.</p>

<p>1. Larceny—sufficiency of allegation as to denomination of money. An information charging defendant with the larceny of “one bill fold and contents of the value of five ($5) dollars,” was not defective in that it failed to allege the denomination of the money, as the defendant was not charged with stealing any money, bills or currency.</p> <p>2. Criminal law—presumption on writ of error as to sufficiency of evidence in absence of bill of exceptions. Where an information charged the stealing from the prosecuting witness of one bill fold and contents of the value of $5, and the court found defendant guilty of the larceny of the property of the value of $5, it was presumed, in the absence of a bill of exceptions, that there was sufficient evidence that defendant stole the bill fold of the prosecuting witness and that its value was $5.</p> <p>3. Jury—necessity of formal waiver on criminal prosecution in court of record. The “Act to provide a trial by jury in all cases where a judgment may be satisfied by imprisonment,” in force July 1, 1893 (Cahill’s Ill. St. ch. 38, ¶ 780), does not only apply to justices’ courts, but to courts of record, and in submitting a cause which may result in a judgment of imprisonment to a court for trial without a jury, a formal written waiver is essential.</p> <p>4. Jury—right on new trial as affected by waiver on first trial. A previous written waiver of a trial by jury by the defendant in a larceny case, executed prior to the commencement of the first trial, was exhausted after that trial had been had and a new trial awarded; and the entry of a judgment of imprisonment after a second trial by the court without a jury, without defendant having executed a new waiver, was reversible error.</p>

<p>1. Judgment—effect of Soldiers’ and Sailors’ Civil Relief Act. The requirement of paragraph 1, sec. 200, of the “Soldiers’ and Sailors’ Civil Relief Act,” in force March 8, 1918 (Fed. St. Ann. Supp. 1918, pp. 814-824), requiring an order of court directing the entry of judgment in the absence of an affidavit that defendant was not in the military service, was not jurisdictional, because under paragraph 4 of the same section the judgment may nevertheless be permitted to stand, as such paragraph provides for the opening of the judgment on application and preserves any right or title acquired by any bona fide purchaser for value under any such judgment, when vacated or set aside.</p> <p>2. Appeal and error—when objection that judgment not entered in compliance with Soldiers’ and Sailors’ Civil Relief Act not reviewable. An assignment of error that a judgment was improperly entered without compliance with paragraph 1, sec. 200, of the Federal Act, known as the “Soldiers’ and Sailors’ Civil Relief Act,” in force March 8, 1918 (Fed. St. Ann. Supp. 1918, pp. 814-824), was not well taken, in the absence of a bill of exceptions showing upon what grounds defendant moved to vacate the judgment, and that the affidavit required by the act was not filed.</p> <p>3. Appeal and error—presumption in favor of regularity in entry of judgment. Under the presumption of regularity of proceedings and in the absence of a proper showing in the bill of exceptions that an affidavit that defendant was not in the military service was not filed, the Appellate Court was required to assume that such affidavit was filed,</p> <p>4. Municipal court of Chicago—sufficiency of statement of claim against husband and wife in fourth-class case. A statement of claim in a fourth-class case against husband and "wife, alleging that the claim was for labor and material furnished in the making of a black satin dress at an agreed price of $150, for the wife of the other defendant, reasonably set forth a claim against husband and wife at an agreed price, and that the right of action was predicated upon their liability therefor as a family expense; and such statement complied with section 40 of the Municipal Court Act (Cahill’s Ill. St. ch. 37, ¶ 428) pertaining to fourth-class cases.</p>

<p>1. Automobiles and garages—charge of unlawful “talcing” and “using” as charge of unlawful “driving” or “operating.” As to whether the words “take” and “use” in an information for violating section 30 of the Illinois Motor Vehicle Law, in force January 1, 1920 (Cahill’s Ill. St. ch. 95a, ¶ 31), could be construed to mean the ^ame as the words “drive” or "operate” in the statute, quiere.</p> <p>2. Indictment and information—sufficiency of allegation charging violation of Motor Vehicle Law. An information charging the use and taking of an automobile without the consent of the owner or any person having the care, custody and control of the same, in violation of section 30 of the Illinois Motor Vehicle Law, in force January 1, 1920 (Cahill’s Ill. St. ch. 95a, ¶ 31), was fatally defective in failing to state either the name of the owner of the vehicle, or that it was driven upon a “street or highway of this State,” or “in the absence of the owner.”</p> <p>3. Indictment and information-—what sufficient to charge unlawful driving and operating of another’s automobile. No complete offense was stated in an information based upon a violation of section 30 of the Illinois Motor Vehicle Law, in force January 1, 1920 (Cahill’s Ill. St. ch. 95a, ¶ 31), prohibiting the driving or operation of a motor vehicle in the absence of the owner without his consent, without allegations covering the requisite statutory ingredients that the driving or operation should be in the absence of the owner, as well as without his consent, and on a street or highway of the State.</p> <p>4. Indictment and information—reqiiisites as to allegation of facts. It is fundamental that an indictment or information must allege all the facts necessary to constitute the crime with which a defendant is charged, and if it does not set forth such facts with sufficient certainty, it will not support the conviction.</p>

<p>1. Executors and administrators—priority, of claims for funeral expenses. Under Cahill’s Ill. St. ch. 3, ¶ 71, .claims lor funeral expenses are placed in the first class. They are placed on an equality with, if not given precedence over, costs of administration.</p> <p>2. Executors and administrators—basis of priority of claim for funeral expenses. Funeral expenses have always been regarded as necessary charges to be paid out of a decedent’s estate, and it is intended by the law that funeral requirements should be furnished upon the credit of the estate rather than there should be any hesitation in rendering the services and furnishing the necessary articles until inquiry can be made as to who is liable to pay and his financial responsibility.</p> <p>3. Executors and administrators—liability of estate for funeral expenses where service rendered at third person's request. An estate held liable for funeral expenses, although the undertaker was requested to take charge of the funeral by one who, although his marriage with the decedent had been held void, considered himself as her husband; although it was further held that such person would undoubtedly have been liable had the estate been unable to pay.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Chames P. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1926.</p>

<p>1. Master and servant—what may be alleged and proven in action based on violation of Occupational Diseases Act. In a death case under the Occupational Diseases Act (Cahill’s Ill. St. ch. 48, ¶ 185 et seg.), in which defendant claimed that although plaintiff charged a violation of section 1 of the act (Cahill’s Ill. St. ch. 48, ¶ 185) which does. not indicate the nature of the devices, means or methods which were to he adopted by the employer, she had undertaken to prove a violation of section 2 (Cahill’s Ill. St. ch. 48, ¶ 186) which indicates some of the protective measures to be used, held that plaintiff was justified in asserting and proving the failure of defendant to observe the protective measures or use the devices mentioned in various sections of the act, under the theory that all such devices, etc., are fairly included within the category of “reasonable and approved devices, means or methods for the prevention of such industrial or occupational diseases,” mentioned in such section 1.</p> <p>2. Pleading—when defects and inaccuracies cured by verdict. Defects and inaccuracies in alleging a violation of section 1 of the Occupational Diseases Act (Cahill’s Ill. St. ch. 48, ¶ 185) and proving the specific methods enumerated in other sections, under the general category of “reasonable and approved devices, means or methods,” etc., mentioned in said section 1, were cured by the verdict.</p> <p>3. Master and servant—when master's liability under Occupational Diseases Act and not under Workmen’s' Compensation Act. The remedy against an employer for the death of a painter from lead poisoning is under the Occupational Diseases Act, and not under the Compensation Act, where it seemingly is admitted that the decedent died from lead poisoning.</p> <p>4. Master and servant—whether lead poisoning occupational disease as question for jury. Whether or not lead poisoning is an occupational disease incidental to the work of a painter is a question for the jury.</p> <p>5. Appeal and error—when one inducing error cannot assign it. A defendant in a death case based upon the Occupational Diseases Act, who had objections sustained to plaintiff’s attempts to prove numerous cases of lead poisoning arising in' connection with work as a painter, ought not to be heard to object that such proof was not made, as the making of the proof was prevented by his own objections.</p> <p>6. Master and servant—instructions in action based on violation of Occupational Diseases Act. Instructions in a death case based upon the Occupational Diseases Act, embodying in their terms the provisions of the act, and stating that a failure to comply with its provisions would constitute a wilful violation of the act, and a wilful failure to comply with its provisions in the sense that the word “wilful” is used in the act, held not objectionable.</p> <p>7. Master .and servant^-sufficiency of evidence in action under Occupational Diseases Act. Facts reviewed in an action for the death of a painter, who while painting coolers and other things was required to be around and come in contact with and be exposed to poisonous fumes, etc., based upon the violation of section 1 of the Occupational Diseases Act (Cahill’s Ill. St. ch. 48, ¶ 185), requiring the employer to provide reasonable methods for the prevention of industrial or occupational diseases incident to the work or process, etc., and involving other sections of the act, and held that lead poisoning, from which decedent died, was incidental to the work of decedent under the circumstances, and that decedent died as the result of the disease while in defendant’s employ because of the wilful violation of provisions of the act.</p>

<p>1. Insurance—waiver of prohibited occupations clause by insurer. It is well settled that conditions in relation to prohibited occupations contained in a fraternal beneficiary contract are for the benefit of the insurer and therefore the insurer can waive them.</p> <p>2. Insurance—sufficiency of evidence to show waiver by insurer of prohibited occupations clause. Where a decedent had been a member of a subordinate lodge of a fraternal order and had paid dues for 20 years, and was well known to the officers of the council, and where also the supreme officers of the order were in close proximity to and frequently dined at the premises where the decedent was employed as manager of a bar and restaurant operated by a wholesale liquor establishment, and where such supreme officers, who knew of decedent’s occupation, nevertheless afterwards issued him a new certificate on account of the loss of the original, the right of forfeiture on the ground- that decedent was engaged in a prohibited occupation was waived.</p> <p>3. Insurance—effect of waiver by subordinate lodge of ground of forfeiture. A subordinate lodge of a fraternal society held to be the agent of the supreme lodge or council, notwithstanding the declarations or by-laws of the society to the contrary, and full knowledge by the subordinate lodge of facts sufficient to render a certificate void and continuing to receive dues from a member, held to have resulted in a waiver of the right to forfeit the certificate.</p>

<p>1. Carriers—nature and effect of elevated ticket. An elevated street railway passage ticket was merely a receipt to show payment of the fare, and did not constitute the contract of carriage, or the sole evidence of such contract, and the carrier was entitled, in an action by a passenger to recover the excess he was required to pay over the amount paid for the ticket, to show that the Public Utilities Commission had raised the rate of fare after the issuance of such ticket.</p> <p>• 2. Carriers—right to compel holder of elevated ticket to pay increased fare. The purchaser of an elevated street railway ticket who presented such ticket in payment of his fare after the Public Utilities Commission had raised the rate of fare was properly required to pay the difference between the ticket and the amount fixed, by such commission after the issuance of such ticket.</p> <p>. 3. Carriers—power of Public Utilities Commission to change rates. The Public Utilities Act [Callaghan’s 1916 Stat. ¶¶ 8686(1)-8686(101)] conferred upon the Public Utilities Commission the power of changing the rate to be charged by public utilities corporations, and the provisions of the State and federal constitutions forbidding the passing of laws by the State impairing the obligations of contracts did not apply where, after a street railway passage ticket had been sold, the commission raised the rate of fare.</p> <p>4. Carriers—contracts as subject to change of rates by State. All public service contracts are made with an implied provision that the rate is subject to change according to law and subject to the power of the State through its lawfully created agencies to change the rate in the future.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Bernard P. Barasa, Judge, presiding. Heard in the Branch Appellate Court at the October 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>1. Forcible entry and detainer—when proper to recover possession of leasehold. A leasehold interest, included in a chattel mortgage given by a subtenant of the original lessee and sold, together with the garage business contained on the premises, under the power of the mortgage, was considered as personal property, and the mortgagee purchaser was entitled to maintain forcible detainer as against the party who was then in possession as as assignee of said subtenant and with the consent of the owner of the premises.</p> <p>2. Forcible entry and detainer—rights of purchaser of leasehold interest sold on foreclosure of chattel mortgage. Clause 6 of section 2, ch. 57, Rev. St. (Cahill’s Ill. St. ch. 57, ¶ 2) entitled Forcible Entry and Detainer, giving a right of action when lands or tenements have been conveyed by any grantor in possession, or sold under a judgment or decree or by virtue of a power contained in any mortgage or trust deed, and possession is withheld after written demand, did not apply where a leasehold was sold under the power of a chattel mortgage and the purchaser brought forcible detainer; but such leasehold passed as personalty at the sale and was of such a nature as would go to an administrator and was salable without an order of court such as is required in cases of freehold and fee estates.</p> <p>3. Chattel mortgages—when leasehold interest may he mortgaged. The owner of a leasehold may mortgage his right of possession, which right of possession constitutes his leasehold interest, as that right, although it is for the use of real estate, may, under the law, be personal property.</p>

<p>1. Attorney and client—when aecount stated between may be reopened. It would seem to be the law in this State that the relations of attorney and client are subject to such ethics that even if there is an account stated between them, the pieritg of the account may be gone into,</p> <p>2. Attorney and client—when rendering of aeeonnt for services does not terminate relation. The fact that the defendant, in an action to recover for legal services, employed plaintiffs, and services were rendered and statements of charges sent to defendant and no response or objection was made, and plaintiffs were employed to render further services and sent further bills to which there was no response, did not extinguish the relation of attorney and client, and estop the latter from putting in evidence on the merits of the claim; and it was reversible error to exclude such evidence.</p>

<p>1. Mortgages—sufficiency of verification of Mil on foreclosure. A foreclosure bill was properly verified where the affidavit stated that complainant “has read the foregoing bill of complaint by her subscribed and knows the contents thereof, and that the matters therein stated are true except as to matters and things therein alleged on information and belief, and as to such matters she believes them to be true.”</p> <p>2. Mortgages—when tender on foreclosure insufficient. A tender in open court to the complainant in a foreclosure case of an amount less than that claimed in the bill, which was refused as being insufficient, was an entirely negligible act, and such refusal did not affect the determination of the Question whether or not a receiver should be appointed.</p> <p>3. Mortgages—when provision in trust deed insufficient to warrant appointment of receiver on foreclosure. A provision in a trust deed expressly authorizing the appointment of a receiver was not of itself a sufficient justification for the appointment of a receiver in the foreclosure case.</p> <p>4. Mortgages—when receiver properly appointed on foreclosure. The appointment of a receiver in a bill to foreclose a second mortgage was fully justified where taxes remained unpaid beyond the time covenanted for their payment, and there were several unpaid special assessments and one special assessment had been forfeited for nonpayment, and where the charges as to such default contained in complainant’s affidavit were not denied in defendant’s affidavit, but only in the answer which was not under oath.</p>

<p>Error to the Superior Court of Cook county; the Hon. M. L. McKinley, 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. David M. Brothers, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>1. Municipal court of Chicago—sufficiency of statement of claim in action on contract. A statement of claim in an action on a contract need not set forth plaintiff’s evidence as to damages, nor set forth the specific and separate elements claimed as going to make up the damages. It is sufficient if such statement clearly sets forth the contract claimed to exist, its breach and that damages resulted.</p> <p>2. Contracts—effect of omission of one party to sign. The rule that a contract may be so drawn as to contemplate the signature pf both parties, and be signed by only one of them and nevertheless be binding on the other if the latter assents to its terms orally and proceeds to act upon it, applied under the particular facts of the action upon the contract in question, where after the contract had been signed by plaintiff and handed to defendant for signature, the latter did not sign, but said the terms were satisfactory, and told plaintiff to go ahead.</p> <p>3. Contracts—when evidence sufficient to support finding of assent to and acts under contract. In an action on a contract in a finding that defendant assented to the terms of the contract as submitted by plaintiff, and that in receiving and paying for certain of the work, at the contract price, defendant had acted on the contract, which was signed by plaintiff but not by defendant, the finding held not to have been against the manifest weight of the evidence.</p> <p>4. Contracts—when statute of frauds not defense in action for breach. In an action on a contract for the manufacture of certain articles, held that the contract involved was capable of being performed within a year and that the statute of frauds was, therefore, inapplicable.</p> <p>5. Contracts—measure of damages in action for breach by refusal to accept article contracted for. Where a party has contracted with another to manufacture certain articles, and the other repudiates the contract and refuses to accept the articles, and suit is brought against the latter for the breach, the damages are necessarily considered' to be the amount that might have been realized had the contract been carried to completion.</p> <p>6. Contracts—when prima facie case established in action for breach. Where certain color chips had been made up for the full quantity of 50,000 catalogues in question, at a fixed rate per thousand, pursuant to an agreement testified to by plaintiff, and the testimony showed that after 10,000 catalogues ordered had been supplied with chips and had been bound and delivered, the balance were worthless for any other purpose and that as to such 40,000 not taken and not made up, plaintiff had not been called on to paste the chips onto the pages of the catalogues or to bind the pages into the covers or to inspect them, and consequently in its evidence as to damages plaintiff took the contract price and deducted the costs of the said three operations, figuring those costs on the basis that was used in fixing the price per 1000 chips, a prima facie case was made out as to plaintiff’s damages.</p> <p>7. Contracts—when burden on defendant contesting amount of plaintiff’s loss in action for breach. Where plaintiff in an action for breach of contract had manufactured all the material called for by the contract, and the only items remaining to be done under the contract were the certain items of service or labor incident to pasting, binding and inspecting the materials already manufactured for defendant, and defendant claimed that at the time of the breach of the contract it would have cost plaintiff more to complete the three items of labor referred to than plaintiff had estimated would be the cost, it was incumbent on defendant to show it.</p> <p>8. Contracts—when evidence as to custom, properly excluded in action 1or breach. . Where, in explanation of the fact that defendant, in an action for breach of contract for refusal to accept part of materials ordered, had caused a printer to deliver 50,000 catalogue covers to plaintiff, defendant offered to prove that it was the custom of the printing trade to store, with the concern which was doing the work, stock which was to be used, beyond the immediate requirements of the particular job, and that this custom was known to plaintiff, it was not error to sustain objections to such evidence, as it did not appear that the .work which plaintiff was doing was work comprehended within the term “printing trade,” nor that the covers would be considered as “stock."</p>

<p>1. Cabbibbs—liability of initial carrier for burning of goods by fire set by rioters. An initial carrier in possession of property when it is destroyed by fire which was communicated from burning buildings which had been fired by rioters will be liable therefor unless it has such a contract with the shipper as will free it from liability.</p> <p>2. Cabbibbs—burden of proving limitation of liability. In an action against an initial carrier for goods destroyed while in its possession by fire started by rioters, the burden is upon the carrier to prove by evidence aliunde that the shipper assented to the limitation in the bill of lading as to the destruction of property from riots.</p> <p>3. Cabbibbs—instruction limiting liability as error. In an action against an initial carrier for the loss of goods while in its possession by fire started by rioters where the defense was a clause in the bill of lading exempting the carrier from liability for goods destroyed by riot, but where there was no proof showing alternate rates or that any choice was offered the shipper, nor anything on the bill of lading showing that it was a limited liability contract, it was error to instruct the jury that, if the loss of the property was the result of a riot and the carrier was not negligent in the matter of the riot, they should find the defendant not guilty.</p> <p>4. Appeal and error—refusal to give abstract proposition. It is not error to refuse instructions presenting abstract propositions of law.</p>

<p>Appeal from the City Court of Granite City; the Hpn. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gielham, Judge, presiding. Heard in this court at the March term, 1920. Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Homestead—what surrender essential to conveyance. To make a conveyance of a homestead estate effective by the surrender of the premises by the parties entitled to such estate, the surrender must be made pursuant to the instrument executed.</p> <p>2. Homestead—sufficiency of surrender. Where a husband executed an instrument purporting to convey premises constituting a homestead, but which was not signed by the wife and which contained no release of the homestead estate, the fact that after his death the family moved from the premises and established a homestead elsewhere did not constitute a surrender of the premises pursuant to the conveyance, and the instrument properly was held void.</p> <p>3. Witnesses—disqualification of grantee in suit by grantor's administrator to cancel deed. In a suit by an administrator to cancel a deed and quiet title, the party named in the deed as grantee was a necessary party who would be disqualified from testifying concerning transactions with deceased under Cahill’s Ill. St. ch. 51, ¶ 2.</p> <p>4. Deeds—insufficiency of evidence to show giving to secure future indebtedness. Testimony that a decedent had said that he wanted to give his creditors a deed, that the creditors had been good to him and he did not want to see them lose anything and wanted to protect them, was insufficient to show that the deed given was given to secure future indebtedness.</p> <p>5. Deeds—when consideration named in instrument presumed actual consideration. In the absence of proof to the contrary, between the parties thereto the consideration set forth in a deed must be taken as the actual consideration.</p> <p>6. Payment—right of creditor to apply. If a debtor does not direct the application of voluntary payments made by him, the creditor may apply them as he chooses, and if the power is exercised by neither, the court will make the application on equitable principles and apply the payment on that debt for which there is the least security.</p> <p>7. Cancellation of instruments—insufficiency of evidence to support decree. In, an action to cancel a deed executed by a decedent as security, held that the evidence failed to show that the debt secured by the deed had been paid and that the court erred in decreeing cancellation of the deed.</p>

<p>i Roads and bridges—right of highway commissioner to charge for labor of his teams and himself. Under section 72 of the Roads and Bridges Act of 1913 (Cahill’s Ill. St. ch. 121, ¶ 79),' providing that in letting contracts employing labor or purchasing tools, machinery or materials the highway commissioner shall have no pecuniary interest therein, the commissioner was not entitled to charge and collect for labor performed by himself and his teams, as distinguished from fees for services as commissioner in a supervisory capacity. '</p>

<p>Error to the City Court of Marion; the Hon. W. O. Potter, Judge, presiding. Heard in this court at the March term, 1920.</p>

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

<p>1. Automobiles and garages—sufficiency of evidence to support verdict in action for injury by collision. In an action for damages resulting from a collision of defendant’s car with plaintiff’s at a street intersection where, by ordinance, defendant had the right of way if they reached the intersection at substantially the same time, and the evidence was contradictory as to whether plaintiff’s car was struck after he had turned into the intersecting street or just as he was turning, a verdict for defendant should not be disturbed.</p> <p>2. Witnesses—-when form of question subject to general objection. In an action for damages resulting from an automobile collision, where a witness testifying to a conversation he had with plaintiff was asked, “How did that argument end,” a general objection to the question was properly sustained in the form in which it was put.</p> <p>3. Appeal and error—exclusion of evidence subsequently admitted as harmless error. No prejudice could have arisen from the sustaining of an objection to a question as to how a certain argument ended where the witness later was allowed to detail the entire conversation.</p> <p>4. Appeal and error—error in excluding evidence as cured by verdict. In an action for personal injuries, the exclusion of testimony of a witness as to plaintiff’s condition while not properly subject to the objection made that it was' a conclusion and the witness was not a physician, was not reversible error where the jury evidently found that plaintiff was not entitled to recover regardless of the extent of his injuries.</p> <p>5. Instructions—when instruction in language of ordinance and statute not error. In an action growing out of a collision of automobiles at intersecting streets, instructions which gave the ordinance and statute governing the right of way in such cases in their exact language and told the jury it was the duty of plaintiff to give defendant, the right of way if they found that both parties were reaching the intersection at approximately the same time, were not objectionable as leaving the construction of the ordinance and statute to the jury.</p> <p>6. Automobiles and garages—intersection of streets icithvn meaning of statutes and ordinances as to right of way. Where a street runs into and ends at another street at right angles with it, they intersect within the meaning of statutes or ordinances governing the right of way of vehicles at intersecting streets.</p>

<p>1. Cebtiobari—practice on trial of writ to justice of the peace. In the case of a common-law writ of certiorari to justices of the peace, the trial is by an inspection of the record without any hearing as to the merits of the case, while on a statutory writ there is a trial de novo.</p> <p>2. Cebtiobari—when writ quashed for failure to file bond. Where a petition for certiorari to a police magistrate shows that the whole intent and purpose was to secure a trial de novo, it must be regarded as a petition for a 'statutory writ, and where the mandatory requirement of the statute for a bond had not been complied with and no motion for leave to file a bond was made, the court properly quashed the writ.</p> <p>3. Cebtiobari—when statements in petition for writ insufficient. Statements in a petition for certiorari to a police magistrate that, on account of sickness in the family of appellant’s attorney, he could not appear before the magistrate and that judgment was practically by default, were insufficient where there was no showing that appellant made any effort to be represented at the trial or that it was not in the power of petitioner to take an appeal.</p> <p>4. Cebtiobari—effect of repeal of statute authorizing. A petition for a writ of certiorari to a police magistrate which shows that it is a statutory writ which is sought, cannot be sustained if the statute authorizing such writs has been repealed.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>1. Insurance—when United States not necessary party to suit to establish and enforce trust in war insurance benefits. The United States was neither a necessary nor a proper party to a suit to establish and enforce a trust in war insurance .payments against the beneficiary named in the policy.</p> <p>2. Courts—jurisdiction of suit to establish and enforce trust in war insurance benefits. The State courts have jurisdiction of a suit to establish and enforce a trust in the funds being paid by the government under a war insurance policy on the life of a soldier who died in the service.</p> <p>3. Insurance—rights under war insurance policy. The taking out by a soldier of a war risk policy of insurance is in effect a contract that the beneficiary named therein should have the whole of the insurance, and the burden of proving a trust therein for the benefit of others is upon the parties seeking to establish such trust.</p> <p>4. Insurance—declarations of insured as affecting beneficiary. Declarations of an insured person in the absence of the beneficiary and inconsistent with the contract shown in the policy are not binding on the beneficiary.</p> <p>5. Evidence—declarations of one party to contract as binding the other. The declarations made by one party as to a contract with another person cannot bind the latter unless he assents thereto.</p> <p>6. Insurance—when evidence insufficient to establish trust in benefits of war insurance policy. In a suit to establish a trust in the proceeds of a war risk insurance policy on the life of a soldier, where the only showing made by the bill was of declarations by insured to fellow soldiers that the policy was taken out in the name of defendant for convenience, with the understanding that the insurance was to be shared with plaintiffs, and requests made to such fellow soldiers that -they request defendant to make such division, the inference being that such requests were made after the policy was issued and there being no showing that they were communicated to defendant during the lifetime of insured, the allegations failed to establish an express, implied or constructive trust ánd the bill was properly dismissed.</p>

<p>1. Executors and administrators—practice on appeal from order sustaining exceptions to final report. An appeal by an administratrix from an order sustaining exceptions to certain items of her final report must he treated separately as to each item and no other part of the account is involved.</p> <p>2. Executors and administrators—circuit court’s jurisdiction on appeal from order rejecting items of final report. An appeal by an administratrix from a judgment of the county court rejecting some items of her report does not give the circuit court jurisdiction of the whole account but only of the rejected items, and that court cannot hear evidence as to any of the items allowed by the county court.</p> <p>3. Executors and administrators—questions reviewable on appeal to circuit court from order sustaining objections to final report. On appeal by an administratrix from an order of the county court sustaining objections to certain items of her account, the appellees could not question the right of appellant to be appointed administratrix or whether the homestead premises were subject to sale to pay debts.</p> <p>4. Executors and administrators—when disallowance by circuit court of item in final report improper. Where no objection was filed to a certain item in the account of an administratrix and no question was raised as to it in the county court or in the circuit court, it was error for the latter to disaUow it.</p> <p>5. Executors and administrators—when objections to final report improperly sustained in circuit court. It was error for the circuit court to sustain objections to the report of an administratrix where such objections were overruled in the county court and were not appealed from.</p> <p>6. Appeal and error—when cross-assignment of error insufficient to raise question for review. Where no one appealed from the allowance of a separate item in the account of an administratrix, its allowance cannot be questioned in the Appellate Court, a cross-assignment of errors being insufficient to bring it before the court.</p> <p>7. Dower—insufficiency of antenuptial agreement to release. An antenuptial agreement releasing the wife’s right of homestead is insufficient where no recital of such release appears in the acknowledgment.</p> <p>8. Homestead—when widow’s right not released by antenuptial agreement. Where a' deceased left minor children and a widow, an antenuptial agreement was ineffective to release the widow’s right of homestead.</p> <p>9. Executors and administrators—insufficiency of antenuptial agreement to bar widow’s award. An antenuptial agreement whereby each party releases all rights in the property of the other will not bar the statutory widow’s award.</p> <p>10. . Executors and administrators—widow’s right to award for children of deceased’s former marriage, Á widow is entitled to the $200 allowance for each child of intestate under 18 years of age at the time of his death though they are children by a former wife.</p> <p>11. Homestead—effect of sale to pay debts under authority of court. Where it appears that by the petition to sell the real estate of a deceased person to pay debts it was brought to the attention of the court that the property was a homestead and that there were three minor children, and the court approved the distribution of a part of the proceeds of the sale after the objections to the final report had been heard, it should be held that the county court had, in effect, authorized the release of the interests of the minor children in the homestead premises and that the present value of their interests should be ascertained and paid to them, instead of clouding the title of the purchaser.</p> <p>12. Homestead—exemption from liability for debts of deceased. The estate of homestead is an exemption and cannot be taken in payment of the debts of deceased without the consent of the one entitled thereto.</p> <p>13. Executors and administrators—when widow’s award payable. The statutory widow’s award is a debt and should not be paid until the present value of the homestead estate has been ascertained and paid over to the parties entitled thereto.</p> <p>14. Homestead—calculation of value of widow’s interest. »The present value of a widow’s homestead estate, where deceased left minor children, would be the present value of the interest of each child, figured at 5 per cent on his share until he would become 21 years of age, subtracted from the present value of the widow’s estate of homestead in $1,000, figured according to her age under the usual tables.</p>

<p>1. Fraudulent conveyances—when bill improperly set aside for want of equity. In a suit under a creditor’s bill to set aside a voluntary conveyance and to subject the property to the payment of a debt which the grantor owed when the conveyance was made, it was error to dismiss the bill for want of equity where, under any view of the evidence, the grantor was heavily indebted when the conveyance was made and soon thereafter became, and at the time of his death was, actually insolvent. -</p> <p>2. Fraudulent conveyances—burden of showing grantor’s solvency. Where a voluntary conveyance is made, the burden of proof is on the grantee to show that the grantor retained ample property to pay his debts, and the proof must be clear and satisfactory.</p> <p>3. Fraudulent conveyances—effect of actual insufficiency of retained assets apparently sufficient. A voluntary conveyance is fraudulent as to existing creditors though the grantor retains property apparently sufficient to satisfy his indebtedness if it results that in fact it is not.</p>

<p>Error to the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. M. Millard, Judge, presiding. Heard in this court á¡t the March term, 1921.</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon.</p> <p>A, D. Morgan, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>Appeal from the County Court of Lake county; the Hon. Persy L. Persons, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Municipal cobpoeations—liability on sewer contractor’s bond for injury to traveler after acceptance of work by city. Where, under a city sewer contract, the contractor agreed to keep the work done in complete repair for 3 months after its acceptance, and to give a bond for the faithful performance of the contract, and where the bond expressly provided that the city should be secured for the complete performance of the contract, and be saved harmless from judgments and expense growing out of the failure to perform the contract, the sureties on the bond were not discharged from liability to reimburse the city for the amount of a judgment rendered against the city, in an action by al traveler who sustained injury by being thrown from his wagon because of the "uneven settling of the dirt in the trenches, within said 3 months, on the ground that the superintendent of streets, after an inspection, authorized the removal of the barriers, and such settling was thereafter caused by heavy rains; and even an acceptance of the work by the city would not have discharged the bond.</p> <p>2. Municipal cobpoeations—final payment under sewer contract after injury to traveler as release of sureties on contractor’s bond. Under a city sewer contract providing that a certain percentage of the gross amount of the contract should be retained by the city for 3 months after final acceptance of the work, to insure repairing during that period, payment by the city in strict accord with the contract, after the date of an injury to a traveler on the street caused by a defect in the street, ■ did not release the sureties on the contractors’ bond from liability to reimburse the city for the amount of a judgment in favor of such traveler, as the city was not required to hold back payments under the contract to await possible action by such traveler.</p> <p>3. .Bonds—allowance of interest in action on sewer contractor’s bond for indemnity from city’s liability for personal injuries. In an action on a bond given to a city to secure performance of a sewer contract, to recover the 'amount of a judgment in favor of a traveler who sustained injury because of defects in the work, interest was computed by the Appellate Court gating from the service of summons on the sureties and the withholding of a stated sum which they were then required to pay, and interest was allowed in excess of the penalty of the bond.</p> <p>4. Bonds—allowance of interest in excess of penalty of sewer contractor’s bond. The rule that interest may be allowed in excess of the penalty of a bond given by the principal, to such an amount as accrued from the default of the sureties in unjustly withholding payment after being notified of the default of the principal, applied in an action on a sewer contractors’ bond to recover the amount of a judgment against the city in an action by a traveler to recover for injuries sustained by reason of defects in the work.</p> <p>5. Appeal and error—final judgment for plaintiff in error on stipulated facts. Where, in an action on a sewer contractors’ bond, a jury was waived and all the facts were stipulated, the judgment for defendants was reversed and the Appellate Court computed interest and rendered final judgment in favor of plaintiff.</p>

<p>1. Justices of the peace—formality required of judgment. It is well settled in this State that the same precision and formality are not required in the judgment of a justice of the peace as are required of courts of record, and that it is sufficient if the meaning is plain and that a judgment against the defendant must necessarily be in favor of the plaintiff.</p> <p>2. Justices of the peace—effect of erroneous entitling of case on liability of justice and constable for enforcement of execution. The entitling of a case before a justice of the peace in the name of “Joseph Fleming & Son” was not a fatal defect rendering the justice and constable liable to trespass in the enforcement of the execution, where jurisdiction of the person was not denied and the entries showed for what the suit was brought, and there was a trial by jury and a verdict for plaintiff and an assessment of his damages and judgment was rendered in favor of Joseph Fleming & Son.</p>

<p>1. Appeal and error—perfection of appeal from interlocutory injunction. Under section 123 of the Practice Act (Cahill’s Ill. St. ch. 110, K 122), governing appeals from interlocutory injunctions, it is not necessary to apply to the circuit court for an order for an appeal, nor can that court fix the penalty for the bond or the security, and a bond in proper form, approved by the clerk and filed within 30 days from the date of entering the order for injunction, perfected the appeal in the circuit court.</p> <p>2. Time—effect of 60-day period after entering preliminary injunction expiring on Sunday. Where 60 days from the date of entering a preliminary, mandatory injunction expired on Sunday, the record was properly filed on the following Monday, under section 1 of the act concerning the construction of statutes (Cahill’s Ill. St. ch. 131, ¶ 1, subd. 11), providing that in computing such time, if the last day is Sunday, it shall be excluded.</p> <p>3. Injunction—effect of use of word “perpetually” in preliminary injunction. A preliminary mandatory injunction “perpetually” restraining defendants until an order to the contrary was but a temporary injunction to remain in force until the contrary was directed by the court.</p> <p>4. Injunction—when preliminary mandatory injunction improvidently granted. A preliminary mandatory injunction, issued without notice, commanding defendants to remove from an outlet across defendants’ lands, which was alleged to have been used for over 50 years and had constituted a right of way, obstructions such as posts, a barb-wire fence and a gate, and requiring the restoration of the right of way to its former condition, was improvidently granted before issue joined and before the rights of the defendants could be tried.</p> <p>5. Injunction—mandatory order only on final hearing. A mandatory injunction commanding the doing of some positive act will not be ordered except upon final hearing.</p>

<p>Error to the Circuit Court of La Salle county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the April term, 1921.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>Error to the Circuit Court of Lake county; the Hon. Claiee C. Edwards, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>Appeal from the Circuit Court of Kendall county; the Hon. Adam ' C. Clibte, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding. Heard-in this court at the May term, 1921.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>1. Executors and administrators—claim under contract for care during life properly allowed. A claim against an estate based upon a note for $3,000 was properly allowed, where said note was given by the decedent to a corporation conducting a hospital, pursuant to a written contract to pay $1,000 cash and give said note in consideration that said decedent should be admitted to the hospital and be cared for during the remainder of her natural life, with the privilege of leaving at any time and receiving the balance of the $4,000 without interest, after deducting $25 per week for the time she remained at the. hospital after a stated date, the decedent having died about 4 days after her admittance to the hospital, and the contract not having been entered into hastily and the decedent having been mentally sound and there having been no fraud.</p> <p>2. - Contracts—mutuality of contract for care of person during life tut giving deceased option to withdraw at will. The fact that a contract entered into by a woman, providing that upon her paying $4,000 she should be taken into the hospital in question and cared for during the rest of her life, gave her the privilege to leave at any time, in which event she was to receive the balance of the $4,000 after deducting $25 per week from a stated time, did not cause the contract to lack mutuality and did not make it an option contract which was not binding on either or both parties.</p> <p>3. Corporations—contract ty hospital to care for a person dur-y ing life for a fixed sum not ultra vires as insurance or lottery. A contract made by a corporation conducting a hospital, providing that for a stated consideration the woman in question should be received into the hospital and cared for during the rest of her life, was not in the nature of life insurance or lottery, and was neither ultra vires nor against public policy, the woman having been sick, needing care and having no place to go and no one to care for her.</p> <p>4. Contracts—execution for jury and construction for court. The question whether the contract under consideration, between a woman and a hospital corporation for the reception of such woman into the hospital and for her care during the rest of her life, was in fact entered into was one of fact for the jury, and the question of the construction of the writing was for the court.</p> <p>5. Appeal and ebbor—harmless error in admission of evidence when other competent evidence covering same matter. Although at the hearing upon a claim on a note given by a woman in her lifetime to a hospital corporation, testimony as to facts and circumstances relative to the woman’s entering the hospital and as to conversations with said woman was improperly admitted on cross-examination, where the direct examination had been confined to one specific fact, the error was not material where there was other competent evidence concerning almost every detail testified to by the witness.</p>

<p>1. Drainage—duty of commissioners under Farm Act. The purpose of the Farm Drainage Act is to furnish adequate drainage "to all lands within the district, provided the costs are within the benefits, and the duty placed upon the commissioners by section 17 (Cahill’s Ill. St. ch. 42, If 137), to go upon the land and determine the system of drainage, having in view the future as well as present contingencies, is not only placed on them while they are laying out and installing the system, but it remains after completion and operation, and if the original plan is not sufficient to afford proper drainage, it is the duty of the commissioners to make the system adequate so that all of the lands will be drained.</p> <p>2. Drainage—duty of commissioners under Farm Act to repair or improve system. Section 41 of the Farm Drainage Act (Cahill’s Ill. St. ch. 42, If 163), requiring that the commissioners after completion of the work shall keep it in repair, and if by reason of error in lo'cation or for any other cause the lands are not drained or protected as contemplated, the commissioners shall use the corporate funds to carry out the original purpose to the end that all lands, so far as practicable, shall receive their proper and equal benefits as contemplated when they were classified, has been construed to mean that the duty imposed by this section is one owing to every landowner in the district, and that it is not discharged when a system is first installed, but continues until a system is established which affords ample protection to every landowner who has been assessed, provided the cost does not exceed the benefit.</p> <p>3. Mandamus—sufficiency of petition to compel farm drainage commissioners to enlarge and repair ditch. A petition for mandamus against farm drainage commissioners to compel them to enlarge the capacity, clean out and repair certain ditches in the district was sufficient to require the defendants to plead, and their demurrer was improperly sustained, where it was alleged that the lands of petitioners were not drained as contemplated and had received only partial or no benefits, and that changes could be made which would drain the lands and that the cost would be within the benefits, and that after repeated demands for adequate drainage the commissioners had failed to give relief.</p> <p>4. ' Mandamus—petition as invasion of discretion of farm drainage commissioners. A petition to compel farm drainage district commissioners to grant relief against the conditions complained of did not invade the discretionary powers vested by statute in the commissioners by dictating the specific form of relief to be given, where, although the manner in which relief might be given was suggested, the prayer was simply that the commissioners he required to enlarge the outlet and clean out the ditches so as to afford the lands of petitioners outlet to drain their lands.</p>

<p>1. Insurance—amended declaration in action on fire policy as new cause of action. Where the original declaration in an action on a fire insurance policy did not allege the date of the expiration of the policy, or that it was in force at the date of the fire, and a demurrer was sustained on that ground, an amended declaration filed after the expiration of the period fixed in the policy for the commencement of suit, which supplied the defect, stated a new cause of action and was barred by such limitation.</p> <p>2. Appeal and erbob—waiver of duplicity by pleading to the. merits. Although a declaration in an action on a fire insurance policy was double because it alleged in the same count that the proof of loss was made and also that it was waived, defendant waived its rights upon appeal to question the ruling below, where after the overruling of the demurrer it pleaded to the merits.</p> <p>3. Pleading—sufficiency of declaration on fire insurance policy. A declaration in an action on a fire insurance policy which failed to allege that the policy was in full force and effect, and contained-no language from which such inference could be drawn, was not a defective statement of a cause of action, but stated no cause of action at all.</p> <p>4. Appeal and ebbob—third repetition of conversation as harmless error. Although a third repetition of a conversation with the agent of defendant fire insurance company, on the redirect examination, about plaintiff getting his money or that defendant would rebuild, was improper, such repetition was, under the circumstances, not harmful.</p> <p>5. Insurance—testimony as to investigation of fire by assistant state fire marshal. In an action on a fire insurance policy, where it appeared that plaintiff had been arrested under a charge of burning the building in question and bound over, but never indicted, it was not error to refuse to permit the assistant state fire marshal to testify that he received no instruction from defendant or its agents or employees to investigate the fire, but that he got his orders from the state fire marshal, as it was the duty of the marshal to investigate every fire, and the question involved a side issue.</p> <p>6. Witnesses—leading questions as to waiver of proof of loss under fire insurance policy. In an action on a fire insurance policy, where waiver of the filing of proofs was claimed, a question asked on redirect, whether defendant’s agent said there was nothing more for plaintiff to do except wait for the adjuster, was leading and was on a very material point, and neither the question nor the affirmative answer should have been permitted to go to the jury.</p> <p>• 7. Insurance—sufficiency of evidence of proof of loss under fire insurance policy. In an action on a fire insurance policy, waiver of the filing of proof of loss was not shown where there was no evidence of express waiver, and the evidence failed to show a course of conduct on the part of defendant or its agent as might have been reasonably calculated to lead the assured to believe that defendant did not require such proof, and also did not show such a refusal to pay as excused proof, and there was a letter from plaintiffs’ attorney asking for the address of the party to whom proof should be made and whether or not the company refused to pay.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1920. Affirmed. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Judgment—against railroad for negligence as res adjudicata in action to recover over against a street railroad. In an action by a steam railroad company to recover from street car companies the amount of two judgments which it had been required to pay in two cases resulting from a collision between a train operated upon the steam railroad tracks and a street car operated upon the street car tracks, the steam railroad company was estopped by the verdict in one of said cases in which it was found guilty and the street car company not guilty, to relitigate the issues in the suit at bar (the street car company having purchased its peace in the other of said damage suits), the basis of the suit at bar having been a contract for the crossing of the right of way and tracks of the steam railroad company by the cars of the street car company, which provided among other things that the street car company should pay the entire damage resulting from a collision by its failure to use proper precaution in approaching the crossing; and one of the defendants having operated the car in question as the lessee of the street car company which was a party to said contract.</p> <p>2. Street railroads—care required of employees under contract with railroad to use ‘‘due care” at crossing. Under a contract between a steam railroad company and a street car company granting the right to cross the right of way and tracks of the former by the latter, and providing that the street car company should exercise due care to ascertain that the crossing could be made safely, the words “exercise due care to ascertain” were construed to mean that the employees of the street car company should be required to use reasonable care to ascertain that the crossing could be made in safety, and not that they should make sure of that fact.</p> <p>3. Street railroads—liability of lessor for negligence of lessee operating trades. The lessor of a street car company is liable for the negligence of its lessee while operating its tracks, and the doctrine of res adjudicata, if applicable to such lessor, would likewise be applicable to such lessee in relation to the use of the tracks by the latter.</p>

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

<p>1. Forcible entry and detainer—time for bringing suit under notice. A forcible detainer suit was prematurely brought on May 1, where the owner served a notice on the holdover tenant from year to year, more than 60 days before April 30, demanding possession not later than May 1, as such notice gave the tenant until midnight of said May 1 to vacate.</p> <p>2. Landlord and tenant—sufficiency of notice as termination of tease of entire premises. A notice demanding possession of only “the store” at a stated number was insufficient to terminate a lease of the first floor and basement and the shed adjoining the rear of-the building in question. ' <</p>

<p>1. Landlord and tenant—what constitutes subletting of garage. Under a lease of premises to be occupied for a garage and for no other purpose, and covenanting against subletting without the lessor’s written consent, a subletting was not created by an agreement with the postmastef for the housing of 33 mail trucks at a stated monthly payment, including water, power, light and other equipment, and the exclusive use of a gasoline storage tank and pump, also office fixtures, toilets and heating plant, and providing that the department should furnish fuel and take care of the heating plant, it appearing that the lessee retained space in the office for his desk and chair, - and space in the garage for his tools and his work of repairing automobiles, which was continued, and that he retained space for his own automobile and another, and that if all 33 mail cars were in the garage at the same time, there would have been space for at least three other automobiles and also bench room.</p> <p>2. Landlord and tenant—license and grant by lessee .distinguished. The rule that whether an instrument is a license or a grant depends upon its construction as a matter of law and that if it merely confers a privilege to do an act under the owner, which without .permission would be unlawful, it is a license, but if it grants exclusive possession of the premises against the world, including the owner, it creates an estate or interest in the land, applied where violation of a lease by subletting was claimed, and the act of the lessee in permitting a use of the premises which was not exclusive, was held to have been merely a license and non a subletting.</p> <p>3'. Landlord and tenant—giving exclusive use of certain appliance by lessee as subletting garage. The giving of the “exclusive use” of a gasoline tank and pump and other equipment under an agreement by a lessee with a third party for the housing of automobiles and the use of said equipment in the leased premises was not of importance in the construction of such agreement, which latter was held not to be a subletting in violation of the lease, but merely a license to use the premises for certain purposes not exclusive, and for a stated term.</p>

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

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

<p>Appeal from the Circuit Court of Cook county; the Hon. George F. Barrett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920. Certiorari denied by Supreme Court (making opinion final).</p>