Volume 224 — Illinois Appellate Court Reports

<p>1. Appeal and error—waiver of questions not raised on first appeal. A case cannot he taken to a court of review by piecemeal but all questions presented by the record must he raised upon the first appeal by a proper assignment of error or such questions will be deemed to have been waived and cannot he raised upon a subsequent appeal.</p> <p>2. Evidence—judicial notice by Appellate Court of own records. In determining what was before it upon a former review, the Appellate Court will take notice of its own records.</p> <p>3. Appeal and error—necessity of formal plea to present question of adjudioation on former review. No formal plea of res judicata is required to present to the Appellate Court the question of adjudication on a former review.</p> <p>4. Appeal and error—right to be heard on writ of error subsequent to appeal. Where a defendant in a foreclosure proceeding appealed from a final deficiency decree against him, which decree was affirmed, and he could, at the time of such appeal, have sued out a writ of error which would have searched the whole record and have brought before the court for review alleged errors in a prior interlocutory decree, he ought not to be heard upon a writ of error as to such decree.</p> <p>5. Appear and error—when appeal bars subsequent review. Where on a former appeal in a foreclosure suit from a final decree finding appellant liable for a deficiency the evidence heard at a prior term, upon which an interlocutory decree was rendered, was a matter of record and was treated as heard at the later term, at least so far as either party desired to have it considered, and was reviewed, such fact will bar another review of the proceedings at such prior term.</p> <p>6. Appear and error—question not before court on writ of error subsequent to appeal. The defense that a deed in which appellant assumed the payment of mortgages was executed to correct the description in a former deed and was made and recorded without appellant’s knowledge and was without consideration, held available in a suit from which a former appeal was taken and therefore not before the court upon writ of error from a prior interlocutory decree.</p>

<p>1. Appeal and erjíor—when abstract such that appellant cannot question findings as to facts. Under Appellate Court rule 16, 137 Ill. App. 625, requiring the abstract to be sufficient for a full understanding of the questions presented for decision, an abstract, on appeal from -a decree dismissing for want of equity a bill to redeem, which sets out the bill, answer, decree and assignment of errors but omits the order of reference to the master, the evidence taken before him, the report made by him, the objections made by .appellants to that report, the ruling of the master thereon, and the exóeptions to said report filed in the circuit court, practically withdraws from the decision of the Appellate Court all the questions of fact and, while a motion to strike the abstract from the files will be denied, appellant will be deprived of any question upon the findings of the court as to the facts.</p> <p>2. Mortgages—foreclosure of second mortgage. While a second mortgagee who is not made a party to the foreclosure of the first mortgage could not be cut off by a decree in a proceeding to which he was not a party, he had nothing but a right in equity to redeem and could not proceed to foreclose as if no foreclosure theretofore had been had, and, upon foreclosure of the senior mortgage and a sale and deed pursuant thereto, the equity of redemption in the mortgagor was extinguished and nothing remained that could be sold on foreclosure of the junior security.</p>

<p>1. Sales—construction of agreement as to time of delivery. An agreement by a salesman in taking an order that the goods would be skipped immediately, wkile not meaning tkat tkey would be skipped on tkat day, did mean tkat tke skipment would ke made promptly.</p> <p>2. Saxes—construction of order as to mode of delivery. An order for goods stating tkat “terms are P. O. B. Kenton” means tkat tke skipper is to deliver tke goods on board cars at Kenton, duly addressed to the consignee.</p> <p>3. Saxes—vesting of title in purchaser on delivery of property to carrier. Tke general rule in this State is that delivery of personal property by the seller to a common carrier for delivery to tke purchaser is delivery to tke purchaser so tkat title vests in him immediately, and tke risk of subsequent loss falls upon him.</p> <p>4. Sales-—when right to rescind for delay in delivery is waived. If delivery of goods to a carrier on a certain date was a failure of tke seller to comply with an agreement to skip them immediately and authorized tke purchaser to rescind tke contract, the purchaser was required, upon receipt of notice of delivery to tke carrier on tkat date, to rescind immediately, if at all, and when tke contract was not so rescinded, the right to rescind was waived and the purchaser must .look to the carrier for redress if the delay in transmitting the goods was unreasonable.</p> <p>5. Appeal and error—when judgment entered in Appellate Court upon reversal. Where a case was tried below without a jury and it was proven that defendant owes plaintiff a certain amount, which is undisputed if defendant is liable at all, and apparently all evidence was produced which could be produced, it is proper upon reversal of a judgment for defendant that judgment be entered in the Appellate Court.</p>

<p>1. Wills—right of court to infer unexpressed purpose on part of testator. In construing a will, the intention of the testator is to he sought from the language he has used in the will and the court is not at liberty to infer that. some purpose existed in his mind which he did not express.</p> <p>2. Wills—when testator cannot disinherit heir at law. A testator cannot, by his will, disinherit an heir at law unless he gives his estate to some one else.</p> <p>3. Wills—when holding of partial intestacy required. However reluctant courts may be to hold that a portion of the property of a testator shall he regarded as intestate property, they cannot do otherwise if there is nothing to show an intention on the part of the testator to dispose of the property.</p> <p>4. Wills—when partial intestacy exists. Where the testatrix, by the residuary clause of her will provided that the residuary property he divided one-third to each of two daughters and one-third to the children of a son and, by a codicil, revoked the bequests as to tlie two daughters without making any other disposition of their shares, such shares must he regarded as intestate property and go to the heirs at law, such two-thirds to be divided, one-third to each of said daughters and one-third to the son, they being the only heirs at law.</p> <p>5. Wills—what solicitors’ fees properly charged against estate on construction of will. Where a will is in such ambiguous terms as to require a construction by the courts, the fees of the solicitors for the various interested parties who are necessary to a decision are properly charged against the estate regardless of whether a particular party is successful or defeated in the litigation.</p> <p>6. Appeal and error—effect of cross errors as to allowance of solicitors’ fees on construction of will. Although the only assignments of errors upon the question of the allowance of solicitors’ fees on the construction of a will are cross errors by the defeated parties, such cross errors open the whole question of the allowance of solicitors’ fees as to all the parties.</p> <p>7. Wills—when allowances for solicitors’ fees on construction of will are excessive. Where the- net estate involved in a will contest was $46,400 and the suit involved no contested- questions of fact, the only question litigated being the legal meaning of the words used by the testatrix tested by established rules of law, an allowance of $1,500 as solicitors’ fees to each of the four parties was excessive and each allowance should be reduced one-third and made to cover all services including the appeal up to and including the final decree.</p>

<p>1. Banks and banking—necessity that acceptance of check he in writing. Under sections 131, 184, 188, of the Negotiable Instruments Law (Cahill’s Ill. St. ch. 98, ¶¶ 153, 206, 210), there can be no implied acceptance of a check and the acceptance must be in writing.</p> <p>. 2. Banks and banking—right of hank to deline to pay unaccepted check. A bank has a right to decline to pay a check which it has not accepted.</p> <p>3. Banks and banking—right of hank to apply upon own account proceeds of checks deposited generally. A bank has a right to collect checks deposited with it generally and apply the proceeds upon its own account against the depositor.</p> <p>4. Banks and banking—right of hank as to checks deposited as special fund. If a bank depositor deposits checks with the bank as a special fund to pay another check outstanding, and so informs the bank, it cannot credit the deposit to the depositor’s general account and pay it out on other checks nor apply it to its own account against the depositor.</p> <p>5. Banks and banking—sufficiency of evidence to sustain finding that special deposit was not made. In an action against a bank for refusal to pay a certain check, evidence examined and held to sustain the finding that the drawer had not made a special deposit to cover such check.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Appeal from the Circuit Court of Carroll county; the Hon. Harry Edwards, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Adam C. Cufie, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Divorce—when wife has no equitable right, as against third person, to notes payable to husband. Where suit for divorce was commenced by plaintiff against her husband, by publication, and against the administrators of an estate to secure to her the benefit of notes assigned by her husband, and such notes had been transferred to intervener who took them in good faith before maturity with no knowledge of the pendency of the divorce suit and before the case had become Us pendens as against the husband by completion of service of publication against him, plaintiff had no equitable right to such notes against intervener.</p>

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

<p>1. Landlord and tenant—when holding over creates tenancy from, year to year. A tenant under a written lease for a year or years wlio holds over without any further agreement or understanding becomes a tenant from year to year and the tenancy is subject to all the covenants and stipulations contained in the original lease, so far as they are applicable to the new condition of things.</p> <p>2. Landlord and tenant—when holding over creates tenancy from, year to year. When a tenant holds over after the expiration oí the original term under a written lease for a year or years, his holding over does not renew or extend the original lease for a like term but, in case such holding over is acquiesced in by the landlord, the tenancy becomes a tenancy from year to year.</p> <p>3. Landlord and tenant—nature-of tenancies from year to year. Tenancies from year to year are the creation of judicial decisions, based upon principles of policy and justice, and are indeterminate as to duration, the tenant having a lease for a year certain with a growing interest that his tenancy may continue from year to year thereafter until it is terminated by some affirmative act of the landlord, recognized or commanded by law.</p> <p>4. Landlord and tenant—when notice or demand to quit or surrender up possession not necessary. Where a tenancy is for a fixed period, such as a year or a term of years, no notice or demand to quit or surrender up possession at the expiration of the term is necessary under the law and a'covenant that the lessee will yield up the premises without notice adds nothing to the rights of the lessor and takes nothing from the rights of the lessees and the tenant’s duty with respect to yielding up possession at the end of the term without notice is the same with or without such covenant.</p> <p>5. Landlord and tenant—necessity of 60 days’ notice to terminate tenancy from year to year. To terminate a tenancy from year to year, 60 days’ notice is necessary regardless of the terms of the original lease out of which the tenancy grew.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1921.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Railroads—whqt adjoining proprietors’ Farm Crossing Act intended to aid. It seems that in enacting the Farm Crossing Act (Cahill’s Ill. St. ch. 114, ¶ 78), the legislature intended to aid only-such'proprietors of lands adjoining a railroad right of way as are engaged in farming, i. e., in agriculture and stock raising.</p> <p>2. Railroads—what proprietors’ Farm Crossing Act intended to aid. The farm crossing statute (Cahill’s Ill. St. ch. 114, ¶ 78) is intended to aid proprietors of farm lands adjoining the railroad right of way, not proprietors of remote farm lands.</p> <p>3. Railroads—holder of easement-of way as not entitled to continued maintenance of farm crossing. An easement in perpetuity of a right of way across land on both sides of a railroad at a point where a farm crossing is maintained for the benefit of the owners of the land adjoining the railroad right of way is not such an interest in the adjoining land as will entitle such easement holder to compel the maintenance of the farm crossing after the adjoining owners no longer desire it, and he will be enjoined from destroying fences, closing such crossing and trespassing upon the railroad right of way.</p>

<p>1. Guardian and ward—right of appeal to circuit court from appointment of guardian. It was not intended by section 118 of the Practice Act (Cahill’s Ill. St. ch. 110, ¶ 118) and section 8 of the Appellate Court Act (Cahill’s Ill. St. ch. 37, 40) to .abolish all right of appeal from the county court to the circuit court, and an appeal will lie to the circuit court from the appointment of a guardian of the person and estate of an infant.</p> <p>2. Guardian and ward—who have appealable interest in proceeding for appointment of guardian. The grandparents, uncles and aunts of an infant have such an interest in the conservation of the estate and the proper care and custody of a child that the law recognizes them as not only proper hut necessary parties to a proceeding for the appointment of a guardian, and they have an appealable interest in a proceeding in the county court for such appointment.</p> <p>3. Guardian and ward—estoppel to appeal from order appointing guardian. Where relatives of an infant petitioned the county court for the appointment of guardians of its person and property, asking the appointment of certain persons “or some other person,” the appointment of their adversary was a denial of their petition and they were not estopped from appealing from the order of appointment.</p> <p>4. Guardian and ward—when findings as to persons to be appointed guardians not disturbed by Appellate Court. “Where both the party appointed as guardian of the person and estate of an infant in the county court and those appointed on appeal by the circuit court were suitable persons to act as guardians, it would be improper for the Appellate Court to interfere with the findings of the circuit court.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Claike C. Edwakds, Judge, presiding. Heard in this court at the April term, 1922.</p>

<p>1. Corporations—constitutionality of Illinois Securities Law. The Supreme Court has held the Illinois Securities Law (Cahill’s Ill. St. ch. 32, ¶ 254-296) to be constitutional.</p> <p>2. Common law—force ana effect in this State. The common law, until repealed by legislative enactment, is in full force and effect in this State (Cahill’s Ill. St. ch. 28, ¶ 1).</p> <p>3. Trusts—Illinois Securities Law applicable to business trusts. A business or trading trust organized under the common law is within section 2 of the Illinois Securities Law (Cahill’s Ill. St. ch. 32, ¶ 255), and a sale of shares in such a trust in violation thereof is void and notes given in consideration are unenforceable.</p> <p>4. Trusts—immaterial question when shares sola without compliance with Illinois Securities Law. In an action on promissory notes given for shares in a business or trading trust in which the defense is that the sale was void and the notes unenforceable because the Illinois Securities Law (Cahill's Ill. St. ch. 32, ¶¶ 254-296) had not been complied with, it is immaterial whether the trust is a common-law trust or a partnership, both being governed by the act.</p>

<p>1. Courts—binding effect upon Appellate Court of Supreme Court decision. The latest expression of the Supreme Court of Illinois upon the law of a question is binding upon and will be followed by the Appellate Court.</p> <p>2. Vendor and purchaser—when purchaser cannot recover damages for refusal of vendors wife to sign deed. A vendee of land who accepts a contract to convey which is not signed by the wife of the grantor cannot refuse to accept a deed otherwise sufficient because the wife refuses to sign it and can recover no damages because of such a refusal.</p> <p>3. Vendor and purchaser—what is measure of damages for failure to convey land. In an action for damages for failure to convey land, the measure of damages is the difference between the contract price and the fair cash market value of the land, and the fact that the purchaser has a contract to sell the land for more than the purchase price is merely a circumstance to be considered with the other evidence in arriving at the market value.</p> <p>4. Appeal and error—when verdict of jury as to value of land will not be set aside. The question of the value of land is purely one of fact for a jury and its verdict will not be set aside unless it is clearly against the weight of the evidence.</p> <p>5. Vendor and purchaser—when instruction that defendant’s wife was not competent witness proper. In an action for damages under a contract to convey land, where defendant’s wife refused to sign the deed, it was proper to instruct the jury that the wife was not a competent witness in the case, to explain defendant’s failure to call her.</p> <p>6. Vendor and purchaser—•when instruction on subject of waiver 1justified. In an action for breach of contract to sell land, where there were several things which the evidence showed were waived by the parties, the court was justified in instructing the jury that a waiver of any part or the whole of the contract could be made by either party, either by spoken words or acts of either party or by acts which raised a reasonable inference of the intention of the party to make such waiver.</p>

<p>Appeal from the Circuit Court of Henderson county; the Hon. Habry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Appeal and eeeoe—appeal as precluding writ of error by appellant. An appeal operates as a continuance of the same case, and when a case is transferred to an appellate tribunal by appeal, there is no case pending in the trial court upon which a writ of error will operate at the suit of the party prosecuting the appeal until the case gets back into the trial court in some regular way.</p> <p>2. Appeal and eeeoe—when second appeal cannot be taken. A second appeal cannot be taken when the first appeal has not been dismissed.</p> <p>3. Appeal and error—appeal as precluding writ of error by appellant. When an appeal is pending, the case cannot be taken up by appellant by writ of error.</p> <p>4. Certiorari—appeal as precluding certiorari by appellant. When an appeal is pending, the case cannot be taken up by the appellant by certiorari.</p> <p>5. Landlord and tenant—essentials to validity of lease. Before there can be a valid lease, the parties must have the power and authority to execute it and it must, in fact, be executed and be delivered and accepted by the parties before it will be valid and binding.</p> <p>6. Partnership—when premises occupied by partnership are held under written lease. Where two partners agreed that one should erect a building and lease it to the firm and, upon the insistence of the other that a written lease be executed, the partner owning the building prepared a lease, signed his own name and the firm name thereto and gave a copy to his partner but it was never signed by the latter though he made no objection thereto, it became a valid and binding contract between them and the premises were thereafter held under it and not under an oral lease.</p> <p>7. Partnership—sufficiency of evidence to overcome presumption arising from execution and delivery of lease. While under certain circumstances parties may testify as to their intention concerning the execution and delivery of an instrument, testimony of a partner who executed a lease to the partnership of a building owned by himself, he signing for the partnership and for himself individually and delivering a copy to the other partner, that it was not intended to become binding until signed by the other partner was not sufficient to overcome the presumption arising from the facts concerning the execution and delivery.</p> <p>8. Landlord and tenant—how clauses in lease against subletting and assigning will be construed. Clauses in a lease against subletting and assigning will be recognized and enforced but are not favored in the law and will be strictly construed.</p> <p>9. Landlord and tenant—when restriction in lease against transfer is not broken. A restriction in a lease against transfer is not, as a general rule, regarded as broken by an involuntary alienation or transfer by operation of law.</p> <p>10. Partnership—when lease properly included as asset on sale of property. Where one partner, who owned a building leased to and used by the firm, filed a bill for dissolution of the partnership and sale of the firm property, such sale is by operation of law and does not constitute a transfer of the lease within the meaning of a provision therein against subletting and assigning, and the lease was properly included as an asset of the partnership.</p> <p>11. Equity—right of complainant to dismiss hill. When no cross-bill is filed, a complainant has a right to dismiss his bill at any time before final decree has been entered but he cannot file a written motion to dismiss and then sit idly by and wait until the case is decided against him and the decree entered and then exercise his right to dismiss.</p> <p>12. Appeal and error—when motions to dismiss hill cannot he considered as part of record. Motions to dismiss a bill cannot be considered as part of the record unless they are preserved by a certificate of evidence.</p> <p>13. Records—conclusiveness of court’s finding as against file marks or entries hy clerk. A finding by the court that a motion by complainant to dismiss his bill was not made until after the decree had been signed and entered cannot be contradicted by file marks or entries made by the clerk.</p> <p>14. Partnership—insufficiency of evidence to show partner’s unqualified acceptance of opportunity to purchase copartner’s interest. In a proceeding in equity for dissolution of a partnership, evidence examined and held insufficient to show that appellee unqualifiedly accepted the opportunity offered by appellant under the terms of the articles of partnership to purchase the interest of appellant.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Sales—when purchaser cannot recover upon grounds of war- . ranty. When a'purchaser of personal property has fully inspected it before purchasing and there is no concealment by the seller nor any representations as to quality made by the seller to induce the purchase, the purchaser cannot recover upon the grounds of warranty.</p> <p>2. Sales—what is decisive test in determining existence of warranty. In determining whether there was, a warranty in the sale of personal property, the decisive test is whether the seller assumed to assert a fact of which the purchaser was ignorant or merely stated an opinion or judgment upon a matter of which he had no special knowledge and on which the purchaser might be expected to have an opinion and exercise his judgment.</p> <p>3. Sales—what are questions for jury. Whether the purchaser of railroad ties had an opportunity to examine them, whether he did examine them and whether the seller warranted them, held questions of fact for the jury.</p> <p>4. Sales—sufficiency of evidence to sustain verdict for defendant in action for purchase price. Where railroad ties were purchased while in piles so that the center of them could not be seen and, upon their arrival at the purchaser’s premises, such ties were found to be in poor condition, evidence examined and held to sustain a verdict for the defendant in an action for the purchase price.</p> <p>5. Sales—when instructions in action for purchase price properly modified. In an action for the purchase price of railroad ties, instructions based upon the doctrine that if the purchaser had an opportunity to, and in fact did, before the sale, inspect and examine them and knew or could have known of their condition he was bound to pay for them, held properly modified by adding a provision covering a warranty by the seller.</p> <p>6. Instructions—when modification proper. Offered instructions which did not refer to the evidence were properly modified to make them do so.</p>

<p>1. Injunction—action of chancellor in fixing amount of appeal bond as not affecting validity of appeal. Where the amount of the bond on an appeal from an order granting a temporary injunction was fixed by the chancellor instead of the clerk as provided by statute (Cahill’s Ill. St. ch. 110, ¶ 122), but was approved by the clerk, the action of the chancellor was unnecessary but did not affect the validity of the appeal.</p> <p>2. Injunction—what constitutes waiver of failure to give notice. A- motion to dissolve a temporary injunction constitutes a waiver of the failure to give notice as required by the statute (Cahill’s Ill. St. ch. 69, ¶ 3).</p> <p>3. Reformation of instruments—jurisdiction of equity. A court of equity has jurisdiction to correct mistakes in deeds, leases and other instruments in writing and so reform the same as to make them conform to what was intended by the parties.</p> <p>4. Equity—when court of equity may establish purely legal rights and grant damages. Where a court of equity has jurisdiction of a cause for one purpose, it will retain jurisdiction for all purposes and may establish' purely legal rights and grant damages which otherwise would be beyond its power.</p> <p>5. Reformation of instruments—what allegations not necessary to authorize injunction against interference with possession. Upon a bill in equity to reform a life lease by striking out a provision against subletting, it was unnecessary to allege irreparable injury, insolvency of the parties or that the bill was filed to avoid a multiplicity of suits, to authorize the court to enjoin defendants from interfering with complainant’s possession.</p> <p>6. Injunction—mandatory injunction not issued until final hearing. A mandatory injunction will not he issued until final hearing.</p> <p>7. Reformation of instruments—reversal of part of decree constituting mandatory injunction. Upon a bill to reform a life lease by striking out a provision against subletting, where a temporary injunction issued which not only restrained defendants'from interfering with complainant’s possession but required defendants to do certain things, the decree will be reversed in so far as it contains provisions amounting to a mandatory injunction.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. Harry Edwards, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Schools and school districts—authority of directors in matter of school sites, new buildings and bonds as statutory. The authority of boards of directors to select school sites, build new buildings and issue bonds in payment thereof is governed entirely by statute.</p> <p>2. Schools and school districts—submission of separate propositions on same ballot. The question of bonding for school building purposes and several separate propositions for the selection of building sites were properly placed upon the same ballot.</p> <p>3. Schools and school districts—when directors without authority to select schoolhouse site. Where neither the proposition submitted at a school district election to purchase a new schoolhouse site nor either of the other propositions for the selection of specific sites received a majority of all votes cast as required by section 119, ch. 122 (Cahill’s Ill. St. ch. 122, ¶ 127), the directors were without authority to select a site.</p> <p>4. Schools and school districts—when bill not sufficient to show right to relief in matter of bond issue. Allegations in a bill that the voters in a school district election- were induced to vote for a bond issue by representations made prior to the election that there was to be a new site in the east end of the district and that the bonds were to be issued to purchase the site and build a building thereon and that, if they had known that the bonds could not be issued to purchase such a new site, they would not have voted for the bond issue, were not sufficient to show'such fraud or misrepresentation, as would entitle complainants to the granting of the prayer of their bill that the election be annulled or, if the bonds might properly be used to provide an additional site and to build thereon, that defendants be required to select a new site in the east end of the district and, on their failure to do so, that they be restrained and enjoined from issuing the bonds.</p> <p>5. Schools and school districts—what does not entitle voters at school election to relief on ground of fraud. The fact that the voters at an election involving the issue of bonds for school building purposes did not understand the law does not entitle them to relief on the ground of fraud.</p> <p>6. Schools and school districts—when bill not sufficient to entitle taxpayers to relief in matter of bond issue. Taxpayers in a school district who sought to have a bond election annulled or to have the school authorities required to use the bonds for the purchase of a new site in the east end of the district and to build thereon or to have them enjoined from issuing the bonds, the bill being based upon allegations that the voters were misled into voting for the bond issue under a belief that they would be used for building upon such a new site, were not entitled to such relief where the bill contained no allegation that the directors or any other public official or private individual ever made any representation to any one concerning the powers of the directors under the propositions contained upon the ballot or as to any construction placed upon the meaning of the proposition by the directors or any one else.</p> <p>7. Schools and school distbicts—when use of bonds to build on existing site not enjoined. Where the proposition to bond contained in the ballot used at a school election was merely to issue bonds “to the amount of $20,000 for building purposes,” complainants were not entitled to have the authorities enjoined from using the bonds to build upon the existing site for the reason that to so . build would be inequitable.</p> <p>8. Schools and. school districts—right to relief against district treasurer and county in matter of bond issue. Neither the treasurer of a school district nor the county has any-authority to issue school district bonds, and no relief can be granted as against them under a bill seeking either to have the proceeds of the bonds used in a certain way or' to have the issuing of the bonds. enjoined.</p> <p>9. Schools and school districts—-when directors can act officially. Under the statute (Cahill's Ill. St. ch. 122, ¶ 119), school directors can act officially only at a regular or special meeting properly called, and any business transacted at any other time or place is illegal and not binding on the district.</p> <p>10. Schools and school distbicts—what not sufficient to authorise injunction against directors. The mere fact that school directors have stated unofficially that they intend to use a .bond issue, voted by the district, in a certain way, alleged to be improper, is not sufficient to authorize an injunction restraining them from doing so.</p>

<p>1. Automobiles and gabages—Chicago speed ordinance as not applicable to private passenger automobile. Section 1963, ch. 57, of the ordinances of the City of Chicago prohibiting the driving of certain motor vehicles in excess of 5 miles per hour between the hours of 8 a. m. and 5 p. m. within 400 feet of a schoolhouse, while applying to motor trucks, commercial motor vehicles, and motor vehicles Used within the city for public hire, seemingly has no application to a private passenger automobile.</p> <p>2. Automobiles and gabages—what proximate cause of collision between motor vehicles. Where the driver of defendant’s motor truck, upon approaching a street intersection from the west, saw plaintiff’s touring car approaching from the south, it was his duty, under section 33 of the Motor Vehicle Act (Cahill’s Ill. St. ch. 95a, ¶ 34), providing that all vehicles traveling upon public highways shall give the right of way to other vehicles approaching along intersecting highways from the right, to so check his truck or stop it as to allow plaintiff’s car to pass in front of it, and his failure to do so was the proximate cause of a collision between the two vehicles.</p> <p>3. Appeal and ebbob—harmless error in admission of evidence. Assuming that plaintiff’s wife was incompetent to testify to certain happenings before and after a collision between her husband’s touring car and defendant’s truck, in an action by plaintiff for damages to the touring car, defendant was not so prejudiced by her testimony as to warrant reversal where the facts testified to by her were fully shown by the testimony of other witnesses.</p> <p>4. Appeal and ebbob—harmless error in instructing jury, on first presentation of verdict, in absence of counsel. Where, upon the first presentation of the jury’s verdict to the trial judge, he refused to receive it and, in the absence of counsel, instructed the jury to return and further deliberate on the question of damages and, while they were so deliberating, the attorneys for both parties returned and were informed of what had occurred whereupon defendant’s attorney said that there was no dispute on the question of damages and that the verdict should be either $200 or nothing and that the action of the court met with his approval, and the jury continued their deliberations without objection and returned a verdict for plaintiff for $200, there was no ground for reversal because of the court’s action in instructing the jury in the absence of counsel.</p> <p>5. Trial—rights of jury to revise verdict. A jury may revise its verdict before its acceptance by the court and before it has been recorded, and the fact that the verdict was sealed and the jury had temporarily separated does not change the rule.</p>

<p>1. Contracts—when executory written agreement may he changed or modified hy subsequent oral agreement. An executory written agreement may be changed or modified by a subsequent oral agreement between the parties if the latter agreement is not without consideration.</p> <p>2. Contracts—existence of oral agreement modifying executory written agreement as question for jury. Whether an oral agreement has been made, modifying an executory writtén agreement, is a question of fact for the jury.</p> <p>3. Bailment—when error to strike affidavit of merits in action for rental of tank cars. Where the lessees of tank cars under a written agreement refused to continue the agreement unless the lessor would reduce the rental charges and the lessor agreed to a reduction by an oral agreement, such agreement was not without consideration and, in an action for rental due under the original agreement, the trial court erred in striking from the files defendants’ affidavit of merits setting up the subsequent agreement and entering judgment against them without a trial upon the merits.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. M. I*. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1921.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October 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 March term, 1921.</p>

<p>V Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1921.</p>

<p>Bastards—when settlement invalid. By virtue of section 3 of the Juvenile Court Act (Cahill’s Ill. St. ch. 23, ¶ 321), the county court of Cook county is excluded from jurisdiction in bastardy cases and, whére the only defense made in such a case was a certified copy of a settlement approved by the county court, the court properly directed a verdict in favor of relatrix, the amount of the settlement to be credited thereon.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Error to the Criminal Court of Cook county; the Hon. Thomas Taylor, Jr., Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Contracts—necessity that party responsible for ambiguity explain same. Where a contract is drawn by a party's attorney, such party is responsible for the language used and, if there is any ambiguity, it devolves upon such party to give an explanation of it.</p> <p>2. Contracts—how contract construed. Courts will always, if possible, so construe a contract as to give effect to it and make it enforceable.</p> <p>3. Contracts—duty to perform alternative obligation. Where a promisor has the right to elect to do one of two things and by his conduct evinces his intention not to do one of the- things, he Will thereby be bound to do the other.</p> <p>4. Contracts—when defendant liable under alternative obligation. Where defendant, in consideration of certain things to be done by plaintiff which it is admitted have been done, agreed to organize a corporation and deliver to plaintiff stock therein of the market price of $120,000 and, by another paragraph of the contract, it was agreed that defendant should at any time prior to the delivery of such stock have a right to pay in lieu thereof the sum of $50,000, he must be held, upon failing to organize the corporation and deliver the stock, to have elected to pay the sum of $50,000, and the court erred in refusing to hold that he was liable in that sum and in finding him liable for nominal damages only.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Habby B. Miller, Judge, presiding. Heard in this court at the March 'term, 1921.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brektano, Judge, presiding. . Heard in the Branch Appellate Court at the March term, 1921.</p> <p>Statement by tlie Court. In this case the contest is between the plaintiff in attachment proceedings and the executor of the last will of ah intervening claimant to ascertain funds in the hands of the garnishee, to which funds said claimant during his lifetime claimed he was entitled. It was admitted that the plaintiff was a creditor of the defendant to more than the amount of the funds attached. On the issues made by said claimant’s interpleas ánd plaintiff’s replications thereto, the jury returned a verdict against the interpleader and on October 30, 1920, judgment was entered upon the verdict and this appeal followed.</p> <p>On March 16, 1918, George P. Eastman, a resident of Rutland, Vermont, commenced the attachment suit in the superior court of Cook county against the United Marble Companies, a corporation. In his affidavit he alleged that it is indebted to him in the sum of $4,901.08, upon three drafts dated March 12, 1917, for $1,550 each, together with interest; that it is not a resident of Illinois and that its place of residence is at Rutland, Vermont. The attachment writ was served on March 16, 1918, on the Daprato Statuary Company, a corporation having its principal office at Chicago, as garnishee. To plaintiff’s declaration the United Marhle Companies filed a plea of the general issue. On June 11, 1918, the garnishee filed its answer alleging that at the time of the service of the writ it was indebted to the United Marble Companies to the extent of $2,374.92; that subsequently, on April 17, 1918, it received notice from said defendant of an assignment of said indebtedness by-', the latter to one John A. Mead, of Rutland, Vermont. No further proceedings seem to have been had in the case for about 10 months.</p> <p>- On April 7, 1919, the said Mead filed three inter-pleas verified by him. In the first interplea he alleges that “the goods and chattels, in respect of which the garnishee * * * alleges that it is indebted to the defendant, United Marble Companies, in the. amount of $2,374.92, were, at the time of the sale and delivery thereof to the said garnishee, the property of the said John A. Mead, and that the said goods and chattels were then and there so sold by the defendant as the agent of the said John A. Mead, and on his behalf,” and that by virtue of said sale the said sum is now owing by the garnishee to him, and has been for a long time prior to March 9,1918. The second inter-plea is substantially the same as the_ first, 'with the additional allegation that notice of the facts that the goods and chattels were the property of Mead and that said debt was owing to him was given by him, “through his agent, the send defendant, to the said garnishee and to the plaintiff, Greorge P. Eastman, prior to March 16, 1918.” The third interplea is substantially the same as the second, except that said notice was given in the same manner “prior to May 1, 1918.” In plaintiff’s replication to the first inter-plea he denies that said goods and chattels at the time of their sale and delivery to the garnishee were the property of Mead, denies that at said time they were so sold' by the defendant as the agent of Me.ad, denies that the said debt of $2,374.92 is or ever was owing to Mead, and alleges that the same is and was one due from the garnishee to the defendant. In the replications to the second and third interpleas the same denials are made and the respective allegations of Mead as to the giving of the notices are denied.</p> <p>On April 8, 1919, a stipulation was signed by the attorneys of all parties providing for the taking of Mead’s deposition upon oral interrogations at Rut-land, Vermont, on May 15, 1919, before a notary public. After many extensions the deposition was finally taken on December 31, 1919, in the absence of plaintiff’s attorney, and was returned, duly certified, to the .clerk of the superior court, and on January 12, 1920, was opened by the clerk and filed in the cause. On the same day Mead died and on March 8, 1920, by order of court, the executor of his last will and testament, Carl B. Hinsman, was substituted as the party interpleading. Prior to the trial no motion was made by plaintiff to suppress the deposition or any part thereof. The cause was called for trial on October 20, 1920. Before the jury were impaneled, plaintiff’s attorney moved to suppress the deposition on the ground that it was taken on a day subsequent to that agreed to by plaintiff and at a time when neither plaintiff nor his attorney were present. The court denied the motion. No cross errors are here assigned by plaintiff on said ruling.</p> <p>After the jury were sworn the attorney for the intervening claimant stated that, as the sole issues to be determined by the jury were those between said claimant and plaintiff, the former had the right of opening and closing the examination. To this plaintiff’s attorney assented, and thereupon claimant’s attorney introduced a document, showing the appointment on February 7, 1920, by the probate court of Rutland district, Vermont, of said Iiinsman as said executor, and also offered Mead’s deposition in evidence. Mead testified, in substance, that he is president of the Iiowe Scale Company, and of the Baxter National Bank of Rutland, Vermont; that in 1917, he advanced to P.'R. Eaton, president of the United Marble Companies, money or credit, on three notes signed by the marble company, which notes were to be secured on marble which it was shipping to the Daprato Statuary Company; that one note was for $2,750, dated September 22, 1917, due October 2, 1917, payable to the order of John A. Mead, another for $1,200, and a third for $800 subsequently dated, making a total sum of $4,750, together with accrued interest, no part of which sum has ever been repaid to him; that the amount of the first note he advanced in cash, and as to the two other notes he indorsed them, thereby loaning his credit, and the same were discounted by the marble company at the Rutland County Bank and were renewed from time to time and are still outstanding; that" as security for said advances and credit loaned he received from the marble company from time to time assignments of certain accounts due it from the statuary company, and certain bills of lading; and that as Eaton frequently went to Chicago he requested Eaton to advise the statuary company of the facts regarding the assignment of said accounts. Mead in his deposition identified certain papers and documents which were attached thereto as exhibits. These were read in evidence before the jury and are as follows: (1) The Marble Company’s note to Mead for $2,750; (2) a written order of the same date of the marble company on the statuary company to pay to Mead’s order said amount, “$1,500 a/c St. Paul job and $1,200 a/c Indianapolis job”; (3) bill of lading, dated October 11, 1917, of certain marble shipped in car No. 66700 by the marble company from Rutland and consigned to the statuary company at St. Paul, but which bill of lading does not show on its face to have been assigned to Mead; (4) written assignment to Mead, dated October 13, 1917, of the account due the marble company from the statuary company, $1,857, for said shipment in 'said car as security for the $800 debt above mentioned; (5) bill of lading, dated January 16, 1938, in the name of John A. Mead as shipper, of 31 boxes of marble, in car No. 42208, shipped from Rutland and consigned to Mead at St. Paul; (6) bill of sale, signed by the marble company by its president, Eaton, dated December 20, 1917, purporting to transfer to Mead the marble shipped in said car No. 42208; and (7) three written assignments by the marble company to Mead, each dated January 19, 1918, of three accounts against the statuary company, $387.71, $841.42, and $333.46, respectively, the first two for marble shipped in said car No. 42208, and the third for marble shipped in car No. 25506.</p> <p>The intervening claimant also called as a witnéss Henry B. Schwarte, superintendent of the statuary company, garnishee. He identified certain letters and telegrams which were offered in evidence by said claimant. It appears therefrom that on the same day (January 22, 1918) that the statuary company received from the marble company the said bill of lading in the name of Mead as shipper (dated January 16, 1918), it immediately wired the marble company, “We await border patterns Indianapolis sanctuary. Who is John A. Mead and how is he connected with last shipments. Answer”; that the statuary company also wrote the marble company: “We have your letter of the 16th inst. inclosing bill of lading for car No. 42208, * # *. This shipment we note is consigned to John A. Mead. While we can surmise - the cause of your action in billing this shipment in this manner, it seems that you might have mentioned the amount of his claim when writing us; as the matter now stands we cannot mate a remittance of 85% of your invoice value as you request. "We wired you .this morning (telegram repeated). Up to the present writing we have not received your reply and will await this before making any remittance.” It further appears that on April 18, 1918 (more than one month after the statuary company had been served as garnishee in the present action), the marble company, by Eaton, its president, wrote the statuary company that, confirming telegram of April 16, “We hereby notify you that assignments of our account against you were given to John A. Mead * * * on September 22, 1917, and October 11, 1917, and that on December 20, 1917, we gave him bill of sale covering marble shipped to you in car No. 42208; * # * it was to pay moneys advanced to us by Dr. Mead that these assignments and bills of sale were given to him, as I explained to you while I was at your office on March 11, 12 and 13th.”</p> <p>Said claimant also called as a witness P. R. Eaton, president of the marble company. He testified, in substance, that he first saw the said letter, dated January 22, 1918, written by the statuary company to the marble company, wherein the inquiry was made “Who is John A. Mead,” in his office in Rutland on January 25, 1918; that he replied to the question in the letter by coming, to Chicago about two weeks later and talking with the president of the statuary conipany, Mr. Rigali; that he then informed Rigali that Mead had advanced the marble company money from time to time on that company’s notes, “taking assignments of accounts as collateral security therefor,” and that the marble company had assigned its account against the statuary company to Mead, “as collateral for obligations due to him”; that he further informed Rigali, as regards the shipment of Marble, made on January 16, 1918, in which the bill of lading was in.Mead’s name as shipper, that “the shipment was held up by Mr. Eastman attached for a long time at Rutland, and that finally it was released and forwarded to him in the name of John A. Mead”; that when he (Eaton)’was again in Chicago in March, 1918, and before the pres-' ent. attachment suit was coinmenced, he called at the office of the statuary company and “collected some money on account of the indebtedness due to the United Marble Companies,” that he tried unsuccessfully to collect it all, and that'what he did collect he turned over to Mead on his return to Rutland, less certain expenses which Mead permitted him to deduct.</p> <p>At the close of the claimant’s evidence, the plaintiff, Eastman, moved for an instructed verdict in his favor, but the motion was denied.</p> <p>The plaintiff thereupon testified in his own behalf and called as witness Henry B. Schwarte, who had previously testified as a witness for the claimant. The plaintiff also introduced in evidence certain letters and documents and a telegram. His case proceeded on the theory that the asignments of the accounts to Mead by the marble company were illegal and void because f ctitious and made for the purpose of defrauding plaintiff and other creditors of the marble company.</p> <p>Plaintiff testified, in substance, that as the operator of a marble quarry near Rutland he had had business dealings with the marble company for 4 or 5 years; that he furnished it marble in bulk which it manufactured; that in the spring of 1917, Eaton, president of the marble company, requested him to furnish marble for certain altars, which marble it had arranged to manufacture and sell to the statuary company; that he had negotiations with Eaton and Schwarte (representing the statuary company), which resulted in a written agreement (introduced in evidence) being executed on June 5, 1917, whereby the statuary company agreed to remit to Eastman at the rate of $4 per cubic foot for all “Eastman’s cream marble,” shipped either to St. Paul or Indianapolis, upon its orders, within 5 days after receipt of list of sizes contained in each shipment and bill of lading attached, and whereby the marble company agreed that the amounts so remitted to Eastman might be applied as payments to it on its St. Paul and Indianapolis contracts with the statuary company; that pursuant to this agreement he (Eastman) furnished certain bulk marble and received payments for portions thereof from the statuary company; that on March 16, 1918 (the day the attachment proceedings were commenced), there was owing to him on account of shipments under the agreement more than $2,800; that in November', 1917, the marble company owed him moneys which he had unsuccessfully tried to collect; that in the latter part of that month he attached a carload of marble at Rut-land, which resulted in the marble company giving him an order on the statuary company which it subsequently paid, and which further resulted in a written agreement (introduced in evidence) being entered into between Eastman and Eaton, dated December 4, 1917, which recited the existence of thre ) unpaid drafts of $1,550 each, dated March 12, 1917, the aggregate amount of which including interest the marble company owed Eastman, and which agreement provided, in substance, that, in consideration of the release of said Rutland attachment, Eaton was to become personally responsible for the payment by the marble company of the amount due on said drafts (also introduced in evidence) and was to execute his ten individual notes, aggregating $4,816.88, payable to Eastman’s order, as collateral security to said debt of the marble company to Eastman; that neither the drafts nor the notes have been paid, and that there is now due him (Eastman) thereon the sum of $5,621.84; that in February, 1918, he had a conversation with Eaton, at which the latter stated that both he and the marble company were without funds and unable to keep their promises; that on March 14, 1918, he at his office in Rutland received a letter (introduced in evidence) from the statuary company, advising him that Eaton was then in Chicago and that the statuary company contemplated making a settlement with the marble company pertaining to the St. Paul and Indianapolis contracts, and requesting him to advise the statuary company whether he had any claim against the marble company for material furnished to complete said contracts; that he immediately went to Chicago, and, after having conversations with Schwarte and other representatives of the statuary company, brought the present attachment proceedings; and that during one of his conversations with Schwarte the latter showed him a certain telegram dated January 23, 1918, which the statuary company had received on January 24,1918, from the marble company. The original telegram, as received from the telegraph company, was produced in court by Schwarte under a subpoena, and the same was admitted in evidence, over the objection of the attorney for the intervening claimant, as being irrelevant to the issues and not binding upon said claimant. The telegram is as follows :</p> <p>“Car billed in name of John A. Mead because Eastman attached and tried to hold; this only way to get car to you; Mead no claim on car; send us 85 per cent of invoice as requested; wire answer.” (Signed) “United Marble Co.”</p> <p>At the conclusion of plaintiff’s testimony the attorney for the intervening claimant moved to exclude such of that testimony as referred to occurrences prior to the death of Mead (January 12,1920) on the ground of the executor of Mead’s will being a party to the suit and by virtue of the provisions of section 2 of the Evidence Act [Cahill’s Ill. St. ch. 51, ¶ 2]. The motion was denied.</p> <p>In rebuttal, on behalf of the intervening claimant, P. B. Eaton further testified'that-he did not sign on behalf of the marble company, or himself send, the said telegram of January 23 to the statuary company, but would not say but what another representative of the marble company did sign and send it.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Shekidan E. Fey, Judge, presiding. Heard in the Branch Appellate Court at the April term, 1921.</p>

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

<p>1. Costs—when court without power to direct cleric to enter witness fees. Where claims for witness fees are not presented to the clerk for taxation at the judgment term or prior thereto, the court is without power after the judgment term to direct the clerk to enter such fees.</p> <p>2. Costs—when order directing cleric to enter witness fees erroneous. Where the court ordered the clerk to enter witness fees on claims therefor not presented until after the judgment term and plaintiff replevied the fee bill and gave a bond and the sheriff- returned the fee bill and bond 'into court, such order was held erroneous, the judgment reversed and the cause remanded with directions to quash, the fee bill and bond and to correct the fee bools accordingly.</p>

<p>1. Costs—when party estopped to claim right to retax. While, theoretically, a trial court has no jurisdiction to enter an order as to costs while an appeal is pending, where- it was done with the consent of all the parties and one of the parties complied with the order by payment of the sum allowed as receiver’s fees, such party, was not, after dismissal of the appeal and after affirmance of the decree upon a subsequent writ of error under which no question was raised as to the sufficiency of the order, in a position to claim a right to retax the costs.</p> <p>2. Appeal and error—when order as to taxation of costs reviewable. As a writ of error calls for the éntire record, an order as to the taxation of costs made before the writ of error was sued out is reviewable thereunder.</p> <p>3. Receivers—when decree directing payment of “taxable costs” not construed as including receiver’s fees and allowances. Where the parties had formed an issue on a receiver’s petition for the allowance of his fees and knew that it was undisposed of when the decree was entered and that a hearing thereon was to be had and, after continuances, was had, not only as to the amount of the receiver’s fees but as to the apportionment thereof, it is apparent that neither the court por the parties construed the decree, in directing that "taxable costs” he paid hy appellants, as including the -receiver’s fees and allowances.</p> <p>4. Receivers—fees as within term “costs.” A receiver’s fees may he included in the term “costs.”</p> <p>5. Costs—what is function of clerk in matter of taxation. Costs a.re taxed hy the .clerk, his function in that respect is ministerial, he taxing the hill of costs agreeably with what the statute requires or what, within its discretionary power, the court may direct.</p> <p>6. Costs—when motion to retax lies. A motion to retax costs, as provided for hy section 26 of the Statute of Costs (Cahill’s Ill St. ch. 33, If 26), lies where a party feels aggrieved by an unlawful charge made by the clerk.</p> <p>7. Receivers—when motion as to fees not within purview of statute as to retaxation of costs. A motion requiring the court to reconsider and review its own action in a previous order as to the</p> <p>. apportionment of receiver’s fees did not come within the purview of the statute as to retaxation of costs.</p> <p>8. Receivers—when circuit court without jurisdiction to réview order as to apportionment of fees. The circuit court was without jurisdiction to review its order as to the apportionment of receiver’s fees where a writ of error was sued out after its entry, and it is immaterial that no question as to the propriety of such order was raised under such writ of error, inasmuch as it might have been so raised.</p> <p>9. Appeal and error—effect, as to order for payment of receiver’s fees, of affirmance of decree. When the Appellate Court has, on writ of error, affirmed the decree of the lower court, it must he deemed to have approved an order of such court that one of the parties pay a portion of the receiver’s fees, the propriety of such order not having been questioned.</p>

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

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

<p>1. Ve^dob and purchaser—when purchaser not entitled to recover part payment made.. One who advances money in part payment under a parol contract for the purchase of land cannot recover it until he has offered to fulfill on his part and the other party has repudiated the contract.</p> <p>2. Fbauds, Statute or—inapplicability of rule that contract within statute cannot he made ground of demand or defense. On„appeal from a judgment which., in effect, cancels an oral contract for the sale of land and awards a return of the money paid thereunder to appellee, the rula that a contract within the statute of frauds cannot be enforced either directly or indirectly and cannot be made the ground of either a demand or a defense, is inapplicable.</p> <p>31 Use and occupation—when vendor of real estate entitled to compensation. In a suit by the purchaser of real estate under an oral agreement to recover the amount paid as earnest money, where such purchaser obtained possession under such agreement and retained possession although he refused to comply with the agreement, held that the owner was, under the third paragraph of section 1, ch. 80, Rev. St. (Cahill’s Ill. St. ch. 80, ¶ 1). entitled to a fair and reasonable compensation for the use and occupation of the premises.</p>

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

<p>1. Corporations—burden of proof under Blue Shy Law. Under section 20 of the “Blue Sky” law in force January 1, 1918 (Callaghan’s 1920 Stat., p. 517), providing that every sale or contract of sale in violation of sections 1 and 2 of the Act (Callaghan’s 1920 Stat., p. 514) shall be void, and requiring the dealer making the contract or sale, on request and tender back of securities received, to return the purchase price paid, the burden was not on the plaintiff in an action to recover the amount paid on the purchase price of certain shares of stock to prove the fact, alleged in his statement of claim, that the stock was sold in violation of the statute and did not come within the exemptions of section 3' of the Act (Callaghan’s 1920 Stat., p. 514).</p> <p>2. Corporations—burden of proof under Blue Shy Law. In an action for the recovery of the amount paid on the purchase price of shares of corporate stock, held that the facts that such stock was not listed in a standard manual approved by the Secretary of State, or that the current price had not been published in market reports, or that the stock had not been listed upon any organized stock exchanges in the United States (see exemptions provided by section 3 of the “Blue Sky” law, in force January 1, 1918, Callaghan’s 1920 Stat., p. 514), rested peculiarly within the knowledge of defendant, and therefore the burden of proving them was upon defendant.</p> <p>3. Evidence—when opposite party required to disprove negative averment. Where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.</p> <p>4. Evidence—right to prove standard character of publication. Where in an action to recover the purchase price paid for certain securities claimed to hare been sold in violation of the “Blue Sky” law, a page of Moody’s Manual of Railways and Corporation Securities of 1918 was admitted in evidence, it was error to refuse to permit defendant to testify that such publication was a standard manual of 1918.</p> <p>5. Evidence—when ■letter purporting to have been signed by Secretary of State not admissible. The admission in evidence of a letter purporting to have been signed by the Secretary of State of Illinois, held error, where such letter was not certified to as a public record, and no proof of the genuineness of the signature was made.</p>

<p>1. Sales—what evidence inadmissible■ in action on notes given for purchase price. Where iu an action on notes given for the purchase price of an automobile, the defendants disclaimed liability on the ground that the car was destroyed by fire while title and ownership was still in plaintiff, the admission of evidence to the effect that the fire was not caused ■ through any negligence on the part of one of the defendants was error, as the question of defendants’ negligence was not in issue. '</p> <p>2. Sales—liability on purchase money note notwithstanding destruction of commodity sold while in seller’s possession. Under section 22 of tbe Sales Act (Cahill’s Ill. St. ch. 121a, ¶ 25), providing that unless otherwise agreed, goods remain at the seller’s risk until the property.therein is transferred, and that when the property is transferred to the buyer the goods are at the buyer’s risk whether delivered or not, but that where delivery has been made to the buyer pursuant to the contract, and property in the goods has been retained by the seller merely to secure performance by the buyer, the goods are at the buyer’s risk from time of delivery, the makers of notes given to the vendor of an automobile who retained title as security merely for the payment of the notes, were held liable on the notes, notwithstanding the destruction of the automobile by fire before the notes matured.</p> <p>3. Sales—liability of maker of note given for chattel notwithstanding chattel’s destruction before note matures. At common law, the maker of a promissory note given to the vendor of a chattel who retained title thereto merely for the purpose of securing payment of the note will be held liable on the note although it appears that the chattel was destroyed by fire before payment was due under the note.</p>

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

<p>1. Automobiles and garages—when finding for defendant in action for damage to garage by fire not warranted. A finding for defendant, in an action by tbe owner of the building in which defendant rented space for his automobile, to recover for damage to the building resulting from fire originating while defendant was cleaning the spark plugs in his car, was reversed, where the undisputed testimony was to the effect that the fire was caused by the defendant’s flooding of the carburetor, connecting the electric current with the spark plugs, and immediately thereafter attempting to start the motor, and by the car’s “back firing.”</p> <p>2. Automobiles and garages—applicability of rule of res ipsa loquitur in action for damages to garage by fire. Qumre, whether the rule of res ipsa loquitur was applicable in an action by the owner of a garage against a renter of space therein for damage to the garage by fire, where the uncontradicted evidence showed that on the occasion in question defendant had sole charge of his automobile and that the fire was caused by the defendant’s flooding of the carburetor, connecting the electric current with the spark plugs and. immediately thereafter attempting to start the motor, and by the car’s “back firing.”</p>

<p>1. Mortgages—"bringing in necessary parties to foreclosure suit by supplemental bill. Necessary parties in a foreclosure suit were properly brought in by a supplemental bill, after tbe entry of a decree, sale of tbe premises and issuance of a certificate of sale.</p> <p>2. Mortgages—effect of failure to make children of deceased mortgagor parties to foreclosure suit. Tbe omission of tbe children of a deceased mortgagor as parties in a foreclosure suit did not make all the proceedings, including the decree and sale, a nullity, and such children were properly brought in by a supplemental bill filed after the sale of the premises and issuance of the certificate of sale.</p> <p>3. Mortgages—time for redemption after foreclosure. The statutory period for redemption operates as a time limitation upon those only who were parties to the foreclosure proceeding; hence, children of a deceased mortgagor who were not brought in as parties until after a sale and issuance of a certificate had the right to redeem at any time during the running of the statutory period of 12 months after the sale, upon establishing their interest.</p> <p>4. Mortgages—when proper to extend time for .redemption after foreclosure. It was proper practice to extend the time of redemption 90 days, by the supplemental decree, as to children of a deceased mortgagor who were not parties in the original bill through misunderstanding or mistake, but who were brought in by supplemental bill filed after the entry of a decree, sale of the premises and the issuance of a certificate of sale.</p>

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

<p>1. Landlord and tenant—when tenant relieved from liability for rent. Where there are concealed defects in demised premises which a careful examination would not disclose to the tenant but which are known to the landlord, the latter is under the obligation to reveal them to the tenant before leasing, and his failure to do so amounts to a fraud upon the tenant, and if, by reason of such defects, the tenant is compelled to vacate the premises, he will be relieved from liability for rent thereafter.</p> <p>2. Landlord and tenant—what equivalent to eviction. If a landlord fraudulently conceals the facts about a building which might render it unfit for habitation, such concealment is equivalent to an eviction.</p> <p>3. Landlord and tenant—what circumstances amount to constructive eviction. Where a prospective tenant examined the dwelling in question before leasing it, and saw the furnace in warm weather without a fire, and, so far as could be told by looking, it appeared to be of the kind and of sufficient size to properly heat the house, but where the landlord knew from complaints by other occupants of its insufficiency, but concealed the fact and enteréd into the lease, and where the insufficiency of the furnace could be determined only by an investigation by an expert and by actual experience in cold weather, and where, when the weather became cold, the furnace failed to heat the house although it was run properly with a good fire, and the average temperature was from 48 to 56 degrees and the tenant’s children became ill, the circumstances amounted to a constructive eviction by the landlord justifying the tenant’s removal from the premises and his disharge from any obligation to pay rent after his vacation of the premises.</p> <p>4. Landlord and tenant—question of constructive eviction as-for jury. In a suit for rent of a dwelling house, held the question of a constructive eviction was properly submitted to the jury.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the March term, 1921.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. George Fred Rush, Judge, presiding. Heard in this court at the October term, 1921.</p>

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

<p>1. Workmen’s Compensation Act—jurisdiction of municipal court of action by physician for services rendered employee. The last paragraph of section 16 of the Workmen’s Compensation Act (Cahill’s Ill. St. ch. 48, ¶ 216), providing that the Board shall have power to determine the reasonableness of and fix any fee or compensation charged by any person for service performed in connection with the act, and the last sentence of subparagraph (c) of section 19 as amended in 1919 [Callaghan’s Ill. St. 1920, ¶ 5475(19)], providing that the fees and payment thereof of all attorneys and physicians for services authorized by the commission under the act shall, upon request of either employer or employee or the beneficiary affected, be subject to the review and decision of the Industrial Commission, considered in an action in the municipal court by a physician for services rendered an employee at the request of his employer, where both employer and employee were subject to the act; and held that it was not the intention of the legislature to take away from the employer and a third person their right to contract with each other, and that the municipal court was not ousted of jurisdiction by said sections.</p> <p>2. Workmen’s Compensation Act—effect of act on jurisdiction of court. The theory upon which the Workmen’s Compensation Act is based is that the parties to whom it applies, the employer and employee, must voluntarily elect to come under its provisions, and it is only when they have so elected that the act deprives the courts of their jurisdiction to' enforce contractual terms between them.</p> <p>3. Workmen’s Compensation Act—absence of provision by which physicians may voluntarily come under act. There is no provision in the Workmen’s Compensation Act by which physicians may voluntarily come under the act.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1921.</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, 1921.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomeb, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Divorce—when divorced father not liable for medical services to minor child.- In an action brought under the family expense statute (Cahill’s Ill. St. ch. 68, ¶ 15) by a physician against the father of a minor child for medical services to the latter, where defendant had been divorced and the sole custody of the child given to the mother, who was granted $10 per week for alimony and support of the child, and after the mother’s remarriage the decree was modified so that defendant was ordered to pay $5 per week for the support of the child, who continued in the custody of the mother, and defendant had not requested the services or contracted the obligation in any way, held that plaintiff was not entitled to recover.</p> <p>2. Divorce—when divorced parent not liable for medical services to minor child. Where a decree of divorce awards the custody of a minor child to one parent, the other parent is not liable to the child in the absence of an express promise or facts or circumstances from which a promise can be implied.</p> <p>3. Husband and wife—existence of family in fact as necessary to recovery under family expense statute. Before recovery can be had under the family expense statute (Cahill’s Ill. St. ch. 68, ¶ 15), there must be a family in fact.</p> <p>4. Divorce—family expense statute as not applicable where parents divorced. The family expense statute (Cahill’s Ill. St. ch. 68, ¶ 15) does not apply where the parents are divorced.</p> <p>5. appeal and error—when judgment reversed and judgment of nil capiat entered in Appellate Court. Where under the law and the undisputed facts plaintiff is not entitled to recover, the judgment for plaintiff will be reversed and a judgment of nil capiat entered in the Appellate Court.</p>

<p>1. Set-off and recoupment—how notice of set-off to he regarded. A ootice of set-off is to be regarded as a plea, and fills the same office in pleading, except that it requires no replication.</p> <p>2. Set-off and recoupment—account or hill of particulars accompanying notice of set-off as part of record. The account or bill of particulars accompanying the notice of set-off should be treated as a part of the record.</p> <p>3. Set-off and recoupment—what is nature of notice of set-off. The notice of set-off, like the plea of set-off, is in the nature of a cross action by the defendant against the plaintiff.</p> <p>4. Set-off and recoupment—what essential to notice of set-off. A notice of set-off, like a declaration, must state the nature of defendant’s claim so that the matters thereof can be fairly understood and litigated.</p> <p>5. Set-off and eecoupment—what defendant pleading set-off for breach of contract must show. A set-off being a counterclaim, as to which the defendant is plaintiff, he must establish his right as upon a distinct action, and, if for a breach of contract, must show he is not himself in default as to the agreement.</p> <p>6. Paetnebship—when partner cannot maintain action at law against copartner. One partner cannot maintain an action at law against his copartner either in an original suit or by way of set-off, upon any transaction relating to the partnership business, unless and until there has been a final accounting and settlement of all partnership matters, a balance struck and a promise made to pay such balance.</p> <p>7. Set-off and eecoupment—when claim not available as set-off. The defendant cannot assert by way of set-off against the plaintiff a claim for which he could not bring an independent action at law.</p> <p>8. Paetnebship—when judgment for partner on set-off in action by copartner reversed. A judgment for defendant on his set-off was reversed where plaintiff sued upon a note and the set-off was for defendant’s share and interest in a partnership business conducted by defendant and plaintiff, and the notice of set-off failed to set forth either the beginning, duration or end of the partnership, nor that the partnership was settled, a balance struck and a promise made by plaintiff to pay such balance.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Conspiracy—sufficiency of evidence to show establishment of boycott and blacklist. The evidence in two consolidated cases, one by a carpenter employee against a Carpenter Contractors’ Association and others, and the other by one who was erecting a building against a lumber corporation and others, tended to show the establishment of a boycott and blacklist, and the establishment of a monopoly in the business of furnishing building materials in the counties in question, in violation of several provisions of Cahill’s Ill. St. ch. 38, ¶ 116, providing that if any two or more persons conspire or agree together for the purpose of establishing a boycott or shall post notices with the wrongful intent to injure the person, business, etc., of another, or to do any illegal act injurious to the public trade, they shall be deemed guilty of a conspiracy, and defendants were also, at common law and independently of the statute, liable prima facie for conspiracy to injure the striking carpenters and the general public.</p> <p>2. Conspiracy—agreement to boycott and blacklist as agreement to do unlawful act. The agreement of the defendants (in the actions in question to recover damages for injury sustained by an alleged conspiracy to injure the employment of plaintiff and others, and prevent the sale of lumber and other materials) to boycott and blacklist, carpenters was an agreement to do an unlawful act, and the agreement to do it by bringing into existence a monopoly of the business of furnishing materials was an unlawful way of attempting to bring about and make effective the illegal thing which they intended to do.</p> <p>3. Conspiracy—what not defense to boycott and blacklist. In tort by a carpenter employee against a Carpenter Contractors’ Association and a Building Construction Employers’ Association and others to recover damages for injury caused by an alleged conspiracy to injure plaintiff’s employment and prevent the sale of lumber and other building materials, the defendants could not plead in justification the alleged violation by plaintiff of the terms of the contract of a carpenters’ union to work for a fixed price an hour, even if he was bound by the terms of such contract.</p> <p>4. Conspibacy—construction of “primary purpose.” The phrase “primary purpose” used in applying the rule of liability in two consolidated tort cases, one for alleged conspiracy to injure plaintiff’s employment and the other for damages caused by preventing plaintiffs use of building materials, held to mean the principal or fixed intention with which an act or course of conduct is undertaken, and within this meaning the “primary” as distinguished from the “secondary” purpose with which defendants entered upon the plan then in contemplation, included any one of a number of things—not only the ultimate end to be accomplished, but also the acts which, according to the plan in the minds of those who agreed upon it, would be put into effect in order to obtain and realize the ultimate plan; and each one of the defendants was held to have intended all things which were the natural and probable results of the causes which they set in motion.</p> <p>5. Evidence—presumption of intent. Every responsible human being is presumed to intend the thing which is the natural and probable result of his acts; and, in law, intention is not determined by what any given individual or individuals may say was the subjective condition of their wills at a particular time, but rather is conclusively presumed from objective realities which the particular state of mind has brought about.</p> <p>6. Conspiracy—right of combination of dealers to select customers. Although it is held to be the law in some States that as individual dealers in materials have a right to sell or not to sell to whomsoever they may please, it is lawful for them to do in combination what each might do separately, it seems not to be generally so held.</p>

<p>1. Clerks of courts—liability of Municipal Court clerk for interest on deposits. Under section 4, part 2, art. 12, Cities and Villages Act (Cahill’s Ill. St. ch. 24, ¶ 286), providing that neither the treasurer nor any other officer of the City of Chicago, having public funds in his possession, shall be entitled to interest accruing thereon, but the same shall inure to the benefit of the city, a former municipal court clerlt was liable to the city for interest on moneys deposited by him as clerk during his term of office in various banks in said city, and the term “public funds” was held to mean all funds in the hands of the clerk which he had not otherwise accounted for, and liability could not be avoided by showing that the various sums of interest earned had been so mingled with each other that it was impossible for the owners to identify them, as the duty of segregating the interest on daily balances, so as to show to whom the interest thereon was due, devolved upon the clerk.</p> <p>2. Appeal and error—when constitutionality of statute not considered. The point that a statute in question was unconstitutional was not considered, for the reason that by taking an appeal to the Appellate Court the point was waived.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</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 March term, 1921.</p>

<p>1. Criminal law—failure of record to show statement to accused of consequence of pleading guilty is reversible error. Under Paragraph 4, div. XIII, of the Criminal Code (Cahill’s Ill. St. ch. 38, ¶ 756), relating to pleas of “guilty,” the failure of the record to show that the court explained to defendant in the prosecution in question for transporting and possessing intoxicating liquor, the consequence of a plea of guilty, was reversible error.</p> <p>2. Criminal law—when explanation by court to accused of consequence of pleading guilty not presumed on review. A plea of guilty can only be entered in this State, in felony as well as misdemeanor eases, after the defendant has been fully advised of the consequences of his plea, and a court of review cannot presume that the trial court performed this duty, in the absense of anything in the record to show a compliance with the statute relating to such pleas, but the record must show affirmatively that the court did explain to the defendant the consequences of a plea of guilty.</p> <p>3. Intoxicating liquors—impropriety of judgment for confiscation of transporting vehicle and property therein where statute not complied with. It was error in a prosecution for transporting and possessing intoxicating liquor, to attempt, in the judgment, to confiscate the automobile in which the liquor was being transported, and certain property found therein, under section 31 of the Prohibition Act, Session Laws 1921, page 696 (Cahill’s Ill. St. ch. 43, ¶ 32), where there was no effort to comply with the requirements of 'that section concerning summons and other court procedure against the owner and persons having liens against the property.</p>

<p>1. Master and servant—extent to which assumed risk a defense in actions under Federal Employers’ Liability Act. The State courts must be governed by the construction placed upon the Federal Employers’ Liability Act by the federal courts; and it has been the uniform holding of' those courts that the doctrine of assumed risk is available as a defense in all cases brought under such act, except where the violation of a federal statute enacted for the safety of employees contributed to the injury complained of.</p> <p>2. Master and servant—assumption of risk in attempting to repair defective air pipe line in action under Federal Employers’ Liability Act. In an action under the Federal Employers’ Liability Act, where plaintiff, a freight conductor engaged in interstate commerce, charged with the duty of picking up freight and coal cars and of setting out other cars as directed, sustained injury while trying to connect defective appliances, and testified that, upon the discovery of a leak in the air-pipe line, he had the right to decide whether the car in question should be cut out or he should attempt to repair the leak, and that he chose the latter course, in so doing he assumed the risk of all danger incident to such course, and the defense of assumed risk was available to defendant, as neither the allegations of the declaration nor the evidence showed any violation of the Federal Safety Act, which was the only federal statute enacted for the safety of employees which would have been applicable in the circumstances.</p> <p>3. Instructions—impropriety of instruction ignoring applicable defense. In an action under the Federal Employers’ Liability Act by a freight conductor engaged in interstate commerce, it was reversible error to give an instruction directing a verdict upon the finding of certain facts for plaintiff but ignoring the defense of assumed risk, where, under the particular circumstances, such defense was available, and such instruction was not cured by instructions given for defendant.</p> <p>4. Instructions—necessity that charge in language of act embody construction thereof by eoiirts. In an action under the Federal Employers’ Liability Act in which assumed risk was a defense, an instruction which was an abstract of certain provisions of the act, including section 4 (Cahill’s Ill. St. ch. 114, ¶ 324), which covers the doctrine of assumed risk, was erroneous in ignoring the modified construction given that section by the federal courts.</p>

<p>Appeal and ebbob—duty to enter judgment in conformity with ruling on former appeal. Where, iu former appeal in an action on a life insurance policy, the court held that certain interrogatories, relating to consultation by the insured with a physician and the receiving of medical treatment, should have been submitted to the jury and that if they had been submitted and the jury had answered them in the affirmative, there could have been no recovery, it was error for the trial court, on the second trial, to deny defendant’s motion to enter judgment on the special findings, where the jury had answered such interrogatories in the affirmative and it appeared clearly that the findings were warranted by the evidence.</p>

<p>1. Appeal and ekrob—waiver of assignments of error ~by failure to argue them. Where numerous assignments were made but only two were mentioned in the argument, it was considered that all other assignments were waived.</p> <p>2. Injunction—propriety of awarding solicitors’ fees on dissolution of injunction against county officer. Although it is the statutory duty of the State’s Attorney to represent and advise all county officials in any suit brought against them in their official capacity, and for such services he cannot be allowed a fee, an allowance of solicitors’ fees upon the dissolution of a temporary injunction in an action in which the defendant was sued as county collector was not improper, where it appeared that attorneys other than the State’s Attorney appeared for defendant; and complainant could not defeat the allowance by merely saying that there was an attorney who could have perhaps been compelled to act for the defendant without compensation.</p> <p>3. Injunction—assessment of damages on dissolution of temporary injunction. It is proper to assess damages upon the dissolution of a temporary injunction without disposing of the merits of the case.</p> <p>4. Injunction—sufficiency of designation of defendant in decree awarding solicitors’ fees on dissolution. A decree awarding solicitors’ fees upon the dissolution of a temporary injunction against a defendant as county collector was not erroneous because the damages were awarded to defendant without designating him by his official title, where the clear intendment of the decree when read as a whole was that the damages were awarded and allowed to defendant as such collector.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Geobge A. Crow, Judge, presiding. Heard in tliis court at tlie October term, 1921.</p>

<p>Appeal from y the Circuit Court of Jefferson county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Appeal from' the Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Appeal from the Circuit Court of Clinton county; the Hon. Thomas E. Fobd, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in tbis court at tbe October term, 1921.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Libel and slander—necessity and sufficiency of averment of special damages. Unless tbe language used is libelous per se, a plaintiff must aver in bis declaration that special damages bave resulted, stating what tbey are and make proof thereof at tbe trial. It is not sufficient to allege generally that plaintiff was damaged.</p> <p>2. Libel and slander—what essential to render words actionable per se. In order to make words, either written or spoken of or concerning one engaged in a particular calling, actionable per se, tbey must have been used of the party in relation to bis or her occupation.</p> <p>3. Libel and slander—words held not actionable per se. Tbe words “Poses as a Mason in good standing,” used concerning a plaintiff who was at tbe time of the publication a candidate for tbe nomination of State Senator and was also a Mason, were not actionable per se; and therefore a demurrer was properly sustained where tbe declaration failed to allege special damages.</p> <p>4. Libel and slander—words held not actionable per se. The word, “pose” held not synonymous with “impostor,” and therefore a charge that plaintiff in a libel suit posed as a Mason in good standing was not actionable per se, particularly where plaintiff was a Mason and there was no averment in the declaration that, under the rules of the order, such a person as plaintiff was represented to be was not a Mason in good standing, but on the contrary it was alleged that he had -at all times conducted himself as an honest, faithful and upright Mason.</p>

<p>Appeal from the Circuit Court of Jasper county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Appeal from the Circuit Court of Jasper county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Electricity—necessity of proof of ownership of defective wire causing injury. In an action to recover damages for personal injuries alleged to have been caused by an electric shock resulting from'defective insulation of an electric wire, there can be no recovery in the absence of proof tending to show that defendant was the owner of or in any way responsible for the wire in question.</p> <p>2. Pleading—variance between allegations and proof warranting direction of verdict. Under a declaration alleging that while hanging out washing, a sheet in plaintiff’s hands was suddenly blown upon and against an electric wire which was defectively insulated, and she received a shock which threw her against a pump, etc., plaintiff was required to prove that she received an electric shock, and was not entitled to recover upon proof which admitted of the inference that the action of the wind caused her to fall; and it was error to refuse to direct a verdict for defendant and to submit the case under instructions based on the theory that there was evidence from which the jury could find that the necessary averments which plaintiff failed to prove were proven.</p> <p>3. Electricity—insufficiency of evidence to show cause of injury and ownership of wire causing it. Even if the evidence in a personal injury case based upon an alleged shock caused by contact with an improperly insulated wire had been such as to give rise to the presumption that the wire was charged with electricity at the time in question, yet that would not warrant the jury to presume that plaintiff received a shock and that the wire was owned or controlled by defendant.</p>

<p>1. Mobtgages—when deed construed as mortgage and not as absolute conveyance. A deed was given as a mortgage and no't as an absolute conveyance, where the owner, being indebted, gave a mortgage upon the land in question to secure the debt, and the debt matured, being unable to pay, foreclosure was threatened and thereafter the conveyance was made and the notes and mortgage surrendered under an agreement that a repayment should be made within a stated period and the premises reeonveyed.</p> <p>2. Mobtgages—statute of limitations barring right of redemption. Where the evidence in a bill to require a conveyance showed that the deed in question was given as a mortgage, and it further appeared that there was an agreement that complainant should repay the amount of the indebtedness with interest as soon as he was able, and where he was in a position to do so about 4 or 5 years after the conveyance but waited 17 or 18 years before notifying defendant that he wanted to redeem, such right to redeem was barred by the statute of limitations.</p> <p>3. Mobtgages—statutory tar of right of foreclosure as tarring right of redemption. Where the statute of limitations barred the foreclosure of a mortgage in the form of an absolute deed of conveyance, the right tp redeem was also barred, as the right to redeem and the right to foreclose are reciprocal and when one is barred the other is barred. °</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Appeal and error—waiver of assignment of error by failure to argue. An assignment of error on the sustaining of a demurrer to a special plea which was not argued was deemed waived.</p> <p>2. Insurance—question as to person malting answers to appliccucation for automobile policy as one of fact. Where the evidence was conflicting as to whether questions in an application for automobile insurance and in the proof of loss, relating to the model of the car, were answered by the insured or whether the agent supplied the information, it was for the jury to say what the evidence was in regard thereto.</p> <p>3. Insurance—notice to agent as effecting waiver of forfeiture of policy for misstatement in application. Notice to the agent, at the time of the application for the insurance, of facts material to the risk, is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within the. knowledge of the agent.</p> <p>4. Insurance—effect of misstating model of automobile in application for policy. A statement in an application for automobile insurance that the model was one of 1915 instead of 1912 did not of itself bar the insured from recovering.</p> <p>, 5. Insurance—effect of misstating cost of automobile in application for policy. A statement in an application for automobile insurance that the machine had cost $800 instead of $700 did not amount to a warranty and was not, under the circumstances, such a misstatement as vitiated the policy.</p> <p>6. Appeal and error—remittitur as curing error in refusing instruction stating maximum recoverable. In an action tó recover under an automobile insurance policy, error in refusing an instruction stating that under the terms of the policy plaintiff’s damages could not exceed a stated amount could be cured by a remittitur.</p>

<p>1. Nuisance—sufficiency of declaration in action for personal injury. Where, in an action for injuries caused by the lodgment in plaintiff’s eye of a substance alleged to have been blown from defendant’s manufacturing plant, both parties argued the case as if based on negligence, but the declaration stated a typical case of nuisance, except that the damages were for personal injury instead of the deprivation of the comfortable use and enjoyment of real estate, the rule was applied that if the facts alleged of themselves constitute a nuisance, it is not necessary to further characterize them by the use of the word “nuisance,” nor is it necessary to allege negligence.</p> <p>2. Nuisance—right of action for personal injury caused by operation of plant. Where a manufacturing plant is operated in such manner that dangerous acids, gasses, etc., are carried by the wind into, over and upon a neighbor’s residence, and he was deprived of the comfortable use and enjoyment of his property, the owner of the plant would be liable for a nuisance; and if such neighbor received a personal injury from some of the things so thrown into the air and upon his property, there would appear to be no reason, in principle, why he should not be entitled to recover for that injury.</p> <p>3. Nuisance—admissibility of evidence of experience of others in action for personal injury. In an action against the owner of a manufacturing plant for injuries alleged to have been sustained by the lodgment in plaintiff’s eye of a substance blown from such plant, it would have been competent, in order to charge defendant with knowledge, to have proven the experience of others with reference to the effect on them of matter thus escaping from defendant’s plant, or when the wind was blowing from the plant, but it was error to admit experiences subsequent to the accident in question.</p> <p>4. Nuisance—inadmissibility of evidence of damage to property in action for personal injury. In an action to recover damages alleged to have been received through substances escaping from a nuisance maintained by defendant, it is not proper to admit evidence of damage to vegetation through such substances.</p> <p>5. Nuisance—insufficiency of evidence to support verdict for plaintiff in action for personal injury through operation of plant. In an action against the owner of a manufacturing plant for injuries alleged to have been sustained by the lodgment in plaintiff’s eye of a substance blown from such plant, the judgment for plaintiff was reversed without-remanding, where the evidence bearing upon plaintiff’s case was wholly circumstantial and there was no evidence to the effect that defendant’s plant was in operation at the time the accident occurred nor that any substances escaped when the plant was not in operation, nor from which direction the wind was blowing nor that it was blowing from defendant’s plant, and where no one knew what the substance was nor where it came from.</p>