33 Ill. App.

Volume 33 — Illinois Appellate Court Reports

199 opinions

33 Ill. App. 17Chicago & Grand Trunk Railway Co. v. Crolie (1889)
Practice —Insufficient Abstract—Railroads — Negligence — Injury to Horse during Transit. This court declines to consider an action to recover from a railroad company for injury to a horse during transit, for the reason that the abstract does not contain the substance of those parts of the record upon which error .is assigned as required by rule twenty-one.
33 Ill. App. 19Poppers v. Meager (1889)
__ _ _ Landlord and Tenant—Recovery of Rent—Judgment by Confession— Warrant of Attorney—Issuance of Execution before Completion of Record of Judgment. Upon motion to set aside judgment by confession for rent due and unpaid, it is held: That the warrant of attorney was not defective for failing to name any particular attorney; that the claims for unliquidated damages urged as a set-off, should not be considered, not being in any wise connected with the demand for rent; and that the fact that the judgment was entered by the clerk in term time, would justify the issuance of an execution before the record of the judgment was complete.
33 Ill. App. 20Poppers v. Meager (1889)
Landlord and Tenant—Distress for Rent—Act of May Í, 1873, Sec. SO —Secs. 42 and 53, Starr & C. Ill. Stat.—Costs—Secs. 25 and 26, Act of 1874—Agency—Ratification. 1. Upon a contention as to whether a landlord, in a proceeding on a distress warrant wherein the property seized had been released on a forthcoming bond, was entitled to recover the expense of the custody of the goods levied upon before they were so released, this court holds that the same method of defraying expenses of this character should be pursued in cases of distress, as in attachment; that the jury are not authorized to tax such costs, but that such allowances should be ascertained by the court; and that no injury has been done the defendant by reason of the finding of the jury upon this point, the same having been accepted by the court as reasonable and proper. 2. Without a judgment in his favor the plaintiff is not entitled to costs; if a cause of action is extinguished pendente lite, a right to a recovery, and with it the title to costs, is gone. 3. Proof of agency is not necessary in case of the bringing of suit by an alleged agent in behalf of his principal, when the latter adopts such act by prosecuting the same.
33 Ill. App. 23City of Chicago v. Altgeld (1889)
Appeal from the Circuit Court of Cook County; the Hon. A. H. Waterman, Judge, presiding.
33 Ill. App. 25Hodges v. Percival (1889)
Master and Servant—-Incompetent Servant—Unsafe Elevator—Injury to Third Person—-Action for Damages. In an action against the owner of a building for damages for a personal injury alleged to have been occasioned by the employment of an incompetent servant and the use of an unsafe elevator, this court declines to interfere with a verdict for the plaintiff.
33 Ill. App. 26J. Obermann Brewing Co. v. Ohlerking (1889)
Appeal from the Circuit Court of Cook County; the Hon. E. W. Clifford, Judge, presiding.
33 Ill. App. 28City of Chicago v. Smythe (1889)
Municipal Corporations—Streets—Condemnation of Private Property— Assessments—Interest. In an action to recover from a municipal corporation the value of land appropriated by it for street purposes, it appearing that possession thereof was taken by the city six months before the institution of proceedings to condemn the same, the ordinance which authorized such condemnation providing that the cost of the proposed improvement should be paid for by special assessment upon property benefited to the amount the same could be legally assessed, the balance to be paid by general taxation, this court holds that, although the city has been unable to collect the special assessment levied, the deficiency must be made up from the general fund, and that interest is recoverable upon the value of the land from the time the city took possession thereof.
33 Ill. App. 33George Lehman & Sons Co. v. Clark (1889)
Mechanic's Lien—Title—Resulting Trust—Sale. Upon a petition for a mechanic’s lien this court holds that the labor and material of plaintiffs went into the building in question; that the person in whom was vested the title thereof, held the same in trust for the defendant company; that although no time was fixed for the completion of the ■ work, the statute was satisfied by its being done within one year, and declines to interfere with a decree for the plaintiff.
33 Ill. App. 36Waarich v. Winter (1889)
Criminal Law—Assault and Battery—Trespass—Continuance—Illness—Physician's Certificate—Discretion. 1. A court is not bound to grant a continuance on the certificate of a physician. 2. The improper introduction of counter affidavits on a motion for a continuance will not amount to reversible error, where those in support thereof are insufficient. 3. Affidavits in support of such motion must not only show that illness prevented presence at trial but also the existence of a defense. Merits must always be shown upon such an application.
33 Ill. App. 39Heissler v. Stose (1889)
Joseph E. Gaby, Judge, presiding. The declaration in this case was in debt, and avers that appellee, on December 4, 1887, executed a lease to appellants of 347 and 349 State street, in the city of Chicago, for a term from May 1, 1878, to May 1, 1888, at a rental from May 1, 1878, to May 1, 1879, of $110 per month, payable on the first day of each month, and from May 1, 1879, to May 1, 1884, $125 per month, payable on the first day of each month, and further providing that…
33 Ill. App. 43Lambert v. Hyers (1889)
Foreclosure—Redemption—Sale—Assignment of Certificate of—Feed— Writ of Assistance. Upon an order directing the issuance of a writ of assistance in behalf of the grantee in a master’s deed of real property sold under foreclosure proceedings, said grantee being the assignee of the certificate of sale, it being contended that the reversal of the decree of sale by this court subsequent to the execution and delivery of such deed operated to divest the title acquired thereby and that for such reason there was no foundation for the issuance of the writ, it is held: That the writ was properly issued, the facts being that the grantee in the deed was a stranger to the decree, and that the reversal was for an error only, of which the purchaser was not obliged to take notice.
33 Ill. App. 45Town of Lake v. Bok (1889)
Appeal from the Circuit Court of Cook County; the Hon. Richard 8. Tüthill, Judge, presiding.
33 Ill. App. 46Moran v. Gordon (1889)
Appeal from the Superior Court of Cook County; the Hon. Johh P. Altgeld, Judge, presiding.
33 Ill. App. 48Clark v. Scanlan (1889)
Elliott Aethoet, Judge, presiding. This action was brought by appellee to recover for certain mason work done for appellant.
33 Ill. App. 56Village of La Grange v. Benze (1889)
Master and Servant—Municipal Corporation—Local Improvements— Special Assessments—Commissioner’s Compensation—Recovery of. Where a municipality retains a person as commissioner to make a special assessment, the necessary preparatory work which he may do before taking the oath of office, is a part of the service for which he should be paid, and he is likewise entitled to compensation for services rendered before his appointment, if the same were performed at the request of the municipal authorities.
33 Ill. App. 58J. Obermann Brewing Co. v. Gurney (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 59Baker v. Strahorn (1889)
Appeal from the Circuit Court of Cook County; the Hon. Loein C. Collins, Judge, presiding.
33 Ill. App. 61City of Chicago v. Morse (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
33 Ill. App. 63Merritt v. Merritt (1889)
Appeal from the Circuit Court of Cook County] the Hon. Lorin C. Collins. Judge, presiding.
33 Ill. App. 65Schmidt v. Hughes (1889)
Malicious Prosecution— Probable Cause— Larceny— Damages— Evidence. It is proper in an action for malicious prosecution to admit evidence of damage suffered after the bringing of suit and before trial thereof.
33 Ill. App. 68Guthrie v. Doud (1889)
Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
33 Ill. App. 71Coughlin v. Gutta Percha & Rubber Manufacturing Co. (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 73Bessey v. Ruhland (1889)
Practice—Appeals—Dismissal of—Preliminary Call—Justices—Sec. 68, Act of 1872—-Reinstatement. 1. In the absence iron: the record of a rule of court warranting such action, an appeal should not be dismissed on a preliminary call. 2. This court holds the clause in Sec. 68, act of 1872, requiring a written appearance ten days before the term by the appellee, to apply only to appeals taken by filing a bond with the clerk, and not to those taken by filing a bond with the justice.
33 Ill. App. 78City of Lake View v. Tate (1889)
Appeal from the Criminal Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
33 Ill. App. 90Callender Insulating & Waterproofing Co. v. Badger (1889)
Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
33 Ill. App. 91Barrett v. Lingle (1889)
Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
33 Ill. App. 92Schmidt v. Bauer (1889)
Practice—Judgment by Confession—Entry of, in Term Time—In Vacation—Warrant of Attorney—Writ of Error—Bill of Exceptions. I. When a judgment by confession is entered in vacation before the clerk, the warrant of attorney becomes a part of the record by being filed, and no bill of exceptions is necessary. '2. When the judgm -nt is entered in term time, it becomes a part of the record only by being made so by such bill. 3. When the absence of a bill of exceptions precludes this court from knowing what evidence was introduced in a given case, it will presume that it warranted the judgment which is shown by the record to be valid on its face.
33 Ill. App. 94Chicago City Railway Co. v. Yancey (1889)
Master and Servant—Street Railway Company—Conductor—Negligence of—Premature Starting of Car—Personal Injuries—Damages—> Evidence—Instructions. One suffering from a personal injury caused by the negligence of another is entitled to damages up to the time of trial should the effects thereof continue so long, and thereafter, when the same are “imminent and sufficiently certain."
33 Ill. App. 95Dumond v. Merchants National Bank (1889)
Banks—Deposits—Application of—Private Funds—Privity. One bank is not liable to an individual for money delivered to it by a second bank, accompanied by a deposit ticket directing that the same be placed to the credit of a third bank, in the absence of notice that the funds in question belonged to such person.
33 Ill. App. 102Union Stock Yards National Bank v. Dumond (1889)
Banks—Deposits—Acceptance of with Instructions—Identity—Failure to Preserve. One bank is liable for a deposit with it to the credit of a second bank for the use of an individual, when it delivers the same to a third bank to be credited to such second bank, without giving notice of the rights of the person in question. /
33 Ill. App. 103Ettelsohn v. Kirkwood (1889)
Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
33 Ill. App. 105Belz v. Belz (1889)
Divorce—Desertion—Summons—Service of Default—Collusion. This court affirms a decree dismissing a bill for divorce, upon the ground of collusion.
33 Ill. App. 109Schmidt v. Thomas (1889)
In eeeoe to the Circuit Court of Cook County ; the Hou. Biohaed S. Tuthill, Judge, presiding.
33 Ill. App. 113Poppers v. Wagner (1889)
Appeal from the Circuit Court of Cook County; the Hon. Eichard S. Tuthill, Judge, presiding.
33 Ill. App. 114Chicago & Northwestern Railway Co. v. Drake (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
33 Ill. App. 116Taylor v. Lake Shore & Michigan Southern Railway Co. (1889)
Injunctions—Railroad Right of Way—Remedy at Laxo—Costs—Restitution. Upon an appeal from an order dissolving an injunction, dismissing a bill for want of equity, and awarding a writ of restitution for premises taken possession of under cover of the injunction, the trial court finding that the same was improperly obtained for that purpose, this court enters a new decree, in lieu of, and as a substitute for the decree of the trial court, by modifying the same in so far as to dismiss the bill and cross-bill in the case without prejudice to the rights and remedies at law of either and both of the parties to the suit.
33 Ill. App. 120Packer v. Phillips (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
33 Ill. App. 121First National Bank of Chicago v. William Ruehl Brewing Co. (1889)
Appeal from the Circuit Court of Cook County; the Hon. Bichard W. Clifford, Judge, presiding.
33 Ill. App. 123Chicago & Northwestern Railway Co. v. Bouck (1889)
Railroads—Personal Injury—Crossing—Ordinary Care—Obligation to Look and Listen—¡Special Finding—Evidence—Instructions. 1. In an action for damages for a personal injury, the ultimate facts of care or negligence are questions for the jury, and they should not be instructed by the court as to what acts constitute either. 2. Ho repetition by courts of review, that certain evidence does or does not sustain the verdict finding care or negligence in the particular case, make the conclusions of fact arrived at by such courts and the language in which they express such conclusions, doctrines of law for other cases. 8. A special verdict is a special finding of facts inconsistent with the general verdict that is to control it, and no question the answer to which can not have that effect can be material. 4. This court condemns the practice of requiring juries to find specially upon an unreasonable number of interrogatories.
33 Ill. App. 129Chicago, Rock Island & Pacific Railway Co v. Clough (1889)
Railroads—Personal Injury—Crossing—Special Interrogatories—Reto Trial—Evidence—Instructions—Pleading. 1. No direct statement that a railroad flagman knew of a fact which it was his duty to know, and by which fact his conduct, as he narrates it, was prompted, is necessary to justify a finding that he did know it. 2. Evidence which is merely cumulative but not conclusive, will not justify a new trial upon the ground of newly discovered evidence. 3. In an action against a railroad company to recover damages for injuries received at a street crossing, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.
33 Ill. App. 131Memory v. Niepert (1889)
In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
33 Ill. App. 134Parmly v. Head (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 138Brokaw v. Field (1889)
Mortgages—Foreclosure—Limitations—Husband and Wife. 1. The makers of a mortgage are estopped from denying the indebtedness set forth therein. 2. The recitals in a mortgage, setting forth the existence of a debt, accompanied by an agreement to pay the same, are “ evidences of indebtedness in writing,” within Sec. 16 of the act concerning limitations. 3. Where, under the terms of a mortgage, the whole debt does not become due by default in the payment of interest, and proceedings to sell under such default are begun, a tender of the sum due, with interest and expenses, will be sufficient ground for bringing the same to an end. 4. In the case presented, this court holds that both the legal and equitable estates were conveyed by the mortgage given, and that the debt of the husband was a valid consideration for the giving thereof. 5. The burden of proving the discharge of property standing in the relation of surety, by an extension of the time of payment of a debt, is upon the. person contending the same was made.
33 Ill. App. 141Manowsky v. Conroy (1889)
Kibk Hawes, Judge, presiding. Judgment was rendered in the Superior Court of Cook County for $335.12 and costs, in favor of Edward Otto and against Gustave Manowsky; execution was issued and returned by the sheriff, no property found.
33 Ill. App. 144Koerper v. Jung (1889)
In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. ■
33 Ill. App. 145Lake Shore & Michigan Southern Railway Co. v. Probeck (1889)
Railroads—Crossings—Personal Injuries—Trains—Careless Management of—Excessive Speed—Ordinance—Flagman—Negligence of—Evidence—Instructions. 1. A law or ordinance touching the speed of passenger trains, does not apply to an engine and tender. 2. An instruction which does not confine the right of recovery for a personal injury to the ground alleged in the declaration, is bad.
33 Ill. App. 147Gilek v. Stock (1889)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
33 Ill. App. 149Wanner v. Winters (1889)
Replevin—Malice—Trover—Partnership—Damages—Actual and Vindictive-Estoppel—Remittitur. 1. The acts or words of one of several partners touching property of his firm, is as to third persons in good faith acting thereon, the same as if done or said by all. 2. Where wilful acts or words of one partner, of which the rest o£ the firm are ignorant, result in injury to another, there can be no verdict for separate or different amounts against the individual members of the firm. 3. A firm maintaining replevin for the recovery of property purchased from their lessee through the false representations of one of its members that the said lessee was its owner, the rest of the firm being in ignorance thereof, is liable for the actual damages arising therefrom.
33 Ill. App. 151Chicago Hansom Cab Co. v. Havelick (1889)
Master and Servant—Cab Company—Driver—Negligence of—Personal Injuries—Evidence. 1. The credibility o£ the witnesses in a given case is for the jury. 2. In an action for the recovery of damages from a cab company for injuries suffered through the alleged negligence of one of its drivers, the errors complained of being of a harmless character, this court declines to interfere with the verdict for the plaintiff.
33 Ill. App. 152Bernstein v. Patterson (1889)
Sales—Overpayment—Recovery of Surplus—Evidence. In an action to recover an amount claimed to have been paid,over and above what was due upon a certain purchase of goods, the plaintiff alleging that, being unable to read or write, he had trusted a third person to figure for him, this court holds that his testimony alone did not warrant the judgment in his behalf.
33 Ill. App. 153Frasee v. Hand (1889)
Appeal from the Superior Court of Cook County; the Hon. JohnP. Altgeld, Judge, presiding.
33 Ill. App. 155Talcott v. Grant Wire & Spring Co. (1889)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
33 Ill. App. 158Langfeldt v. McGrath (1889)
Trespass—Overhanging Wall—Limitations—Nuisance—Continuance— Real Property—Damages. 1. The doctrine of entireness of recovery in one action for injuries of a permanent kind, is limited to cases where the damage is caused by public improvements under authority of law, the construction thereof being done in a reasonably proper and skillful manner, so as to avoid all unnecessary loss and injury. 2. Where improvements have been imperfectly built, and'there has been negligence in the mode of their construction, the person whose property has been injured thereby need not assume that the injury is a permanent one. 3. An act which the law allows, if done in a proper manner is not a nuisance, although damages may be recovered therefor as in certain cases of permanent injury, while an act done in defiance of the law, which naturally and necessarily injures the property of another must be looked upon as such. 4. A wall so built as to overhang the property of another is a nuisance for which an action may be maintained. 5. In such case the damages must be limited to the time oE commencing the suit, and the measure thereof to such injury to the value of the use and occupation, as may have accrued after the acquirement of title and before the bringing o£ suit. 6. In the case presented, this court holds that the measure of damages is the difference betweeen what the value of the use and occupation of the land in question would have been during the period named, had the wall not overhung the same, and what it was as the wall actually stood. 7. In such cases there can be no recovery for any time anterior to the plaintiff’s right of possession.
33 Ill. App. 162Scott v. Magloughlin (1889)
Trust Deed—Foreclosure—Note—Consideration—Lacle of—Fraudulent Conveyance—Alimony. 1. A conveyance made by a husband for the purpose of defrauding a wife, seeking a divorce, of alimony or maintenance, can not stand. 2. Equity will not foreclose a trust deed given with such an end in view.
33 Ill. App. 164Jacobs v. Kastholm (1889)
Appeal from the Circuit Court of Cook County; the Hon. Lobbst C. Collins, Judge, presiding.
33 Ill. App. 166Robinson v. Raulston (1889)
Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
33 Ill. App. 168Ring v. United States Life & Accident Ass'n (1889)
Julius S. Grinnell, Judge, presiding. This action was brought to recover on an insurance certificate. The declaration counts on a policy of insurance which is set forth in haee verba.
33 Ill. App. 176Smith v. McCarthy (1889)
Negligence — Insecure Area Bail—Personal Injuries — Contributory Negligence—Damages—Loss of Time—Special Interrogatories—Evidence —Instructions—Practice. 1. The general verdict in a given case will control, where the special finding therein can upon any hypothesis be reconciled therewith. 2. Interference by the trial court with the right of the jury to pass upon the question of negligence, is justifiable only when the verdict is against the weight of the evidence. 3. An instruction setting forth that damages may be assessed for the plaintiff’s time while being cured, and for a permanent injury, if proved, is not seriously contradictory. 4. The grounds of the objections to evidence offered by way of impeach, ment should be specific.
33 Ill. App. 178Union Mutual Accident Ass'n v. Frohard (1889)
Insurance—Mutual Accident Companies—Certificate of Membership— Conditions—Construction of—Breach—Death While Hunting—Burden of Proof—Decree. 1. The act of hunting does not amount to the occupation of hunting. 2. A classification of hazards of an insurance company confined exclusively to occupations, does not cover isolated acts. 3. A policy of insurance must be construed liberally in favor of the assured. 4. The burden of proof is upon a mutual insurance company to show in case of loss that an assessment would not realize the amount at risk. The presumption is to the contrary. 5. It is proper to require payment in full where an association refuses to levy an assessment upon the untenable ground that it is liable only for a portion of the sum named. 6. That portion of a decree directing payment by the officers of such company, no officer thereof being a party to the suit, is nugatory and can not be complained of.
33 Ill. App. 184Eggleston v. Gage (1889)
Real Prope fy—Tax Deed—Redemption—Injunctions—Title—Cloud— Sec. 211, Reoenue Statute. Upon a bill filed to enjoin the taking out of a tax deed of certain real estate and to remove certain documents spread upon the records, as a cloud upon the title thereof, this court holds, that Sec. 211 of the Revenue Statute applies to cases where the land is a second time sold for the taxes of a succeeding year.
33 Ill. App. 186Reich v. Berdel (1889)
Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
33 Ill. App. 188Parke v. Welch (1889)
Henry M. Shepard, Judge, presiding. This case arises on a bill of interpleader filed by the Supreme Council of the Royal Arcanum, a corporation organized and existing under and by virtue of the laws of the State of Massachusetts, against appellant and appellees, who were respectively claiming the sum of $3,000 which was due from said Royal Arcanum upon a benefit certificate issued to W. D. Welch.
33 Ill. App. 196Hill v. Lowden (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
33 Ill. App. 200Amberg v. Philbrick (1889)
Bailments—Trover—Chattels—Conversion—Master and Servant—Servant’s Wrongful Act—Master’s Liability. An involuntary, gratuitous bailee is not liable for the refusal of his servant to deliver the goods of another when he has not been informed that application has been made therefor, and has given no orders touching the same.
33 Ill. App. 202Scanlan v. Scanlan (1889)
In error to the Circuit Court of Cook County; the Hon. Lorin 0. Collins, Judge, presiding.
33 Ill. App. 206Trotter v. City of Chicago (1889)
Appeal from the Criminal Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
33 Ill. App. 211Bryton v. Marston (1889)
Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 216W. J. Hammond & Sons (Ltd.) v. Cragin Manufacturing Co. (1889)
Sales—Damaged Iron—Correspondence—Uncertainty as to Meaning of —Eviden ce—In st ruction s. 1. Upon a contention involving the meaning of certain correspondence relating to the sale of a lot of damaged iron, this court holds that the instructions given in behalf of plaintiff touching the intention of t.he parties in interest were less favorable than they were entitled to, and that proper instructions as to damages were not given. 2. The meaning of correspondence is a question for the courf, unless it appears that the words used are to be considered in other than the ordinary sense.
33 Ill. App. 221Chicago, Burlington & Quincy Railroad v. Mehlsack (1889)
Railroads—Personal Injuries—Relation of Passenger—Standing upon Platform—Stealing Ride—Practice—Opening Address—Discretion. 1. This court will not reverse the finding of a jury unless satisfied that it is against the manifest weight of the evidence, or is the result of passion or prejudice, or unless some error of law has intervened. 2. The failure of a trial court to require counsel for plaintiff to make an opening address to the jury after the evidence is closed and before counsel for the defendant makes his argument, can not be complained of, in view of the diverse practice in this regard.
33 Ill. App. 223Youngs v. Youngs (1889)
Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
33 Ill. App. 225Siegel v. Chicago Trust & Savings Bank (1889)
Negotiable Instruments—Notes—Consideration—Failure of—Assignment. This court holds a certain instrument calling for the payment of money to an advertising company to be a promissory note, in so far as to enable an assignee taking the same for value before the time for the consideration to commence had arrived, and with no notice that it was likely to fail, to recover thereon.
33 Ill. App. 228Conrad v. Kloepfer (1889)
Appeal from the Circuit Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
33 Ill. App. 229Kernan v. Moore (1889)
Injunctions—Trespass—Ejectment—Actions of—Boundary Line—Homestead. Upon a bill to enioig^actionj) of trespass and ejectment for the encroachment upon theTañTW^moffefTErougirThe erection of a building, the boundary line, which proved to be incorrect, having been agreed upon beforehand by both owners, this court modifles the decree in behalf of the plaintiff, perpetually enjoining the prosecution of such actions in so far as to have the injunction continue only .so long as the building^JLn question remains upon its préseñTHte. '*’
33 Ill. App. 230Monroe v. Snow (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
33 Ill. App. 237Stevens v. St. Mary's Training School (1889)
Appeal from the Circuit Court of Cook County; the Hon. O. H. Horton, Judge, presiding.
33 Ill. App. 238Huling v. Farwell (1889)
Partnership—Dissolution—Accounting—Reference to Master—Report of—Exceptions to—New Exceptions—Amendments. In proceedings touching the dissolution of a co-partnership, this court holds that the exceptions of the parties to the suit to the master’s report were bad for uncertainty, and declines to interfere with his finding that a sum named was due the complainant.
33 Ill. App. 242Fish v. Farwell (1889)
Practice—Costs—Retaxation of—Witness Fees—Non-suit—Sub. 5, Sec. 16, Chap. 25, R. S.—Attendance—Mileage —Travel,' outside the State. 1. Mileage for travel outside the State can not be taxed as costs in civil causes. 2. The fact that a certain witness was not examined at a given term does not. warrant the withholding of his fees. 3. A witness may file his affidavit at each term of court, or wait till the term at which the judgment is rendered and then do so, showing therein the number of days he attended at each term, in which case the clerk is authorized to make up and enter the costs in the fee book.
33 Ill. App. 245Goudy v. City of Lake View (1889)
Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
33 Ill. App. 246Stearns v. Reidy (1889)
Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
33 Ill. App. 250Kramer v. Imhoff (1889)
Chattel Mortgages—Foreclosure—Injunctions—Removal of Property by Mortgagee—Evidence. This court declines to interfere with a decree of foreclosure of a chattel mortgage, and holds that the property alleged to have been taken away by the mortgagee was not identified with the property named therein; that at the time of such taking, the mortgagor acknowledged that the same was not covered by the mortgage, and that by arrangement with the mortgagee and on his credit other property of like description was procured by the mortgagor to take its place.
33 Ill. App. 252Bogue-Badenoch Co. v. Boyden (1889)
Appeal from the Circuit Court of Cook County; the Hon. Prank Baker, Judge, presiding.
33 Ill. App. 253Chisholm v. Beaver Lake Lumber Co. (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
33 Ill. App. 254Chicago & Eastern Illinois Railroad v. Blagden (1889)
Appeal from the Superior Court of Cook County; the Hon, John P. Altgeld, Judge, presiding.
33 Ill. App. 258Barton v. Treutler (1889)
Appeal from the Circuit Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
33 Ill. App. 259Hinckley v. Horazdovsky (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
33 Ill. App. 261Hahn v. Maxwell (1889)
Appeal from the Circuit Court of Cook County; the Hon. Rolltn S. Williamson, Judge, presiding.
33 Ill. App. 262Rosenberg v. Hart (1889)
Appeal from the Circuit Court of Cook County; the Hon. Bichard S. Tuthill, Judge, presiding.
33 Ill. App. 266Boyd v. Dullaghan (1889)
Agency—Meal Property—Exchange of, for Personalty—Mecor.ery of Commission—Evidence. One who attempts to act as "the agent of both parties to a transaction without disclosing that fact to his principals, is precluded from recovering compensation for his services.
33 Ill. App. 268Espen v. Roberts (1889)
Richard S. Tuthill, Judge, presiding. Mr. Israel Cower, for appellant. We assert that there is not a scintilla of evidence showing, or tending to show, that the plaintiff or any of his employes caused the damage complained of, and none will be claimed to exist. Under the rules thus far laid down by the Supreme Court, and this court, the giving of an instruction predicated on evidence not in the record, is such an error as will reverse. Tillage of Evanston v. Lynch, 1 Ill.
33 Ill. App. 269Holden v. Terhune (1889)
Mortgages—Foreclosure—Payment in Part—Residue—Decree. Upon a bill to foreclose a mortgage this court declines to interfere with the finding of the trial court, that the son of the mortgagee had received payment in part on account of the same, and that he was authorized so to do.
33 Ill. App. 271Chicago & Eastern Illinois Railroad v. Hines (1889)
Master and Servant—Railroad, Watchman—Personal Injuries—Practice —Evidence—Instructions—Arrest of Judgment. 1. The refusal of an instruction can not be complained of where a special finding of the jury specifically denies the hypothesis thereof. 2. A willful neglect of means to save the lives and limbs of servants performing dangerous service, from needless peril, constitutes gross negligence. 3. In an action for the recovery of damages for the death of a railroad employe through the alleged negligence of the company, this court holds, upon the allegation that the declaration is insufficient in not alleging knowledge by the defendant, and want of knowledge by the deceased, of the defects named, as to the first objection, that the faults, it any, touching the language of the declaration, were faults in construction, and that no such averment was necessary; and as to the second objection, that the want of an averment of such lack of knowledge can not be complained of. 4. In the case presented, this- court declines to interfere with a verdict for $5,0G0, in behalf of the plaintiff.
33 Ill. App. 277Sangamon Coal Mining Co. v. Richardson (1889)
Garnishment—Chap. 62, B. S.—Unpaid Balance on Shares of Stock— Inadequate Consideration—Receipt in Full—Fraud. 1. A garnishment proceeding can only reach the debt which the judgment debtor could recover by action at law. 2. Proceedings oE this character will not lie on the part of the creditors of a corporation to recover the unpaid balance on shares of stock where the amount received as payment in full was much less than the face value thereof, until after the agreement to that end shall have been set aside by bill in equity.
33 Ill. App. 282Rothschild v. Bruschke (1889)
Negotiable Instruments—Note—Suit on Parties—Pleading—Amendment. The filing of a new declaration in the name of the person to whom a note was indorsed, together with his substitution as party plaintiff after the institution of suit thereon in the name of the indorser, will not warrant a judgment in behalf of the indorsee.
33 Ill. App. 284Myers v. Maher (1889)
Real Property—Cloud—Judgment—Bill to Remove—Unrecorded Deed — Resulting Trust—Homestead—Doioer—Subrogation. Upon a bill Bled to remove the lien of a judgment obtained against the husband of petitioner as being a cloud upon her title to certain real estate, this court holds that the petitioner was not in possession of the premises in question at the time said judgment was obtained under an unrecorded deed, the same having been filed for record after such lien attached, but that she would be entitled, upon sale thereof under execution, or upon her own petition, to receive certain sums paid by her to liquidate mortgages thereon, and that her claim therefor should properly take precedence of liens accruing subsequently to such payments.
33 Ill. App. 290Chicago & Northwestern Railway Co. v. Becker (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 297Brain v. Foster (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
33 Ill. App. 299Lynn v. Lynn (1889)
Appeal from the Probate Court of Cook County; the Hon. J. C. ENickeebockee, Judge, presiding.
33 Ill. App. 301Bittinger v. Druck (1889)
Assault—Evidence—Self-defense —Instructions. 1. An instruction assuming to set forth all the facts which warrant a recovery, but omitting one material element in the hypothesis, is bad. 2. When the facts relied on by the plaintiff are necessarily antagonistic to and exclude those relied on by the defendant, the instructions for the plaintiff need only summarize all the elements in the cause essential to a recovery on his theory.
33 Ill. App. 303Bournique v. Arnold (1889)
Appeal from the Superior Court of Cook County; the Hon. Jorra P. Altgeld, Judge, presiding.
33 Ill. App. 307Chicago & Northwestern Railway Co. v. Trayes (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
33 Ill. App. 310McNeill v. Lacey (1890)
Appeal from the Superior Court of Cook County; the Hon-Kirk Hawes, Judge, presiding.
33 Ill. App. 312Portoues v. Holmes (1889)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
33 Ill. App. 317Gaffield v. Scott (1889)
Sales—Goods for Family Consumption—Husband and Wife—Purchases by Wife—Promise to Pay by Husband—Evidence—Burden of Proof—Instructions. 1. This court can not pass upon an alleged erroneous ruling touching the introduction of certain evidence, in the absence of information as to what the answer to the question asked, and to which an objection was sustained, would have been. 2. In an action for the recovery of a sum claimed to be due for goods furnished for family consumption, this court holds that the trial court erred in refusing to give in behalf of the defendant certain instructions, touching the necessity for a consideration to support a promise to pay, and the liability of a husband for debts contracted by his wife.
33 Ill. App. 319Trumbull v. Union Trust Co. (1889)
E. Pbendergast, Judge, presiding. This is an appeal from an order of the County Court of Cook County in the matter of T. W. Hall & Co., insolvent debtors. The firm of T. W. Hall & Co., composed of Thomas W., Charles and William P. Hall, were merchants and factors in wool, having their office and warehouse in two connected buildings, known as numbers 46 to 52 Dearborn avenue, Chicago.
33 Ill. App. 341Daegling v. Illinois Vault Co. (1889)
Appeal from the Circuit Court of Cook County; the Hon. Abba N. Waterman, Judge, presiding.
33 Ill. App. 344Cohen v. Smith (1889)
A ttachm ent—A ffidavit— Garnishmen t—Remittitur— Chan ge of .A ttorn ey Equitable Assignments—Costs—Publication—Default. 1. Upon defaul t after publication in attachment proceedings, a judgment for too large an amount can not be cured by a remittitur, for the reason that the record can not show that the merits as to the residue are with the party in whose behalf the same was entered. 2. A change of attorney, if not made by voluntary arrangement, must be done by order of court. 3. The authority of an attorney of record can not be interfered with until the same is revoked.
33 Ill. App. 348Patterson v. Scott (1889)
Gaming—Criminal Code, See. 135—Chap. 46, B. S. 1845—Sec. 2, Chap. 13, B. S.—Decrees—Judgments. This court holds that the right to relief under Sec. 135 of the criminal code upon the ground that money for which decrees by default were entered in the trial court was lost in gaming, is not foreclosed by the failure to set up the same as a defense in the first instance.
33 Ill. App. 350Ashford v. Worrell (1889)
Master and Servant—Building Contract—Balance Due—Extras—Evidence. In an action brought to recover a balance claimed to be due under an oral contract to build several houses, and for. extra work, this court declines, in view of the evidence, to disturb the verdict for the plaintiff.
33 Ill. App. 351Chicago West Division Railway Co. v. Ingraham (1889)
Street Railway Companies—Personal Injuries—Negligence—Evidence —Preponderance of—Instructions. An instruction setting forth that a street railway companyhas an absolute right of way over its track, against all foot passengers and vehicles, without regard to circumstances, should not be given.
33 Ill. App. 353Pugh v. Merchants Bank of Canada (1889)
Banks—Depositors—Account—Alleged Error in. Upon suit brought by a former depositor against a bank to recover a certain amount alleged to have been wrongfully charged to him by it, this court declines, in view of the evidence, to disturb the verdict for the defendant.
33 Ill. App. 354O'Malley v. Chicago City Railway Co. (1889)
Street Railway Companies—Negligence of—Personal Injuries—Evidence—Damages—New Trial. A plaintiff not entitled to recover at all, has no right to have a verdict for the defendant set aside, nor one in his own behalf, because the damages are less than the pecuniary injury.
33 Ill. App. 355Elton v. Brettschneider (1889)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepabd, Judge, presiding.
33 Ill. App. 356J. Obermann Brewing Co. v. Ohlerking (1889)
Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clieeord, Judge, presiding.
33 Ill. App. 357Keating v. Nelson (1889)
Master and Servant.— Building Contractor—Balance Due—Recovery of—Architect's Certificate— Boor Quality of Work—Evidence. A building contractor alone signing a written agreement making the decisión of the architect of a given structure final in case of a disagreement with its owner, and the contract price payable in installments upon presentation only of the architect’s certificate, said instrument showing upon its face that it was to be executed by both the owner and contractor, and was not to bind either unless both were bound, may recover for services rendered regardless of the same.
33 Ill. App. 359Burch v. West (1889)
Insolvency—Judgments by Confession—Fraudulent Preferences—Assignment—Corporations—Officers—Acts of Receivers—Authority of. 1. A receivor is clothed with such rights of action as might have been maintained by the person over whose estate he has been appointed, and to whose rights for purposes of litigation he has succeeded. 2. Upon a bill filed by the receiver of an insolvent corporation attacking certain judgments confessed by it previous to his appointment, this court declines to interfere with a decree in behalf of the judgment creditors.
33 Ill. App. 362Chicago Attachment Co. v. Davis Sewing Machine Co. (1889)
Landlord and Tenant—Lease—Conditions—Parol Assignment—Pent— Recovery of—Statute of Frauds. 1. The failure by a tenant to comply with a condition in a lease prohibiting the assignment thereof without the consent of the lessor, can only be complained of by the latter. 2. In an action for the recovery of a balance alleged to be due for rent under a lease assigned by parol agreement, this .court declines, in view of the evidence, to interfere with the judgment in behalf of the plaintiff.
33 Ill. App. 365Gage v. Nichols (1889)
Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
33 Ill. App. 366Lake Shore & Michigan Southern Railway Co. v. May (1889)
Railroads — Negligence — Personal Injuries — Crossings — Signals, Failure to Make—Flagman, Absence of—Contributory Negligence—Evidence—Instructions. 1. In an action to recover from a railroad company damages for personal injuries alleged to have been occasioned through its negligence at a street crossing, this court holds as erroneous certain instructions given in behalf of the plaintiff, upon the ground that they stated no rule to govern the jury in assessing damages, and that the statement repeated in each of them that the same must not exceed a certain sum, was improper, as being likely to influence a verdict therefor. 2. This court condemns the use by counsel in jury trials of extravagant and intemperate language, calculated to arouse the prejudice and passion of jurors and lead to unjust results.
33 Ill. App. 370Folz v. Nelke (1889)
Sanies—Insolvency of—Stockholders—Liability of, to Depositors—Res Adjudicata. 1. In an action brought by a depositor of an insolvent bank against one oE its stockholders, who, under its charter, was liable for its debts to the extent of his stock, this court declines to interfere with the judgment for the plaintiff. 2. A decree in a given cause governs only the parties thereto.
33 Ill. App. 371Gray v. Lindauer (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 373Mead v. Altgeld (1889)
Agency—Sales—Real Property—Deposit on Contract for Purchase— Recovery of—Unsatisfactory Title—Evidence—Experts. 1. The construction of a written agreement is for the court. 2. The personal undertaking of a real estate agent to return a sum received by him as a payment, in case the title to certain property of his principal under contract of sale should be shown to be defective, is not inconsistent with the character of agent. 3. A purchaser of real estate should receive a title good beyond a reasonable doubt. 4. The sufficiency of a title is a question of law for the court and in controversies involving the same, the opinions o£ lawyers as experts should not be considered. 5. Errors which do no harm can not be complained of.
33 Ill. App. 381J. W. Middleton Co. v. Roycroft (1889)
In an action by an administrator to recover for the death of his intestate, the same being alleged to have been occasioned through the negligence of his employers, this court declines, in view of the evidence, tc interfere with the verdict in behalf of the plaintiff. Appeal from the Superior Court of Cook County; the Hon-John P. Altgeld, Judge, presiding.
33 Ill. App. 384Poppers v. Peterson (1889)
Trover—Possession—Title—Demand—Evidence—Parties, 1. In an action of trover, the plaintiff must have, at the time of the con- ■ version, as against the defendant, a right of property in the chattel converted and the possession thereof, and must prove that while the right of possession was in him, he made a demand therefor. 2. In an action to recover the value of certain furniture and jewelry, this court bolds, in view o£ the evidence, that the judgment in behalf of the plaintiff can not stand.
33 Ill. App. 386Breier v. Weier (1889)
Appeal from the Circuit Court of Cook County; the Hon. .Lobin C. Collins, Judge, presiding.
33 Ill. App. 388Chicago & Western Indiana Railroad v. Thomlinson (1889)
Sales—Contract—Stone for Depot—Extras — Evidence—Burden of Proof—Instructions—A gency. In an action brought to recover a sum claimed to be due for certain stone furnished, it being alleged that the same was not included in a given contract, this court holds that the burden of proof was upon the plaintiff to establish his claim, and that the trial court erred in instructing the jury that the same was upon the defendants to show that the stone in question was furnished under the contract.
33 Ill. App. 389Borden v. Croak (1889)
Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
33 Ill. App. 394Illingworth v. Burley (1889)
Landlord and Tenant—Recovery of Rent—Marrie■ Woman—Family Expense—Sec. 15, Chap. 68, R. S. The rent of a house occupied as a residence is a family expense within the meaning of Sec. 15, Chap. 68, R. S.
33 Ill. App. 396Lenz v. Chicago Lumber Co. (1889)
Appeal from the Circuit Court of Cook County; the Hon. Julius S. Geinnell, Judge, presiding.
33 Ill. App. 397Trunkey v. Hedstrom (1889)
Sales—Quantity of Coal—Failure to Deliver—Damages—Evidence— Stenographer's Transcript—Introduction of, upon Subsequent Trial— Stipulation—Death of Witness. 1. In the absence of a statutory provision, the rule is that a deposition given by a witness at a time when he was not disqualified, may be read in chancery, or on the trial at law of an issue out o£ chancery, if he acquires an interest in the suit after giving the same. 2. A stenographer’s transcript of the evidence of a party plaintiff to a given suit is inadmissible upon a subsequent trial thereof, the agent of the defendant with whom the contract in question was entered into having died in the meantime. 3. In an action for the recovery of damages alleged to have arisen through the failure of defendants- to deliver a quantity of coal contracted for, this court declines, there being no evidence tending to prove that the plaintiffs were ready to pay for the same, to interfere with the judgment against them.
33 Ill. App. 400Postal Telegraph-Cable Co. v. Lathrop (1889)
Telegraph Companies—Messages—Errorsin theTransmission of—Damages—Options—Trading in—Evidence—Instructions—Special Agents— Authority of. 1. No neglect by a special agent to do a thing touching which he has not been instructed by his principal, will charge the latter. 2. In the absence of evidence tending to show that an error in a telegram did not occur through natural causes, the presumption will be that the same arose from the negligence of the company. 3. If a message delivered is in cipher, an unintelligible jumble of words having no meaning in themselves, a company is not responsible for the damages resulting from an error in its transmission, however clear the meaning might be to one having the key. 4. If a message on its face appears to roíate to a business transaction, involving the purchase and sale of property, the company has notice thereby that it is important, and is liable for the actual damages resulting from an error in its transmission, through its negligence. 5. In an action brought to recover from a telegraph company for damages alleged to have arisen through errors in the transmission of certain dispatches, this court, in view of the evidence, declines to interfere with the verdict for the plaintiffs.
33 Ill. App. 405Lake Shore & Michigan Southern Railway Co. v. Parker (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
33 Ill. App. 412Chicago v. Adamick (1889)
Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
33 Ill. App. 416Chicago & Western Indiana Railroad v. Slee (1889)
Trespass—Railroad Company—Condemnation—Writ of Possession— Failure to Cover Premises in Question—Evidence—Instructions—Liberum Tenementum—Plea of—Damages—Rental Value—Failure to Reenter. In an action of trespass quare clausum against a railroad company, it being alleged that certain premises were wrongfully taken possession and made use of by it, this court holds that the defendant fully justified the entry under the plea of liberum tenementum, which, by a certain stipulation entered into, was to be considered as pleaded in the case; that whatever rights the plaintiff might have in equity to redeem in no way affected the legal title conveyed by a certain deed, when the matter came in question in an action at law, and that the judgment for the plaintiff for the rental value of the premises from the date of the entry until the commencement of the suit was erroneous, in view of the fact that he did not re-enter the same.
33 Ill. App. 420Chicago & Western Indiana Railroad v. Slee (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 421Union Oil Co. v. Maxwell (1889)
Administration—Claim—Guaranty by Deceased of Certain Alleged Indebtedness—Consideration—Assignment—Pleading — Parties —Misnomer—Abatement—Waiver—Sec. 3, Chap. 76, R. S. Upon an appeal from an order and judgment entered by the Circuit Court, disallowing a claim filed originally in the Probate Court against the estate of a deceased person, this court holds that the guaranty by him and another upon the formation, with others, of a corporation, of the payment to it of certain indebtedness claimed to be due them, the same being contributed by them toward the assets thereof, amounted to a guaranty that the indebtedness existed as well as that payment should be made; that the assignment thereof to the corporation carried in equity allthe securities, the guarantors had for its payment; that the original agreement, being under seal, is joint and several under Sec. 3, Chap. 76. R. S., and that defendant was properly proceeded against; that the second agreement given by the said guarantors is competent and sufficient evidence of the transfer of the indebtedness to the corporation and of its equitable right to the performance of the guaranty, or damages in lieu thereof, and that a probate court has jurisdiction of such equity against an estate in the course of administration.
33 Ill. App. 430Chicago City Railway Co. v. Delcourt (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
33 Ill. App. 433Woodward v. Illinois Central Railroad (1889)
Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
33 Ill. App. 435Gary v. Brown (1889)
Garnishment—Attorney and Client—Fees—Lien upon Client's Securities—Receiver — Hindering and Embarrassing the Performance of the Duties of—Garnishment in another State—Sec. 24, Garnishment Statute—Contempt. 1. A receiver may properly be appointed to take possession of and collect a note and mortgage in the hands of an attorney claiming a lien thereon for professional 'services rendered the reputed ¡owner thereof, upon petition of a third person claiming to own the same. 2. An order making such appointment in no wise disposes of the claims of creditors of the payee of such note. 3. In such case an order enjoining the claimant of the lien from prosecuting garnishment proceedings against the mortgagor and maker of the note in the State where the same were given can not be complained of. i
33 Ill. App. 438Clapp v. Martin (1889)
Landlord and Tenant—Distress for Rent—Household Furniture — 2 rovei—Evidence—Instructions. 1. The addition by the trial court to the verdict in a given case assessing the damages at a sum named “with interest," of words naming the amount thereof including interest, can not be complained of. 2. The failure to mark an instruction not given, “ refused,” amounts to the same thing as if so marked.
33 Ill. App. 440Hess v. Board of Education (1889)
Sales—Set-off—Failure to Perform—Evidence— Instructions —Verdict. 1. In a contention involving the question as to which of several contracts was the true one, evidence tending to show the fact should be admitted by the court, and the question determined by the jury. 2. In an action to recover the value of certain furnaces, this court holds that in view of the issues in the case, the verdict for the plaintiffs for one cent was not sufficiently inconsistent to be reversed.
33 Ill. App. 442Roseboom v. Whittaker (1889)
Insolvency—Judgment, by Confession—Debts due Directors—Attachments in Behalf of other Creditors—Priority. 1. The directors of an insolvent corporation may not apply the assets thereof to the payment of debts due themsel es to the exclusion of other creditors. 2. A judgment by confession can not be looked upon as a constructive assignment, until some creditor has sought to have it so d"61ared. 3. Liens accruing before such step has been taken are not displaced by it.
33 Ill. App. 444Peale v. Hill (1889)
Master and Servant—Booh Agent—Sales upon Commission—Evidence. In an action to recover a balance claimed to be due under a, contract to canvass a given county for the sale of a subscription book, this court declines, in view of the evidence, to interfere with the judgment in behalf of the plaintiff.
33 Ill. App. 445Olds v. Chicago Open Board of Trade (1889)
Appeal from the Circuit Court of Cook County; the Horn Abba ÍT. Wateehan, Judge, presiding.
33 Ill. App. 449Huston v. Boltz (1889)
Sales—Balance on Account—Recovery of—Solicitor of Orders—Evidence. In an action to recover the price of a lot of cigars, this court, in view of the evidence, declines to interfere with a judgment for the plaintiffs.
33 Ill. App. 450Chicago City Railway Co. v. Wilcox (1889)
Street Riilways—Negligence of Employes of—Personal Injury — Rules and Regulations—Preach of—Child Six Years Old—Damages— Loss of Leg—Evidence—Instructions. 1. Personal negligence is not to be imputed to a child six years old. 2. A child can not be cut .off from compensation for personal injuries suffered through the negligence of another, for the reason that its mother failed to perform her full duty in protecting him from harm. 3. The rule may be otherwise where the suit is for the benefit of the next of kin. 4. The giving of an erroneous instruction which did no harm can not be complained of. 5. This court declines to interfere with a verdict in the sum of $15,000 in behalf of a child and against a street railway company for the loss of a leg and other injuries suffered through its negligence.
33 Ill. App. 454Williams v. Daly (1889)
Sales—Real Property—Merchantable Title—Copy of Abstract—Deposit —Recovery of—Evidence—Bill of Exceptions. 1. In an action to recover a deposit under a contract for the sale of real estate upon the ground that the merchantable title contracted for had not been offered, this court declines, in view of the evidence, to interfere wilh the judgment in behalf of the plaintiff. 2. A would-be purchaser is not obliged to extend the time in which to furnish such abstract, but is entitled to rescind upon the expiration of the time agreed upon, and have his deposit paid over.
33 Ill. App. 455Chicago City Railway Co. v. Pelletier (1889)
Appeal from the Superior Court of Cook County; the Hon. Kiek Hawes, Judge, presiding.
33 Ill. App. 458Ingalls v. Allen (1889)
Appeal from the Circuit Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.
33 Ill. App. 461Leahy v. Hair (1889)
Agency—Sale of Real Estate—Commissions—Recovery—Title—Evidence of Attorney as to—Verdict. 1. Whether a title to. real estate is good or not, is a question of law, and an attorney who is a witness is not to state what his opinion is on such question, but must give the facts as to the title if he knows them, only, and it is for the court to state to the jury whether the title is good if the facts are found as claimed. 2. To recover commissions on the sale of a piece of real estate, the burden of proof is upon the agent to show that the purchaser furnished by him was ready, willing and able to complete the purchase on the terms proposed.
33 Ill. App. 464Hunter v. Gordon (1889)
Agency—Sales—Warranty — Breach — Correspondence — Meaning of —Evidence. In an action to recover upon an alleged breach of'warranty o£ the quality of certain bams, this court holds that the defendant was the agent of the plaintiff in the purchase of the same, not the vendor thereof, and that the judgment against him can not stand.
33 Ill. App. 471Hanchett v. Ives (1889)
Trespass — Attachments — Successive Levies—Priority—Sheriff—Constable. 1. The possession of property levied upon, in the hands of a custodian, is the possession of the officer so placing it, and he can maintain trespass against one who removes the same. 2. The levy upon personal property of an attachment issued by one judicial authority to one officer, takes precedence of an execution against the same defendant issued by another judicial authority, to another officer, although the execution was in the hands of the latter before the levy of the attachment.
33 Ill. App. 474Mackin v. O'Brien (1889)
Master and Servant—Building Contractor—Balance Due—Recovery of —Superinte)tdence—Evidence—Custom. 1. Between merchants an account rendered and not objected to within a reasonable time becomes a settled account which is conclusive between them, unless fraud, mistake, omission or inaccuracy is shown. 2. The admission in evidence of accounts rendered, which have not been objected to within such time, without the production of the original entries or books from which they were taken, can not be complained of. 8. This court will not consider objections to the introduction of evidence primarily raised herein.
33 Ill. App. 477Williams v. Boyden (1889)
Appeal from the Circuit Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 479Lake Shore & Michigan Southern Railway Co. v. Bodemer (1889)
Eailroads—Negligence—Excessive Speed—Personal Injuries—Eight oj Way—Ordinance—Evidence—Instructions—Trespassers. 1. Wilful or wanton injury to a trespasser is actionable, and it cuts no figure if in such case the person injured was guilty of contributory negligence. 2. A defendant who states the substance of a municipal ordinance in his opening and admits the breach thereof, can not complain of the reading of the same after the evidence is all in, in behalf of the plaintiff, as a part of his argument to the jury. 3. In an action brought by an administrator to recover from a railroad company for the death of his intestate, the same being alleged to have been caused through its negligence, this court holds that the train in question was moving at a reckless rate of speed when the accident occurred, that defendant was guilty of wanton negligence in this regard, and declines to interfere with the verdict for the plaintiff.
33 Ill. App. 486Hubbard v. McCormick (1889)
Landlord and Tenant—Rent—Recovery of—Set-off—Pleading—General Issue—Evidence. In an action brought for the recovery of rent, the defendant has the right under the general issue to show payment, accord and satisfaction, and with few exceptions, any other matter which wholly or partly extinguished the cause of action.
33 Ill. App. 488Kolb v. Chicago Stamping Co. (1889)
Appeal from the Circuit Court of Cook County the Hon. Julius S. Grinnell, Judge, presiding.
33 Ill. App. 491Bernauer v. Hartman Steel Co. (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 495Singer v. Leavitt (1889)
Appeal from the County Court of Cook County; the Hon. E. H. Gary, Judge, presiding.
33 Ill. App. 499Hamilton v. Harvey (1889)
Appeal from the Circuit Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
33 Ill. App. 503Baird v. Shipman (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, ¿Judge, presiding.
33 Ill. App. 510Harris v. Brain (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
33 Ill. App. 512Simonds v. Allen (1889)
Husband and Wife—Marriage—Bill to DeclareVoid—Divorce in Another State—Re-marriage—Rule in New York, 1. It is a rule of law in the State of New York, that a decree of divorce obtained in another State against one who, at the time it was rendered and during the pendency of the proceeding was domiciled in New York, and who was not personally served with process, and did not appear in the action or proceedings, is wholly inoperative and void, so far as relates to the defendant in such divorce proceeding. 2. The presumption is, that a contract of marriage is to be performed in the place in which the parties to it are domiciled at the time the marriage is performed, and the capacity of each party to enter into a valid contract must be determined by the law of the place of the marriage. 3. A marriage, invalid at the place it was entered into, must be held invalid wherever the question of its validity is raised for determination. 4. Upon the introduction of the decisions of another State, showing the rule of l4w therein touching certain cases, it is proper for the court to determine the validity of a marriage contracted in that State by the law thereof. 5. Upon a bill filed praying that a marriage which had been performed in another State should be declared void, this court holds that the ceremonv in question was a mere form, and that the trial court erred in dismissing said bill.
33 Ill. App. 517Prouty v. Hanford (1889)
In error to the Circuit Court of Cook County; the Hon Oliver H. Horton, Judge, presiding.
33 Ill. App. 526Johnson v. McChesney (1889)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
33 Ill. App. 529Wilson v. Bean (1889)
Appeal from the Superior Court of Cook County; the Hon. Kiek Hawes, Judge, presiding.
33 Ill. App. 532Cook v. Gillmore (1889)
Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
33 Ill. App. 534Leihy v. Briggs (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 542McCoull v. Herzberg (1889)
Landlord and Tenant—Sewer Gas—Recovery of Rent—Lease—■Conditions—Fraudulent Representations. 1. A landlord does not insure that nothing exists touching the premises in question that will interfere with the health or comfort of his tenant nor is he bound to repair unless the lease so provides. 2. The law does not imply a contract on the part of a landlord that premises demised are tenantable or that they will continue to be so during the term. 3. An action at law to recover rent covenanted to be paid by lease under seal', can not be met by the defense that the lessee was induced to execute the lease by fraudulent representations as to the character or surroundings of the premises.
33 Ill. App. 546O'Brien v. Graham (1889)
1. Upon a bill filed by sub-contractors for a mechanic’s lien, this court holds that the same was properly dismissed for the reason that the statutory notice was not served upon the owner oE the building in question, within the time required by Sec. 31, Chap. 82, R. S. 2. No personal decree is authorized by the statute when there is a failure in the effort to establish a lien. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
33 Ill. App. 548Allemania Fire Insurance v. Peck (1889)
In error to the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
33 Ill. App. 551City of Chicago v. Chase (1889)
Municipal Corporations— Negligence — Defective Sidewalk — Personal Injuries—Notice of Condition on Part of Authorities—Pleading—JSvidence —Variance. 1. In an action against a municipality for the recovery of damages for injuries suffered through a defective sidewalk, this court holds that there was no material variance between the plaintiff’s proof and the allegations set forth in her declaration, and declines to interfere with the verdict in her behalf. 2. Damages in the sum of $2,000 for the breaking of a leg of a woman sixty-six years of age, held to be reasonable in the case presented,
33 Ill. App. 553Kinsley v. Charnley (1889)
Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
33 Ill. App. 557City of Chicago v. Colman (1889)
Appeal from the Circuit Court of Cook County; the Hon. J tTLius S. Grinnell, Judge, presiding.
33 Ill. App. 561Walker v. Cook (1889)
Witnesses—Fees—Experts—Fees in Excess of Legal Amount—Recovery of—Promise to Pay—Obligation to Testify—Subpoena. 1. The usual or reasonable value of professional services is a question of fact, and not of science, calling for a professional opinion. 2. Where a duty is imposed by law and the compensatfon for its performance fixed by law, no greater compensation can be exacted or enforced. 3. A witness having attended court in obedience to a subpoena, is not entitled to recover upon an agreement for compensation for such attendance, exceeding in amount the legal fees.
33 Ill. App. 565Forest Glen Brick & Tile Co. v. Chicago, Milwaukee & St. Paul Railway Co. (1889)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
33 Ill. App. 576McCoy v. City of Chicago (1889)
Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
33 Ill. App. 582Geary v. Bangs (1889)
Egbert Jamieson, Judge, presiding. This was a petition for a mechanic’s lien, filed by defendant in error to recover for certain work performed under the following contract: “This agreement, made this 12th day of June, A. D. 18S8, between John B. Geary, party of the first part, and Paul Bangs, party of the second part, witnessetli: For the consideration hereinafter mentioned, the said second party agrees to do all the carpenter work and furnish all the lumber and mill work…
33 Ill. App. 585Smith v. Hawkes (1889)
Contracts—Mines—Development of—Stock—■Rescission and Return of— Consideration—Pleading—Parties. Upon a bill filed to procure a rescission of, and likewise a return of certain mining stock delivered in pursuance of a contract entered into for the purpose of developing a mine, it being contended by the complainant among other things that one of the two joint promisors therein had failed to prosecute such development, this court holds that both should have been made parties defendant to such bill; that the one not named does not become a party by being called as a witness in behalf of the complainant; that said contract can not be made several by averments in the bill, or by evidence of conversations between the parties, and declines to interfere with a decree dismissing the same.
33 Ill. App. 589Alexander v. Mandeville (1889)
Appeal from the Superior Court of Cook County; the Hon. Johu P. Altgeld, Judge, presiding.
33 Ill. App. 601Ruffner v. Love (1889)
Sales—Guaranty of Payment by Third Person—Acceptance—Evidence —Instruction. 1. Where there is a mere proposal by one to guarantee the performance of an undertaking by another if credit be extended to such other, the contract of guaranty is not complete till the credit is extended and notice given of the acceptance of the guaranty. 2. Such notice need not be given in writing, or be in any particular form, but may be inferred by the jury from facts and circumstances warranting the same. 3. In' an action brought for the recovery of the price of certain goods alleged to have been sold third persons on the strength of a guaranty given by the defendant, this court holds that on account of the giving of an erroneous and misleading instruction the judgment for the plaintiff can not stand.
33 Ill. App. 607Kirchoff v. Union Mutual Life Insurance (1889)
In error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
33 Ill. App. 614Fred W. Wolf Co. v. Salem (1889)
Master and Servant—Traveling Salesman—Wages—Expenses—Itemized Account of—Obligation to Keep—Account Stated—Usage—Evidence. 1. It is the duty of an employe receiving a salary and his expenses to keep and preserve true and correct statements of account. 2. The right to an itemized account of expenses may be waived by the principal, either by express agreement or by the acceptance of faulty statements in lieu thereof. 3. The rule that a traveling salesman shall preserve vouchers for expenditures in way of expenses must be construed in a reasonable manner. 4. When two parties by compromise liquidate and state at an agreed sum an unliquidated and disputed claim which the one holds against the other, it amounts to a valid contract whether the amount stated be paid or not, and the only remedy is upon the contract to recover the amount thus liquidated.
33 Ill. App. 618Beadle County National Bank v. Hyman (1889)
Guaranty—Letter of Credit—Construction of—Evidence—Surprise—■ Practice Act, Sec. 50. 1. This court holds that a letter bespeaking the assistance of a bank president in behalf of a third person, can not be construed as authorizing the purchase by said person of a bad debt from the bank in question, and guaranteeing payment therefor. 2. Whether a declaration states a case upon which a recovery can be had, is always an original question in a court of review, without regard to demurrers and motions in arrest below, if presented by the assignment of errors. 3. A court trying a cause without a jury, should act upon principles which it would direct a jury to follow in a similar case.
33 Ill. App. 622Parry v. Arnold (1889)
Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
33 Ill. App. 624Lange v. Soffell (1889)
Highways—■Taxes—Illegal Levy—Refunding of—Suit to Recover— Parties. 1. Highway commissioners are a quasi corporation, and suit by or against them should be brought in their official and not their individual names. 2. A payment of money is not to be regarded as compulsory unless made to relieve the person or property in question from the actual and existing duress imposed by the party to whom the money is paid. 3. In an action brought to recover in full an amount paid under an illegal levy of taxes for the purpose of establishing a road, the fact being that subsequent to the declaration of illegality by the Supreme Court a resolution was adopted at a regular town meeting to refund said levy less a percentage for expenses, this court holds that the plaintiff is entitled to the refunding of the same only under said resolution and in conformity with the terms thereof.
33 Ill. App. 626Dwelling House Insurance v. Butterly (1889)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
33 Ill. App. 629Willetts v. Wheeler (1889)
In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
33 Ill. App. 630Winona Paper Co. v. First National Bank of Kalamazoo (1889)
Insolvency—Assignment—Publication of Notice—•Filing of Claim— Note—Appeal—Failure to Present Bond for Approval in Apt Time— Stipulation—Bill of Exceptions. 1. In view of the filing of briefs by the appellee wherein are discussed the merits of a given cause, a motion filed by him on the same day asking that the appeal be dismissed because the appeal bond was not presented for approval until after the time fixed therefor in the order allowing the same, must be considered waived. 2. Upon petition of the indorsee of a note given by a corporation subsequently insolvent, that it might be permitted to share in the distribution of the estate although its claim was not filed in apt time, this court holds that in view of the fact that the trial under review, was under astipulation that the assignee duly published a notice as required by law, the argument of petitioner that said notice was defective can not stand, and that the trial court erred in granting the relief as prayed.
33 Ill. App. 633Sundberg v. Temple (1889)
Negotiable. Instruments—Note—Judgment by Confession—Motion to Set Aside—Affidavits. This court holds as proper the order of the trial court overruling a motion to set aside a judgment entered by confession in favor of the plaintiff and against the defendant, the case as based upon the affidavits of both parties being free from doubt, no attempt having been made by the defendant to deny or controvert the statements set forth in that of the plaintiff.
33 Ill. App. 634Siegel v. Hanchett (1889)
Replevin—Debt—Bond—Damages — Attorney's Fees — Evidence — Instructions. 1. Solicitor’s fees are within the condition in a replevin bond, providing for the payment of all costs and damages occasioned by wrongfully suing out the writ. 2. The attendance of an attorney and his conduct of the trial raises the presumption of a retainer and liability to pay usual fees, and damages may be given for a liability to pay as well as for actual payment.
33 Ill. App. 638Maguire v. Woods (1889)
Practice—Creditor's Bill—Demurrer. An order sustaining a demurrer, not being a final decree, is not appeal-able.
33 Ill. App. 639Johnson v. Wilson (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
33 Ill. App. 641Coffman v. Clarinda National Bank (1889)
Banks—Draffs—Agreement by Commission Merchant to Pay upon Presentation—Cashing of by Local Bank—liecovery on. In an action brought by a bank to recover on a draft upon commission merchants to its order, the amount called for having been paid by it to the drawers, this court holds that the agreement by the commission merchants to honor drafts upon stock about to be shipped, was legally binding upon them, being acted upon by said bank, and that the course of business between the parties previous to the making of the draft in question was such as to warrant plaintiff’s claim, and declines to interfere with the judgment in its behalf.
33 Ill. App. 643Block v. Blum (1889)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
33 Ill. App. 645Michaelis v. Wolf (1889)
Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
33 Ill. App. 646Magner v. H. J. Trumbull & Co. (1889)
Practice—Insufficient Abstract. The court declines to consider the case presented, for the reason that the appellant failed to file an abstract of the evidence.
33 Ill. App. 647Union Safe Deposit Co. v. Chisholm (1889)
Sales— Real Property—Contract—Conditions— Title—Payment—Forfeiture of—Installments—Abstract—Waiver of Objections—Damages. 1. The term, “ abstract of title ” means a statement in substance of what appears on the public records affecting the title to the property in question. 2. A waiver as to one objection to a title, does not absolve the seller from endeavoring to remove another objection, such removal being made one of the conditions of carrying out the sale.
33 Ill. App. 650Barrett v. Lingle (1889)
Judgments—Assignments—Priority—Satisfaction—Motion to Set Aside —Remed.es—Court of Equity. Upon an appeal from an order setting aside the satisfaction of a judgment assigned to another, a previous assignment thereof having been made, this court holds that the various questions involved can not be settled upon such appeal, and that resort must be had to proceedings better calculated to attain the end in view.
33 Ill. App. 651Beattie v. People (1889)
Irr eeeob to the Superior Court of Cook County; the Hon. Egbeet Jamtesoe, Judge, presiding.