37 Ill. App.

Volume 37 — Illinois Appellate Court Reports

180 opinions

37 Ill. App. 17Brettman v. Braun (1890)
Practice—Motion for New Trial—Trial by Court—Moldings of Law— Negligence—Burden qf Proof 1. Where exception is duly taken to the finding and judgment of the court, in a case tried without a jury, a motion for a new trial is not necessary in order to permit the Appellate Court to pass on the sufficiency of the evidence, 2. In an action for damages caused by defendant's team while running away, the judge may properly refuse to hold that the owner of a team is not liable for damages caused by their running away through fright at something over which such owner had no control, unless he is shown to have been guilty of negligence, where he has held that the burden of proof is on plaintiff to show that the damage resulted from defendant’s negligence in the use or management of his team.
37 Ill. App. 19Hayes v. Chicago & N. W. Sand & Gravel Co. (1890)
Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
37 Ill. App. 20Shonk v. Shonk Tin Printing Co. (1890)
Injunctions—Injury to Business—Corporations. A manufacturing corporation which has ceased to do any business except to turn over to other manufacturers, for a commission, any orders it may receive, has no ground for restraining a former stockholder who is engaged in the same business on his own account, from stating in his advertisements that the corporation is out of business, and can not restrain him from prosecuting his business.
37 Ill. App. 22Ambler v. Whipple (1890)
Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
37 Ill. App. 23Kopperl v. Nagy (1890)
Judgments—Judicial Notice—Laws of Sister State—Jurisdiction. 1. In an action on a judgment rendered in a sister State, judicial notice will be taken o£ the laws of that State so far as necessary to ascertain the faith and credit to be given to the judgment. 2, The record of a judgment of a court not of record and of limited ter-' ritorial jurisdiction is not admissible in evidence without affirmative proof that the parties resided within the jurisdiction of the court. 3. An entry of judgment in a court not of record of “ judgment for the plaintiff for $87.99 damages besides $2.50 cost, and $7 extra costs," is sufficiently formal and certain.
37 Ill. App. 28Smith v. Hall (1890)
Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
37 Ill. App. 30Harrison v. Hill (1890)
Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
37 Ill. App. 34Neufeld v. Beidler (1890)
Landlord and Tenant—Bent—Beconery of—Agency. 1. An agent can not be personally held upon a contract entered into by him in the name of his principal, he wrongfully representing that he was authorized so to do, unless the same contains apt words to charge him. 2. In an action brought to recover rent due under a lease, this court holds that the defendant signed the same in an official and not a personal capacity, and that the verdict against him can not stand.
37 Ill. App. 36Smith v. Hertz (1890)
Replevin—Bond—Debt—Action of. 1. The rule that for the breach of a covenant to do a particular thing, though the covenantee has no beneficial interest in the performance of the covenant, yet he recovers the value of the thing to be done, applies to replevin bomls. 2. In an action of debt upon a replevin bond, this court declines, in view of the evidence, to interfere with the jddgment of the trial court.
37 Ill. App. 37Roof v. Morrisson, Plummer & Co. (1890)
Sales—Identity of Purchaser—Copartnership—Dissolution of—Pofice— Corporation—Formation of. 1. A vendor who has the right to suppose, from existing facts known to him, that he is selling on credit to a known customer, can not be required to part with his property, and receive therefor the promise to pay of another person of whose existence he was ignorant. When a party attempts to make himself the purchaser against the will and understanding of the seller, the title to the goods does not pass, although the forms of a sale have been complied with. 2. Whether the supposed contract is created by fraud, or innocent mistake, the legal effect is the same. 3. The obliteration of the symbol from a business sign, and the labels upon the bottles in a drug store, printed in small letters, are no notice that a copartnership has become a corporation, there being no change in the place of business.
37 Ill. App. 44Dockrill v. Schenk (1890)
Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
37 Ill. App. 48McLean v. Hansen (1890)
Former Adjudication—Pleading—Misjoinder. 1. The fact that one person can not maintain a suit upon a certain instrument is no bar to a suit by the party in whom the right of action lies. 2. A determination in a suit named that a given instrument was not the deed of certain individuals, is no determination that it was not the several deed of each. 3. In the case presented, this court holds that the trial court erred in holding that the same was barred by a previous suit.
37 Ill. App. 51Lavery v. Brooke (1890)
Appeal from the Superior Court of Cook County; the Hon. Elliott Authory, Judge, presiding.
37 Ill. App. 54Klemme v. Klemme (1890)
Divorce—Separate Maintenance—Amendment—Pleading. 1. A condition precedent to a decree awarding a wife separate maintenance, is that she shall live separate and apart from her husband, and the fact must be alleged in the bill and supported by the proof. 2. Living in the same house and eating at the same table, but not occupying the same room, does not constitute a living apart within the terms of the statute. 3. In such case, if on all the facts the wife is entitled to the relief granted, such facts as arose after the filing of the original bill, should be brought before the trial court by a supplemental bill.
37 Ill. App. 58Felton v. Strong (1890)
Landlord and Tenant—Lien for Rent—Re-entry. 1. A new lease made with full knowledge of the prior default of the same lessee in the payment of rent, amounts to a waiver of the right to' re-enter for such default. 2. A landlord has no lien,for rent upon property of his tenant, other than crops. 8. "A condition in a lease providing that the lessor shall have a valid and first lien upon property of the lessee for rent refers to property owned at the time of the making thereof. To reach subsequently acquired property the instrument must identify the same.
37 Ill. App. 61Chicago & Eastern Illinois Railroad v. Gill (1890)
Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
37 Ill. App. 62Schweinfurth v. Matson (1890)
Replevin—Adverse Possession—Chattel Mortgage. 1. The finding of a court on an issue of fact is, on review, to be treated in the same manner as the verdict of a jury, and can not be set aside unless it appears from the whole record to be manifestly against the weight of the evidence. 2. In an action of replevin brought to recover possession of certain buildings on leased ground, horses and wagons, the same having been attached under an execution in favor of third parties, the plaintiff herein contending that he was in possession of the property in question at the time of said levy under a chattel mortgage, this court declines to interfere with the judgment for the defendants. 3. In the case presented, this court holds that while the evidence justified the view that one of the horses levied upon belonged to plaintiff, the burden was on him to identify the same, and failing to do so, the court could do no otherwise than find against him.
37 Ill. App. 64Chicago, Milwaukee & St. Paul Railway Co. v. Hoyt (1890)
Contracts—Covenant—Breach—Common Carriers. 1. Contracts, sealed or unsealed, are to be construed, and performance pleaded, according to the intent of the parties. 2. In an action upon a covenant in a contract, while it is proper to set out the same in its own words, the breach assigned should be in accordance with the meaning thereof. 3. An averment that the plaintiff was willing to furnish storage for a given amount of grain, is not equivalent to one setting forth that he was at all times willing and ready to furnish the storage that might be neces sary for a business of an amount named per year. 4. Carriers must have places of their own, or access to those of others, at which to discharge freight and take care of it a reasonable time for the consignees. 5. In an action of covenant upon an indenture of lease and agreement between a railroad company and elevator owners, touching the storage of grain, this court holds that the trial court erred- in overruling the demurrer of defendants to the declaration, and that the judgment for the plaintiff can not stand.
37 Ill. App. 69Curran v. Smith (1890)
37 Ill. App. 72Weber v. Rosenheim (1889)
Negotiable Instruments—Note—Consideration—Failure of—Notice. 1. Notice, merely, that the consideration of a promissory note is executory, whether such notice be on the paper itself, or extrinsic, does not prevent an indorsee for value before maturity taking it free from any defense, because the consideration afterward fails. 2. The words, “this note is not transferable,” are notice that there is something special in the relations of the maker and payee, and constructive notice of what it is, puts the proposed assignee of the note upon inquiry, to ascertain from the maker what is the real and whole contract between him and the payee, or take the note subject to whatever that contract may be. 3. Such note is assignable under the statute and, subject to the defenses of the maker, the assignee may sue thereon in his own name.
37 Ill. App. 74Sellers v. Phillips (1890)
Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
37 Ill. App. 76Reid v. Foster (1890)
Sales—Warranty— Agency—Admissions—Res Gesta— Practice—Evidence, 1. A harmless error will not warrant a reversal. 2. In an action brought to recover for a quantity of silk thread sold and delivered, the defendant contending that the same was of inferior quality, this court declines, in view of the evidence, to interfere with the judgment for the plaintiffs.
37 Ill. App. 79Hanchett v. Gardner (1890)
Beptevin—Bond—Action on—Non-suit. 1. In the absence of fraud, one of several partners ordinarily has authority, by virtue of the partnership relation, to transfer all the property of the partnership to a creditor of the firm in payment of a firm debt. 2. Such authority may be revoked by the rest of the firm by forbidding a transfer, or dissenting before it is completed, and if notice of such dissent is given to the party dealing with the partner who is attempting to transfer, the same will not be binding. 3. When such transfer is to one o£ several creditors, the others can not question it, unless some fraud as against them, can be shown. 4. Where the facts justify a creditor in questioning the transaction equity is the forum in which relief should be sought.
37 Ill. App. 83Pennsylvania Co. v. Swan (1890)
Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
37 Ill. App. 86Village of Evanston v. Fitzgerald (1890)
Appeal from the Circuit Court of Cook County; the Hon. R. S. Tuthill, Judge, presiding.
37 Ill. App. 90Pearce v. Needham (1890)
Arrest—False Imprisonment—Damages—Fvidence—Instructions. 1. One who directs the arrest of another is liable therefor unless he is able to justify his action. 2. Where an arrest is made under circumstances that indicate a wanton disregard of the rights of the person arrested, the jury will be warranted in giving punitive damages, and it is proper for the jury to determine whether the circumstances of the arrest in the given case showed oppression or wantonness. 3. There need be no evidence of hatred or ill will, in order to authorize the submission of the question of exemplary damages in such cases to the jury. 4. The amount of damages is in such cases a question for the jury, and unless the same are so excessive as to indicate passion or prejudice on their part, their verdict should not be interfered with.
37 Ill. App. 94Crane Bros. Manufacturing Co. v. Adams (1890)
Appeal from the Circuit Court of Cook County; the Hon. R. W. Clifford, Judge, presiding.
37 Ill. App. 96Jeffery v. J. W. Butler Paper Co. (1890)
Insolvency—Conspiracy—Decree—Agency. 1. Where there is litigation pending in a court of equity to settle conflicting claims to property, or to subject property to the operation of a decree, for almost any, if not every good reason, the power of such court to provide for the safety of the property pending the litigation, and make its ultimate decree effectual, and to that end to put the property into the hands of a receiver, is beyond question. 2. A decree requiring a party to deposit with a receiver, in the nature of a security for the performance by that party of the final decree in the case, the value of the property alleged to have been fraudulently disposed of or converted, should not be entered. 3. The peenniary responsibility of a wife for anything by her acquired through transactions by her husband on her account, resulting from the character thereof, remains as if she had full knowledge of each of those transactions, and of the manner of them, and had authorized or ratified them. 4. In proceedings touching the entering of judgments by confession upon notes given by a corporation to one of its stockholders, the wife of its principal stockholder, .it being contended that such act was in the pursuance of a design to get the affairs of the company in such shape that its assets could be converted to her use, this court holds that the decree directing her to pay into the hands of the receiver the amount that was applied in satisfaction of her judgments was premature, and that she must prorate with other creditors, and return the excess in her hands over and above the sum to which she is entitled. 5. An appeal does not lie from an interlocutory decree.
37 Ill. App. 102Rielly v. Prince (1890)
Certiorari—Proceedings to Quash—Practice. A party is bound when he is sued, as well as when he brings an action, to attend to the proceeding through all its stages, and if he omits to do so he must abide the consequences of his inattention, unless he sets out with precision such facts and circumstances as show that it was not in his power to take an appeal in the ordinary way, by the exercise of every reasonable degree of attention and care.
37 Ill. App. 105Postal Telegraph-Cable Co. v. Barnard (1890)
Murray F. Tuley, Judge, presiding. Appellant applied for an injunction on the following bill, which was sworn to and filed in the Circuit Court: “ The complainant, the Postal Telegraph-Cable Company, respectfully represents to the court that it is, and for more than four (4) years last past has been, a corporation, organized and doing business under the laws of the State of New York, with a capital stock of five millions of dollars (§5,000,000), having its principal office…
37 Ill. App. 113Brown v. Calumet River Railway Co. (1890)
O. H. Horton, Judge, presiding. Appellee filed its bill in the Circuit Court, alleging that it was authorized to construct and operate a line of railroad; that its line passed over and across a portion of Sec. 7, T. 37 N., of R. 15, and it was necessary for its railroad to have a strip of land sixty feet in width across a portion of said section; that on July 21, 1887, it filed its petition under the eminent domain law in the County Court of Cook County, against John B.…
37 Ill. App. 122Siegmund v. Ascher (1890)
Creditor’s Bill—Affidavit of Merits—Practice. 1. An affidavit verifying a creditor’s bill, wherein the complainant states “ that he has read said bill and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters stated on information and belief, and as to those he believes it to be true,” makes the whole answer on information and belief, as there is no way of distinguishing between the matters so stated, and those of which the complainant has knowledge. 2. Where such bill is properly verified, an order appointing a receiver of defendant’s property, and enjoining him from disposing of the same, although entered before appearance or service of process, can not be disturbed.
37 Ill. App. 124Andrews v. Himrod (1890)
John P. Altgeld, Judge, presiding. On February 25, 1887, Daliba, Hussey & Co., iron brokers, of Cleveland, Ohio, made a written contract with Andrews & Hitchcock, appellants, iron manufacturers of Youngstown, to the effect (so far as this controversy is concerned) that Daliba, Hussey & Co., as sales agents for mine owners, had agreed to sell to Andrews & Hitchcock certain ores during the season of 1887, and that Andrews & Hitchcock were to make all of said ore into Bessemer…
37 Ill. App. 133Bushnell v. Consolidated Ice Machine Co. (1890)
Corporations—Dissolution—Jurisdiction. 1. An appeal in a controversy involving a franchise must be taken to the Supreme Court. 2. A franchise is as much involved when the relief sought is to enjoin a company from acting as a corporation, as when it is sought to enjoin the incorporation of a company by a given name. 3. This court sustains an order dismissing an appeal in the case presented, on the ground that it has no jurisdiction thereof.
37 Ill. App. 134Dawson v. Tolman (1890)
Appeal from the Circuit Court of Cook County; the Hon. Arba H. Waterman, Judge, presiding.
37 Ill. App. 137Stastney v. Marschall (1890)
Master and Servant—Servant's Contract—Liability of Master—Evidence—Instructions. 1. Evidence tending to support, no matter in how slight a degree, some pertinent issue in a given case, should be admitted. 2. In an action brought to recover for certain wine ordered by defendant’s servant, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.
37 Ill. App. 140Theodorson v. Ahlgren (1890)
Landlord and Tenant—Recovery of Rent—Practice—Set-off—Evidence. 1. The admission of evidence in behalf of a defendant of a set-off, without any plea or notice thereof, is reversible error. 2. A judgment for defendant below can not be reversed upon appeal where the record shows that the pleadings and evidence had no relation to each other.
37 Ill. App. 141Barton v. Steinmitz (1890)
Mechanic's Leins—Enforcement of—Practice. The terms upon which, and the manner in which, mechanic’s liens shall be given and enforced, are governed by the laws in force when the mechanic seeks the benefit of the lien the law gives.
37 Ill. App. 143Chicago West Division Railway Co. v. Bolton (1890)
Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
37 Ill. App. 144Donnell v. McDonald (1890)
Negotiable Instruments— Note — Consideration — Agency—Practice— Sec. 33, Chap. 110, R. S. In an action on a promissory note, this court holds, the declaration having formally notified defendant that he was charged with having exeecuted the same, that he could only deny such execution in case he filed an affidavit in compliance with Sec. 33, Chap. 110, R. S.
37 Ill. App. 145Supreme Lodge Knights of Honor v. Dalberg (1890)
Appeal from the Circuit Court of Cook County; the Hon. Richard C. Clifford, Judge, presiding.
37 Ill. App. 147Taylor v. Roby (1890)
Practice—Disqualification of Juror. I. The employment of a juror in a given ease during the temporary suspension thereof, in the trial of one or more causes before another judge in the same court, will not disqualify him. to resume the trial of the case suspended, where the party complaining knew of such employment and made no objection. 2. Where the affidavit in such case fails to show that the causes engaged in were of a character likely to influence such juror against the party complaining, the presumption will be to the contrary.
37 Ill. App. 149Judd v. Cralle (1890)
Negotiable Instrument—Note—Execution—Limitations. In an action upon a promissory note, defendant contending that he did not make, or authorize the making thereof, this court holds he having failed to deny the execution, by affidavit, that he is barred from this defense even though the action was brought before a justice.
37 Ill. App. 150Gottlieb v. Beatty (1890)
Negligence—Personal Injuries—Obstruction of Street—Municipal Ordinance—Private Way. In an action brought to recover for personal injuries, alleged to have been occasioned through the failure of another to conform to a municipal ordinance touching the obstruction of streets, this court holds that the evidence showed that the place where the accident occurred was a private way; that the admission of said ordinance in evidence on the part of the plaintiff was an error, which was not repaired by any instruction given; that the negligence, if any, was only suchas the common law reproves, and that the judgment for the plaintiff can not stand.
37 Ill. App. 153Swetitsch v. Waskow (1890)
Forcible Detainer—Parties—Misjoinder—Clauses & and 5, Sec. 2, Chap. 57, R. S.—Contract. 1. The action of forcible detainer can be maintained only on statutory grounds and with such, proceedings as the statute prescribes. 2. If, in such action, it is sought to take advantage of Clause 4, Sec. 2, Chap. 57, R. S., the reversioner, or person entitled to possession, andnone other, should bring the suit, and jf of clause 5 of the same section, a demand in writing for possession must be made before an action can be brought. 3. A contract of sale from several persons can not, be looked upon as an admission on the part of the purchaser of title in them, unless he obtained possession thereunder. 4. Where the defendant is in possession under a tenant whose lease inns from one lessor, the bringing of suit in the names of several amounts to a misjoinder.
37 Ill. App. 155Swetitsch v. Waskow (1890)
Ir error to the Circuit Court of Cook County; the Hon. O. H. Horton, Judge, presiding.
37 Ill. App. 157McClellan v. Perry (1890)
Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
37 Ill. App. 160Borman v. Sandgren (1890)
Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
37 Ill. App. 165McCormick Harvesting Machine Co. v. Burandt (1890)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
37 Ill. App. 169Jones v. Smith (1890)
Contract—Labor and Materials Furnished—Recovery for—Evidence. 1. On conflicting evidence the finding of the court has the conclusiveness of the verdict of a jury. 2. In an action brought to recover the alleged value of labor and materials supplied in the repair of a certain steam heating apparatus, this court declines, in view of the evidence, to interfere with the verdict for the plaintiffs.
37 Ill. App. 170Metropolitan Safety Fund Accident Ass'n v. Windover (1890)
Appeal from the Circuit Court of 'Cook County; the Hon. Richard C. Clifford, Judge, presiding.
37 Ill. App. 178Lind v. Lind (1890)
Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
37 Ill. App. 180Dunne v. Herrick (1890)
Attorney and Client—Contract—Contingent Wee—Champerty. 1. In the absence of some legal defense á party toa contract alleged to be void for champerty may recover from the other party thereto money received by him for and as the attorney of the former. 2. In an action by a client to recover from her attorney a portion of the share of the amount paid to settle her claim against a railroad company, retained by him in conformity with a certain contract duly entered into between them, upon the ground that the same was void for champerty, this court holds that the contract was valid, and that the judgment in her favor can not stand.
37 Ill. App. 183Western Manufacturers' Mutual Insurance v. Boughton (1890)
Appeal from the Circuit Court of Cook County; the Hon. George Driggs, Judge, presiding.
37 Ill. App. 186Kirby v. Runals (1890)
Mortgages—Foreclosure—h junction—Sec. 45, Chap. 22. R. S. 1. A litigant is bound to know facts which are matter of record. 2. An order dismissing a foreclosure suit, wherein a final decree has been entered, is erroneous. 3. A decree of foreclosure and sale is a final decree, and such is the rule where a report by a master is ordered, the object of requiring such report being to guard against, abuse in the execution of the decree.
37 Ill. App. 195Knickerbocker Ice Co. v. DeHaas (1890)
Master and Servant—Personal Injury—Negligence of Master—Vicious Horse—Evidence—Instructions. 1. No complaint can be made of an omission to instruct upon a particular point, where no instruction is asked thereon. 2. An instruction, ignoring an important element proper and necessary to be considered in view of the evidence in a given case, should not be giv.en. 3. Nor one containing a statement which invades the province of the jury. 4. In an action brought by an employe to recover from his employer for personal injuries resulting from the kick of a horse alleged to have been vicious, it being claimed that the managing agent of the defendant knew him to be vicious, this court holds that evidence touching his docile conduct after the injury was properly excluded, and that on account of the giving of an erroneous and misleading instruction, the judgment for the plaintiff can not stand. 5. It seems that a servant can not recover from his master for a personal injury suffered through disobeying the latter’s orders, when, had he obeyed them, he would not have been hurt,
37 Ill. App. 199Horner v. Horner (1890)
Negotiable Instruments — Note—Collection of—Injunction — Record— Amendment of—Practice. 1. The power of a court to amend the record at a subsequent term is confined strictly to cases where there is something in the record to amend by, and to cases where it is patent on the face of the record that there has been a misprision or error of the clerk. 2. Where from the entire record it clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts established by the record, the court will act upon the presumption that the error is a clerical misprision rather than a judicial blunder, and the judgment will be set aside by an amendment nunc pro tunc. 3. The judge’s recollection or knowledge will not suffice to authorize an amendment unless such recollection is supported by his minutes. 4. The mere recollection of the judge in such ease is of no higher character than parol testimony, or affidavits of witnesses who swear to their recollection of what was said or done at the time the decree or judgment was ordered. 5. An amendment changing a decree from one on the merits, final in its character, to one dismissing a bill for want of jurisdiction, and leaving the merits for determination in an action at law, is a substantial and material • alteration of the decree.
37 Ill. App. 203Lake Shore & Michigan Southern Railway Co. v. Pauly (1890)
Railroads—Negligence—Injury to Team at Crossing—Ordinance—Speed —Evidence—Instructions. 1. A jury can not find a defendant, guilty for the negligence alleged in one count, and assess damages claimed in another count, but not in the former. Each of several counts is a separate declaration. 2. An instruction in an action brought to recover for personal injuries alleged to have been suffered through the negligence of another, should not omit the allegation of the exercise of ordinary care on the part of the plaintiff, or his servant, at the time of the injury. 3. It is for the jury to determine whether or not a certain train was a passenger train, and for the court to instruct them as to the rate of speed which the same might run by law.
37 Ill. App. 206Springer v. City of Chicago (1890)
Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
37 Ill. App. 212Star Cutter Co. v. Smith (1890)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
37 Ill. App. 219Carter v. Carter (1890)
Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
37 Ill. App. 248Braun v. Winans (1890)
In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 250Chicago Times Co. v. Benedict (1890)
In error to the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
37 Ill. App. 252Koester v. Cowan (1890)
Trespass—Boundary Line—Encroachment on—Removal. 1. While the plea liberum tenementum would, be a good defense in an action of trespass, for the cutting away by the defendant of such portion of the building of another as rested upon, or overhung his land, he can not justify thereunder the entering upon the close of the plaintiff in the possession of a lessee, or moving or interfering with the portion of the building which rested thereon. '2. In an action involving such wrongful entry, the jury will be warranted in assessing more than the actual damages.
37 Ill. App. 256Jenkins v. Cohn (1890)
Deed—Reformation of. This court declines to interfere with a decree for the complainant in a hill filed for the reformation of a deed.
37 Ill. App. 257Chapin v. Matson (1890)
Replevin—Bond—Action on. This court affirms a judgment for the plaintiff in an action upon a replevin bond, the defendants not attempting to prove that the property in question belonged to them.
37 Ill. App. 258Swigart v. Weare (1890)
Negotiable Instruments—Note—Indorsement—Guaranty— Written Instrument—Alteration—Misjoinder. 1. The writing of their names in blank upon the back of a note by-strangers to it, imports that they are guarantors of the payment thereof, and in such case the holder is authorized to write over the same a guaranty. 2. The erasure by the holder of a note of a portion of what has been written by him on the back thereof, over indorsements in blank by strangers thereto, leaving such words as express the presumption of law, can not be looked upon as a material alteration of a written instrument. 8. The objection that less than the whole number of the guarantors of a promissory note have been sued, should be taken advantage of by plea in abatement. When made after judgment such objection comes too late.
37 Ill. App. 264Walton v. Detroit Copper & Brass Rolling Mills (1890)
Voluntary Assignment—In Foreign State—Attachment—Garnishment —Interpleader. 1. Non-resident debtors may execute voluntary assignments as they may see fit, so long as creditors in this State are not injuriously affected thereby. 2. This court holds as erroneous the action of the trial court in sustaining the demurrer of a non-resident attaching creditor, to the interpleader of the assignee of a non-resident debtor, setting forth his appointment and knowledge thereof by such creditor before the institution of the attachment proceedings, and decides that the interpleader was valid,, that judgment should have been rendered in favor of said assignee for the costs, and that the various garnishees served, should have been discharged.
37 Ill. App. 268County of Cook v. Sennott (1890)
Jurisdiction—Validity of Statute. This court has no jurisdiction of controversies involving the validity of a statute.
37 Ill. App. 269Press v. Ridgway Refrigerator Manufacturing Co. (1890)
Practice—Failure to File Declaration. This court reverses a judgment by default against the defendant, no declaration having been filed within the proper time.
37 Ill. App. 270Florez v. Brown (1890)
In error to the Superior Court of Cook Count}'; the Hon. Kirk Hawes, Judge, presiding.
37 Ill. App. 272Pease v. Hale (1890)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
37 Ill. App. 274Tascott v. Mutual Building & Loan Ass'n (1890)
In error to the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
37 Ill. App. 275Bell v. Barnard (1890)
Municipal Corporations—Personal Property Tax—Insolvent—Receiver. 1. If there is no assessment against a person or corporation, there can be no lien for taxes upon the property of either. 2. An assessment upon personal property of (blank), located at a certain street number, is not a valid assessment to create a lien against the property of any person. 3. Upon a petition by a tax collector that the receiver of an insolvent corporation be directed to pay its past due personal property tax, and that the same may declared a first lien on the property thereof, this court holds that while the order entered in conformity with such request was ambiguous, it must be read and interpreted in connection with the petition, and so reading it, must be construed as an order upon the receiver to pay the taxes mentioned in the petition, but that such order was not warranted by the allegations of the petition.
37 Ill. App. 278Waidner v. Pauly (1890)
In error to the Circuit Court of Cook County; the Hon. Area K. Waterman, Judge, presiding.
37 Ill. App. 283Nielsen v. United States Rolling Stock Co. (1890)
Sales—Balance due—Recovery of—Failure to Credit. In an action brought to recover a balance claimed to be due for goods sold and delivered, the defendant having produced receipts showing payment for two of the items of plaintiff’s account, it is held: That in the absence of any evidence in explanation of the giving of such receipts, the plaintiff was not entitled to judgment for such items.
37 Ill. App. 285Otter Creek Lumber Co. v. McElwee (1890)
In error to the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
37 Ill. App. 289Montgomery Palace Stock Car Co. v. Street's Stable Car Line (1890)
Corporations—Inventions by Members of—Agreement to Assign—Dissolution—Consideration.. 1. An agreement upon the organization of a corporation, that inventions and improvements developed by any member thereof, the same being patentable, “ shall be patented in the name and for the benefit of such company,” is not to be looked upon as perpetual; it continues no longer than the existence of the corporation. 2. In such case, when any party ceases to be a-member of such corporation, his obligation to it under such agreement comes to an end.
37 Ill. App. 293Barkley v. Chicago, Milwaukee & St. Paul Railway Co. (1890)
Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
37 Ill. App. 296National Bank v. First National Bank (1890)
Appeal from the County Court of Cook County; the Hon. Richard Prendergast, Judge, presiding.
37 Ill. App. 298Elser v. Heinzer (1890)
Real Property—Partition—Costs and Pees—Apportionment. Upon an appeal from an order that certain costs and fees be allowed and made a lien upon premises named, a bill having been filed for partition thereof, the fact being, that subsequent to the report of commissioners that the premises were not susceptible of division, the party defendant procured conveyances to himself of the interests of complainants, this court holds, that when defendant made such purchases, no lien existed of which he was chargeable with notice; that the conveyances created no obligations on the part of defendant to the solicitors of complainants for fees or otherwise; and that under said purchases he was entitled to the interests of said complainants, free from any such lien.
37 Ill. App. 301Geary v. Bangs (1890)
Contracts — Breach — Abandonment—Former Adjudication—Recovery for Partial Peiformance. 1. A party to a contract engaged in its performance may, on the refusal of the other party thereto to comply with some stipulation on his part to be performed, abandon the further performance of the contract and maintain an action to recover for the work already performed by him. 2. In such case there can be a recovery under the common counts. 8. Failure in a previous action to obtain a mechanic’s lien, will be no bar to a subsequent suit, brought to recover for labor done.
37 Ill. App. 308Campbell v. Powers (1890)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
37 Ill. App. 310Hazelton Boiler Co. v. Hazelton Tripod Boiler Co. (1890)
Jurisdiction—Appellate Court—Franchise. This court has no jurisdiction of controversies involving a franchise.
37 Ill. App. 311Maple v. Havenhill (1890)
In error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
37 Ill. App. 314Johnson v. Noble (1890)
In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 315Quinn v. Ohlerking (1890)
Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
37 Ill. App. 316Goldberg v. Schrayer (1890)
Master and Servant—Negligence of Master—Personal Injury—Promise to Replace or Repair—Pleading. 1. For defects in the declaration in a given ease, of which no notice was taken upon trial, and which would have been amendable if objected to, the jury should not be directed to find for the defendant, and he can not herein for the first time rely upon such defects to justify such direction. 2. The question of care or negligence under testimony going to show that a servant continued to work at a machine after complaining of its dangerous condition, upon his master’s promise to repair or replace the same, is for the jury. 3. Such question does not become one of law, because of testimony of former similar promises of defendant not performed.
37 Ill. App. 318Bayor v. Ewart (1890)
Praetice—Appeal—Interlocutory Order. No appeal lies from an interlocutory order appointing a receiver.
37 Ill. App. 319People v. Brayton (1890)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
37 Ill. App. 322Faurot v. Park National Bank (1890)
Practice—Default—Mistake. A judgment by default for want of a plea, rendered under a mistake, a plea being on file, can not stand.
37 Ill. App. 323Waixel v. Harrison (1890)
In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
37 Ill. App. 325Kunkel v. City of Chicago (1890)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 326Springer v. Walters (1890)
Drainage—Particular District—Outside Lands—Injunction—Practice -Municipalities. 1. A court may properly dismiss at any time, a bill showing no equity upon its face. 2. A city has exclusive jurisdiction over its streets, to keep them open and free to all. 8. The acts of municipal authorities in determining what the character of public improvements shall be, are of a quasi judicial nature, and not ordinarily subject to revision by the courts. 4. Upon a bill filed to enjoin a municipality from putting a public sewer to general use, and to require that it shall be used only for and by the residents and property of a certain limited territory, this court declines to interfere with the decree against the complainants.
37 Ill. App. 333Fisher v. First National Bank (1890)
Banks—-Loan for Purchase of Stock—Lien on Proceeds—Attachment— Garnishment—Factors. 1. A factor may not retain and pay over moneys in his hands due a consignor, to a creditor thereof. 2. Upon a bill filed by a bank to enforce an equitable lien upon the proceeds of certain stock purchased with money loaned by it, this court declines, in view of the evidence, to interfere, with the judgment for the complainant.
37 Ill. App. 335Walker v. Gibson (1890)
Insolvency—Replevin—Receiver—Practice. A court of chancery, upon the dismissal of a bill, finding itself, as the result of orders by it made, in possession of a fund to which claim has been made, but to which no one appears or has been shown to be entitled, should, before distributing the same, give opportunity and require all claimants to establish their title to such fund.
37 Ill. App. 340Schaffner v. Ehrman (1890)
Banks—Refusal to Honor Depositor's Check—Mistake—Damages. 1. The wrongful refusal of a bank to pay a depositor’s check amounts to an impeachment of his credit. 2. A bank in such case is liable in substantial damages, although such refusal arose through a mistake or carelessness, and every effort was made by the bank upon discovery of it to rectify the error, and this although there is no proof of actual loss.
37 Ill. App. 344Gibson v. Leonard (1890)
Personal Injuries—Negligence—Ordinance—Member of Fire Patrol—■ Unguarded K levator Shaft—Landlord and Tenant. 1. An owner is liable for personal injuries to one rightfully -upon leased Premises occasioned by some defect existing at the time of the demise thereof. An allegation of duty is surplusage; if the facts stated raise the duty, the allegation is unnecessary; if they do^not, it is unavailing. 3. A stranger, under stress of duty, entering the premises of another, closed for the night, can not recover for personal injuries suffered by him, through the failure of the owner to have appliances therein ready for use. 4. In an action for the recovery of damages for personal injuries alleged to have been occasioned by the negligence of another, whether, upon the facts stated in the declaration, the defendant owed any duty to the plaintiff, is a question of law for the court, and whether they were proven, a question of fact for the jury.
37 Ill. App. 350Buhle v. Harland (1890)
Master and Servant — Negligence of Master—Personal Injuries— Unprotected Cogs—Assumption of Risk. 1. A master is bound to furnish his servant with a reasonably safe place1 ' in which to work, and to use reasonable care to protect him from dangerous machinery. 2. A servant waives such obligations upon the part of his employer, by remaining in a position known by him to be dangerous, without anjr promise on his employer’s part to remedy the same.
37 Ill. App. 353Burgess v. Davis (1890)
O. H. Horton, Judge, presiding. A bill of complaint filed February 11, 1890, by appellant, against appellees, states that the complainant, Burgess, is a citizen of said State, residing in said county, owning property therein and paying taxes thereon, and brings his bill of complaint against George B. Davis, the treasurer of said county of Cook, Henry Wulff, the county clerk, and Bichard Prendergast, on behalf of himself and all other taxpayers of said county, and shows that…
37 Ill. App. 358George H. Taylor Co. v. Woolverton (1890)
In error to the Superior Court of Cook County; the Hon. Henry H. Shepard, Judge, presiding.
37 Ill. App. 363Fowler v. Loomis (1890)
Injunctions—Fraud. 1. Fraud must be shown by the allegation of fads from which it is the necessary or probable inference. 2. Upon a bill filed for an injunction to restrain the transfer and collection of certain notes given upon a settlement of accounts, it being alleged that defendant fraudulently made charges for goods never delivered, and that said notes in part represented an excess, in a considerable sum, over and above the amount due, this court holds that the bill does not properly and sufficiently allege fraud; that the injunction granted as ashed was too broad in terms; that complainant’s defense might be made at law, and that the order in his behalf can not stand,
37 Ill. App. 366Wollman v. Greshetti (1890)
Appeal—Practice. This court holds as erroneous the dismissal, for want of prosecution, of an appeal taken by filing the bond with the clerk of court, appearance of defendant in error as an alternative for service of summons, or two nihils, having been entered less than ten days before the first day of the term during which said dismissal occurred.
37 Ill. App. 367Pfeifer v. Town of Lake (1890)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 374Geneser v. Telgman (1890)
Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
37 Ill. App. 385Dennison v. Blumenthal (1890)
Appeal from the Superior Court of Cook County; the Hon. Johu P. Altgeld, Judge, presiding.
37 Ill. App. 388Vogel v. People (1890)
Replevin—Jurisdiction of Justice—Retorno—Failure by Constable to Execute Writ of—Action on Bond. 1. Defects which do not go to the jurisdiction of a court over the subject matter in a given case, may be waived, but want of jurisdiction over the subject of the controversy itself is an incurable defect. 2. A justice has no jurisdiction to issue a writ of retorno in an action of replevin, it appearing upon trial that the property in question is worth more than $200.
37 Ill. App. 391Chicago City Railway Co. v. Blanchard (1890)
Judgments—Assignment of—Filing—Notice. The filing of the assignment of a judgment and the placing of the same upon the judgment record is not sufficient to establish as against all persons a complete title in the assignee.
37 Ill. App. 394Blain v. Shaffner (1890)
Practice—Default—New Trial. Where it is manifest that parties have, in good faith, prepared for and been in attendance for the trial of their cause, and they show by affidavits, facts and circumstances constituting a good defense upon the merits, and that they are not endeavoring to, and have not endeavored to, hinder or delay the trial of the cause, though they may have been guilty of some slight negligence, upon terms sufficiently onerous to recompense the diligent party for the unnecessary trouble and expense he' is put to, they should, upon judgment by default against them, be permitted to interpose and be heard as to such defense.
37 Ill. App. 396Kelley v. Post (1890)
Negotiable Instruments—Note—Principal and Surety. 1. The president of a corporation can not bind it to one with notice, by giving its note to pay his own debt. 2. Where one note taken in renewal of a former note extends the time of payment, there is no presumption of law that the second is a satisfaction of the first. 3. The ground upon which debtors, whether principals or sureties, are discharged by the dealing of the creditor with collaterals, is prejudice to them in consequence of such dealing. 4. In an action to recover upon a promissory note, the defendants contending that the same was paid, this court holds that it was error to instruct the jury that the change of collaterals, several notes having been given, discharged one of the defendants, and that the verdict for the defendants can not stand.
37 Ill. App. 399Miller v. Wilson (1890)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 403Durburow v. Niehoff (1890)
O. H. Horton, Judge, presiding. The following bill was filed : “In the Circuit Court of Cook County.
37 Ill. App. 417Corcoran v. Chicago, Madison & Northern Railroad (1890)
Muni cipa l Corporations—S treets— Va cation—Inj un ction. It is" within the discretion of municipal authorities to permit steam railroad tracks to be laid and operated in public streets, and such appropriation is not a new use thereof, or an additional burden thereon, in. such sense as will entitle an abutting property owner to enjoin such use of the street on which his property fronts. The remedy, in such case, is at law.
37 Ill. App. 425American Exchange National Bank v. Gregg (1890)
Banks—Depositor's Cheek—Refusal to Pay—Evidence—Instructions— Practice. 1. A party can not be heard to complain of an error in his favor. 2. The law presumes that all things are rightly done, unless the circumstances of the case overturn the presumption, and the burden of proving the existence of such circumstances is upon the person asserting the same. 3. Upon a deposit by a customer of a bank in the ordinary course of busi. ness, of money or drafts or checks received and credited as money, the title thereof becomes immediately vested in, and the property of the bank, and the subsequent failure of the bank to realize on the paper is not a circumstance which will excuse it from performing its implied contract, to pay out on checks of its depositor the money which it placed to the credit of his account, as consideration of the transfer made to it thereof.
37 Ill. App. 430Lind v. Beck (1890)
Appeal from the Circuit Court of Cook County; the Hon. S. P. McConnell, Judge, presiding.
37 Ill. App. 435Kennicott v. Leavitt (1890)
Lorin C. Collins, Judge, presiding. The bill in this case, filed September 15, 1890, represents that Bruno Kennicott is a resident of Chicago, and has been engaged for twenty years in conducting theatrical and other amusements; that during the season of 1886-7 he was manager of the Windsor Theatre in Chicago, for Philip A. Lehman, the lessee; that in the spring of 1889, the theatre was destroyed by fire and a new theatre was erected; that he made arrangements for the leasing…
37 Ill. App. 439Ætna Life Insurance v. Paul (1890)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 446Sherret v. Royal Clan of the Order of Scottish Clans (1890)
' In error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
37 Ill. App. 448Gilbert v. Coons (1890)
Appeal from the Superior Court of Cook County; the Hon. JohnP. Altgeld, Judge, presiding.
37 Ill. App. 450Guinea v. People ex rel. Keefe (1890)
Appeal from the Criminal Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
37 Ill. App. 452Foreman v. Johnson (1890)
Practice—New Trial—Bill of Exceptions. A motion for a new trial and exceptions to the action of the court thereon, must be made a part of the record by a bill of exceptions, or this court can not take notice thereof.
37 Ill. App. 453Lincoln Ice Co. v. Johnson (1890)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 455Hoffman v. Schoyer (1890)
Appeal from the .Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
37 Ill. App. 462Miller v. Drexel (1890)
Appeal from the Circuit Court of Cook County; the Hon. S. P. McConnell, Judge, presiding.
37 Ill. App. 464Gleason v. McKay (1890)
Agency—Sale of Beal Estate—-Commissions—Becovery of—Evidence— Instructions—Practice. A principal can not, in the midst of negotiations which the efforts of his agent have set in motion, and which result in a sale of real estate, withdraw the agency from the broker and' thereby deprive him of his commission.
37 Ill. App. 465Bangs v. Paullin (1890)
Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
37 Ill. App. 467William Skinner Manufacturing Co. v. Sinsheimer (1890)
Irr error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
37 Ill. App. 469McDonald v. Asay (1890)
Jurisdiction—Parties—Subrogation—Practice. 1. Subrogation does not extend to the form or forum of the remedy in a given case, where the extent of the remedy is not affected by the form or forum. 2. In a controversy involving questions arising upon a plea to the jurisdiction of the trial court by the defendants to a supplemental bill filed therein, the object thereof being to reach lands in another county where defendants reside, it being alleged that the title had been taken in the names of certain defendants in fraud of persons named, this court affirms a decree sustaining said plea and dismissing the bill in question.
37 Ill. App. 474Sawyer v. Hazlitt (1890)
Contracts—Balance Due—Recovery of—Set-off—Propositions of Law— Practice. 1. The finding of the court upon a question of fact, the trial being had without a jury, is conclusive unless some error oE law was committed. 2. In an action to recover a balance due for composition work done upon a book, the defendant seeking to recoup damages for errors in setting up and proof reading, this court declines to interfere with a judgment for the plaintiff.
37 Ill. App. 475Continental National Bank v. M. Cornhauser & Co. (1890)
Negotiable Instruments—Checks—Certification—Insolvency of Bank. 1. The rules of law governing commercial paper should be general, such as are convenient and just in business in the mass, and not subject to qualification and uncertainty because of the effect of their application in particular instances. 2 The certifying of a check at the instance of the payee takes the amount thereof out of the hands of the maker, and in case of the insolvency of the bank upon which it is drawn, the loss if any falls upon the payee. 3. Where the drawer of a check delivers it already certified, the relations of the payee or holder and the drawer are not affected by the circumstance that the check is certified; their duties and obligations toward each other remain the same as they would have been had the check not been certified. 4. Where the payee of a check receives it from the drawer, in the same place where the bank on which it is drawn is located, the payee has all the banking hours of the next day in which to present it, in order to hold the drawer responsible for non-payment.
37 Ill. App. 482Thomas v. Lye (1890)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
37 Ill. App. 484Matson v. Lally (1890)
Replevin—Retorno habendo—Refusal to award—Dismissal—Practice— Evidence. 1. A court of review can not undertake to judge whether the court below decided rightly in a given case, unless ihe basis of the decision appears in the record. 2. This court sustains a refusal to award a retorno habendo in an action of replevin, instituted before a justice and dismissed by the plaintiffs upon appeal by the defendant from a judgment against him.
37 Ill. App. 486Shiel v. City of Chicago (1890)
Municipal Corporations—Primary Elections—Judges of Election— Compensation of. This court holds that there can be no recovery from a municipality for services rendered as a judge at a primary election.
37 Ill. App. 489Fingerhuth v. Lachmann (1890)
Appeal from the County Court of Cook County; the Hon. Richard Prendergast, Judge, presiding.
37 Ill. App. 490Cornell v. People (1888)
Principal and Surety—Constable's Bond,—Forged Signature of Surety. 1. The sureties on a constable’s bond are not liable for his trespasses, having no connection with his duties as officer. 2. The forgery of the signature of an alleged surety upon a constable’s bond will release another signing as surety, upon the fraudulent representation that it was genuine.
37 Ill. App. 491Rawson v. Rawson (1888)
. Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
37 Ill. App. 496Harmon v. City of Chicago (1890)
Municipal Corporations—Licenses—Tug-men—Ordinance. In a controversy involving the right of the city of Chicago to require the taking out of licenses by tug-men, the members of this court taking different views of the case, the judgment for the defendant is affirmed, and the proper course suggested to bring the questions involved before the Supreme Court.
37 Ill. App. 501Adam v. Musson (1891)
Limited Partnerships—Liability as General Partner—Compliance with Statute. 1. In order that one shall obtain the benefit of a limited liability provided by the statute authorizing the formation of limited partnerships, it is essential that all the requirements of the statute shall be observed in spirit and in letter. 2. A limited partnership is not created until the certificate referred to in Sec. 6 of the statute relating to limited partnerships, is filed in the office of the clerk of the county in which the principal place of business is situated, and actually recorded. 3. This court holds that a defendant named was liable in the case presented as a general partner, the law relating to limited partnerships not having been complied with.
37 Ill. App. 505Davies v. George Coryell & Co. (1891)
Practice—Principal and Surety■—Action on Bond—Death of Party— Judgment. 1. A court can not, at a given term, annul a judgment of dismissal entered at a previous term, without the consent of the parties thereto. 2. Attorneys must be ready with their evidence when a trial is on. A refusal to wait longer than a reasonable time for the production of evidence is proper. 3. Where a court once acquires full jurisdiction in a regular manner during the lifetime of the parties to a given suit, the rendering of judgment after a suggestion of the death of one of them will be an irregularity merely, and the judgment will be held valid on a collateral attack, such as an action on an appeal bond, given on appeal by deceased from the judgment of a justice. It would be an error which could be corrected on a direct review of the judgment.
37 Ill. App. 510Hintz v. Graupner (1891)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
37 Ill. App. 517Harris v. Thomas (1891)
Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
37 Ill. App. 519Neufeld v. Doig (1891)
Sales. This court affirms the judgment for the plaintiff in an action to recover for goods sold and delivered.
37 Ill. App. 520Patterson v. Scott (1891)
Practice. The finding of a chancellor in a given case on conflicting evidence stands on the same ground as the verdict of a jury upon the evidence of witnesses who appear before them, or as the finding of the judge in a common law case which is submitted to him on the testimony of witnesses in open court to be determined without the intervention of a jury, and the error in a- finding as to a disputed question of fact must be clear and palpable in order to authorize a reversal.
37 Ill. App. 522Grand Lodge of Illinois Independent Order of Mutual Aid v. Besterfield (1891)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 526Chapin & Gore v. Walsh (1891)
Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
37 Ill. App. 531Nicholson v. Doney (1891)
Agency—Sale—Ratification—Practice. 1. Receiving and collecting a check by a principal with knowledge that it was sent by his agent, as the proceeds of the sale of an article he was authorized to dispose of, amounts to a ratification of the sale. 2. Where injustice has been done, the verdict of a jury will be set aside.
37 Ill. App. 532Anderson v. Studebaker (1891)
Appeal from the Superior Court, of Cook County; the Hon. Kirk Hawes, Judge, presiding.
37 Ill. App. 534Block v. Rehfeld (1891)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 535Neufeld v. Moll (1891)
Creditors' Bills—Trust Fund. Upon a creditor’s bill, based upon several judgments against a corporation named, this court declines to interfere with a decree charging defendant with the value of certain assets, and requiring him to prorate with the complainants herein.
37 Ill. App. 536Fizette v. Fizette (1891)
Jurisdiction—Freeholds. This court has no jurisdiction of controversies involving freeholds.
37 Ill. App. 537Sexton v. Martin (1891)
Creditors' Bills—Services of Insolvent—Lien—Practice— Gaming — Husband and Wife. 1. The creditors of an insolvent have no claim upon his services, and he may give them away by working gratuitously for anolher. 2. A court will not, through a receiver, operate or sell gambling tools, and will not disturb any disposition (other than in trust for himself) that the owner may make in advance of what may accrue from the use of such tools. 3. This court affirms a decree dismissing a bill seeking to subject certain real estate of a married woman to sale under execution against her husband.
37 Ill. App. 542Nonotuck Silk Co. v. Shay (1891)
Landlord and Tenant—Sub-tenant—Becovery of Bent from—Damage by Fire. 1. Where leased rooms are not destroyed by fire, but are damaged only, and remain so that the tenant may still occupy them, he will not be discharged from the rent. 2. The payment of rent by a tenant up to the date of a fire by reason of which he removed to other quarters, will not of itself justify the assumption of a surrender of the damaged premises and the acceptance thereof by the landlord. 3. A landlord is under no rule of diligence in having repairs made, which he is not bound to undertake. 4. An entry by a landlord on premises of a tenant to restore them to a tenantable condition is not an act indicating an intention to evict.
37 Ill. App. 549Abbott v. Kruse (1891)
Forcible Detainer—Complaint—Absence of—Appeal. 1. In forcible detainer before a justice,' a complaint in writing is jurisdictional, and if the justice had no jurisdiction of the case the court on appeal has none. 2. Unless in such case it is made to appear that a complaint was filed with the justice, and that complaint brought into the court appealed to, or if lost, its loss supplied, the case must be dismissed. 3. Until a court gets jurisdiction of an appeal from a justice by the necessary papers being on file, it can not dismiss the appeal. 4. The statement in the transcript that a summons was issued on complaint of the plaintiff, does not warrant a conclusion that a sufficient complaint in writing was filed with the justice.
37 Ill. App. 552Donohue v. Chicago Bank Note Co. (1891)
Landlord and Tenant—Recovery of Rent—Verbal Agreement for Term of fears—Statute of Frauds. 1. A verbal agreement for a lease of premises for more than one year is void, but parties taking possession under such void agreement are, so long as they remain in possession, governed by its terms as to amount of, and time for, the payment of rent, but not as to the duration of the term. 2. Where there is an occupation and tenancy under an agreement for the payment of rent monthly, a lessee becomes a tenant from month to month and entitled to thirty days’ notice to quit, and if he desires to terminate the tenancy, must give the landlord like notice. 3. A landlord entitled to thirty days’ notice of his tenant's intention to quit premises leased, may recover, such notice not having been given, rent for such time.
37 Ill. App. 555Truman v. Duerselen (1891)
Partnership—Dissolution—Pleading. 1. The rules of pleading require that claims, to be maintained, be clearly stated. 2. Opon a bill filed for the dissolution of an alleged partnership, the appointment of a receiver and an accounting, this court bolds that the parties herein were to share the profits of the business equally; that complainant owned no interest in the stock and fixtures and that the decree in his favor can not stand.
37 Ill. App. 561Bromwell v. Turner (1891)
Appeal from the Circuit Court of Cook County; the Hon. O. H. Horton, Judge, presiding.
37 Ill. App. 564Hawkins v. Harding (1891)
Appeal from the Circuit Court of Cook County; the Hon. O. H. Hopton, Judge, presiding.
37 Ill. App. 577Corcoran v. Lehigh & Franklin Coal Co. (1891)
Sales—Failure to Deliver—Damages—Gambling Contract—Options— Practice—Evidence—Instructions. 1. Counsel hearing the court in a given case erroneously instruct the jury that a certain admission had been made during the trial, should at once call the attention of the court thereto. Such error, in the absence of such action, can not be complained of upon appeal. 2. A proposition on the part of a vendor to deliver to a vendee goods in store at a certain price, if required, in case a certain quantity to be shipped from a distance was bought by him, amounts to an option and is void under Sec. 130, Chap. 38, R. S. 3. Where a written stipulation filed in a cause admits a certain sum to be due, interest will accrue thereon from the date thereof.
37 Ill. App. 581Brackebush v. Dorsett (1891)
Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
37 Ill. App. 585George A. Weiss Malting & Elevator Co. v. Stern (1891)
Negotiable Instruments—Chech—Recovery on by Indorsee—Fraud by Payee—Notice. 1. There can be no recovery by the payee, upon the check of a corporation given by its president in payment of a personal debt. 2. In an action brought by the indorsee of a check to recover thereon, this court holds, in view of the evidence, that the plaintiff had notice of the fraudulent representations under which the same was obtained, and that the judgment in his favor can not stand.
37 Ill. App. 589Miene v. People ex rel. Olsen (1891)
Appeal from the Criminal Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
37 Ill. App. 591McKone v. Williams (1891)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 593Sherry Lumber Co. v. Wisconsin Central Railroad (1891)
Appeal from the County Court of Cook County; the Hon. Richard Prendergast, Judge, presiding.
37 Ill. App. 595Cleveland Co-operative Stove Co. v. Koch (1891)
Malicious Prosecution—Act of Agent—Liability of Principal—Scope of Employment. 1. The duty or authority of an agent can not be extended by his under, standing of either. 2. An agent authorized to bring suits can not charge his principal with his own malicious acts in setting in motion the criminal procedure of the State, from any legitimate result of which the principal can receive no benefit, and if the agent’s intention is to derive to his principal a benefit from the abuse of the process, the principal is not thereby charged.
37 Ill. App. 597Crane v. Nelson (1891)
Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
37 Ill. App. 599Chicago Consolidated Bottling Co. v. Tietz (1891)
Master and Servant—Negligence of Servant—Personal Injuries of Third Person—Liability of Master■—Evidence—Instructions—Damages. In an action to recover from an employer for the death of a third person, alleged to have occurred through the negligence of his employe, this court holds as proper certain instructions given touching the question of damages, and declines to interfere with the verdict for the plaintiff.
37 Ill. App. 601Gibson v. Sziepienski (1891)
Appeal from the Superior Court of Cook County; the Hon. George Driggs, Judge, presiding.
37 Ill. App. 604Diedrich v. People (1891)
Injunctions—Contracts—Sale—Exclusive Might of—Practice. 1. An injunction obtained to protect a merely private right, is so far within the control of the party obtaining it, and a matter of individual concern, that only those persons who have a present interest in the right to be protected, can be heard to complain of its violation. 2. The exclusive right of a given person in a special territory, the same having been set off to him under a decree based upon an agreement entered into by him with others touching the sale of an article named, is assignable either gratuitously or for value. 3. The filing of a brief on the merits by the appellee amounts to a waiver of the irregularity of bringing a case to this court by appeal and not on a writ of error.
37 Ill. App. 607Wilson v. Dresser (1891)
Seal Property—Partition—Freehold—Jurisdiction of Appellate Court. This court will not consider a controversy involving a freehold.
37 Ill. App. 608Brown v. Cook (1891)
Practice—Dismissal for Want of Prosecution. An order dismissing an appeal from a judgment for plaintiff wifh procedendo, against the objection of the defendant in a given case, is improper; the plaintiff should be required to prove up his case.
37 Ill. App. 609Waller v. Lasher (1891)
Trespass—Party Wall—License to 'Strengthen—Damages—Independent Contractor—Evidence—Instructions. 1. The rule as to independent contractors can never be invoked to relieve a party from a liability he has himself by contract assumed. 2. Notwithstanding the existence of a party wall agreement calling for payment of one half the value of such wall in case of its use by an adjoining proprietor, no liability will arise for damages necessarily occasioned by the strengthening thereof with the consent of its owner.
37 Ill. App. 615Kenny v. Jones (1891)
Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
37 Ill. App. 616Donovan v. Griswold (1891)
Negotiable Instruments—Guaranty—Presumption of. 1. The presumption of guaranty arises where a stranger to a note writes his name upon the back thereof in blank. 2. This presumption may be overcome, but the burden of proof is upon the person so signing. 3. Whether a guaranty was absolute or special is a question of fact. 4. An absolute guaranty does not depend upon the use of diligence by the holder.
37 Ill. App. 617Crittenden v. Crittenden (1891)
Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
37 Ill. App. 621Frink v. Neal (1891)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
37 Ill. App. 628Munhall v. Daly (1891)
Life Insurance—Mutual Benefit Association—Certificate—Beneficiaries —Designation by Will. . 1. The heirs of a deceased member of a mutual benefit society, the endowment law of the order providing that a certificate shall be issued securing to any member or members of his family,' or dependents, designated by him, a certain sum, can not recover the same, the beneficinrv named therein having died before the assured, who sought to make a new designation, such certificate or fund forming no part of his estate. 2. In a controversy involving the question whether designation of beneficiary by will was within the conditions of a mutual benefit society, this court holds that the heirs at law had no standing in court as to the disposition of the fund in question, and that in view of the willingness of the society to pay the amount involved to the beneficiary so named, the decree in her favor can not be disturbed.
37 Ill. App. 631Miller v. Green (1891)
Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
37 Ill. App. 636Foraast v. Hyman (1891)
Constructive Trust—Bill to Enforce—Interest of Bankrupt—Assignee. The provisions of the bankrupt act operate to vest all the rights of the bankrupt in respect to whatever property he may hold, under whatever title, whether legal or equitable, except such rights as are expressly excluded by said act from its operation, in his assignee.
37 Ill. App. 641Moore v. People (1891)
In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
37 Ill. App. 646Robison v. Roos (1891)
Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.