Volume 47 — Illinois Appellate Court Reports

<p>Dram. Shops—L eight of Circumstantial as Against Direct Evidence— Province of Jury—Special Interrogatories—Evidence—Punitive Damages„</p> <p>1. In an action Tinder the Dram Shop Act, where the proof that plaintiff's husband had received liquor in defendant’s saloon was purely circumstantial and was contradicted by positive evidence, held, that it was peculiarly the province of the jury to decide on which side the (truth lay. ,</p> <p>2. Immaterial evidence which was admitted against objection bearing on the question of damages, held, to have been so carefully guarded by instructions as not to constitute reversible error.</p> <p>3. If defendant sold plaintiff’s husband liquors surreptitiously, against repeated protests of plaintiff, after the husband had acquired the habit of drinking to -excess, and under circumstances which advised him of the impoverished condition of the family, punitive damages might properly he awarded.</p> <p>4. Where a party desires special findings, Ms questions must be so framed as to submit to the jury material and controlling facts.</p>

<p>Limitations—Whether Promise to Pay Implied from Admission of Indebtedness—Ledger Entry as Admission.</p> <p>Where a claim is presented "by a widow against the estate of her deceased husband, and the defense avers that it was in part barred by the statute, held, that a ledger entry of a balance due the wife, made by the husband or by his direction, was, under the circumstances, such an admission that the amount there stated was due and unpaid, as would raise an implied promise to pay such amount and bar the statute.</p>

<p>Dram Shops—Proximate Cause of Death—Evidence—Instructions— Scope of Cross-examination—Measure of Damages.</p> <p>1. In an action under the Dram Shop Act brought by a widow to recover damages for the death of her husband, held., that the evidence justified the finding that the proximate cause of death was a fall by deceased while intoxicated.</p> <p>2. Where deceased after the fall, vomited, any one with a sense of smell was competent to testify as to .the presence of spirituous liquor in the contents of the stomach.</p> <p>8. Upon cross-examination of a witness to develop the fact of his interest in the suit, it was the interest of the witness as he then understood it that was proper to be considered by the jury, and the fact that he was mistaken, as was subsequently discovered, as to such interest, did not ail'ect the propriety of the cross-examination.</p> <p>4. Upon the case presented, held, that the damages were not excessive, the jury having been properly instructed.</p>

<p>Landlord and Tenant—Recovery of Rent—Statute of Frauds,</p> <p>In. an action brought to recover for rent alleged to be due, fixtures removed, money paid in repairing damages done to the building in question, and the price of an iron grating, this court holds, in view of the evidence, that the judgment for the plaintiff was too small in a sum named, and reverses the same.</p>

<p>Patents—Corporation—Meetings—Legality of—Evidence—Instructions.</p> <p>1. A licensee can not raise the question of the validity of a patent as between the patentee and the United States, where such license has not ' been molested; because in such case the licensee has got all he bargained for.</p> <p>3. While a stockholder represents no interest but his own, a director occupies a trust relation toward all the stockholders. That relation demands that he should act in the interest of those whom he represents. He is bound to manage the business intrusted to him in the interest of the stockholders alone, and may not administer the affairs of the corporation for his private emolument.</p> <p>3. Without the consent of the stockholders of a corporation, a director can not become a contractor therewith, or have any personal or pecuniary interest in a contract between it and a third person, and such contracts, if made, are voidable at the instance of the corporation or of stockholders.</p> <p>4. Such director may loan money to his corporation and take securities, and obtain debts due him therefrom. A corporation may also avail itself of the property of such director or officer under circumstances implying a contract to pay a reasonable compensation therefor. If money has been advanced or property furnished in good faith by such person, the corporation is liable to him on an implied assumpsit.</p> <p>5. Plaintiff having claimed to be a director and acted as such, is.to be treated as such so far as his claim against the defendant is concerned.</p> <p>fi. An instruction setting forth that if a certain quantity of stock was voted at a meeting, for persons named, they were elected as officers of the corporation in question, and ignoring the question whether any notice was given which would authorize the meeting at all, was bad.</p> <p>7. As it is a question of law what will make a valid contract, so it is a question of law what will make it valid as a ratification, if proven, and an instruction authorizing the jury to determine the question of ratification should not be given.</p> <p>S. Ratification or acquiesence which will prevent resistance to a voidable contract must be established by the conduct of given parties. The right to repudiate must be lost by affirmative act, or by unreasonable delay after opportunity to act with freedom and with full knowledge of all material facts.</p> <p>9. The second special plea in the case presented, alleging that the contract was made upon the condition therein stated that plaintiff should and would protect defendant in its monopoly under the patent, but that the patent had been continuously infringed, whereby defendant was injured, and that the plaintiff, though notified, took no steps to interfere or protect defendant, held, that said plea was bad in not setting up any defense to the promise to pay a sum named for past use of the patent, and also because under its averments all that could be claimed by defendant would be the damage suffered, and no damages were alleged.</p> <p>10. Publication of notice in a newspaper of proposed meeting is not equivalent to personal notice or notice by mail. A meeting can be held after improper notice only when all stockholders are present and consenting in person or by proxy.</p>

<p>Appeal from the Circuit Court of Grundy County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Written Contract—Reformation and Enforcement of—Appeal 'and Error.</p> <p>1. Parties to a suit having submitted themselves to the jurisdiction of a given court, can not attack such jurisdiction below nor upon appeal.</p> <p>2. Upon a bill filed for the reformation and enforcement of a written contract, this court holds, upon consideration of the evidence, that the same lacks that degree of certainty which justifies the changing of a written instrument in view of parol evidence.</p>

<p>Appeal from the Circuit Court of Henry County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Fraudulent Sales—Stock of Goods.</p> <p>In the case presented, this court holds, in view of the evidence, that a certain stock of goods was not sold to a third person with the fraudulent intmt to hinder and delay creditors of the seller, and that the chango of possession thereof was sufficient.</p>

<p>Appeal from the Circuit Court of lee County; the Hon. James Shaw, Judge, presiding.</p>

<p>Railroads—Negligence—Personal Injuries—Crossings—Signals—Obstructions to view—Contributory Negligence—Evidence.</p> <p>1. Testimony as to the general habits of deceased as to care and caution, .is admissible in a personal injury case only where no witness was present at the time of an accident, and the exact manner in which the death occurred can not be made to appear to the jury.</p> <p>2. In the case presented, this court holds, in view of the evidence, that deceased met Ms death through his own negligence.</p>

<p>Replevin—Contract of Sale.</p> <p>1. Upon a suit in replevin brought for a certain stock of goods, plaintiff contending that defendant held the same under an arrangement amounting to a mortgage, defendant maintaining that the transaction was an absolute sale, this court holds, there being no evidence of a tender to defendant of the amount due him, that the judgment for the defendant can not be disturbed.</p> <p>3. To enforce such contract, if shown, the remedy would be in equity.</p>

<p>Injunction—Negotiable Instruments—Gift.</p> <p>In a controversy in which was involved the one point, whether or not a certain mortgage and notes were assigned and delivered as a gift, or for collection, this court declines, in view of the evidence, to interfere with the decree taking the latter view.</p>

<p>Negotiable Instruments—Notes—Limitations—See. 16, Chap. 83, R. S.</p> <p>1. One of the rules of interpretation of a new statute is to consider the evils intended to be remedied by its enactment and the remedy sought, and to construe it in such light.</p> <p>2. The requirement set forth in Sec. 16, Chap. 83, R. S., that the payment or new promise shall be “ in writing,” does not apply so far as to require the evidence of it to be so preserved, and the words “ in writing ” have reference alone to the specified new promise to pay.</p> <p>3. In case part payment is alleged, the trial court should admit all evidence, written or verbal, which tends to establish payment. It is not necessary that any writings to establish or prove such facts be signed by any one, so that they are evidence of transactions actually taking place between the parties, and made at the time or by the consent of the parties to be charged.</p>

<p>Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane County the Hon. Henry B. Willis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding.</p>

<p>In error to the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.</p>

Dorrance Dibell, Judge, presiding. On the 1st day of July, 1891, Robert Montgomery and others, citizens of the village of Wyanett, Bureau County, Illinois, entered into a written agreement with one Robert Day by which they agreed to convey to said Day four lots in Brown’s addition to said village, and to pay him $6,00(>; and in consideration thereof said Day on his part agreed to erect on said lots a factory building, forty-eight by one-hundred feet, two stories high, and to…

<p>Corporations—Liability of Stockholders—Constitution and Laws of Kansas—Pleading—Variance.</p> <p>1. A declaration describing a judgment against one, is not supported by the production of a judgment against that one and another, or others. A material variance exists in such case.</p> <p>2. A State Constitution may be drawn with a view of submitting a given matter to the legislature, by enactment to give it vital force and effect, and to leave it in abeyance until such time as it sees fit to act.</p> <p>3. When a constitutional convention indicates an intention to so frame the instrument as to secure the debts of a corporation of a given class by the individual liability of the stockholders to an amount equal to the stock owned by them, but leaves it to the legislature to provide for such other means of security as it should judge most conducive to the public interest, if the legislature should fail to provide a remedy, then the right will still remain, and the common law will supply one. Creditors can not be deprived of their assured security by any omission of the legislature to enact a remedy.</p> <p>4. A suit at law would be the proper action to bring in this State to recover under the Kansas statute providing that a stockholder of a corporation shall not be liable to pay the debts of the corporation in excess of the amount due on his stock, and an additional amount equal to the stock owned by him. The stockholder may make a defense if he has a valid one.</p> <p>5. A judgment against a corporation in such cases is conclusive as to' the amount and validity of the creditor’s claim, and when suit is brought to enforce the shareholder’s statutory liability, such judgment can be impeached only for fraud and collusion, or for want of consideration.</p> <p>6. A judgment stating the sum of the judgment and costs and adding “ whereof let execution issue,” is equivalent to formally stating that the ‘1 plaintiff have and recover from the defendant ” the amount found due.</p>

James Shaw, Judge, presiding. The facts in this case are about as follows, viz: Some time prior to the 27th day of September, 1891, the appellant, the city of Sterling, was desirous of constructing a system of sewers in the city known as the 66 Avenue ‘ G ’ Sewer System;” that for the purpose of constructing such sewer the city entered into a contract with one Michael Eeal, by which he undertook to furnish all the material and labor and do all the work necessary for the…

<p>Railroads—Negligence—Personal Injuries—Passenger—Failure to Stop Freight Train.</p> <p>1. In case of a wrongful failure and refusal to stop a railroad train, a party injured thereby may recover all such damage as he" might suffer by reason of that act.</p> <p>2. Acts touching the assisting of passengers upon and from trains are not within the apparent scope of the powers of a station agent. Their duties do not authorize any inference upon the part of the public that they are authorized to give directions to passengers in getting on or off cars.</p> <p>3. Persons are presumed to have knowledge of the law prohibiting boarding and disembarking from trains while in motion.</p> <p>4. A person can not recover for any injury occasioned by negligence merely which would have been avoided by the exercise of ordinary care on his part.</p> <p>4. While a plaintiff, who is in the exercise of ordinary care, may be guilty of slight negligence, a want of ordinary care on his part would constitute such negligence as would preclude a recovery.</p> <p>6. In an action brought to recover for personal injuries alleged to have been occasioned through obeying the instruction of a station agent directing plaintiff to board a moving freight train, this court holds that such direction was not within the real or apparent scope of the authority of such agent, and that the judgment for the plaintiff can not stand,</p>

In ebeob to the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding. The plaintiff in error filed in the Circuit Court a declaration in debt containing three counts. , The first is an ordinary count on a money bond for $2,000.

<p>Railroads—Negligence of—Embankment—Flowage of Farm Lands— Culverts — Insufficient Capacity of— Evidence—Instructions — Farm Crossings—See. 62-5-6, Starr, etc., III. Stats;—Tresjjass.</p> <p>1. An instruction containing an assumption of a fact in dispute is bad.</p> <p>2. ' Tire obligation resting upon railroad corporations to construct farm, crossings, when and where the same may become necessary for the use of proprietors of adjoining lands are purely statutory; where a new right is given by statute and the relief for its violation specified, the remedy must be enforced in the mode pointed out by the statute.</p> <p>3. A lessor railroad company is not liable for trespasses committed by the servants—over whom it has no control—of the lessee company, committed in connection with repairing the right of way; nor for damages arising from culverts getting out of repair after the road was turned over to the lessee company.</p> <p>4. In an action brought to recover from a lessor railroad company, for damage to farm lands alleged to have been occasioned through insufficiency of culverts in its right of way, this court holds, in view of the evidence, and the fact that the damages allowed for the plaintiff were grossly excessive, that the judgment in his favor can not stand; and further, that the true rule of damages in this case was compensation for the loss of the crop for 1890, the rental value of the land until restored to fertility, and the labor and expense necessary to restore it.</p> <p>5. Evidence as to condition and behavior of culverts since date of lease is admissible in such case.</p>

<p>Fire Insurance—Mutual Company—Aci of March 11, 1S69.</p> <p>1. At common law a number of people may enter into mutual covenants to indemnify each other against loss by fire and unless restricted by statute such agreements will be valid.</p> <p>2. The enforcement of a proportionate contribution from the numerous parties to the agreement for mutual indemnity in the case presented, and the ascertainment and assessment of the proportionate shares of such parties are proper subjects for a court of equity,-to which its methods of procedure are well adapted.</p> <p>3. In an action brought to recover for loss by fire upon a certificate issued before the company commenced business but during its organization, it being provided that it should not so commence until 'a certain amount of insurance, in not less than a certain number of risks, should have been subscribed, and the premiums thereon agregating not less than a sum named paid in cash, this court holds that there is nothing in the contention of defendants that the certificates in questipn were void be" cause in derogation of the statute concerning insurance companies, and that the bill disclosed no right in the complainants to any relief under their certificates; that the certificate holders did not assume to act as a corporation; that there was no misrepresentation as to the owners of the property destroyed; that the demurrer to the amended bill should have been overruled, and that the order sustaining the same and the decree dismissing said bill must be reversed and the cause remanded, with directions as to the proper course to pursue.</p>

<p>Appeal from the Circuit Court of Livingston County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Marshall County; the Hon. T. M. Shaw, Judge, presiding.</p>

<p>Contracts.</p> <p>In an action brought by a sub-contractor to recover for digging a ditch, it appearing that the work was not completed, a recovery being had for a sum much less than the price agreed upon, the defendant contending that the contract sued on being special, there could be no recovery on the common counts for the performance of a portion of the work only; and that to entitle the plaintiff to recover on a quantum meruit it was necessary to declare specially, this court declines to consider the point, it being raised herein for the first time, and holds that the affidavits filed in support of a motion for a new trial showing that one of the jurors was asleep during a portion of the trial and certain newly discovered testimony were not sufficient of themselves to warrant the court in setting aside the verdict.</p>

<p>Master and Servant—Negligence of Former—Personal Injury■—TJivrailed Elevator Shaft—Release.</p> <p>In an action brought by an employe to recover for personal injuries suffered in the course of his employment through falling into an unprotected elevator shaft, this court holds that the evidence supports a finding of negligence on the part of the defendant; that the release of damages obtained from the plaintiff on account of his injuries was not fairly obtained, and that the judgment in his favor can not be disturbed.</p>

<p>Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Whiteside County; the Hon. James Shaw, Judge, presiding.</p>

<p>Appeal from the Circuit Court of G-runcly County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Stark County; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>Railroads—Negligence—Personal Injuries—Improper Platform,—Contributory Negligence.</p> <p>1. To build a depot platform in such manner between tracks as to compel a passenger to stand dangerously near a train is negligence, for which a company is liable in case of injury; but where such platform is of sufficient width to afford plenty of room for safety, it is not negligence to so build it that the nearest edge to the track could not be occupied in safety as a standing place while a train is passing.</p> <p>2. - Ordinary prudence requires that a person standing on such platform, waiting for a train, should give reasonable attention to his surroundings. He can not recover where he becomes so abstracted in thought as to be oblivious to his surroundings and is thereby injured.</p>

<p>Appeal from the Circuit Court of Carroll County; the Hon. James Shaw, Judge, presiding.</p>

<p>Chattel Mortgages—Priority—Injunctions.</p> <p>This court affirms a judgment for the complainant in a controversy involving the question of priority of chattel mortgages.</p>

<p>Appeal from the Circuit Court of Peoria County; the Hon. M. E. Worthington, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Stark County; the the Hon. N. E. Worthington, Judge, presiding.</p>

<p>Dram Shops—Sale to Minor—Evidence.</p> <p>1. In the prosecution of a saloon keeper for the alleged sale of intoxicating liquor to a minor, the father of the latter should not upon trial be allowed to testify that he had told the father of the saloon keeper certain things touching such alleged sales.</p> <p>3. Where in such case the minor testifies to having pm-chased liquor of such saloon keeper, and being asked upon cross-examination if he had not told a third person that he could not obtain liquor from such person, and answers, that he never did, it is proper to allow such person to testify by way of impeachment that he so told him.</p>

James Shaw, Judge, presiding. On the 30th day of March, 1891, William S. Austin and Silas B. Austin were indebted to the First National Bank of Morrison. That indebtedness was evidenced by what are commonly called judgment notes. There are two of these notes. One was for 01,000, and the other was for $1,500; this last one was signed by A. E. Austin also.

<p>Appeal from the City Court of Aurora; the Hon. R. P. Goodwin, Judge, presiding.</p>

<p>Jurisdiction—Construction of Will—Freehold Involved.</p> <p>Upon a biU filed to procure the construction of a will where the contention of complainants was that the will should be so construed as that one of the complainants became the absolute owner in fee of real estate devised by the will, which contention was disputed by defendants, held, that a question of freehold was involved and that an appeal from the decree of the Circuit Court should have been to the Supreme Court.</p>

B. R. Burroughs, Judge, presiding. Appellant, William Frank, became administrator of his brother, Frederick Frank, and filed his bond as administrator, December 19, 1876, with his co-appellant as surety. Frederick Frank, at the time of his death, left surviving, William Frank, a brother of the whole blood, and appellees, for whose use the suit was brought, brother and sister of the half blood.

<p>Mutual Benefit Associations—Forfeiture of Charter of Subordinate Lodge—New Trial.</p> <p>1. It not appearing that any exception was taken in the trial court to the overruling of a motion for a new trial, this court will not consider certain alleged errors assigned, upon appeal.</p> <p>2. In an action brought by a member of a subordinate lodge of a mutual benefit association, said association having sought to forfeit the charter of the former in an illegal manner, in view of its constitution this court holds that such action did not operate to relieve it from liability to the plaintiff, and that the judgment in his favor can not be interfered with.</p>

<p>Municipal Corporations—Laws of 18JfL, Sec. 4, Page 65—Caholda Commons.</p> <p>1. A municipal order not having been indorsed by the payee to the holder thereof, any defense may be set up against the same, if the trustees who signed it had power to issue it, against the holder, even though he purchased for value, as could have been made against the payee; and although the order was payable in a given case to a person named or bearer it can not be transferred by delivery so that any defense will be cut off that could be made against the payee.</p> <p>2. ' Municipal corporations of the character referred to in the case presented can exercise no other powers than such as are expressly granted, or necessarily implied from the statutes that created them, to carry into effect the power granted.</p> <p>3. A municipal corporation has no inherent power to issue commercial paper, and has no right to do so unless such power is granted in the charter thereof. Persons dealing in such paper must see that the power exists. The trustees in the case presented had no authority to issue the order in question.</p>

<p>Appeal from the Circuit Court of Randolph County; the Hon. B. R. Burroughs, Judge, presiding.</p>

B. R. Burroughs, Judge, presiding. This was an action brought upon a policy of insurance which included a period of time from July 8, 1890 to July 8, 1895, upon certain household furniture in a certain building; the amount of the policy was 0300, and was issued upon the written application of the assured, made to the company through its agent, one Miller. On January 11, 1891, the premises and the property insured were destroyed by fire.

ter error to the Circuit Court of Johnson County; the Hon. J. P. Robarts, Judge, presiding.

<p>Appeal from the Circuit Court of Madison County; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>Mortgages—Foreclosure—Fraud in Obtaining Signatures to NoteSo</p> <p>1. The verdict of a jury on a bill to foreclose a mortgage is merely advisory, and not binding on the chancellor.</p> <p>2. Where, in a given case, the evidence is in the form of depositions, the rule fails that “this court will not disturb the finding of the court below, it having heard the witnesses testify, and observed their demeanor while doing so,” questions of fact alone being involved.</p> <p>3. This court holds that the fact of the assignment of the notes and the amount paid therefor could not enlighten the jury in the case presented in determining whether the defendant had paid the notes under all the evidence in the case, and a certain modification by the court of a given instruction was improper in the suggestion that it might be taken, in connection with other facts, in determining whether the notes had been paid.</p> <p>4. In view of above, and the evidence, in a proceeding brought to foreclose a mortgage, the defendants claiming that notes involved were obtained by fraud, the judgment for the defendants can not stand.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>Mortgages—Foreclosure—Covenant in Deed as to Incumbrances— Easement—Dedication—Sec. 10, Chap. SO, 5. S.—Damages—Set-off.</p> <p>1. The maintaining of gates at the entrance of a way excludes the presumption of the dedication thereof to the public.</p> <p>2. In an action brought to foreclose a mortgage given to secure a note given as part consideration for the purchase of the lands in the mortgage described, the defendant contending—the deed conveying said lands being in the statutory form, and to be deemed as a covenant agamst incumbrances—that there was an incumbrance upon the property in the nature of a private way, this court holds, in view of the evidence, the existence of such way being shown, that the same is not included in the term highway as used in Sec. 10 of the Conveyance Act, and that said incumbrance constituted a breach of the implied covenant in the deed in question.</p> <p>3. Such defense may be set up in answer to a bill to foreclose a mortgage given to secure the purchase price.</p> <p>4. Where, in such case, the evidence shows the defendant to have been damaged by reason of the existence of such right of way, the extent thereof should be set ofE against the amount of the notes sued on,</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Railroads—Right of Way—Condemnation of—Injury to Lands Not Taken—Evidence—Profile.</p> <p>1. In proceedings involving the condemnation of private property for railroad purposes, the profile of the proposed road is an important element in determining the damages, and is, when in evidence, the controlling evidence as to the plan of construction of the road, and if this be changed so as to inflict greater injury on the land owner, he can recover for the increased damages.</p> <p>2. If a road is constructed in accordance with the profile offered in evidence on condemnation proceedings, and no change is made in the plans and profile so offered, no recovery can be had in an action on the case by reason of a mistake of the jury in determining the amount of damage, or by reason of a failure to allow a sufficient sum as damage to contiguous lands, or a compensation for lands taken, nor by a wrong description of the profile, where it is open alike to be described by witnesses offered by the railroad company, or by the land owner; and all damages consequent on the construction of the road, in accordance with the implied agreement made by the company that it would be constructed according to the profile, when it is so constructed, are, by the condemnation proceedings, res adjudieata.</p> <p>3. Damages arising from the piling up of earth excavated from road bed and ditches is an element that may ordinarily be taken into consideration by the jury in determining the damages in condemnation pro-0 ceedings.</p> <p>4. Where a profile was in evidence and the road was constructed in accordance with it, the verdict of the jury can not be disturbed, although an engineer of the company had stated falsely to the jury when viewing the premises, or upon the stand, that the grade of the road would be different from what it turned out to be.</p>

B. R. Burroughs, Judge, presiding. This is an action on the case brought by the father as administrator of his deceased child, who was run over and killed by a train on appellant’s road when he was about twenty-one months old.

E. D. Youngblood, Judge, presiding. The parties to this action were owners in equal undivided shares, and tenants in common of the lands mentioned in the evidence. By agreement between them, Wingard planted, tended and harvested the crops, retaining two-thirds thereof for his labor, seed, etc., and the other third was divided equally between them.

<p>Contracts—Sale of Wheat Crop—Appeal and Error.</p> <p>This court will not, in the absence of evidence of passion or prejudice, interfere with the verdict of a jury in a given case, the evidence being conflicting and no question of law being involved.</p>

<p>Railroads—Negligence—Defective Brake—Special Findings.</p> <p>1. Where no objection is made to evidence offered on trial, nor variance argued in the motion for new trial or assignment of error, the declaration must be held to be sufficient after verdict.</p> <p>2. It can not be considered to be contributory negligence for a passenger on a railway train to take hold of the brake wheel on a car, as he comes upon the platform thereof.</p> <p>3. If such brake is dangerous to persons leaving or entering a given car, recovery may be had for injuries suffered through the use thereof.</p> <p>4. Only special findings inconsistent with the general verdict are of consequence.</p>

B. R. Burroughs, Judge, presiding. On the 7th day of May, A. D. 1888, plaintiffs and defendants entered into a certain contract under seal, on which the plaintiffs brought suit and filed their declaration, containing five counts.

<p>Appeal from the Circuit Court of Alexander County; the Hon. O. H. Habker, Judge, presiding.</p>

<p>Mortgages—Foreclosure—Parties—Practice.</p> <p>1. A person being a party to the record in a given case, as a member of a firm named, and not dismissed therefrom, he is still a party to the record, although, pending litigation, he dissolves connection with such firm, and the attorneys who appeared for the firm continue to be his attorneys of record, and it is proper to require him to make answer to cross-bills, in such case.</p> <p>2. When, such person has been appointed a receiver pending litigation, he may be required to account for rents received, and keep the property insured therefrom.</p> <p>3. In a controversy based upon a bill filed for the cancellation of certain mortgages, the case being here the second time upon the original Mil, the cress-bills of certain mortgagees and petition for the appointment of a receiver pending the litigation, this court declines, in view of the evidence, to interfere with the decree of the trial court refusing to cancel certain mortgages, but providing for their foreclosure, the dismissal of a certain cross-bill, and appointment of a person named as receiver of the mortgaged property.</p>

<p>Is eRROR to the Circuit Court of St. Clair County; the Hon, B. R. Burroughs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Saline County; the Hon. A. K. Vickers, Judge, presiding.</p>

Clair County; the Hon. B. R. Burroughs, Judge, presiding. This is a bill filed by appellant, a corporation established under the laws of the State of Missouri, and certain others, who were employes of that corporation in and about the operation of that railroad in the State of Missouri, and averring that certain of said employes are heads of families and residents of the State of Missouri, and that wages are earned by them and payable in said State of Missouri, where said…

<p>Appeal from the City Court of East St. Louis, Illinois; the Hon. B. H. Canby, Judge, presiding.</p>

<p>Sales—Beal Estate and Insurance Business—Partnership—Fraud— Evidence.</p> <p>1. The commission on sales made by real estate brokers is the basis of the value of then- business, and the commission is on the value of land and not on the number of tracts on his list, and the expression of an opinion by such broker to a person contemplating the purchase of an interest in his business, as to the amount of profits to be made in such business can not be accepted as a representation of a fact, but must be looked upon as simply an opinion, and not the basis of a right to rescind such contract duly entered into.</p> <p>2. The representations of the seller that the number of properties on his books has more than doubled within a given time, if untrue, to be deemed fraudulent to the extent that it may be made ground for rescinding the contract, the person to whom they were made must have relied upon them and have been deceived thereby, and it must further be shown that the statements were relied upon to the extent that but for them the contract would not have been made, and this reliance on such statements is a matter to be proven by the plaintiff, and may be dis-proven by the defendant.</p> <p>3. It is proper to ask the plaintiff in such case, upon cross-examination, the interest sold being in a real estate and insurance business, whether he would have bought had nothing been said as to the amount of property on the books for sale, or of insurance business being done.</p> <p>4. A person induced to part with his property on a fraudulent contract, may, on discovering the fraud, avoid the contract and claim a return of what has been advanced upon it, but he must do so at the earliest practicable moment.</p>

<p>Appeal from the Circuit Court of Jackson County; the Hon. A. K. Vickers, Judge, presiding.</p>

<p>Mortgages—Foreclosure—Limitations.</p> <p>1. Payments on a note made after the statute of limitations of ten years went into effect, viz., July 1,1872, would not operate to extend the time under the previous statute of sixteen years, but under the new statute.</p> <p>2. Upon a bill filed to foreclose a mortgage this court declines to interfere with a decree dismissing the s une, the defense being based upon the statute of limitations.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. A. S. Wildebman, Judge, presiding.</p>

<p>Master and Servant—Negligence of Master—Personal Injury to Servant—Quarry—Unexploded Charge of Dynamite—Fellow-Servants—Evidence—Instructions.</p> <p>1. In the use of a dangerous agent like dynamite, great care must be taken to prevent accidents. A high degree of diligence rests upon an employer using such explosive, to see that unexploded dynamite is not left where employes are directed to work, and it is a question of, fact in a given case whether such care was or was not used.</p> <p>2. In accepting employment in a quarry a person can not be said to assume the risk of finding unexploded dynamite in the rock he is called upon to break.</p> <p>3. Where it is sought to remove such unexploded charge, care should be taken that all be removed, or at least employes should be warned of the presence of a portion thereof.</p> <p>4. A witness should not be asked whether a certain occurrence was one of the risks of a given employment. Such question is for the jury, in view of all the facts and circumstances of the case.</p> <p>5. Instructions must always be considered with reference to the facts as developed by the evidence,</p> <p>6. An instruction authorizing the rejection of all of a witness’ testimony if he has sworn wilfully false, without it is supported by other unimpeached witnesses, should not be given. It is proper to direct the jury that the testimony of such witness may be entirely disregarded except wherein it is corroborated by other credible evidence.</p> <p>7. An instruction assuming as a basis for a declaration of law as to non-liability, a fact directly the converse of that which the undisputed evidence shows to have existed, should not be given.</p> <p>8. The ex-servant who placed the dynamite in the rock was not the fellow-servant of the plaintiff herein.</p>

<p>Appeal from the Circuit Court of Gallatin County; the Hon. S. Z. Landis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Franklin County; the ' Hon. Joseph P. Robarts, Judge, presiding. .</p>

<p>Appeal from the Circuit Court of White County; the Hon. Cabroll C. Boggs, Judge, presiding.</p>

<p>Schools—Teacher—Recovery of Wages—Incompetency—Illegal Contract.</p> <p>1. A verdict for-dollars is a nullity upon which a judgment can not be entered even for “ ■-- dollars.” A judgment in favor of a given person must represent the ultimate fixed and precise determination of the judicial proceeding in which it is entered.</p> <p>3. In an action brought by a teacher to recover a balance claimed to be due him on account of salary, a wrongful discharge being alleged by him, this court holds, in view of the evidence, that at the time of the acceptance of the employment in question, the plaintiff had no certificate of qualification to teach for the term of the contract of service; that said contract was illegal, and that the judgment in his favor must be reversed.</p>

<p>Appeal from the Circuit Court of Richland County; the Hon. Carroll C. Boggs, Judge, presiding.</p>

<p>Sales—Fruit Evaporators—Warranty—Breach—Rescission of Contract.</p> <p>1. The right of return of goods sold and warranted exists where the contract is unexecuted, or there is a stipulation that the property may be returned if not found to be satisfactory, or the warranty was accompanied with fraud in the sale.</p> <p>3. If property pm-chased is accepted by the vendee, then in the absence of fraud, it can not be returned. In such cases the contract of warranty exists during the life of the statute of limitations, and the remedy for a breach is upon it alone, and not upon the contract of sale.</p> <p>3. The right to return property purchased with a warranty before acceptance, does not depend upon the contract of warranty, or the rescission of the contract in the absence of fraud, but upon the fact that the property is not of the kind or quality contracted for. Such being the case, the purchaser may return the property, if done within a reasonable time, but in so doing he does not rescind the contract.</p> <p>4. The vendee may, notwithstanding such return, insist on the vendor complying with it, and on failure to do so may recover damages, or he may refuse to receive or accept other property after such return on the ground of the failure of-the vendor to comply with his contract, if the contract itself does not reserve to the vendor such right of furnishing other property under the contract, and in compliance therewith. Until the vendor delivers the kind of property purchased, or the property delivered is accepted by the vendee, the contract of purchase remains executory, and the contract of warranty remains in abeyance; for, primarily, the warranty only becomes vitalized So that an action may be maintained upon it when the contract of sale becomes executed by an acceptance of the property, express or implied.</p> <p>5. Receipt does not always amount to acceptance: it becomes so if the right of rejection is not exercised within a reasonable time.</p> <p>6. This court holds as proper a refusal to allow defendants to show that they had tendered back the evaporators in question, in rescission of the contract involved before the present suit was instituted, no fraud being claimed, in view of the averments of the declaration that one of the appellants had, before suit, purchased the interest of the other.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. A. S. Wildeemah, Judge, presiding.</p>

<p>Replevin—Action on Bond—Statute of 1845—Amendment of 1879.</p> <p>1. When false or meaningless phrases in a contract can be rejected, and yet the body of the contract stand, it is not only lawful but proper to reject them.</p> <p>2. The rule of construction of all contracts of voluntary obligation, whether as to sureties or principals, is to apply that meaning and to give that interpretation to the words used, in the light of the whole instrument, together with any sidelight in case of ambiguity, as will carry out the evident intent and purpose of the parties thereto. When the construction of the contract is thus adopted, and its meaning determined, then the rule of strictissimi juris applies as to sureties on such contract.</p> <p>3. Statutory bonds taken by court officers will be liberally construed. Courts will look to the meaning of the parties as collected from the instrument itself, and when the meaning is evident, will reject or transpose insensible words and supply accidental omissions in the way of mere recital.</p> <p>4. If a replevin bond as given, gives a right of action, although it does not contain all the provisions required by a certain statute, the signers thereof can not, when sued upon it, interpose the defense that it does not provide for another cause of action. It can not be said to be void if good at common law.</p> <p>5. The omission in the bond is as to the payment of costs and damages for wrongfully suing out the replevin writ; such condition is separate and distinct from the condition embodied in the bond sued on. An action will lie for a breach of either, as each condition is an independent obligation, and a failure to keep either is a ground of action.</p> <p>6. The affidavit, .writ and bond in a replevin suit, are a part of the same proceeding: and for the purpose of determining the identity of the bond, the date of suing out the writ and the court out of which it was sued, may be considered together—not for the purpose of supplying essential omissions in the bond, but to correct unessential recitals made for the sole purpose of identification of the bond with the suit.</p> <p>7. In an action brought upon a replevin bond the same being inaccurate in certain particulars, the declaration pretending to correct such inaccuracies, a general and special demurrer being sustained thereto, this court holds said action to have been erroneous and reverses the judgment for the defendants and remands the cause.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jefferson County; the Hon. E. D. Youngblood, Judge, presiding.</p>

Clair County; the Hon. A. S. Wilderman, Judge, presiding. The appellant was granted the right and privilege of laying its tracks and operating its road along certain streets in the city of Belleville,- under and by virtue of an ordinance passed December 31, 1885. Section 1 granted the right and named the route. Section 2 required the company to pay owners of abutting property damages, if any, by reason of the construction of the road.

<p>In error to the Circuit Court of St. Clair County; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jefferson County; the Hon. E. D. Youngblood, Judge, presiding.</p>

<p>Fraudulent Sales—Attachment—Garnishment—Practice.</p> <p>1. A* bill of sale conveying all of a debtor’s property to a creditor, with the provision that such creditor is to sell it, and after satisfying his own claim, return the balance, if any, to the debtor, will be regarded as an assignment for the benefit of a particular creditor and because of the reservation to the debtor, fraudulent, and void as to other creditors.</p> <p>2. The court did not err in refusing to permit a person named, to be recalled to testify, on the day after both sides had closed their evidence and rested, nor in trying the case without a jury by agreement, the fact being that the trial judge had been counsel in a case to which one of the defendants was a party, previously tried before a justice.</p>

<p>Appeal from the Circuit Court of Jackson County; the Hon. O. A. Harker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison County; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Bichland County; the Hon. C. C. Boggs, Judge, presiding.</p>

<p>Contracts—Sale of Boarding House Business—Promise not to Compete—Breach.</p> <p>1. Parol evidence should not be admitted to show the terms of a given contract, when there is an obtainable writing in existence covering the same point; nor of a parol agreement relating to the subject-matter of the writing.</p> <p>2. A contract not in general restraint of trade but only in partial and particular restraint thereof, where the consideration is adequate and the restriction is reasonable, is not void as being against public policy.</p>

<p>Appeal from, the Circuit Court of Clinton County; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>Municipal Corporations—Negligence of—Personal Injuries—Fall from Elevated Sidewalk—Infant—Contributory Negligence of Mother of.</p> <p>1. A municipality is bound to keep and maintain its sidewalks in a reasonably safe and suitable condition for the use of pedestrians, and a failure to perform this duty is negligence, creating primary liability to respond in damages to one injured by reason of such negligence.</p> <p>2. This court holds that there is nothing in the contention of defendant in the case presented, that it is not liable because the mother of the infant injured pushed it, whereby it fell from the sidewalk, the evidence not establishing such contention, it appearing that such walk was not protected by a railing or other guard.</p> <p>3. The suit in question having been brought by a child to recover damages himself for injuries received by him, the negligence or want of care of the parent in charge of him alleged to have contributed to the accident does not exonerate the defendant, nor bar the plaintiff’s right to recover.</p> <p>4. Eleven months is ample time for a muncipality to ascertain that one of its sidewalks is unsafe, and to put it in proper condition.</p>

<p>Statute of Frauds—Mechanics' Liens.</p> <p>1. To be valid, a promise by one to pay the debt of another, must be in writing.</p> <p>2. The lien law does not operate to make the debt of a contractor the debt of the owner of the building.</p> <p>3. The promise of a property owner to supply-men to pay the bills of contractors, does not prevent the supply-men, as a matter of law, from enforcing their hen.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>Contracts—Electric Light Plant—Improper Work—Set-off.</p> <p>1. Where damages occasioned by the failure of a given firm to carry out an agreement, forms the subject-matter of defense set up in pleas of set-off, if the averments of such pleas are proven, any excess over the amount of plaintiff’s claim in an action brought to recover thereon can be recovered. The effect of proving the averments of a plea of recoupment will be to merely defeat a recovery by such plaintiff.</p> <p>2. A verbal contract can not change the terms of a previous written contract duly entered into, or absolve a party thereto from the performance of its terms.</p> <p>3. In an action brought upon a contract touching the construction of an electric light plant, this court holds that the amount of defendant’s damages, as established by the evidence, arising from the use of unsuitable material and from improper construction, exceeded the amount of plaintiff’s claim proven, and that the judgment for the defendant must be affirmed.</p>

Clair County; the Hon. A. S. Wilderman, Judge, presiding. The amended bill in this case was tiled by Ambrose Both, • and it is therein alleged that he was the owner and in possession of certain lots in the village of blew Athens, St. Clair County, and on September 23,1891, sold said premises to Jacob F. Koch for §13,000, and together with his wife, by their warranty deed of that date, conveyed said real estate to Koch.

<p>Appeal from the Circuit Court of Wayne County; the Hon. C. C. Boggs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jefferson County; the Hon. E. D. Youngblood, Judge, presiding.</p>

B. R. Burroughs, Judge, presiding. In 1874, Andrew T. Hawley, the appellant, ^old to John Kettlewell, whose estate is the appellee herein, a tract of land in Madison County, Illinois, and took in payment therefor four notes of §1,000 each, secured by a deed of trust on the land sold. As is shown by the evidence, and from the notes themselves, Kettlewell made payments on the said notes from time to time.

<p>In error to the County Court of J asper County; the Hon. S. F. Gilmore, Judge, presiding.</p>

<p>Railroads—Liabilities for Physician's Services to Injured Employes —Evidence—Instructions.</p> <p>1. A railroad company is not bound to pay the bill of a physician attending an injured employe at the instance of another employe, unless the latter was authorized to engage the physician, or such act was subsequently ratified by the company.</p> <p>2. An instruction not based upon the evidence should be refused.</p>

<p>Appeal from the Circuit Court of Fayette County; the Hon. Jesse J. Phillips, Judge, presiding.</p>

<p>Municipal Corporations—Illegal Indebtedness—Gas Companies.</p> <p>1. A constitutional provision designed for the protection of tax payers, forbidding the incurring of any indebtedness by a city, directly or indirectly, in any manner, or for any purpose, beyond a certain limit, should not be disregarded or evaded, and a court of equity ought not, by its decree, assign and appropriate any portion of city taxes collected to the payment of the forbidden indebtedness.</p> <p>2. It will be presumed that a gas company knew of such constitutional provision when they furnished a given municipality light, and that if the limit had been exceeded by creating the indebtedness for such services, the indebtedness would be illegal and uncollectible, and if it chose with such notice and knowledge to furnish lights to the city, it did so at its own risk, and would not be entitled in law or equity to recover any part of such debt.</p> <p>3. If in such case, warrants—not certificates—payable from a specific appropriation of a tax levied, but not collected, were accepted by such company in exchange for light furnished, or to be furnished, it would amount to an exchange of one thing for another, creating no debt against the city, but in full payment for such service.</p>

Carroll C. Boggs, Judge, presiding. The appellee lived at Clay City, and on the 23d day of Hovember, 1891, desiring to go from there to Olney, purchased a ticket with the intention of taking the 10:40 a. m„ passenger train, but learning, as he claims, from the station agent, that the train was an hour late—(this the agent denies) went back to his house several blocks away to get his dinner. The train was in fact forty-six minutes late.

<p>Street Railways—Negligence—Personal Injuries—Master and Servant —Vice-Principal—Change of Venue—City Courts.</p> <p>1. The fact that a person’s condition at the time of bringing a suit against his employer to recover for personal injuries suffered through his negligence, was the result of intoxication, will not release the defendant from the damage caused by his negligence.</p> <p>2. One city court in this State can obtain jurisdiction of a cause sent by change of venue from another city court.</p> <p>3. Such court lias jurisdiction of such case even though the litigants are not residents of the city wherein it sits, and were not served with process therein.</p> <p>4. In an action brought by an employe of a railway company to recover for personal injuries received from the fall of a telegraph pole which he was assisting to remove, this court holds, in view of the evidence, that he had a right to believe that he. was not in any danger in performing the work as directed; that a case of negligence is clearly made out, and that the judgment for the plaintiff must be allowed to stand.</p>

<p>Appeal from the Circuit Court of Washington County; the Hon. George W. Wall, Judge, presiding.</p>

<p>Railroads—Negligence—Injury to Farm Lands—Fire —Evidence—Instructions.</p> <p>1. In an action brought to recover from a railroad company, for injury to fruit trees, bushes and vines by fire communicated by sparks from a locomotive eu gine, it is proper to prove on trial the damage to the real estate by such fire, by showing the difference in value before and after the same.</p> <p>2. To satisfy the requirements of the law with respect to sparkarresters this court holds that they must not only be of the most approved kind, but must be kept in suitable and good repair to effect the purpose for which they are designed and used.</p>

<p>I$r error to the Circuit Court of St. Clair County; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lawrence County.</p>

<p>Statute of Frauds—Debt of Another.</p> <p>In. an action to recover for labor and material in connection with the'erection of certain houses, tlie fact being that the contractor built them upon land of a third person to whom he subsequently turned them over, the latter agreeing to pay the indebtedness outstanding against them, this court holds that such agreement was in the nature of an original undertaking, was not required to be in writing, and was not therefore void under the provisions of the statute of frauds.</p>

<p>Mortgages—Foreclosure—Mistake—Jurisdiction of Appellate Court.</p> <p>1. A bill to remove a cloud on the title alleged to have been made by a judicial or tax sale, involves a freehold.</p> <p>2. A freehold is involved where realty is claimed by a deed, regular on its face, but which is sought to be set aside as a cloud.</p> <p>3. _ A bill seeking to correct a description in a mortgage and foreclosing it, likewise involves a freehold.</p> <p>4. So, also, when the result of the litigation will transfer the same from one person to another, or deprive one person of a freehold by direct attack on his title.</p> <p>5. It is not sufficient to involve a freehold that the title may be affected, as in foreclosure proceedings, or where the title of a person is decreed to be subject to an execution.</p>

<p>Appeal from the City Court of East St. Louis, Illinois; the Hon. B. H. Canby, Judge, presiding.</p>

<p>Principal and Surety—County Collector—Action on Bond—Revenue Act—Jurisdiction of Appellate Court—Chaps. 113 and 130 Bis. Stats.</p> <p>1. An action brought in the name of the people of the State for the use of a given county on the official bond of a county collector to recover for alleged breaches of the conditions thereof, is not a case relating to the revenue intended by the legislature to be embraced within the scope and meaning of section 88 of the Practice Act, nor is it a case wherein the State is interested as a party or otherwise. The State is merely a nominal party plaintiff, but is not interested in the case asa State.</p> <p>2. When an officer has received money, which, by the terms of the law prescribing his duties, he is required to dispose of in a specified mode by a particular time, and fails to do so, to avoid liability he must account for its proper and legal disposition.</p> <p>3. The cases embraced within the meaning of Sec. 88 of the Practice Act are those only in which the question of the legality of an assessment or levy of a tax is directly in issue, or the liability of a person o” persons or of a corporation to pay a tax levied is denied, and such liability is the question submitted for adjudication.</p> <p>4. The Appellate Court has jurisdiction of an action upon an official bond where the legality of a given tax, or whether money received is a tax, is brought up collaterally in defense, as in the case presented.</p> <p>5. A county collector and his sureties can not be heard to say that a tax levy was not properly made, or the tax collected without proper authority. Such tax being collected by the collector by virtue of his office, it is his duty to report and account for the same,and charge it to himself, as treasurer, the county being under township organization.</p>

<p>Appeal from the City Court of East St. Louis, Illinois; the Hon. B. H. Canby, Judge, presiding.</p>

<p>Street Railways—Negligence—Personal Injuries—New Trial.</p> <p>1. Assignments of error, not discussed in the argument upon appeal, must be considered waived.</p> <p>2. No exceptions being preserved as to instructions, this court will not consider errors assigned thereon.</p> <p>3. In the case presented, the trial having been before a jury, tire trial court overruled the motion for a new trial, and rendered a judgment in accordance with the finding of the jury, to which rendition the appellant excepted; no exception having been saved as to the ruling upon such motion, the court holds that the errors assigned can not he considered by it.</p>

<p>Negotiable Instruments—Note.</p> <p>In an action brought upon a promissory note given under a certain contract, whereby the payees agreed to indemnify the maker against liability as guarantor of certain bonds, defendant setting up the nonperformance of the condition of the indemnifying bond, this court holds that such defense, if true, would be no defense to the case presented; that the demurrer to said plea was properly sustained; that there is nothing in the error assigned as to the manner of entering judgment herein, and that the same must stand.</p>

<p>Negotiable Instruments—Notes—Consideration^—Failure of.</p> <p>1. Where a husband acts as the agent of his wife in a business transaction, the knowledge he acquires while so acting, is, in law, the knowledge of the wife.</p> <p>2. The question of the interpretation of a written contract is for the court.</p> <p>3. Declarations of an agent, made at a time when not engaged in the transaction of the principal’s business, are not admissible as original evidence against the principal. The act and the declaration must unite in order to make such declarations original evidence.</p> <p>4. No contingent event that may happen after the transfer of a promissory note, can affect its negotiability.</p> <p>5. In an action brought to recover upon a promissory note, the plaintiff being the assignee thereof, the same being given for one year’s rent of a certain farm rented under a five years’ lease, it providing that in case of damage from high water the rent should be reduced according to the damage done, the fact being, that no damage from such cause occurred until after the transfer of the note, this court holds, said note having been transferred as collateral security for an indebtedness less than its face, that as to such sum the judgment for the plaintiff could not be disturbed, but that as to the residue, any defense could be interposed as to the assignee, that could have been raised between the original parties.</p>

<p>Agency—Recovery of Compensation—Appeal and Error—Evidence— Instructions.</p> <p>1. A general objection to an instruction is not enough. The specific error complained of must be pointed out.</p> <p>2. In an action brought to recover upon a contract wherein plaintiff was empowered to act as defendant’s agent, compensation to be figured on a certain basis, compensation as to special “ sales” and “ deals ” to be settled mutually on each particular “ job,” this court holds that the contract referred to herein, was such special “ sale ” or “ deal,” and declines to interfere with the judgment for the plaintiff.</p> <p>3. In the case presented, tins court holds as proper the granting of leave to plaintiff, after the evidence was closed, anc^while the cause was being argued to the jury, to file an amended count to the declaration instanter, to meet the evidence introduced touching a later agreement, no claim of hardship or surprise having been made by the defendant; and likewise that no special count was necessary; the contract being at an end and nothing remaining but to pay money; indebitatus assumpsit was sufficient.</p>

George H. Kettelle, Judge, presiding. This was an action brought to recover the value of beer shipped from Hew York City, byway of appellant’s line, to appellee in Chicago. In consequence of the warm weather, the beer fermented on the way and was spoiled when it arrived here. Upon the trial below, Eudolph Oelsener testified: “ On May 4, 1889,1 shipped twenty-half barrels of beer to plaintiff.

<p>Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding."</p>

IIiohard W. Clifford, Judge, presiding. The facts presented by this record are that on or about the first of October, 1888, General Sibley, of St. Paul, Minnesota, leased to one H. 0. Donnelly, certain premises in that city until the 31st day of December, 1889, at a rental of $200 per month, payable monthly in advance.

<p>Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Appeal and Error—Account.</p> <p>1. An appeal does not lie from a mere order of reference to a master to take testimony, state an account and report the same to the court; such order is not a final decree from, which an appeal lies.</p> <p>2. At law, in-an action of account, the order to account is, as in chancery, merely interlocutory, and is not appealable.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Appeal and Error.</p> <p>1. A decision of this court stands as to a given point, the same not having been disapproved by the Supreme Court upon appeal.</p> <p>2. This court affirms a decree dismissing a bill brought to undo certain things done in another suit still pending.</p>

Frank Baker, Judge, presiding. This was an action of assumpsit, brought by appellee, to recover certain insurance money, claimed by him to have been received by appellant, for loss on certain butter belonging to appellee. It appeared upon the trial that appellant, a commission merchant, had, in the year 1889, a large quantity of butter, belonging to appellee, which had been sent to appellant for sale.

<p>Insolvency—Preferences.</p> <p>1. Directors of an insolvent corporation, so utterly insolvent as to have abandoned all effort to continue business, can give preferences to creditors of the corporation having knowledge of its condition.</p> <p>2. The distinction between a corporation so insolvent as to have stopped business, giving preferences, and one which, by giving a preference, incapacitates itself for further business, has little to "recommend it. But the fact that the preference stops the business, does not avoid it.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. S. P. McConnell, Judge, presiding.</p>

<p>Appear from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. O. H. Horton, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. Appellee, on the morning of the 4th of July, was being carried as a passenger by appellant. The car in which he rode while crossing the tracks of the Chicago & North Western Eailway Co., was struck by an engine belonging to that road, and appellee sustained serious injuries.

<p>Life Insurance—Mutual Benefit Association—Non-Payment of Assessment—Suspension from Membership.</p> <p>■1. Application for reinstatement in a mutual benefit association amounts to an acknowledgment that applicant was lawfully suspended.</p> <p>2. When at the time of such application assessments have not been, paid up, and applicant offers to pay them, it will be assumed that he had notice that he was delinquent as to them.</p> <p>3. The contract of insurance is essentially one of good faith; a reinstatement obtained upon false and fraudulent representations, will not be binding on the insurer.</p> <p>4. The fact that, after the reinstatement of such member, bis subordinate lodge allowed him sick benefits, or paid assessments for him, can not conclude the Grand Lodge from setting up the defense of fraud, in obtaining reinstatement.</p>

Jonas Hutchinson, Judge, presiding. This was an action of debt brought for rent accrued upon a lease executed by appellee to appellant. Appellant pleaded nil debet and six other pleas, one of which was non estfaetmm, duly verified.

<p>Sales—Cattle—Warranty—Breach—Interest.</p> <p>1. Contracts should receive a reasonable construction. They should be given effect to in accordance with the manifest intention of the parties.</p> <p>2. A purchaser of cattle can not insist that the obligation to receive the same was limited in a given case to the number estimated in the contract of sale “ at about ” a certain number of head, “ more or less, ” the same providing for the sale of “ all of his steers ” and “ all of his dry cows,” of general description and particular location, nor that no recovery can be had on such contract because some of the cattle did not meet the requirements of the contract.</p> <p>3. The action in the case presented being for cattle sold and delivered, and for breach of contract—a failure to receive cattle, for the breach of the contract the burden of proof was upon plaintiff, the seller thereof; but as to the cattle sold and delivered, the defendant, the purchaser, seeking to recoup damages because of a breach of warranty, the burden of proof was upon him as to such breach and as to any damages.</p> <p>4. Plaintiff was entitled to interest at the rate of ten per cent under the statute of Montana on the price of the accepted cattle not paid for, but for which, under the contract, the plaintiff was entitled to payment when delivered.</p>

Elliott Anthony, Judge, presiding. Appellee, while working as a steam fitter in the packing house of appellant, walked into a vat of boiling water and was severely injured. He brought suit against appellant and recovered a verdict and judgment for $12,800. Appellee narrates the circumstances attending the accident as follows: “ On Monday, October 13, 1890, I was working for the packing company. We had been working on some flanges in the engine room.

<p>Appeal from the Circuit Court of Cook County; the Hon. O. H. Horton, Judge, presiding.</p>

<p>Guardian and Ward.</p> <p>1. A guardian may not use the estate of his ward for bis individual profit.</p> <p>2. A party can not recover upon a contract wherein a guardian who owned a certain interest in land of which his ward was part owner, agreed to institute and carry through court, proceedings necessary to the consummation of an exchange of such property, for property owned by such party, where it appears that the guardian would have derived benefit therefrom, he refusing to fulfill his agreement.</p> <p>3. Such contract would be void as fraudulent, although the guardian would not be benefited by the carrying through of the same, where he agreed to indemnify the other against having to bid more than a sum. named for the minors interest.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Contracts—Void as to Public Policy—Corners.</p> <p>1. A combination to enhance the price of an article of prime necessity, such as wheat, or other articles necessary for food, for purposes of extortion, is against pulplic policy, although there may be no attempt to corner the market.</p> <p>2. In the case presented, this court holds that the amendment of plaintiffs’ pleading has not so changed the nature of the cause that the conclusions arrived at in a former trial are not applicable to the present appeal, in view of the stipulation involved herein.</p>