text:
    Isador Kohn et al., Defendants in Error, v. Mrs. Sallie Finder and B. Finder, Plaintiffs in Error.
    Gen. No. 16,823.

      Judgments—joint judgment. Where a joint judgment is entered and the evidence fails to prove a joint liability, the judgment cannot be sustained. In this case the evidence is held not so to fail.
    Error to the Municipal Court of Chicago; the Hon. J. D. Turnbaugh, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    Otto H. Beutler, for plaintiffs in error.
    Adler & Lederer, for defendants in error; Francis Adams, Jr., of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error sued out of this court to reverse a judgment of the Municipal Court of Chicago in favor of the defendants in error, Isador Kohn and David Kohn, for $448.24. The judgment was on the finding of the court sitting without a jury, and was for goods sold and delivered as was alleged by the plaintiffs to Sallie Finder and Bernard Finder, the defendants.

The defense was simply'that Sallie Finder was not liable for this debt, but that it was due from Bernard Finder alone.

The proposition of law made by the plaintiffs in error is that where a joint judgment has been entered and the evidence fails to prove a joint liability, the judgment cannot be sustained.

This proposition the defendants in error admit, and it is certainly the law.

The proposition of fact which is made by the plaintiffs in error as the necessary complement of this proposition, of law, in order to show this judgment erroneous, is that the evidence entirely fails to prove a joint liability against them.

It would be useless for us to discuss the evidence to justify our conclusion that this is not established by the record. It is sufficient to say that we have read it carefully and in our opinion the question of fact was a fair one and that there is evidence sufficient to warrant the conclusion of the trial judge. The judgment of the Municipal Court is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Margaret Kennedy, Defendant in Error, v. Prudential Insurance Company of America, Plaintiff in Error.
    Gen. No. 16,835.
    1. Insurance—policy construed. Where an insurance policy provides that all statements made by the insured shall in the absence of fraud be deemed representations and not warranties, and “no such statement shall avoid the policy,” etc., the words “no such statement” refer to the provision as to “all statements made in the absence of fraud.”
    2. Insurance—evidence. Where an insurance policy contains a provision that “all statements made by the insured shall in the absence of fraud be deemed representations and not warranties,” it is proper to admit answers by the insured to the medical examiner made after her application, when such answers, in connection with the stipulated facts, show a wilful misstatement of matters materially affecting the risk.
    3. Insurance—fraudulent answer to questions of medical examiner. A negative answer to a question which is part of the contract of insurance, as to whether the applicant had so far as she knew ever had any serious illness, was made with an intention to deceive where the applicant had left a hospital after an operation for appendicitis only ten days before the application was made.
    4. Insurance—materiality of false answer. The materiality of a false answer to a question which is part of the contract of insurance is a matter of law.

      5. Insurance—when false answer material. A false answer to a question put to an applicant for an insurance policy, as to whether she had so far as she knew ever had any serious illness, is material to the risk and avoids the policy, whether such answer is considered as a warranty or as a representation.
    6. Insurance—what false answers available as a defense. A false answer in the application made a part of the policy, as to whether the insured had so far as she knew ever had any serious illness, and fraudulent answers to questions of the medical examiner concerning whether she ever had had appendicitis or had had an operation, are available in defense in an action on the policy which is not incontestable at the time of the death of the insured.
    7. Insurance—instructions. In an action on an insurance policy, where it is admitted that the insured made false answers as an inducement to the contract, instructions that the verdict should be for defendant if insured represented in her application that she had never undergone any surgical operation and falsely concealed such fact and if it be found from the evidence that the representations' were material to the risk and insured knew they were false when made, but if it be found that the insured made truthful answers to the best of her knowledge and belief then the verdict should be for plaintiff, are erroneous.
    Error to the Municipal Court of Chicago; the Hon. W. H. Hinebaugh, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed January 27, 1913.
    Statement by the Court. This is a writ of error sued out to reverse a judgment of the Municipal Court in favor of the defendant in error, Margaret Kennedy, against the plaintiff in error, the Prudential Insurance Company of America, for $525.25.
    Margaret Kennedy was the beneficiary named in a policy of insurance of the defendant company for $500, issued on the life of Bridget Mary Kennedy, her sister, on .December 24, 1908.
    The policy, which is signed upon the first page, contains the statement that it is “subject to the privileges and provisions on the second and third pages hereof, which are hereby made a part of this contract. ’ ’
    The second page contains these provisions:

      “Incontestability. This policy shall be incontestable after one year from its date, except for non-payment of premium.

      Entire Contract Contained in this Policy. This policy (together with the copy of the application endorsed hereon) contains the entire contract between the parties hereto and all statements made by the Insured shall in the absence of fraud be deemed representations and not warranties, and no such statement shall avoid the policy or be used as a defense to a claim thereunder unless it be contained in the application for the policy and unless a copy of such application be endorsed upon or attached to the policy when issued.”
    On the fourth page of the policy is endorsed a copy of the application' signed by Bridget M. Kennedy. In it are these questions and answers material to this cause:
    “5 A. Are you in good health? Tes.
    “B. Have you so far as you know ever had any serious illness or disease? No.” And the following provision:
    * * * “I agree that the foregoing, together with this declaration, shall constitute the application and become a part of the contract of insurance hereby applied for.”
    The application is dated December 18,1908. December 20, 1908, she was examined by the examining physician of the company and answered a number of questions regarding her health and physical condition. These questions and answers, which were reduced to writing and signed by the applicant, include, among others, the following:
    “Q. Have you ever undergone a surgical operation? No.
    Q. When? A. Never.
    Q. For what was operation performed? A. None.
    Q. Besults. A. None.
    Q. Are you in good health? A. Tes.
    Q. When last attended by a physician?
    A. About four years ago.
    Q. For what complaint? A. Cold in head, sick four days.

      Q. Have you ever had serious illness ? A. No.
    Q. When? A. Never.
    Q. How long? A. None.
    Q. Nature of illness? A. None.
    Q. Have you ever had * * * appendicitis?
    A. No.”
    On the trial of this case below the following facts were stipulated by the parties:
    “1. That the defendant issued its policy * * * dated December 24, 1908, on the life of Bridget M. Kennedy for $500, payable to Margaret Kennedy as beneficiary. * * *
    2. That the premiums upon the said policy were paid to the 23rd day of December, A. D. 1909.
    3. That the said Bridget M. Kennedy died on July 2, 1909.
    4. That due proof of the death of Bridget M. Kennedy was made to the defendant.
    5. That the said Bridget M. Kennedy was admitted as a patient to St. Anthony’s Hospital in Chicago, Illinois, on November 17, 1908; that on November 18, 1908, a surgical operation was performed on the said Bridget M. Kennedy in the said hospital for appendicitis, from which she had been suffering for some time before she entered the said hospital, and that after the operation the said Bridget M. Kennedy remained in the said hospital as a patient until December 8,1908.”
    Testimony given at the trial also showed that Bridget M. Kennedy had been a few days previous to the operation examined by the physician and surgeon who afterward operated on her; that he had diagnosed her ailment as appendicitis, and that from the history she gave him, he supposed that she had it ten days or two weeks.
    The company having refused to pay the beneficiary the amount of the policy, she brought this suit. The cause was submitted to a jury. At the close of the evidence the defendant moved the court for a peremptory instruction. It was refused, and the court of its own motion instructed the jury that the defense made being that the assured made false statements and representations, the burden was on the defendant to prove that she made them in her application for the policy, that she knew they were false when she made them, that the fact concealed or falsity expressed was material to the risk and that its failure to prove any one of these propositions would compel the jury to find a verdict for the plaintiff. He then proceeded:
    “The court instructs the jury that if they believe from the evidence that Bridget M. Kennedy, the party named in the insurance policy introduced in evidence, represented to the medical examiner of the defendant in her application for said insurance that she had never prior to the date of such representations undergone any surgical operation, and falsely and fraudulently concealed such fact from the medical examiner of the defendant, then in that case you will find the issues for the defendant, if you further find from the evidence such false representation, if any was made, was material to the risk, and that the said Bridget M. Kennedy knew they were false when made.
    “The court instructs the jury that if you believe from the evidence in this case that the deceased Bridget M. Kennedy made truthful answers to the questions propounded to her for insurance in this case, and to the best of her knowledge and belief, that was all she was required to do, and if you so find, your verdict should be for the plaintiff.”
    The defendant, by his attorney, requested the court further to instruct the jury as to the meaning of the term “material to the risk” used by the court in the foregoing instruction, and also requested the court to instruct the jury that it was immaterial of what disease the insured died. The court refused to instruct the jury further.
    The jury returned a verdict for the plaintiff for $525.21, on which, after a motion for a new trial and one in arrest of judgment had been overruled, the judgment before mentioned was entered.
    In this court it is contended that the verdict and judgment are against the law and the evidence; that the court below erred in refusing to instruct the jury peremptorily for the defendant, and that it erred in the instructions which it did give to the jury, and in refusing further to instruct the jury as requested by the defendant’s counsel.
    Hoyne, O’Connor, Hoyne & Irwin, for plaintiff in error; Carl J. Appell, of counsel.
    Thomas C. Kennedy, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This judgment must be reversed. To uphold it we should be obliged to ignore well settled principles of the law of insurance.

The policy was not incontestable on account of false representations in the application. It only became so by its terms after the lapse of a year from its issuance. That year had not passed. The provision that “no such statement shall * * * be used as a defense to a claim” under the policy, plainly refers by all rules of construction to the “statements” just before described, that is “statements made by the insured in the absence of fraud” and “deemed representations and not warranties.” • If a statement of the assured was made fraudulently as an inducement to procure the issuance of the policy to her, it was not “a statement made by the insured in the absence of fraud. ’ ’

Under these circumstances it was plainly proper to admit the evidence of the answers made by the insured to questions of the medical examiner made when he examined her following her application, when those answers in connection with the stipulated facts showed a wilful misstatement of matérial matters affecting the risk. Considering the application alone, however, it is inconceivable that a person who on November 18, 1908, underwent a capital operation, with its resultant risks, an operation which is resorted to in the natural order of things, only on account of the imminent presence or threatened recurrence of a dangerous and painful ailment, and who for twenty days thereafter remained in the hospital where the operation took place, should in ten days thereafter have answered in the negative the question, “Have you so far as you know ever had any serious illness or disease” without an intentional and intelligent purpose to deceive. This was the question put to the insured and thus answered in the application itself, which was a part of the policy. The falsity of the answer is, in onr opinion, undeniable, and admitted by the stipulation on the facts; its materiality is a matter of law. As the Supreme Court of Pennsylvania said in Murphy v. Prudential Ins. Co., 205 Pa. St. 444, “It has always been held that a court must declare as material a false statement to a request that the insured give full particulars of any illness that he might have had;” and we do not think that in the Illinois cases cited by defendant in error to us this is controverted. It is true that questions concerning the construction of the term “serious illness” have been discussed by Illinois courts; but as we have before said, we do not regard it open to debate that appendicitis followed by a capital operation and a considerable hospital sojourn, is a serious illness; and neither the courts- of Illinois, nor of any other state, so far as we know, have ever said that an obviously false statement in reply to the question indicated was immaterial. The contrary doctrine is the basis of the decision in many cases, as in Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186.

Whether the false answer is considered as a warranty (because expressly made part of the contract of insurance and fraudulent) or as a representation only, it avoids the policy, for it was material.

But in addition to these false statements in the application, the assured made categorically at - least ten more false statements to the medical examiner as am inducement to the making of the policy. They include statements made twelve days after coming out of the hospital, to the effect that she had never undergone a surgical operation, that she was last attended by a physician about four years before, that she had never had any serious illness, and that she had never had appendicitis.

The medical examiner testified that if he had known the facts and the falsity of these answers at the time he made the examination and report to the company, he should not have recommended the company to have accepted the risk, as he did.

The “statements” as we have noted we regard not “made in the absence of fraud,” and like any^other actually fraudulent statements made as an inducement to the issuance of a policy, are available in defense in an action on it, perhaps in any case, certainly in any case where the policy is not on its face incontestable at the time of death. Welch v. Union Cent. Life Ins. Co., 108 Iowa 224; Reagan v. Union Mut. Life Ins. Co., 189 Mass. 555.

The instructions to the jury we regard as based on a wrong view of the law applied to the facts of this case, and misleading. They left to the jury questions properly for the court. They were questions too, the answers to which by the court in the only admissible manner would have required it to peremptorily instruct the jury for the defendant.

The judgment is reversed, and as our view of the law applied to the admitted and uncontradicted facts of this case would prevent any recovery on this policy, we do not remand the cause.

Reversed.


text:
    The People of the State of Illinois ex rel. Thomas F. Judge et al., Appellants, v. Board of Commissioners of Cook County and Lewis Rinaker, County Judge, Appellees.
    Gen. No. 16,884.
    1. Cities and villages—hoard of election commissioners. The members of the Board of Election Commissioners of Chicago are municipal officers within the meaning of the State Constitution, art. IX, § 11, providing that “The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office shall be increased or diminished during such term.”
    2. Officers—hoard of election commissioners. The Election Commissioners of Chicago are public officers.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed January 27, 1913.
    Rehearing denied February 10, 1913.
    Frank D. Ayers, for appellant.
    Frank D. Ayers, William F. Struckmann and Gustavus Tatge, for appellee.
   Mr. Justice Brown

delivered the opinion of' the court.

On July 1, 1909, the Board of Election Commissioners for the territory within the City of Chicago and the incorporated town of Cicero, duly appointed by the County Court of Cook county under the statute in force at the time of their appointment, were Nathaniel Hudson, Thomas F. Judge and Abel A. Bach, the relators in this cause. Each had been appointed under the statute before June 10, 1909, for a definite term of three years. Their salary as fixed by the statute in force at the time of their appointment was $2,500 each per year. By an Act of the Legislature approved June 10, 1909, and in force July 1, 1910, the statute was amended so as to make it read in part:

“In counties of • the third class, to-wit, in Cook County, such election commissioners shall receive a salary of four thousand dollars * * * per annum. * * * Such salaries * * * are to be audited by the county judges and such salaries shall be paid by the county treasurer upon the warrant of such county judge of any money in the county treasury not otherwise appropriated. * * * It shall also be the duty of the governing authority of such counties * * * to make provision for the prompt payment of such salaries. ’ ’

The Constitution of Illinois provides, article IX, section 11:

* * * “The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office shall be increased or diminished during such term.”

The relators applied to the Board of Commissioners of Cook County to make provision for the payment of ■their salaries at the rate of $4,000 per annum each after July 1, 1909, and to the county judge to audit their salaries at that rate and issue his warrant for the payment thereof. This the commissioners and county judge refused to do. Thereupon the relators began this suit in the name of the People, praying for a mandamus upon the commissioners and county judge to perform these respective acts. The commissioners and the county judge demurred generally, and the Circuit Court sustained their demurrers, and entered judgment that the respondents go thence without day. An appeal was taken by the petitioners to this court, where the only question presented for our consideration is: Were the relators municipal officers within the meaning of the Constitution of Illinois? If they were, the judgment of the court below was correct, and the increase of salary of the election commissioners could apply only to election commissioners appointed after July 1, 1909.

We think there is no doubt that the relators were “municipal” officers within the meaning of the Constitution.

Whether the Board of Election Commissioners is in a strict sense “a municipal corporation” is beside the question.

As the Supreme Court of Louisiana said in State v. Board of Levee Com’rs, 109 La. Ann. 403, page 436, “The adjective ‘municipal’ is much more elastic in its meaning than is the word ‘municipality’ or even than the term ‘municipal corporation.’ ”

By general rules of construction we should feel ourselves obliged to hold that the election commissioners were municipal officers in the sense in which the constitution uses these words, but our opinion is fortified by all the reasoning of the Supreme Court in: Wetherell v. Devine, 116 Ill. 631; County of Cook v. Sennott, 136 Ill. 314; Foreman v. People, 209 Ill. 567; Wolf v. Hope, 210 Ill. 50, and People v. Williams, 232 Ill. 519.

In Foreman v. People, 209 Ill. 567, the court, speaking through Mr. Justice Cartwright, says:

“A constitution is adopted as a whole, for the purpose of establishing fixed principles and policies of government, and it is the established rule that in arriving at the intention of its framers the whole instrument is to be looked at and every section relating to the subject is .to be examined. The meaning of one clause or section is frequently determined by comparison with other sections, and the constitution is to be interpreted not alone from words used in a particular clause, but upon a consideration of the whole, with a view to ascertain the sense in which the words are employed. When we examine the various provisions of the constitution with reference to a change of salary during a term of office, we find that no particular set of words is used to express the limitation on the power of the legislature, but that there is a well defined rule running through the whole instrument that the salary attached to any public office having a fixed term shall not be increased or diminished during that term.”

It can hardly be claimed that the election commissioners are not “public” officers.

In Wolf v. Hope, 210 Ill. at page 61, Mr. Justice Scott speaking for the court says:

“In our judgment the provision quoted from section 11 of Article 9 of the Constitution was intended to include all officers not specifically mentioned in other provisions of the constitution, occupying offices created by the laws of the State in and for any of the political subdivisions of the State.”

Certainly the election commissioners “occupy offices created by the laws of the state in and for a political subdivision of the state.”

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    George A. Donnelly, Plaintiff in Error, v. Antiseptol Liquid Soap Company, Defendant in Error.
    Gen. No. 16,697.
    1. Corporations—employment of attorney. Evidence was conflicting whether a director of a corporation was removed at a stockholders’ meeting and whether a subsequent meeting of the board of directors was adjourned without day or adjourned to the office of an attorney. Without notice to the other directors and without having possession of the office or any property of the corporation, the.alleged deposed director, with others, met at the attorney’s office, attempted to exercise the functions of a board of directors and employed an attorney to institute suits for the corporation. Held, in an action by the attorney to recover compensation from the corporation, the act of the supposed board of directors in employing the attorney was void.
    2. Corporations—when employment of attorney not ratified. Where a contesting body attempting to exercise the functions of a board of directors employed an attorney to institute suits for the' corporation, it cannot be contended that the corporation acquiesced in the rendition of the services and is estopped from saying that the attorney was not employed by the corporation, where the board of directors elected at the next ensuing meeting of stockholders ordered the suits dismissed.
    Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    Rehearing denied February 10, 1913.
    Tinsman, Rankin & Neltnor, for plaintiff in error.
    Cratty Bros, and Charles Hudson, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the ' court.

Plaintiff in error brought an action in the Municipal Court against defendant in error to recover attorney’s fees in a cause in equity brought in the name of the defendant as complainant against Voges and Claussen to cancel certain shares of the capital stock of the defendant held by them, alleged to have been fraudulently issued to them, and in an action in the Municipal Court brought in the name of the defendant against Mrs. Seiler to recover $1,000 alleged to be due from her to defendant for stock issued to her and not paid for. A jury found the issues for the defendant, the court denied plaintiff’s motion for a new trial, gave judgment on the verdict and plaintiff prosecutes this writ of error.

The defendant corporation was organized in 1906 for pecuniary profit, with five directors, who were elected for a term of one year. At the annual meeting of. stockholders in January, 1908, Voges, Claussen, Steinweg, Reuter and Leslie were elected directors. The directors elected Voges president and Claussen secretary. Director Steinweg was a salesman for the Company and February 20 was discharged for cause by president Voges. April 18 notices were sent out for a meeting of stockholders to be held April 30 for the purpose of acting on charges filed against director Steinweg, with a view to removing him if found guilty, and electing a successor.

The by-laws required ten days’ notice of special meetings of the directors. April 23 the secretary sent notices to all the directors of a meeting of the board to be held at the Company’s office, 99 South Clinton street, Chicago, May 4, at 10 a. m. The testimony is conflicting as to what occurred at the stockholders’ meeting. The secretary’s record shows that the meeting was adjourned to 2 p. m., and at that hour again adjourned to 10 a. m. the next day; that at such adjourned meeting evidence was heard in support of the charges and a resolution adopted removing director Steinweg as director, and that Mrs. Seiler was then elected a director. Witnesses called by defendant testified in substance to the facts stated in the secretary’s record. Witnesses called by the plaintiff testified that at the first meeting a motion to adjourn to two o’clock was made and lost; that a resolution was then adopted that the charges against Steinweg be dismissed and that afterwards a motion was put and carried to adjourn without day.

We do not deem it necessary to decide whether the stockholders could remove director Steinweg, nor whether, if they could, the jury might properly find that he was removed, but shall only consider the question whether the jury might from the evidence properly find that the plaintiff was not employed or retained by the defendant to render the'services for which he claimed compensation.

The minutes of the directors’ meeting of May 4, kept by secretary Claussen and signed by him and president Voges, show that there were present at such meeting directors Voges, Claussen, Leslie, Eeuter and Mrs. Seiler; that Steinweg was also present, and after the call of the roll he protested against any meeting-being held, “whereupon a motion was made and seconded that the meeting of the board of directors adjourn without day. The motion being put was carried.” There was also introduced in evidence by plaintiff, with the consent of the defendant, a stenographic report of the proceedings of said meeting down to the time the president put the motion to adjourn and declared' it carried. From this report it appears the proceedings of said meeting wére as follows: Steinweg objected to the calling of Mrs. Seiler’s name as a director and was declared out of order by the president; that Clanssen then moved to exclude Mr. Lewald (Steinweg’s stenographer) and Knudson, and the president put the motion and declared it carried; that Clanssen moved an adjournment and president Voges put the motion and asked all in favor of it to say “Aye;” that Clanssen, Mrs. Seiler and Voges said “Aye,” and the president declared the motion carried; that after the motion was declared carried Eenter, Leslie and Steinweg said “No.”

Steinweg testified that-Leslie made a motion to investigate certain acts of president Voges; that on the making of that motion the president and secretary left the room and “Mr. Eeuter, Mr. Leslie and myself then adjourned the meeting to the office of our attorney, Mr. Donnelly.” Leslie and Eeuter testified in the case, but neither testified as to what occurred at the directors’ meeting. Voges, Clanssen and Mrs. Seiler testified as .to what occurred at the meeting, and no one of them said anything about such a motion as Steinweg testified Leslie made, or about any adjournment of the meeting to Donnelly’s office. Steinweg’s testimony is in direct conflict with the minutes of the meeting kept by the secretary and with the stenographic report introduced in evidence by the plaintiff. The testimony of Voges, Clanssen and Mrs. Seiler tends to contradict it and it is not corroborated by the testimony of either Leslie or Eeuter. We think that the evidence fails to show that any motion to adjourn to Donnelly’s office was made or adopted at the meeting of the directors held at the Company’s office, and that the meeting of Leslie, Eeuter and Steinweg at Donnelly’s office was convened and held without giving notice of the time and place of such meeting to the other two de jure directors; that Voges and Claussen were completely ignored, and Leslie and Renter met and acted with Steinweg. The supposed board which met at Donnelly’s office did not have possession or control of the office, property, seal, record books or papers of the corporation.

In Waterman v. Chicago & I. R. Co., 139 Ill. 658, which was an action by Waterman, claiming to be the president of the Railroad Company, for his salary as president, the board of directors of the Railroad Company consisted of seven members, who under the bylaws held their office for one year and until their successors were elected. At a meeting of the stockholders held March 3, 1880, four of the old board were declared re-elected and three new menfbers. That election was held illegal, but the four members of the old board so declared elected were de jure directors because they held their office until their successors were elected. The new board met at a place other than that fixed by the by-laws for the meeting of the board of directors and all being present elected Waterman president. The new board did not have possession of the records, books, papers, property or seal of the corporation, and the other three de jure directors were not notified of the time and place of such meeting. It was held that the new board had no power to elect a president; that the fact that a majority of the de jure directors were present did not make the election legal when the other lawful directors were not notified of or present at the meeting, and a judgment for the defendant was affirmed.

“The general, if not the universal rule is, that notice must be given to each director of the time and place of all special meetings. A minority cannot be arbitrarily deprived of this right by a majority. It is contemplated in the election of directors to manage the affairs of the corporation that it shall have the benefit of the judgment, consultation and influence of all the members of the board, and ordinarily, in the absence of special circumstances or express provisions to the contrary, each member should have an opportunity to be present at all the meetings of the directors. For this reason the great current of the cases is to the effect that notice of special meetings must be given every director, in the absence of express provision in the charter or by-laws to the contrary, or unless there is an established usage to the contrary, or unless it is impractical or impossible to give such notice. In all' other cases, special meetings in the absence of some of the directors and without notice to them are illegal, and any action at such meetings, though taken by a majority of the directors, is void.” 2 Thompson on Corporations, 2nd edition, Sec. 1140, and cases there cited.

We are clearly of the opinion that the action of Renter, Leslie and Steinweg at Donnelly’s office, authorizing and employing Donnelly to render the services for which his claim against the defendant was based, is void for the want of notice to the directors who did not attend.

It is further contended that plaintiff’s services were rendered with the acquiescence of the defendant corporation, and therefore the defendant is estopped from saying that plaintiff was not employed by the corporation to render such services. Here were two contesting bodies, each attempting to exercise the functions of a board of directors. There is no evidence tending to show acquiescence in the employment of Donnelly or ratification of his employment or of his acts in beginning the suits for which he now claims compensation, by the absent directors or the stockholders; but on the contrary it appears that the board of directors elected at the next meeting of stockholders held January, 1909, at once after their election ordered both suits dismissed, and that both suits were, in compliance with such orders, dismissed. We think that the evidence fails to show that the act of Reuter, Leslie and Steinweg in employing plaintiff was ratified by the corporation.

There was no evidence tending to show that Steinweg as vice-president employed plaintiff, and the question whether he as vice-president had power or authority to employ him is not before us on this record. ' We think that the evidence fails to show a right of recovery in the plaintiff, and the judgment is affirmed.

Affirmed.


text:
    J. B. Cromley, Administrator, Defendant in Error, v. M. S. Dean, Plaintiff in Error.
    Gen. No. 16,716.
    1. Evidence—admissibility of unstamped instrument. Although, a stamp he required by the revenue laws of a foreign state before a document can be received in evidence there, such document may nevertheless be admitted in evidence without the stamp in the country wherein the suit is brought.
    2. Corporations—unstamped stock certificate. The New York Stock Transfer Law of 1905, providing that no transfer of stock on which a tax stamp is not attached shall be made the basis of suit or admitted in evidence, is a revenue measure, and in an action in Illinois to recover the purchase price of stock sold in New York, the sale agreement and certificate of stock are admissible in evidence although they are without a stamp.
    3. Executors and administrators—foreign letters. In an action by a foreign administrator to enforce a claim of the estate, that letters of administration had been granted to him cannot he proved by a certificate of the clerk of the appointing court which was not authenticated otherwise than by the signature of the clerk.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed January 27, 1913.
    J. E. Ingram, for plaintiff in error.
    Ferguson & Goodnow, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Defendant in error Cromley as administrator of his deceased wife, recovered a judgment in the Municipal Court in an action of the fourth class against plaintiff in error Dean for $235, the amount remaining unpaid of the purchase price of certain shares of the capital stock of a certain corporation under the following instrument :

“The Waldorf-Astoria,
New York, April 13, 1906. Received of Mrs. J. B. Cromley 11,000 shares of stock in James Automatic Weighing & Recording Scale Co., on which have paid her Two Hundred ($200.00) and agree to pay balance of $200.00, being total of $400.00 for the stock.
M. S. Dean.”

The stock transfer law of New York of 1905 provides that a tax shall be collected on all sales or agreements to sell shares of stock in any domestic or foreign corporation of two cents on each hundred dollars of the face value; that the payment of such tax shall be denoted by adhesive stamps to be attached to the certificate of to the memorandum of an agreement to sell, as in the act provided; that if any person shall make any sale of stock without paying such tax, etc., he shall be deemed guilty of a misdemeanor, and upon conviction shall pay a fine or be imprisoned, or both, and in addition thereto shall forfeit to the people of the state a penalty of five.hundred dollars. Section 323 of said act is as follows:

“#323. EFFECT OF FAILURE TO PAY TAX. No transfer of stock made after June first, nineteen hundred and five, on which a tax is imposed by this article, and which tax is not paid at the time of such transfer shall be made the basis of any action or legal proceedings, nor shall proof thereof be offered or received in evidence in any court in this state. ’ ’

On each stock certificate in evidence a transfer was endorsed by Cromley to his wife, attached to the certificate is a transfer by Mrs. Cromley to defendant, and on no one of said transfers nor on the instrument sued on was any stamp placed.

The rule that an unstamped instrument made inadmissible by the Internal Revenue Acts of 1864 and of 1898, is admissible in the courts of Illinois has been repeatedly announced by our Supreme Court. Richardson v. Roberts, 195 Ill. 27, and cases there cited.

The Acts of Congress referred to provide that such unstamped instrument, “shall be deemed invalid and of no effect.” In the first case that arose under the Act of 1864 (Latham v. Smith, 45 Ill. 29), Mr. Chief Justice Breese said: “No power exists in the Congress to declare by law what shall or shall not be evidence in a State court, and what domestic contracts made by the people of the States, in virtue of their own laws, and having no connection with the federal government, shall be valid or the contrary.” See to same effect Craig v. Dimock, 47 Ill. 308; Wallace v. Craven, 34 Ind. 534; Duffy v. Hobson, 40 Cal. 240; Richardson v. Roberts, 195 Ill. 27; Small v. Slocumb, 112 Ga. 279, and cases there cited. These decisions, both as to the admissibility and validity of the unstamped instrument, are based on the want of authority in Congress to declare such instrument invalid or inadmissible except in courts of the United States, and therefore are not in point on the question whether a transfer of stock made in New York, on which the tax has not been paid as required by the statute of that state, can be sued on or proved in the courts of Illinois.

We think that as to the admissibility of an unstamped instrument, the rule is, that although a stamp be required by the revenue laws of a foreign state before a document can be received in evidence there, such document may nevertheless be admitted in evidence without the stamp in the country wherein the suit is brought. 1 Rob. Prac. 271, 319; Lambert v. Jones, 2 Patton & Heath, 144; Holman v. Johnson, 1 Cowp. 341; James v. Catherwood, 2 Dow. & Ry. 190, 16 E. C. L. 165; Wagner v. Jackson, 2 Russ. 351; Brown v. Thornton, 6 Adol. & El. 185, 38 E. C. L. 50; McFee v. Ins. Co., 2 McCord (S. C.) 508.

If Section 323 of the New York Act applies not to the validity of a transfer of stock when the tax is not paid, but only to the procedure, the plaintiff can maintain an action for the purchase price in this state, The section does not say that unless the tax is paid the transfer shall be void, but merely that no transfer of stock on which a tax is imposed by the act and not paid, “shall be made the basis of any action or legal proceedings, nor shall proof thereof be offered or received in evidence in any court in this state. ’ ’ It may be said that the words that no such transfer “shall be made the basis of any action or legal proceedings # * * in the courts of this state,” are equivalent to the words that, “no such transfer shall be valid;” but what we have to construe is not equivalent words, but the words we find in the statute. The statute of New York requiring transfers of stock to be taxed, is nothing more than a measure for raising revenue for the benefit of that state. As a means of securing the payment of the tax and for that purpose only, the payment of the tax is made a condition of the right to make such transfer the basis of a legal proceeding or offer evidence thereof in the courts of that State. To impose a like condition on the right to use the transfer here would be binding the courts of Illinois to enforce the payment of revenue to the State of New York, contrary to the settled doctrine that the courts of one state will not enforce the revenue laws of another. Fant v. Miller, 17 Gratt. (Va.) 47. This doctrine has been twice announced by the courts of New York. In Ludlow v. Renssalaer, 1 Johns. (N. Y.) 94, Livingston, J., said: “We do not sit here to enforce the revenue laws of another country.” In Skinner v. Tucker, 34 Barb. (N. Y.) 333, Ingraham, J., said: “It is not necessary to decide whether the contract on which this action was brought was void here for want of a stamp under the laws of Cuba. The case of Ludlow v. Benssalaer (1 Johns. 94) would sustain a recovery in our courts on the contract although not stamped. ’ ’

We cannot say that the plaintiff may not, on making proper proof, maintain the action, and therefore the prayer of plaintiff in error that the judgment be reversed and the cause not remanded will be denied.

To prove that plaintiff was the administrator of Ms deceased wife, appointed by a Surrogate of the County of New York, plaintiff introduced the following certificate:

“No. 17,941.
THE PEOPLE OF THE STATE OF NEW YORK To all to whom these presents shall come or may concern,
SEND GREETING:
Know Ye, That we, having inspected the Itecords of our Surrogates ’ Court in and for the. county of New York, do find that on the 24th day of July in the year one thousand nine hundred and eight, by said Court, Letters of Administration of the goods, chattels and credits of Lucy D. Cromley late of the' County of.New York, deceased, were granted unto James B. Cromley of the County of New York, and that it does not appear by said Records that said Letters have been revoked.
In Testimony Whereof, we have caused the Seal of the Surrogates’ Court of the County of New York to be hereunto affixed.
Witness, Hon. Abner C. Thomas, á Surrogate of our said county, in the City of New York, the 24th day of July in the year of our Lord one thousand nine hundred and eight.
Daniel J. Dowdney,
Clerk of the Surrogates’ Court.”

The document was not authenticated otherwise than by the signature of the clerk. Our statute provides that an administrator appointed in another state may maintain an action in any court in this state to enforce claims of the estate of the deceased; provided that such person shall produce a copy of the letters testamentary or of administration authenticated in the manner prescribed by the laws of Congress, etc. The certificate admitted over the objection did not comply with the Act, and for that reason was improperly admitted in evidence. In the absence of the statute the certificate of the clerk to the contents of a record in his office is not admissible. Wigmore Ev., sec. 1674; Angell v. Rosenbury, 12 Mich. 241; Bartlett v. Patton, 33 W. Va. 71.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Catherine E. Laib, Plaintiff in Error, v. Fraternal Reserve Life Association, Defendant in Error.
    Gen. No. 16,790.
    • 1. Insurance—contract. A pamphlet sent out by agents of an insurance company, making representations as to the plans upon which it insures, is to be regarded as part of the contract of insurance entered into upon the faith of the representations, and is to be considered in connection with the policy in determining what the contract was.
    2. Fraternal benefit societies—evidence. In an action by a beneficiary on a benefit certificate, where defendants contend that the certificate is subject to a deduction of one-half its face value, it is error to exclude a pamphlet offered in evidence by plaintiff to show that the agents of defendant had authority to issue the certificate payable in full.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed January 27, 1913.
    Donald Grover, for plaintiff in error; Francis J. Sullivan, of counsel.
    Robert H. Lovett and Millard R. Powers, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This action was brought in the Municipal Court by plaintiff in error, widow of G-us Laib, on a benefit certificate issued by the defendant in error, a fraternal beneficiary association organized under the laws of Illinois, to Gus Laib. After the evidence was heard the court directed a verdict for the defendant, denied plaintiff’s motion for a new trial, entered judgment on the verdict, and the plaintiff prosecutes this writ of error. The benefit certificate sued on is headed (in capital letters):

“RATE 1.60, CLASS B. CERTIFICATE, AMOUNT $1,000, AGE 38.”

It states that it is issued by defendant and witnesses that Gus Laib is a member of a certain Lodge of the Association; entitled to participate in the benefit fund in the maximum sum of one thousand dollars, to be paid to his wife, Catherine Laib. Gus Laib was thirty-eight years old when he joined the Association, and the rate for a benefit certificate of $1,000 as prescribed by section 37 of the Constitution was 95 cents.

Section 57 provides that, “the maximum sum named in each benefit certificate maturing by death within the first five years of the membership shall be scaled or diminished as follows, that is to say: If the certificate so mature within the first year of the membership, one-half of said maximum sum of face value be withheld from the beneficiaries and remain in the benefit fund.”

The contention of defendant in error is that under said section 57 one-half only of the one thousand dollars was payable, because death occurred during the first year. This sum was paid and received under an agreement that no right to recover the remaining $500 was thereby waived.

Section 87 is as follows:

“OTHER BENEFIT CERTIFICATES. The Board of Directors with the consent and approval of the Supreme president, Supreme secretary and Supreme attorney, may authorize the issuance by this association of benefit certificate, providing an indemnity for a term of years only; of benefit certificates not subject to scale or deduction for early deaths; or benefit certificates covering the joint lives of both husband and wife, and as to each of said benefit certificates, the Board of Directors may prescribe such terms, rates and conditions as may to said board appear just.”

Plaintiff offered in evidence a pamphlet of eight pages, purporting to be issued by the defendant Association, containing a list of its officers and directors and other matters relating to the Association. This pamphlet was delivered to Bus Laib by William Miller, a solicitor for the defendant, who also delivered to Laib his benefit certificate, and was found after Laib’s death with his certificate and receipts. Plaintiff called Miller as a witness and asked him whether said pamphlet was in general use by the Association; and also how many kinds of contracts were issued by defendant at the time the contract sued on was issued; and also if he knew what kind of a certificate was issued to Bus Laib; and also whether the rate stated in said pamphlet was the rate under which the certificate of Bus Laib was issued, and whether the card of rates set out in said pamphlet was the rate card of the defendant; but the court sustained defendant’s objections to all of said questions and to the admission of said pamphlet in evidence.

In Southern Mut. Life Ins. Co. v. Montague, 84 Ky. 653, it was held that where an insurance company sends out by its soliciting agents a pamphlet making representations as to the plans upon which it insures, such pamphlet is to be regarded as part of a contract of insurance entered into upon the faith of the representations contained therein, and is to be considered in connection with the .policy in determining what the contract was.

Section 37 of the Constitution provides that every “benefit member” admitted at the age of thirty-eight shall pay 95c. each month for $1,000 benefits. Section 57 provides for the scaling of the sum named in a benefit certificate if death occurs within five-, years. Section 87 provides that the directors may authorize the issuance of benefit certificates, “not subject to scale or deduction,” but the constitution or by-laws do not prescribe the rates to be paid for such certificates. The constitution only fixes the rates for certificates subject to scale or deductions, and the presumption would be, where a certificate was issued at the rate fixed by the constitution, that such certificate was subject to scale or deduction. But the rate charged by the defendant for the certificate issued to Laib was not the rate fixed by the constitution, but a much higher rate, $1.60 per $1,000 instead of 95c., and we think that the plaintiff might show, if she could, that the certificate issued to her husband was authorized to be issued by the directors of the defendant, pursuant to the authority conferred on them by section 87 of the constitution, and was payable in full without scaling or deductions.

We are clearly of the opinion that evidence tending to show that the defendant authorized its agents and solicitors to use such pamphlet in canvassing for new members, and any evidence tending to show that such pamphlet was issued by the defendant was admissible, and that on the evidence admitted, the pamphlet was admissible as evidence tending to show that the cértificate issued to Laib was payable in full, and that the court erred in sustaining defendant’s objections to the questions put to Miller and in excluding the pamphlet offered in evidence by the defendant.

For the errors indicated the judgment is reversed and the cause remanded.

jReversed and remanded.


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    Nellie Love, Defendant in Error, v. Modern Woodmen of America, Plaintiff in Error.
    Gen. No. 16,813.
    1. Fraternal benefit societies—relation between local and supreme camp. The relation of a local camp of a fraternal benefit society to the supreme camp is that of agency.
    2. Fraternal benefit societies—by-laws. In an action on a benefit certificate a provision of the by-laws that no officer of the society, nor any local officer, is permitted to waive any of the provisions of the by-laws, will be construed to refer to those provisions which entered into and formed a part of the contract of insurance, and not to the conditions which are to be performed in proving death of insured.
    3. Fraternal benefit societies—acts of local camp cleric. Where a local camp clerk, while representing the society as authorized in proving death of a member, denies that it is liable on the benefit certificate, such denial waives proofs of death notwithstanding the provision of the by-laws that no act of his shall waive any right of the society.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    Trumab Plantz, George G. Perrin and A. W. Fulton, for plaintiff in error.
    Kretzibger, Rooney & Kretzibger, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The plaintiff, defendant in error here, recovered a judgment for $1,000 against plaintiff in error on a benefit, certificate of the defendant payable to the plaintiff on the death of her husband, Nathan Love, a member of a local camp of the defendant society. The defenses on the trial were: that the action was prematurely brought; that Nathan Love died by his own hand, and that his death was caused by the intemperate use of intoxicating liquor. As to the defenses other than the first, it is sufficient to say that on the evidence the jury might properly find against the contentions of the defendant.

The defense that the action was prematurely brought presents questions of some difficulty. The benefit certificate provides that, “No action can or shall be maintained on this certificate until after the proofs of death and claimant’s right to benefits, as provided for in the By-laws of this Society, have been filed with the Head Clerk and passed upon by the Board of Directors, nor unless brought within eighteen months from the date of the death of the member, ’ ’ and there is a similar provision in the by-laws. No proofs of death were delivered to the head clerk of the society, nor were such proofs of death as are provided in the by-laws delivered to the clerk of the local camp; but plaintiff’s right to maintain the action without furnishing proofs of death is based on her claim that the defendant denied liability and thereby waived proofs of death.

Nathan Love died, January 15, 1910. January 19 plaintiff called at the office of Dowd, the Camp Clerk of Love’s camp, and Dowd gave her a set of blank proofs of death which he had received from the Head Clerk, and requested Mr. Harris to help her to fill out such blank proofs of death. Plaintiff testified that Dowd then told her that she would not get the insurance from the defendant because her husband had committed suicide. Dowd testified that he did not make any such statement to the plaintiff. It is conceded that denial of liability by an insurer waives proofs of death, but it is insisted first, that Dowd did not make the statement that plaintiff testified he made, and, second, that if he did, such statement would not waive proofs of loss because Dowd had no right or power to waive any provision of the by-laws.

"Whether he made the statement was a question of fact on which the verdict must, we think, be held conclusive.

The rule in this state is that the relation of a local camp of a fraternal benefit society to the supreme camp is that of agency. Jones v. Knights of Honor, 236 Ill. 113, and cases there cited. On the authority of Citizens’ Ins. Co. v. Stoddard, 197 Ill. 330, and Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179, and cases there cited, we hold that the provision of the by-laws that no officer of the society nor any local camp officer is authorized or permitted to waive any of the provisions of the by-laws “which relate to the contract between the member and the society,” and that no local camp nor any officer thereof, “shall have the right or power to waive any of the provisions of the by-laws,” refer to those provisions which entered into and formed a part of the contract of insurance, bnt have no reference to those conditions which are to be performed after death.

The by-laws provide that, “The Clerk of a local Camp is hereby made and declared to be the agent of such Camp, and not the agent of the Society, and no act or omission on his part shall have the effect of creating a liability on the part of this Society, or of waiving any right or immunity belonging to it. ’ ’

The by-laws further provide that the camp clerk shall report to the head clerk the death of a beneficial member, that on receipt of such a notice the head clerk shall send to the camp clerk blank proofs of death of the form prescribed by the directors, which the camp clerk shall deliver to the beneficiary. Dowd testified that when proofs of death were made out and delivered to him, he was supposed to send them to the head clerk. We think that the provision that no act of the camp clerk shall have the effect of waiving any right or immunity belonging to the society, refers to an act done in connection with the performance of his duty as clerk of the local camp, and not to acts done in connection with the performance of duties imposed on bfm by the society, in which he acts for and represents the society. In reporting the death of a memher, procuring blank proofs of death, delivering them to the beneficiary and forwarding such proofs when made out to the head clerk of the society, the local camp clerk acts for and represents the society and not the local camp, and we think that if in performing such duties he denies that the defendant is liable on the benefit certificate, Such denial waives proofs of death notwithstanding the provision of the by-laws that no act of his shall waive any right of the society.

The instructions of the court are subject to criticism, but we do not think that the judgment should be reversed by reason of anything stated in or omitted from the instructions.

We think the record is free from reversible error, and the judgment is affirmed.

Affirmed.


text:
    James C. Jensen, Defendant in Error, v. Wells & Company, Plaintiff in Error.
    Gen. No. 16,829.

      Corporations—when liable for fraud of servants. Where employees of a corporation advertised as a “Museum of Anatomy,” having “doctors and specialists in all kinds” of certain diseases, represented themselves as such physicians and specialists and fraudulently induced plaintiff to believe that he was suffering from a certain disease, thereby obtaining money from him for supposed treatment and medicine, and the corporation availed itself of such fraud and retained the benefit, the corporation is presumed by law to have authorized and ratified the acts of its servants and cannot claim immunity on the ground that the fraud was perpetrated by its servants and not by the corporation.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed,
    Opinion filed January 27, 1913.

      Samuels & Samuels, for plaintiff in error.
    John T. Donahoe, for defendant in error; Enoch Harpole, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class, for a tort, in the Municipal Court, brought by Jensen against Dr. Wells & Co., a corporation, the statement of plaintiff’s, claim was that the defendant, by its servants and employees, falsely and fraudulently represented to plaintiff that he .was afflicted with “partial paralysis of the seminal ducts, loss of semen;” that he paid defendant $425 for the treatment and cure of said alleged disease when in fact he was not afflicted with said disease.

The defendant maintained in Chicago a “Museum of Anatomy,” and therein distributed cards bearing the words, “Specialists, Diseases of Men Only.” On the window was the sign, “Dr. Wells & Co., Doctors and Specialists in all Kinds of Men’s Diseases.”

The plaintiff went to defendant’s place of business February 26, 1909, and was given a pamphlet purporting to have been published by defendant, entitled “Secrets of True Manhood,” in which was the statement, “We cure * * * all diseases and weaknesses of men due to evil habits, etc. * * * Call or write. Dr. Wells & Co.” Plaintiff called again at the Museum March 9, and was met by a man who said that he was Dr. F. P. Little, a doctor there, who wrote the name “F. P. Little” on one of defendant’s business cards and gave it to the plaintiff. He made an examination, told the plaintiff that he had partial paralysis of the seminal ducts and loss of semen, and said it would cost one hundred dollars to have it cured. Plaintiff paid Little $40 and March 23 and March 26 made two further payments of $30 each. April 14 defendant wrote plaintiff asking him, “to call on us before further prescribing in your case,” May 2 plaintiff again called at the museum and was met by a man calling himself “A. Slaughter,” who gave him one of defendant’s cards on which he wrote the name “A. Slaughter.” Slaughter told him that Little was on a vacation and he was there to take his place. He made an examination, told plaintiff he was in a pretty bad shape and wanted $150 to cure the condition in which he then was. The defendant sent ten parcels of medicine to plaintiff, each C. O. D. $6.50, which he received and paid for. Defendant again wrote plaintiff, asking him to call. He called November 26 and met a man whose name he did not know, who made an examination and told him that only “organic phosphates” would cure him, and that would cost him $175. Plaintiff paid him $100 on account and received from him a “consultation card,” on the back of which was noted the payment of $100. He was also given by the same man medicine, for which he paid him $12.50. Two days later he went back and was told by the same man that he did not believe in “organic phosphates” and was given a battery. Some days afterward plaintiff went to the museum and found another “doctor” there, who told him that the doctor whom he last saw had gone to Kansas City. The new doctor wanted to treat plaintiff, but he refused to permit him to do so. The defendant did not call Little, Slaughter or the doctor who treated the plaintiff in November, but produced an affidavit in support of a motion for a continuance, which stated that one Coates would testify that he was the physician in charge of the defendant company; that plaintiff presented himself for treatment March 21 and that at no time was there any such term used as is alleged in plaintiff’s statement of claim. Plaintiff admitted that Coates would so testify, but testified that he did not see any doctor by the name of Coates. Plaintiff called as witnesses two doctors, who testified that they examined the plaintiff in April or May, 1910, and from such examination believed that plaintiff did not suffer between March 7 and December 1, 1909, from paralysis of the seminal ducts and loss of semen.

We do not think that the court erred in admitting the letter signed “Dr. Wells & Co.” or evidence of the acts and statements of “doctors” Little and Slaughter and of the other two “doctors” who saw plaintiff in November at defendant’s place of business. The defendant held out to the public that it had at its museum, “doctors and specialists in all kinds of men’s diseases;” that it cured “by the best of medical ability” certain diseases; to plaintiff’s letters addressed to Little and Slaughter he received answers signed “Dr. Wells & Co.;” Little named the price of $100 for curing plaintiff; defendant put in evidence a letter of plaintiff dated March 25, addressed to Little, beginning as follows: “Inclosed find $30 balance due you as per agreement,” and plaintiff put in evidence a letter signed “Dr. Wells & Co.,” dated March 24, asking him to remit the balance of $30 due on his contract and a receipt for $30 for professional services, dated March 26, signed “Dr. Wells & Co., F. P. L.” Defendant also put in evidence the following letter of plaintiff dated May 4, addressed to A. Slaughter: “Inclosed find draft for $100 as per agreement,” and plaintiff put in evidence a letter dated May 7, signed Dr. Wells & Co., beginning as follows: “Tour letter with draft for $100 enclosed received.” '

We think that from the evidence the jury might properly find that Little made to plaintiff the statement that plaintiff testified he made, and that such statement was false and fraudulent and was relied on by the plaintiff; that the subsequent acts of the defendant and its employees were in pursuance of a plan to cheat and defraud plaintiff; that the defendant, having availed itself of the wrongful and fraudulent acts of its servants, the law presumes it authorized them; that the defendant cannot be permitted to enjoy the fruits of the fraud perpetrated by its servants without adopting all the instrumentalities employed by them, in perpetrating such fraud; that the defendant ratified the acts of its servants and retains the benefit of the transactions with the plaintiff, and cannot claim immunity on the ground that the fraud was perpetrated by its servants and not by the corporation.

We do not think that the language of counsel for the plaintiff in their arguments to the jury was such as to require a reversal of the judgment.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    Joseph Junk Brewing Company, Plaintiff in Error, v. Gustav Reich, Defendant in Error.
    Gen. No. 16,845.
    Landlobd and tenant—damages for breach of covenant of quiet enjoyment. Where a landlord commits a breach of his implied covenant for quiet enjoyment by entering the demised premises, taking out and boarding up the front of the building arid raising it, proof of loss of trade and daily receipts by the tenant in consequence thereof, where there is no evidence showing what profits he had previously made and thereby lost, is not sufficient to warrant a verdict for damages.
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed January 27, 1913.
    Horton, Wickett, Miller & Meier, for plaintiff in error.
    Stedman & Soelke, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff in error brought an action of the fourth class in the Municipal Court against defendant in error for $437.88 due from defendant to plaintiff for goods sold and delivered and for rent of certain premises by the plaintiff leased to and occupied by defendant. The amount of plaintiff’s claim is not controverted. Defendant filed “A statement of recoupment,” in which he alleged that the plaintiff inter-fered with his possession of the demised premises, whereby he sustained damages in the manner therein set forth. The jury returned a verdict for plaintiff for $1.00 damages, and to reverse a judgment on such verdict the plaintiff prosecutes this writ of error.

That the plaintiff committed a breach of its implied covenant for quiet enjoyment is not disputed. It-, entered on the demised premises during the term, took out the front of the building, boarded it up and raised it. The only evidence introduced by the defendant to show his damages was evidence to show that he had a saloon in the demised premises and served meals therein at the price of fifteen cents; that before plaintiff made the changes in the building he had about thirty-five for dinner and afterwards only ten or twelve; that before the changes were made his receipts were $25 to $30 per day, and afterwards $5 to $10.

If it be conceded that loss of profits could be shown as tending to show damages, still the evidence was insufficient, because there was no evidence to show what profits defendant made, nor even that he made any profits.

We think that the evidence was not sufficient to warrant or support the verdict, and that the court erred in denying plaintiff’s motion for a new trial.

For the error indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    August Torpe, Plaintiff in Error, v. Phillip Jahn, Defendant in Error.
    Gen. No. 16,865.
    1. Contracts—promise for benefit of another. Where defendant for a valuable consideration has promised another party to pay-plaintiff brokerage fees, the latter may maintain an aetioii thereon.
    2. Practice—parties in action on contract under seal for benefit of third party. Under the Practice Act an action, on a promise under seal may be brought in the name of the party for whose benefit the promise is made, though not a party to the instrument.
    3. Contracts—where no consideration between promisor and third person beneficiary, A valuable consideration for a promise between the principal parties to an undertaking is sufficient to support an action thereon by a third person who is the beneficiary.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed with judgment here.
    Opinion filed January 27, 1913.
    J. M. Camelon, for plaintiff in error.
    Aaron Heims and Richard A. Koch, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Defendant in error Jahn, as party of the first part, made a contract in writing’ under seal with Walter Meier, party of the second part, in which are the following provisions:

“Brokerage Fees to be paid as follows, to-wit:
Party of the first part to pay One Hundred and Seventy Five to August Torpe. Dollars ($175.00).
Party of the second part to pay to August Torpe One Hundred and fifty dollars ($150.00).”

Torpe paid $12.60 for the continuation of Jahn’s abstract. He brought an action of the fourth class in the Municipal Court to recover said sums of $175 and $12.60, the court gave him judgment for $12.60, and he prosecutes this writ of error.

There is in the record no evidence tending to show the terms of the employment of Torpe by Jahn.

In Dean v. Walker, 107 Ill. 540, 545, it was said: “It is a familiar rule, and one well sustained by authority, that where one person, for a valuable consideration, makes a promise to another for the benefit of a third person, such third person may maintain an action upon it.” The same rule is announced in Webster v. Fleming, 178 Ill. 40; Harts v. Emery, 184 Ill. 560; Hartman v. Pistorius, 248 Ill. 568; Brown v. Dyer, 7 Cush. (Mass.) 337, quoted with approval in Dean v. Walker, supra.

At common law the rule is that where the promise is made under seal and the action must be debt or covenant, then it must be brought in the name of the party to the instrument, but in Webster v. Fleming, 178 Ill. 140, and Harts v. Emery, 184 Ill. 560, it was held that under our Practice Act. the action may be brought in the name of the party for whose benefit the promise is made, although the contract is under seal and the language used in Harms v. McCormick, 132 Ill. 104, is criticised in Webster v. Fleming, supra. In Cobb v. Heron, 180 Ill. 49, 54, it is said: “Wherever the pleas raise the question of no consideration moving from the appellee for the undertaking of appellant, it is enough to say that privity or consideration between a promisor and a third person, who is a beneficiary, need hot exist to support the promise, provided there is a valuable consideration for the promise as between the principal parties to the undertaking. Dean v. Walker, 107 Ill. 540; Day v. Williams, 112 Ill. 91.”

We think that the plaintiff was entitled to recover from defendant the $175 the defendant by the terms of his contract with Meier promised to pay him. His right to recover $12.60 is not controverted.

The judgment will.therefore be reversed and judgment entered here for the plaintiff Torpe against the defendant Jahn for one hundred and eighty-seven dollars and sixty cents ($187.60) and his costs in this court.

Reversed with judgment here for the plaintiff.


text:
    Mary Paulzin, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,894.
    1. Carriers—evidence of negligence. Where plaintiff testified that while she was hoarding a car which was standing still the car was started and she was thrown off and injured, and her testimony was corroborated by one witness, and defendant’s conductor testified that when the car was started no one was attempting to board the same, and that he saw no one hurt, a verdict finding defendant guilty of negligence is justified by the evidence and must be held conclusive.
    2. Witnesses—when cross-examination unduly restricted. Where a trial court should have allowed greater latitude in cross-examination, when such limitation and restriction will not justify a reversal on that ground alone, the judgment is affirmed.
    Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    John E. Kehoe and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    J. W. Sutton, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The defendant company operates a street railway in State street, Chicago. Plaintiff recovered a judgment against it for $2,750 for personal injuries alleged to have been sustained by her through the negligence of defendant in starting a car, which had stopped at a street crossing to discharge and take on passengers, while plaintiff was endeavoring to get on said car, before she could get safely on the car, by means whereof she was thrown from the car and injured, etc.

The plaintiff testified that while the car was standing still at the usual place for receiving passengers she attempted to get on the car, that she put one foot on the step, took hold of the car with her right hand and held an umbrella and bag in her left; that while in this position, with one foot swinging, the car started and she was thrown off and injured. The testimony of a witness called by plaintiff, who testified that she saw the occurrence, tended to corroborate to some extent the testimony of the plaintiff. As to the occurrence the defendant called only the conductor, who testified that when he rang the bell and when the car started no one was attempting to get on it; that after the car started he went in the car and after the car had gone fifty or seventy-five feet some one on the rear platform called out, “Somebody fell;” that he then walked to the rear end of the car, but saw no one that seemed to be hurt or down, and so started his car, and did not learn that plaintiff claimed to have been hurt until three days afterward.

If plaintiff attempted to board the car while it was standing still and before any signal to start had been given,' and the car was started before she was safely and securely on the platform, the defendant company was negligent, and if by reason of such negligence the plaintiff was injured, the defendant is liable. If, after the signal to start was given and after the car started, the plaintiff attempted to board the car without the knowledge of the conductor, the defendant is not liable. We think that the question thus presented was one of fact on which the verdict must be held conclusive, and therefore that the contention of the appellant that the verdict is not justified by the evidence cannot be sustained.

We think the court should have allowed greater lat.itude to counsel for the defendant in the cross-examination of the plaintiff, but we cannot say that her cross-examination was so limited or restricted as to justify a reversal of the judgment on that ground.

As to the nature and extent of plaintiff’s injuries, the doctors called by the respective parties differ widely. We cannot say that the jury might not take as true the testimony of the plaintiff and her doctors, and if her injuries and the consequence resulting therefrom were such as their testimony tends to prove, the damages awarded by the jury cannot be held excessive.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Nellie Carlin, Administratrix, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 16,907.
    1. Limitations—amendment changing place where accident happens states new cause of action. Where a declaration in a personal injury action against a city alleges that the city negligently permitted a boiler to remain in “14th street,” an amended declaration containing the same allegations except that the place where the accident happened was changed from “14th street” to “14th place” states a new cause of action and is subject to a plea of limitations. Brown, J., specially concurring.
    2. Pleading—when order changing ruling is valid. That no exception was taken to an order sustaining a demurrer to a plea does not render void a subsequent order vacating the prior order and overruling the demurrer.
    3. Appeals and errors—exception to ruling on demurrer not necessary. The office of an exception at law is to preserve for review rulings of the trial court other than those appearing on the face of the common-law record, and no exception is necessary or even proper when a demurrer either is overruled or sustained.

      4. Pleading—ruling on demurrer may be changed. An order sustaining a demurrer to a plea does not pass beyond the control of the court with the close of the term, and the court has the power, when convinced that the ruling was erroneous, to set aside the order and overrule the demurrer, and the fact that the first order was made by another judge is of no consequence.
    Smith, P. J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    July 1, 1904, plaintiff in error brought an action of case in the Superior Court against defendant in error, the City of Chicago, to recover damages for the alleged wrongful death of Julius Hell, plaintiff’s intestate, June 7, 1904. On the same day plaintiff filed a declaration consisting of three counts. The first count alleged that the city had control of certain streets in Chicago and particularly of a street known as 14th street, more particularly at or near the plant of one Pickham, which was situated on said 14th street; that Pickham permitted a boiler or header pipe to be and remain in said 14th street in the vicinity of his plant, which place was managed and controlled by the city, and the city knew or should have known that said boiler, etc., was then and there at the place aforesaid, but carelessly, etc., permitted said boiler, etc., to be and remain on said 14th street at the place aforesaid, although knowing that said boiler, etc., was of an unsafe and dangerous character and liable to roll over; that while plaintiff’s intestate, a child six years old, was on said 14th street, exercising due care, etc., said boiler, etc., was caused to and did roll over on said Julius Hell, whereby he was killed.
    The second count alleges that Pickham had a certain plant, etc., situated on 14th street in the city of Chicago known as the Thomas F. Pickham Boiler Works; that the city was- in charge of 14th street, particularly at and near the said plant, etc., of Pickham on said 14th street; that at the time aforesaid there was a certain boiler, etc., which was liable to roll from one side to the other, which the city knew or should have known, and it was its duty to protect or support said boiler, etc., so that it would not roll; that said boiler, etc., had been in and upon said 14th street at the place aforesaid for a considerable length of time, as the city knew or should have known; that the city, well knowing the dangerous nature and condition of said boiler, etc., negligently, etc., failed to provide a protection or support for said boiler, etc., by reason whereof said boiler was caused to and did roll over on said Julius Hell and killed him.
    The third count alleges that June 7, 1904, Pickham was possessed of a certain plant, etc., situated on 14th street in Chicago, known as the Thomas F. Pickham Boiler Works; that the city had control of certain streets, and among others had charge of 14th street, particularly at and near the plant of Pickham on said 14th street; that there then was on 14th street a boiler, etc., which the city knew or should have known was unsafe and dangerous; that it was the duty of the city to guard and protect the same, etc., but the city negligently, etc., permitted said boiler to be on said street unguarded and unprotected, by reason whereof it fell or rolled on said Julius Hell and killed him.
    The declaration alleges that said Julius Hell left him surviving certain heirs at law and next of kin; that plaintiff is his administratrix, and has sustained damages, etc.
    The city demurred to the declaration, the demurrer was sustained April 28,1906, and leave given to plaintiff to amend May 1, 1906, plaintiff filed and amended declaration of three counts. The first count is the same as the original first count; the second as the original second count, and the third as the original third count, except that the allegations as to the places where the accident happened were changed in each count from “14th street” to “14th place.” The city filed a plea of not guilty and October 31, 1908, filed a plea of the statute of limitations to the amended declaration, alleging that the cause of action did not accrue to the plaintiff within one year before the filing of the amended declaration. To this plea the plaintiff demurred, and the demurrer was sustained November 6, 1908. The cause was then tried and a verdict returned which was set aside by the court.
    March 14, 1910, the court ordered that the order of November 6, 1908, sustaining plaintiff’s demurrer to the city’s plea of the statute of limitations be set aside and vacated, and that plaintiff’s demurrer to said plea be overruled. The plaintiff elected to stand by her demurrer, a judgment of nil capiat was entered and the plaintiff prosecutes this writ of error.
    Clarence S. Darrow and Francis S. Wilson, for plaintiff in error.
    Edward J. Brundage and Clyde L. Day, for defendant in error; Edward C. Fitch, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The question presented by the demurrer to the plea of the statute of limitations was one of law, viz: Whether the counts of the amended declaration introduced another and different cause of. action from that set up in those counts as originally filed. That question of law is to be determined by an inspection of the original and amended declarations.

In Gilmore v. City of Chicago, 224 Ill. 490, aff’g 125 Ill. App. 13, the negligence alleged in the original declaration and in an amended count filed within one year after the accident, was that the city negligently, etc., suffered a sidewalk on the “north side of 38th street at and near the intersection of 38th street with Princeton avenue and between Princeton and Shields avenues, etc.,” to be and remain in bad and unsafe condition, whereby, etc. Four years after the accident the plaintiff by leave of court amended the original declaration and the additional count by striking out the words “Princeton avenue” wherever the same therein occurred, and inserting in lieu thereof the words “Stewart avenue.” The defendant pleaded the statute of limitations and the court held that a cause of action was stated by the amended count other and different from that stated in the original and amended count; that the averment as to the place where the sidewalk was out of repair was material, and that an amended declaration, filed more than two years after his injury, which alleged that the sidewalk was out of repair at a different place than was averred in the original declaration, was subject to the plea of the statute of limitations. In the opinion of Mr. Chief Justice Scott in the Supreme Court and of Mr. Justice Brown in this court, the authorities are cited and examined and the case distinguished from Chicago City R. Co. v. McMeen, 206. Ill. 108, on which plaintiff in error relies in this case.

I am unable to perceive any ground on which it can be held that neglect to keep a sidewalk in repair at one place is not the same wrong as neglect to keep a sidewalk in repair at another place, and that neglect to keep one street free from a dangerous article or thing is the same wrong as neglect to keep another and different street free from such dangerous article or thing, and am therefore of the opinion that the demurrer of the plaintiff to the plea of the statute of limitations was properly overruled, and that the judgment should be affirmed.

The contention of plaintiff in error that because the defendant took no exception to the order of November 6, 1908, sustaining the demurrer to the plea of the statute of limitations, the order of March 14, 1910, vacating said order and overruling the demurrer was void, is without merit. The office of an exception at law is to preserve for review rulings of the trial court other than those appearing on the face of the common law record, and no exception is necessary or even proper when a demurrer is either overruled or sustained. Such an order does not pass beyond the control of the court with the close of the term, but the court has the power, and it is its duty when convinced that an erroneous ruling has been -made with reference to the sufficiency of a pleading or other like matter, to set aside the order and correct the error; and the fact that the first order was made by another judge is of no consequence whatever. Fort Dearborn Lodge v. Klein, 115 Ill. 177.

Mr. Justice Brown specially concurring: I concur in the decision of this cause with much doubt and some hesitation. Fully adhering to the doctrine declared by this court in City of Chicago v. Gilmore, 125 Ill. App. 13, and approved by the Supreme Court in the same case, 224 Ill. 490, I feel great doubt whether this case cannot be and should not be distinguished from it.

In determining to concur with Judge Baker in the affirmance of the judgment, I am mindful of the fact that if this cause should now reach the Supreme Court, the question presented by the present record will be soon finally settled, but that if the judgment should be reversed it would remain in the cause even after a trial below, possibly long, expensive and laborious, and very probably might still be brought to the ultimate tribunal.

The judgment of the Superior Court is affirmed.

Affirmed.

Me. Presiding Justice Smith dissenting.


text:
    Lydia M. Fluke, Appellee, v. Edwin A. Phelps et al., On Appeal of James H. Hooper, Appellants.
    Gen. No. 18,772.
    1. Appeals and errors—when assignment of error is necessary. On an appeal from a decree granting an injunction and appointing a receiver, an assignment of error in appointing the receiver does not bring the restraining order before the court for review.
    2. Receivers—hand. It is error to appoint a receiver without requiring a bond by the complainant, unless the order of appointment contains a statement or finding that a receiver ought to be appointed without such bond.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed in part and reversed in part.
    Opinion filed January 27, 1913.
    Appellee filed in the Superior Court her amended bill for the partition of certain real estate which she alleged she and the defendants other than Hooper and Adair owned as tenants in common. The bill alleged that their title to a part of said real estate came to them as the heirs at law of Clarissa Spaulding, deceased. The bill further alleged that Braden had in his possession three instruments in writing purporting to be warranty deeds executed by Clarissa Spaulding, conveying to him portions of said real estate; that Hooper had in his possession a warranty deed purporting to be made by said Clarissa Spaulding, conveying to him portions of said real estate, and warranty deeds purporting to be made by said Adair, conveying to him certain portions of said real estate; that said three deeds to Adair were fraudulent and void for reasons stated in said amended bill and the deed from Clarissa Spaulding to Hooper was void for reasons stated in said amended bill. The bill prayed for an injunction or order restraining Hooper and Adair from making or recording any instrument in writing in relation to said real estate, and that a receiver of the rents, etc., be appointed. July 1, 1912, the court on notice and after a hearing, at which , Hooper introduced evidence, ordered that Hooper and Adair be restrained from making, delivering or recording any deed or contract in writing relating to said real estate, and that Jesse Wilcox be appointed receiver to take charge of and collect the rents of said property. From this order Hooper prosecutes this appeal.
    Edward F. Comstock and Charles C. Spencer, for appellee.
    Appellant, James H. Hooper, pro se.

   Mr. Justice Baker

delivered the opinion of the court.

The following is the only assignment of error:

“The court erred in entering said decree or order because it did not require complainant, first, to give bond as required by sec. 53, chap. 22, of Hurd’s Revised Statutes, and complainant did not file such a bond.”

This assignment does not bring before us for review the restraining order, but only the order appointing a receiver.

The statute, section 22, chap. 52, R. S., provides that before any receiver shall be appointed, the party making the application shall give bond to the adverse party in such penalty as the court or judge may order, and with security to be approved by the court or judge, conditioned to pay all damages, including attorney’s fees, sustained by reason of the appointment and acts of such receiver. It also provides that bond need not be required when, for good cause shown, and upon notice and full hearing, the court is of the opinion that a receiver ought to be appointed without such bond. The order appointing a receiver does not in terms dispense with the requirement of the statute that the receiver give a bond to the complainant. In Watson v. Cudney, 144 Ill. 624; Staar v. Moy Tong Koon, 145 Ill. App. 341; Ayres v. Graham S. S. Coal & Lumber Co., 150 Ill. App. 137; Aevermann v. Rizek, 160 Ill. App. 648, and Mason v. Hooper, 166 Ill. App. 537, it was held to be error to appoint a receiver without a bond by complainant unless the order of appointment contained a statement or finding that a receiver ought to" be appointed without such bond. We see no reason to alter or modify the views expressed in the cases above cited.

We think that the record shows sufficient grounds for the appointment of a receiver, but if one is appointed the court should require the moving party to give bond as provided by the statute, unless in the opinion of the court a receiver ought to be appointed without such bond, and in that case the order of appointment should so state.

The order appointing a receiver is reversed and the restraining order appealed from is affirmed.

Affirmed in part and reversed in part.


author: Mr. Justice Barnes

text:
    Tully B. Strayer v. David Gillespie for use of George Cosmen, Appellee. On Appeal of Fred I. Gillick, Appellant.
    Gen. No. 17,866.
    Appeals and errors—dona. An appeal must be dismissed where defendant was allowed an appeal but no appeal bond was filed by him and the bond in the record was given by one not a party to the suit and runs to defendant.
    Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Appeal dismissed.
    Opinion filed January 28, 1913.

      E. Leslie Cole, for appellant.
    Robert B. Davies, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Judgment in this case was rendered against the defendant, Gillespie, as garnishee in a garnishment proceeding. An appeal was prayed by him and allowed. No appeal bond was filed by him, but a bond appears in the record given by the wrong party and to the wrong party. The bond is by one Gilliek, not a party to -the suit, and runs to Gillespie against whom judgment was given. Manifestly the appeal not having been taken by the party to whom the right was given it must be dismissed. Propeller Niagara v. Martin, 42 Ill. 106; Tedrick v. Wells, 152 Ill. 214; Union Nat. Bank of Chicago v. Barth, 179 Ill. 83.

Appeal dismissed.


text:
    Dumont Love, Appellee, v. Herman E. Dick and Howard H. Gross, Appellants.
    Gen. No. 17,872.
    1. Appeals and errors—sufficiency of abstract. An assignment of error that the verdict is against the weight of the evidence will not be considered where only part of the testimony and almost none of the exhibits are abstracted and the abstract presents no adequate idea of the character and nature of the evidence relied on and refers to no objection taken.
    2. Appeals and errors—abstract of instruments. An instrument is not abstracted where a mere reference is made to it in the abstract.
    3. Appeals and errors—abstracts. Errors relied on for reversal must appear by the abstract, and the Appellate Court will not search the record for grounds of reversal to give proper consideration to errors assigned.

      4. Appeals and errors—sufficiency of abstract. Judgment may be affirmed on appeal where the rule requiring the abstract to be sufficient to fully present every error and exception relied on is not complied with.
    Appeal from the Circuit Court of Cook county; the Hon. Wm. Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.
    John T. Evans, for appellants.
    No appearance for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Only one of the assignments of error is argued in appellant’s brief, and for want of a sufficient abstract, neither it nor the others can be considered, even were we disposed to consider those not argued. The one argued is that the verdict is against the weight of the evidence. Only part of the testimony covering nearly 600 pages, and practically none of the exhibits, covering nearly 100 pages, and certified here for inspection, are abstracted. Matters that must necessarily be relied upon to support said assignments of error are not abstracted, and in some instances not even referred to. As prepared the abstract presents no adequate idea of the character and nature of the evidence relied on in support of the assignment argued. It refers to no objection taken, contains only one of the given and one of the refused instructions, and makes no reference to what evidence was improperly received or rejected.

As a condition to review evidence relied on must be abstracted (Arnold v. Gehring, 76 Ill. App. 486; Rousseau v. Poitras, 62 Ill. App. 103) and the exhibits also (Rehfuss v. Hill, 243 Ill. 140; Thornton v. Muus, 120 Ill. App. 422) and should be so fully or fairly abstracted as to obviate the necessity for inspection of the record by court or counsel. York v. Scott, 140 Ill. App. 178. Merely referring to an instrument, as is done with regard to much of the evidence is not making an abstract of it. Gilbert v. Coons, 37 Ill. App. 448.

Where a party seeks to have a judgment reversed the errors must be made to appear by the abstract. Gage v. City of Chicago, 211 Ill. 109. To give proper consideration to any one of the errors assigned would require this court to search the record for grounds of reversal. This it will not do. Gage v. City of Chicago, supra; Gibler v. City of Mattoon, 167 Ill. 18.

The rule requiring the abstract to be sufficient to fully present every error and exception relied on is not complied with, and the judgment will accordingly be affirmed.

Affirmed.