text:
    Lewis Ross Miller et al., Trustees, et al., Appellees, v. J. Marcus Miller, Appellant.
    1. Wills, § 61

      —when not uncertain. Will construed as certain, definite, capable of being enforced and valid, and not as uncertain and invalid because of the fact that all of the interest of the children of a designated son might be consumed by the son as a result of payments made to him for his support during his incapacity or sickness as provided for in the will.
    2. Wills, § 434*—costs in actions to construe. Costs occasioned in construing a part of a will should be taxed against the undivided portion of a trust fund in which one beneficiary is interested, where the other beneficiaries have no interest in the construction of the particular provisions involved.
    Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Elting & Hainline, for appellant.
    Flack & Lawyer, Vose & Creel, Charles H. Burton and T. J. Sparks, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This is an appeal from the decree of the Circuit Court construing the bill of John W. Miller, who died October 6,1908. The testator left surviving him, Dilcy C. Miller, his widow, Lewis Boss Miller, William Price Miller, Mary E. Greenup, Jenarie M. Cassidy and J. Marcus Miller, his children. Ward Miller, Louisa Norris, Walter Miller, Vance Miller, Grace Miller Bauer, Orville Miller, James Marcus Miller, Jr., and Nellie Miller are the children of appellant, J. Marcus Miller. The bill was filed by the executors and trustees named under the will to construe the fourth and sixth clauses thereof.

The fourth and sixth clauses of the will are as follows :

“Fourth: I have already given to my son, Lewis Boss Miller, the sum of $500.00; to Mary E. Greenup, $700.00; to Jenarie M. Cassidy, $700.00; to William Price Miller, $500.00, and to J. Marcus Miller, $1,015.97, which said amounts were given to them as advancements, and which said amounts shall be charged against them so that the said children may be equal before any division is made of any personal property, or the proceeds of any real estate, and I direct that my executors, as soon after my decease as practicable, pay to said children a sufficient sum to make them equal, and that the balance of my estate be divided equally among my said five children, William Price Miller, Lewis Boss Miller, J ames Marcus Miller, Mary Ellen Greenup and Jenarie M. Cassidy, the undivided one-fifth interest in and to the proceeds of my estate which remains after deducting the debts, funeral expenses, widow’s bequest and the equalization, above mentioned, to be paid to them, as hereinafter provided, except that portion devised to my said son, J. Marcus Miller, which said one-fifth interest, so devised and bequeathed to my said son, J. Marcus Miller, shall be held by my executors, hereinafter named, during the lifetime of the said J. Marcus Miller, but in case he should become unable to support himself, then the said executors shall use such portion of his interest in said estate as shall be necessary for his support during said incapacity or sickness, and at his death, said executors shall divide the remainder of the portion, so belonging to my said son, J. Marcus Miller, equally among his children, as they become of lawful age.”
“Sixth. I give, devise and bequeath to Diley C. Miller, William Price Miller, Lewis Boss Miller and Albert Greenup, my executors, hereinafter named and appointed, all my real and personal property and estate of whatsoever kind and nature, in trust for the execution of this will. I give to them, or the survivor of them, full power and authority to dispose of same, at public or private sale, at such time and place and upon such terms and in such manner as to them shall seem proper. And I will and ordain that my said executors, hereinafter named, shall allow and permit my said son, William Price Miller, to have the use of the farm that he is now farming as long as his mother lives, if he desires to stay, on the same terms that he now rents the same, to-wit: one-half of everything raised on the farm and one-half interest in the stock and farming implements on the farm, my said executors to pay the taxes on the land, and the said executors to pay one-half of the personal taxes, and my said son the remaining one-half, and at the death,of my said wife that said executors at once sell all of said property, either at public or private sale, as to them shall seem best for said estate, and I do hereby give full power and authority to my said executors, or the survivors, to grant, bargain, sell and convey, all of said land above described, and that from the proceeds thereof said executors shall pay to my said children, to each, the undivided one-fifth part thereof, at the time of said sale, to hold in fee simple forever, except the interest of the said J. Marcus Miller, which shall be held as above provided.”

J. Marcus Miller filed a third amended cross-bill praying that the fourth clause be construed to give him an undivided one-fifth interest of said estate absolutely on the ground that the trust attempted to be asserted is uncertain, indefinite, incapable of being enforced, and void; that the intention of the testator is that the body of the trust,' attempted to be created for the benefit of his children, may be used by him in his lifetime and that by reason thereof it is uncertain that there will be any remainder of said trust fund at his death, for which reason the attempted trust is incapable of being enforced.

The decree finds that the fourth clause is clear and unambiguous, and creates a trust whereby the one-fifth part of said estate shall be held in trust by the executors of the will as trustees during the life of J. Marcus Miller, unless he shall become unable to support himself, in which event the said executors shall use such portions of said trust as shall be necessary for his support during such incapacity or sickness only, and at his death the remainder of said trust fund shall be divided equally among his children; that no part of said one-fifth interest so held in trust shall be paid to said J. Marcus Miller in fee, but only such amounts shall be paid to him during his incapacity and sickness as shall be necessary for his support during such time, and that he is not entitled to the income of said-trust fund during his lifetime.

Appellant relies upon the cases of Mills v. Newberry, 112 Ill. 123, and Wilce v. Van Anden, 248 Ill. 358, to sustain his position. While it is true that the language used in those cases might imply that such a distribution of property, on account of the uncertainty as to whether there would be any part of the trust fund remaining at the time of the death of the legatee, is void, yet in the later case of Burke v. Burke, 259 Ill. 262, both these cases were very thoroughly analyzed and it was held:

“The proposition upon which Mills v. Newberry was decided (and the same applies to Wilce v. Van Anden), was, not that the possible exhaustion of the fund by its application to prior demands upon it before its application to the purposes of the trust renders the subject-matter of the trust uncertain, but that there is no fund which can be the subject-matter of a trust where its application to the purposes of the trust depends upon the absolute and unconditional discretion of the person in control of the fund. In such case there is nothing which a court of equity can lay hold of,—nothing binding on the conscience. The chancellor cannot direct what disposition one shall make of property which is given to him to dispose of as he chooses. This was the character of both the cases cited and of the authorities on which the opinions in those cases rely. Wherever a clear discretion or choice to act or not to act is given; wherever the prior dispositions of the property import absolute and uncontrollable' ownership; wherever the trustees have an option to withdraw the funds from the purposes of the trust and apply them in their own discretion, the court cannot execute such a trust. This was the character of both the cases cited. The rule laid down in them goes to this extent and no farther and is amply sustained by the numerous authorities cited. ’ ’

The present case is unlike either the case of Mills v. Newberry or Wilce v. Anden, supra, because the prior disposition of the property does not import an absolute and uncontrollable ownership, nor have the trustees an option to withdraw the funds from the purposes of the trust and apply them in their discretion. Every purpose under the trust created is certain and unambiguous.

In the Burke case, supra, the fifth and sixth provisions of the will there under consideration, devised and bequeathed unto the wife of the testator the lands and income from all the real estate so long as she might live, she to have the right to occupy or lease the same, but in case at any time she should deem it necessary to sell the same or any part thereof, in order to supply herself with the comforts and necessities of life, she was given full power so to do and convey the same as her own, and provided that upon her death the real estate remaining be sold and $500 of the proceeds be given to St. Mary’s Catholic parish of Sterling to be used for the perpetual care of a burial lot, and the balance to be given to said parish for the erection or support of a school" to be erected or maintained in said city. The contention was made in that case, as in this, that the devise to the parish for the erection and support of a school depended upon such an uncertain event as to whether there would be any property remaining upon the death of the widow, that it was void for that reason. The court held in passing upon this" question:

“There is no uncertainty about the subject-matter of the trust. It is all the real estate of the testator after the termination of the life estate of Margaret Burke, his widow. The whole estate may be defeated by the exercise of the power of Mrs. Burke in accordance with its conditions, but the estate is a vested estate in remainder, and a court of equity can and will protect the estate, if necessary, and enforce the trust. ’ ’

In that case, also, the remaining real estate was directed to be sold and the proceeds thereof given to the parish, and it was held that it was a gift of persona], property. "We can see no distinction between the facts controlling the principle of law announced in the Burke case and the facts in this case. In this case there is an ultimate possibility that the trust fund may become exhausted and that the children of appellant may thereby take nothing under the will, but their interest in the trust fund is vested, subject to be defeated only by the contingency that it be exhausted in the support of appellant through his incapacity or illness, and is a trust which the court will protect.

There is no direction in the will to the trustees to pay the income of the trust fund to appellant. The will does not even provide that this trust fund shall be invested or that any income shall be accumulated. The intention of the testator as expressed by the will in our opinion is clear and unambiguous and the decree is correct in its construction thereof.

The only other error presented is that the decree provides that the costs occasioned in construing the will be taxed against that undivided one-fifth portion of the estate representing the trust fund in question, whereas it is claimed they should have been taxed against the whole estate. The case of Arnold v. Alden, 173 Ill. 229, is cited as sustaining this contention. In our opinion it does not so hold. In that case the fourth clause of the will created a trust for certain purposes and a bill was filed for a construction thereof. By the terms of the decree, the fee of the guardian ad litem was charged against the fund belonging to some of the minor legatees, and the court directed that all the costs, including the fee of the guardian ad litem, be paid out of the trust fund of the estate. We see no equitable reason why the other beneficiaries under this will, who have no interest in the construction of the particular part of the will here involved, should be made to bear a portion of the expense thereof. The decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    U. G. Fowler, Appellant, v. W. A. Lachenmyer and Bertha A. Lachenmyer, Appellees.
    1. Witnesses, § 227

      —wliat cross-examination proper. It is proper cross-examination in an action upon a promissory note the declaration consisting of a narr and cognovit and common counts and in which the pleas of general issue, non est factum and failure of consideration are filed, for the defendant’s attorney to ask the defendant—after he has been called by the plaintiff to testify as to the signature and delivery of the note—as to what signatures of other persons were on the note when he delivered it and whether other signatures were placed thereon after delivery, without his consent and knowledge, especially where such facts, if clearly proven, would defeat a recovery on the .note, except under the common counts.
    2. Alteration oe instruments, § 4

      —when adding of signatures tars recovery. When a note is' altered after the delivery to the payee by the addition of two signatures without the knowledge and consent of the original maker, there can be no recovery against the original maker on a declaration consisting of a narr and cognovit, the defendant interposing pleas of the general issue, non est factum and failure of consideration;
    3. Assumpsit, action op, § 37*—when recovery of consideration of altered note may he had on common counts. A recovery of the original consideration under the common counts consolidated with bill of particulars attached may be had against the original maker where a promissory note which has been materially altered after delivery by the addition of two signatures without the knowledge and consent of the original maker, the common counts with bill of particulars attached having been filed after judgment against all the defendants, the suit originally being against all defendants jointly, -and the judgment having been vacated as against such maker.
    Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Walter B. Riley and Rearick & Meeks, for appellant.
    Acton & Acton and Green & Palmer, for appellees; Obis Barth, of counsel.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number»

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the court.

In a land deal, W. A. Lachenmyer and Bertha A. Lachenmyer (his wife), the appellees, executed and delivered to U. G. Fowler, the appellant, a promissory note for $15,000, the purported consideration of which was $10,000, balance due on payment for the land and $5,000 for money loaned. After the delivery of the note by the appellees to the appellant, the names of A. E. Scott and J. E. Sunderland were put upon the note, but by whom or why the record does not disclose. The note contained a power to confess judgment, and on July 15, 1913, in the Circuit Court of Champaign county, in vacation, a judgment by confession was entered upon the note against the appellees and A. E. Scott and J. E. Sunderland for $15,230 and costs. On August 20, 1913, in vacation, the appellees presented to the judge of the court a motion supported by affidavit to stay execution and to open the judgment, and for leave to plead. On a hearing the motion was allowed and the judgment vacated as to the appellees, W. A. Lachenmyer and Bertha A. Lachenmyer, and leave to plead granted. The declaration as originally filed consisted of a narr and cognovit on a promissory note for $150,000 against appellees and A. E. Scott and J. E. Sunderland. After the judgment was vacated, appellant, by leave of court, filed an additional count, the common counts consolidated, with bill of particulars attached, against appellees W. A. Lachenmyer and Bertha A. Lachenmyer only. The appellees filed three pleas, the general issue, non est factum and failure of consideration. The cause was tried before a jury, and at the close of the plaintiff’s evidence the court instructed the jury to find the issues for the appellees. Judgment was entered upon the verdict in favor of the appellees and against the appellant for costs and in bar of the action. On the trial, appellee W. A. Lachenmyer was placed on the stand by appellant to prove his signature to the note, and on cross-examination, over objection of appellant, was allowed to testify that when the note was signed and delivered by him to appellant only his signature and that of his wife were on the note and that the signatures of Scott and Sunderland were placed thereon after the delivery and without knowledge and consent of himself. This was proper cross-examination. By thus proving the signature appellant opened the door to this cross-examination, showing the appearance and condition of the note when these parties signed it. It was legitimate cross-examination germane to the subject-matter of the examination. Yost v. Minneapolis Harvester Works, 41 Ill. App. 556. The court held that the note was fraudulently altered, and refused to admit it in the evidence. The alteration was material and therefore no recovery could be had upon the note, but the alteration was not detrimental to the interests of appellee and therefore was not prima facie fraudulent, and a right of recovery remained for the original consideration under the common counts if proven. It was not proven in this case, except against W. A. Lachenmyer. The suit as originally filed was against all four parties jointly, and the original consideration could not be recovered against any one but W. A. Lachenmyer. No recovery can be had against Bertha A. Lachenmyer on the original' consideration. The common counts consolidated were against appellees, W. A. Lachenmyer and Bertha A. Lachenmyer. No recovery could be had against W. A. Lachenmyer under that count, as no recovery could be had except on the original consideration, and that against W. A. Lachenmyer only. The parties having been sued jointly there could be no recovery under the pleadings against any of them for the original consideration. The court properly took the case from the jury and the judgment is therefore affirmed.

Affirmed.


text:
    Arthur W. Ferreira, by John H. Ferreira, Defendant in Error, v. Isaac R. Diller, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied, opinion modified and filed May 26, 1915.
    Affirmed on remittitur.
    Opinion filed April 16, 1915.
    Statement of the Case.
    An action on the case by Arthur W. Ferreira, by his next friend, John H. Ferreira, against Isaac ft. Diller to recover damages for personal injuries sustained by the plaintiff when run over by an automobile operated by the defendant. From a judgment in favor' of the plaintiff for $4,000, the defendant prosecutes a writ of error.
    This cause has been tried three times, this being the second appeal to this court. The facts are fully stated in the opinion filed at the former hearing. (See Ferreira v. Diller, 176 Ill. App. 447.)
    A demurrer was sustained to the third, fourth and fifth counts of the declaration and leave was given plaintiff to amend. He amended the third and fourth counts, by erasing certain lines, and the fifth count by changing the word “or” to “and” on the copy of the original declaration, and not on the original amended declaration. The copy as amended was then refiled and the plaintiff in error then filed a plea of general issue. The plaintiff in error insists that as the fifth count was held bad on demurrer and was not amended, and as the original amended declaration was not refiled, it was error for the court to submit the case to the jury.
    The evidence of all the disinterested witnesses tended to show the boy was not nearly as badly injured as he thought he was.

      Abstract of the Decision.
    1. Pleading, § 237

      —when amendment made on copy of declaration sufficient. Where amendments to a count of a declaration were made with leave of court after the sustaining of a demurrer, on a copy of the declaration and not on the original, and the copy was refiled, the defendant cannot object after verdict that the amended count should not have been submitted to the jury, where he pleaded thereto and went to trial without requesting that it be excluded.
    2. Damages, § 115*—when damages for temporary injury to hoy excessive. Where a verdict was returned in favor of a boy for $4,000 for temporary injuries sustained by being struck by an automobile, held that the defendant would be granted a new trial unless $1,500 was remitted by the plaintiff.
    Robert H. Patton and Patton & Patton, for plaintiff in error.
    Thomas L. Jarrett and Graham & Graham, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. John McDonald, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Plaintiff in error, John McDonald, was convicted oh sixteen counts of an indictment charging him with a violation of the statute prohibiting the sale of intoxicating liquor not in the original package outside the incorporated limits of any city, town or village, in less quantities than five gallons, in violation of the “Five Gallon Law,” sec. 16, ch. 43, page 1023, Hurd’s Rev. St., 1913 (J. & A. ft 4619). A motion to quash the indictment was overruled. Judgment was entered on the verdict and the penalty fixed at fifty dollars on each count, and thirty days in jail on each of the first ten counts, the jail sentence to run consecutively, the second beginning at the end of the first and continuing until the entire time of three hundred days was served out. From such conviction, the defendant appeals.
    Each count of the indictment averred that in the county of Christian the plaintiff in error, on, etc., “not then and there having a legal license to keep a dram-shop, unlawfully did then and there sell intoxicating liquor in. less quantities than five gallons, and not in the original-package as put up by the manufacturers, the said place where said intoxicating liquors were so sold not being within the incorporated limits of any city, town or village, contrary,” etc. The defendant contended that the indictment was double and that it charged him with keeping a dramshop without a license, and with selling liquor contrary to the “Five Gallon Act,” for which different penalties were provided.

      Abstract of the Decision.
    1. Intoxicating liquors, § 119

      —when single offense charged in indictment. But a single offense is charged by an indictment alleging that the defendant, in the county of Christian on a certain day, “not then and there having a legal license to keep a dramshop, unlawfully did [in violation of sec. 16, ch. 43, Hurd’s Rev. St., J. & A H 4619] then and there sell intoxicating liquor in less quantities than five gallons, and not in the original package as put up by the manufacturers, the said place where said intoxicating liquors were so sold not being within the incorporated limits of any city, town or village.”
    2. Intoxicating liquors, § 161*—when cumulative sentence to imprisonment not excessive. A cumulative sentence to imprisonment for three hundred days on a conviction on ten counts for violating sec. 16, of ch. 43, Hurd’s Rev. St. (J. & A. f 4619), by selling without a license intoxicating liquor not in the original packages, in quantities of less than five gallons, outside of the in- ' corporated limits of any city, town or village, held not excessive.
    John E. Hogan, for plaintiff in error.
    Harry B. Hershey and W. B. McBride, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the

court.


text:
    Thomas A. Mulchay, Plaintiff in Error, v. John Cullinan, Defendant in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    ■ Action of assumpsit brought by Thomas A. Mulchay, a real estate broker, against John Cullinan to recover a commission for procuring a purchaser for real estate under an alleged verbal contract. From a verdict and judgment for the defendant, the plaintiff appeals.
    The plaintiff claimed that he was employed by the defendant to and did procure a purchaser for the defendant’s farm, and that the deal having been closed with the latter that the plaintiff was entitled to a commission of two dollars per acre as promised by the defendant.
    The defendant contended that he did not employ any agent and did not engage the services of the plaintiff ; that the plaintiff did not act for him, did not render him any service, and was not the procuring cause of the trade on behalf of the defendant, but was the agent of and acted for the purchaser in the transaction, and was to receive his compensation from him. The weight, of the evidence showed that the purchaser and the defendant were negotiating for the exchange of their respective farms before the plaintiff appeared on the scene, and that the purchaser had made his offer to defendant before the plaintiff claimed his contract was made with defendant.
    W. B. Cooney, for plaintiff in error.

      Abstract of the Decision.
    1. Brokers, § 88*—when evidence sufficient to, sustain verdict for defendant in action for commissions. The evidence in an action by a broker for commissions for procuring a purchaser for property, held sufficient to sustain a verdict for the defendant on the ground that he did not employ the plaintiff.
    , 2. Appeal and error, § 1421*—tohen judgment doing substantial justice not .reversed for technical errors. A judgment will not be reversed for technical errors in the admission of evidence or the instructions given, where the manifest weight of the evidence on the merits sustains the verdict.
    J. M. Powers and W. A. Potts, for defendant in error.
   Mr. Justice Scholfield

delivered the opinion of the court.


author: Mr. Justice Scholmeld

text:
    D. R. Stubblefield et al., Appellants, v. American Surety Company et al., Appellees.
    1. Pleading, § 220

      —when overruling demurrer to plea prevents raising same questions on replication. The fact that a demurrer was overruled to a plea in an action on a contractor’s bond, alleging that suit was not begun within the time stipulated therefor in the instrument, does no.t prevent the same question being raised on a demurrer to a replication to such plea.
    ' 2. Building and construction contracts, § 73*—when stipulation as to time for action on bond deemed waived. A provision of a contractor’s bond that suit thereon should be brought on or before February 1, 1913, held waived by the conduct of the principal and surety in stipulating in writing with the obligee for an- extension of time until such date in which to complete a building.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin, D. Myers, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed April 16, 1915.
    Livingston & Bach and Barry & Morrissey, for appellants.
    Rayburh & Buck, for appellee, American Surety Company.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholmeld

delivered the opinion of the court.

This is an action of debt brought by appellants against appellee and one E. F. Wilson on a surety bond given for the performance of a building contract. The bond provides that no suit, action or proceeding by reason of any default shall be brought against the principal or surety, nor shall recovery be had for any damages accruing after the first day of February, 1913; that service of writ or process commencing any such suit, action or proceeding shall not be made after that date; that the principal shall be made a party to any such suit, action or proceeding against the surety and served with process commencing the same if within the State when such suit, action or proceeding is brought. Attached to said bond and made a part thereof is the building contract which provides that work comprehended under said contract should be completed by November 30, 1912, and provides that payments to the extent of eighty-five per cent, of the completed work shall be paid on the certificate of the architect; that owners may withhold sufficient moneys to indemnify them against liens, and that contractor shall refund to owners all moneys that owners may be compelled to pay in discharging any lien accruing through contractor’s fault.

The work was not completed in the time specified in the contract. The surety company was notified of the default of the principal, as required by said bond. The surety company thereupon sent Mr. Jenks, its resident vice-president, to confer with appellants regarding such default. Said resident vice-president prepared an instrument in writing which purported to have originated with the architect and with appellants, which said writing is in the words and figures following, viz.:

“Bloomington, III., Dec. 20, 1912. Mr. E. F. Wilson,
Bloomington, 111.
Dear Sir :
I am authorized by the building committee of the Union Church, Covel, Ulinois, to inform you that upon presentation to us of the written consent of the American Surety Company, surety on your bond dated the 28th day of August, 1912, to cover your contract of July 2, 1912, for alteration and additions in the church building owned by the congregation. That the committee will weekly pay your bills for labor, including car fare for laborers not to exceed twenty-four cents per day each, and teaming, actually performed in pursuance of the contract. Your time sheet will be accepted as evidence of the amounts due. You should present us each week with vouchers from each laborer and teamster for the amounts actually paid for the preceding week.
“All sums now due, or hereafter to become due, on the contract in addition to or in excess of amounts paid for labor as above outlined, will be applied to material bills outstanding at the time of the completion of the contract. The excess, if any due, then to be turned over to you.
“All the above is conditioned upon your prosecuting the work as rapidly as conditions will permit; and it is understood that you will have a competent foreman in charge of operations and constantly on the ground,— his cluty shall be to see that the men under him shall perform the work, and if there is any doubt, immediately consult with the architect.
“A copy of this letter is being furnished to M L. Jenks, manager of the American Surety Company at Chicago, 111. Kindly send us your written acceptance of this condition, and also the written acceptance of the American Surety Company by its proper authorized officers, to the conditions above outlined.
Respectfully, A. T. Simmons, Archt.
D. R. Stubblefield, Belle IIougham W. C. Rogers,
E. F. Wilson, Contractor.”

Upon receipt of the same the surety company executed and delivered to appellants the following extern sion agreement:

“E. F. Wilson of Bloomington, 111., Principal, and the American Surety Company of New York, Surety on that certain bond, dated on or about the 28th day of August, 1912, in the sum of Two Thousand Dollars ($2,000.00) conditioned for the performance by said Principal of a contract with the building committee, of the Union Church of the Village of Covel, Illinois, dated on or about the 2nd day of July, 1912, do hereby stipulate that the extension of the time for the completion of said contract to February 1, 1913, and the entering into and carrying out of the arrangement provided for in the letter dated December 20, 1912, from A. T. Simmons addressed to E. F. Wilson of Bloomington, 111., with respect to payment of bills for labor, carfare, etc., a copy of which letter is attached hereto, shall not release said principal or surety from liability under said bond. Signed and sealed this 28th day of December, 1912.”

This was executed by E. F. Wilson, the principal, and by the American Surety Company.

E. F. Wilson, the contractor, proceeded with the work under such agreement until the 1st of February, 1913, and then abandoned the contract. On June 6, 1913,' appellants brought this suit to recover on the bond.

The declaration sets up the instrument in writing extending the time prepared by the resident vice-president of the company, the acceptance and breach of the bond. The appellee pleaded the condition of the bond in bar of the action, that no suit shall be brought nor recovery had for any damages accruing after February 1,1913, and that service of process shall not be had after that date. Appellants demurred to appellees’ pleas and their demurrer was overruled by the court. Thereupon the appellants filed replications to appellees’ pleas and averred that the letter of December 20, 1912, and the stipulation of December 28, 1912, constituted a waiver of the defense urged by the plea and averred that the time was extended by request of appellee and that the letter and stipulation were dictated and prepared by appellee.

Appellees demurred to said replications and the court sustained the demurrer. Appellants elected to stand by said replications and judgment was thereupon entered against appellants and for costs, from which judgment appellants have brought the case to this court on appeal.

The first ground of demurrer is that it is a matter of law, and a demurrer having been overruled to the plea, the question could not be raised by demurrer on a question of law. The ease of Lesher v. United States Fidelity & Guaranty Co., 239 Ill. 502, cited by appellees, is not in point. Appellants need not have pleaded the proposition of extension in its declaration. It could not be foretold that the limitation plea would have been pleaded and the only proper way to raise that question was by replication, so that on that question the replication of waiver was proper. The second ground of demurrer is that they do not allege that the suit in question was brought on or before the 1st day of February, 1913, nor that service of process commencing said suit was had on or before the 1st day of February, 1913. Limitations of this character have been upheld by the Supreme Court of this State, but it was held that such a provision would be waived if the company by fraud, or by holding out reasonable hopes of an adjustment, deterred the assured from bringing suit within the time limited. Derrick v. Lamar Ins. Co., 74 Ill. 404, and cases therein cited. The proposition made to the appellants at the suggestion of the appellee and accepted by the appellee was a waiver of the conditions as to time. A more fraudulent trick than was perpetrated by the appellee it would be hard to conceive of. All presumptions are against appellee and papers prepared by it. The appellee cannot be permitted to mislead the insured in that way. A constructional waiver is as potent against the appellees as a direct one. The demurrer should have been overruled to the replication. The case is reversed and remanded with directions to overrule the demurrer to the replications.

Reversed and remanded with directions.


text:
    Minnie Clark Emmitt and H. I. Emmitt, Appellants, v. John I. Clark et al., Appellees.
    1. Wills, § 228

      —when will construed as a whole. A will must be construed as a whole and effect he given to all of its language.
    2. Wills, § 360*—when life estate created. A life estate only is created by a devise of property to a person “to be used by him as he sees fit during his life time,” the remainder to he divided among other persons or the heirs of their bodies, at the death of the life tenant.
    3. Life estates, § 5*—when trustee appointed for life bequest of personalty. A trustee is properly appointed to take possession of the share of a life tenant under a will directing the sale of the testator’s property and a division of the proceeds.

      Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Moths, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Welty, Sterling & Whitmore, for appellants.
    O’Connell & Dolan, for appellee, William L. Clark.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the court.

This is a hill to construe the fourth and fifth clauses of the will of Sylvia A. Clark, deceased, viz.: “Fourth: after all the above bequests and debts are settled, then the residue of the money to be divided into three equal parts, one-third to be paid to William C. Clark, my son, and one-third to be paid to my daughter, Minnie Clark Emmitt. These bequests are in fee simple.

“Fifth: One-third (the remainder) is to be given to my son, John I. Clark, to be by him used as he sees fit during his life time, and at his death any residue of said estate shall be divided share and share alike with my son, William L. Clark, and my daughter, Minnie Clark Emmitt, or the heirs of their bodies.” John I. Clark is a nonresident of the State, a wanderer. A few days after the death of the testatrix, he attempted to sell and convey absolutely his interest in the estate to a brother-in-law, who is also a nonresident, for three hundred dollars. The will directed that the estate be converted into personal property. The bill was filed by Minnie Clark Emmitt, one of the children of the testatrix, and by her' husband an assignee of the interest of John I. Clark, another of said children in said estate. The bill charged that the will gave John I. Clark an absolute estate in the property given him by his mother, and that the assignment of his interest to said H. I. Emmitt passes a good and absolute title in the same to said Emmitt.

William L. Clark demurred to the bill, which the court overruled. He then filed an answer alleging that the said will created only a life estate in said John I. Clark, and with said answer filed a cross-bill setting up that the estate of John I. Clark was one for life and asking for the appointment of a trustee to secure and hold the part of the estate going to said John I. Clark during the lifetime of the said John I. Clark.

To the cross-bill the appellants demurred. The court overruled the demurrer and the complainants stood by their demurrer. The cause was then referred to the master in chancery.

The master made report finding that the fifth clause of the will of the said Sylvia A. Clark gave to John I. Clark a life estate. He also found that the words “to heirs of their bodies” in said will meant children, and that said fund given to the said John I. Clark should be held until the termination of said estate for the purpose of determining who answers that description at that time.

The master also found that John I. Clark survived his mother, and that by the written assignment made by said John I. Clark to H. I. Emmitt, he assigned all his interest in his mother’s estate to the said H. I. Emmitt, and that under the terms of the will of the said Sylvia A. Clark the executor had full power to sell and convey the real estate and personal property left by the said Sylvia A. Clark, and the master also recommended that a trustee be appointed. The objections were overruled and by agreement stood as exceptions before the court.

The court overruled the exceptions and entered a decree finding that the interest of the said John I. Clark in said estate was but a life estate without power of sale; that a trustee be appointed to hold the interest of the said John I. Clark in said estate during the lifetime of the said John I. Clark; to loan the same, pay the net income therefrom to H. I. Emmitt, and upon the death of John I. Clark pay one-half of the principal sum of said fund to Minnie Clark Emmitt, or if she be dead to the heirs of her body, and the other half to William L. Clark, or if he be deceased, to the heirs of his body, from which decree appellants prayed and were allowed an appeal to this court.

We think the court properly construed the will. The will must he construed as a whole, and effect given to all the language in it. The fifth clause gives to John I. Clark a life estate only. The words “to be by him used as he sees fit” have reference to the life use of the estate and not to the corpus of the estate. Welsch v. Belleville Sav. Bank, 94 Ill. 191; Dickinson v. Griggsville Nat. Bank, 209 Ill. 350; Wallace v. Bozarth, 223 Ill. 339.

The words 1 ‘ during his lifetime ’ ’ must be given effect. Vanatta v. Carr, 223 Ill. 160. The expression in the fourth clause, “These bequests are in fee simple,” tends to show that the bequest in the fifth clause was only a life estate. The seventh clause also shows the intention of the testatrix. If John died before her then the bequest went to the other two children although John had children. The court properly appointed a trustee and it properly ordered the whole of the interest of John I. Clark in the estate of his mother to be paid to the trustee. The decree is affirmed.

Affirmed.


text:
    First National Bank of Paxton, Illinois, Appellee, v. James H. Snelling et al., Appellants. Victor T. Brassard, Appellee, v. James H. Snelling et al., Appellants.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Ford county; the Hon. George W. Patton, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of tlie Case.
    The complainants, the First National Bank of Paxton, Illinois and Victor T. Brassard, respectively and separately filed their bills against the defendants in aid of executions issued on judgments which they had respectively and separately recovered against the defendant James H. Snelling. By agreement the suits were consolidated and heard as one case and one decree entered in favor of the complainants, from which the defendants James H. Snelling and Frances E. Snelling appeal.
    The evidence tended to show that after incurring the indebtedness on which the judgments were obtained, that the defendant James H. Snelling conveyed his farm to Levi W. Rood, who in turn conveyed it to Frances E. Snelling, the wife of James H. Snelling. Frances E. Snelling contended that the deed was given her in consideration of money received by her from her father’s estate and loaned her husband many years before.
    The defendants claimed in their answer to the Brassard bill that the notes on which he (Brassard) recovered judgment against Snelling, Williams and Stewart were void and without consideration as against James H. 'Snelling; that Snelling signed the notes merely as accommodation maker, and that the real makers thereof were Williams and Stewart; that Sneliing was by-fraud and misrepresentation induced by Williams and Stewart to sign the same upon their fraudulent representation .that there was a mortgage of $12,000 upon the property which Sneliing had purchased or traded for in Chicago, whereas in truth there was but a mortgage of $9,000 on said property; that Sneliing signed said notes with the understanding and agreement that there was a $12,000 mortgage on said property; that said Stewart and Williams and one Jesse M. Brown sold to Brassard the notes in question, and that Brassard was informed and well knew at the time of the purchase of said notes that Sneliing had signed same without any consideration; and that in consequence thereof, appellee Brassard required the said Jesse M. Brown to guaranty the note by indorsement thereon before Brassard would or did purchase the same.
    The appellants claimed that the evidence did not sustain the allegations of the bill and do not warrant the finding in the decree.
    The evidence showed that James H. Sneliing was a farmer. That in 1877 he bought the Southwest Quarter of Section 11 in Township 24 North, Range 9 East of the Third Principal Meridian, in Ford County, for $4,300; that the first payment on the land was $2,000, which he borrowed from his father; that in October, 1885, Sneliing and his wife bought the southeast quarter of the same section, taking title thereto in their joint names, and entered into the possession and enjoyment of the same, as tenants in common; that the quarter section bought by Sneliing, and Snelling’s undivided one-half of this quarter section so jointly purchased, is the land here in the controversy; that the purchase price of this last quarter section was paid by money which “came from the income of the S. W. 14 of Section 11;” that in September, 1883, Frances E. Sneliing realized $6,000 from the sale of certain land which she had received from her father’s estate; that this money was put into a bank and was drawn out as needed, part for building, part in paying off mortgages and the remainder for improvements and other things.
    The record does not disclose that the money was loaned by Mrs. Snelling to Mr. Snelling. No note was given for it by Snelling to his wife, no mention was made that its use created an. indebtedness from him to her, no book entry was made of the same by either as a credit or a debit, no promise was made to repay it or request made for its repayment, no interest on it was ever mentioned, no accounting relátive to it was ever had between the parties, until the twenty-eight years after its use, when they met at the house of a mutual friend, Rood, in La Salle county, accompanied by the attorney employed by Snelling at the suggestion of Rood, and whose employment was expressly for the purpose of aiding Snelling to extricate himself from his financial entanglement, resulting from an unfortunate trade for incumbered Chicago flat property; that on February 20, 1908, Snelling and wife, and each in his or her right, and as husband and wife, mortgaged the whole half section for $20,000 at six per cent, interest .payable semiannually, and evidenced by one principal note of $20,000, and ten interest notes of $600 each, signed by both; that about March 1, 1910, Rood paid Mrs. Snelling $4,872, which was her portion of the final distribution of her father’s estate realized from a sale to R-ood of what remained from her father’s real estate; that was not loaned by her to her husband; that $1,872 of it was spent on the farm at different times, part for taxes and part in paying interest on the $20,000 mortgage and in putting improvements on the farm.
    Schneider & Schneider, for appellants; King, Brower & Hurlbut, of counsel.
    Cloud & Thompson and E. P. Harney, for appellees.

      Abstract of the Decision.
    1. Husband and wife, § 57

      —when conveyance from husband to wife valid against creditors. A wife may loan her separate property to her husband, for which he may give her security which will be valid as against both his existing and subsequent creditors.
    2. Husband and wife, § 45*—when loan by wife to husband gives priority over creditors. The mere fact that a wife lets her husband have her money to use is not sufficient to give her priority over his creditors.
    3. Husband and wife, § 45*—when promise of husband to repay wife for loan presumed. When the rights of creditors are involved the law will not imply a promise to repay from the delivery hy a wife of her money to her husband, hut an express promise must be shown or proof given that they dealt with each other as debtor and creditor.
    4. Husband and wife, § 57*—when use of wife’s money good consideration for deed. The use by a husband of his wife’s money held not a sufficient consideration as against his creditors for a conveyance of his property to her.
    5. Bills and notes, § 448*—sufficiency of evidence to show acquisition of note in good faith. The evidence held sufficient to show that a purchaser acquired a note in good faith and on a sufficient consideration.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the court.


text:
    J. Scott Hyde, Administrator, Appellee, v. Danville, Urbana & Champaign Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    An action in case by J. Scott Hyde, administrator of the estate of Samuel' Edgar Bisinger, deceased, against the Danville, Urbana & Champaign Bailway Company to recover damages for the alleged wrongful death of appellee’s intestate. From a verdict and judgment for appellee for five hundred dollars, the defendant appeals.
    The defendant was charged with carelessly and negligently failing to use reasonable care to have its right of way at and near a street free and clear from bushes, brush, woods and other material, and negligently permitting heavy dense bushes or brush of a height of six to ten feet, to grow beside its right of way so as to interfere with and obstruct the view of the right of way of persons traveling southward upon such street; that the defendant violated an ordinance by virtue of which it operated its railway through a city, by wilfully failing to construct or maintain any sidewalk crossing at its said right of way at such street, and by constructing and maintaining its said tracks at the crossing of such street higher and above the surface of the street; and that the defendant negligently ran its car at a high and dangerous rate of speed across such street.
    The principal contention of appellant was that the deceased at the time of the accident was’ guilty of contributory negligence in not using due care and caution for his own safety.

      The evidence showed that Harvey street, is a blind street running in a populous territory, north and south across the railway tracks and ending about two hundred feet south of the tracks; that the appellant owns a private right of way forty feet wide, running east and west, and crossing the street at right angles; that the only means of exit for the people living south of the railway tracks was to go north on this street across the tracks; that there was a brick sidewalk along the east side of the street north of the railway tracks, which extended to the track, and a cinder walk south of the tracks on the east side of the street; that there were some trees, shrubbery and weeds along the north side of the right of way, which began about ten feet east of the east side of the street, and which obstructed a person’s view so that he could not see anything to the east for about fifty feet north of the track; that the trees all stood south of or immediately on the right of way line, and most all of the shrubbery and weeds between the trees were on the appellant’s right of way and branches of all the trees extended over the line .about six feet; that the wagon crossing was of boards about sixteen feet long, three inches thick and ten inches wide, bringing the level- of the crossing even with the top of the rails; that one of these planks had been laid on the outside of the north rail of the north track, and the action of vehicles in going off this plank in the wagon crossing had worn a hole or depression in the crossing at that point about the width of an ordinary vehicle, and from four to six feet north and south, with a space at either end of the crossing three or four feet in width, where the crossing was practically level; that the grade of the tracks was about two. feet above the surface of the sidewalk and the street.
    Witnesses for appellant testified that the speed of the car was from ten to twelve miles an hour, while witnesses for appellee testified that the speed of the car was from twenty to thirty miles an hour.
    Decedent came south on a bicycle, and as he appreached the right of way he attempted to cross the road crossing, and when he struck the crossing he turned his bicycle north and lost control of it, when a car struck and killed him.
    Abstract of the Decision.
    1. Street railroads, § 88

      —evidence of negligence where bicyclist •was. hilled, at obstructed crossing. In an action for the death of a bicycle rider who was struck and killed by an electric car as it emerged from a private right of way onto a city street, the evidence held sufficient to show the negligence of the railway company, where the view of the track was obstructed by trees and shrubbery on the right of way, and the rider lost control of his bicycle as it struck a defective plank in the railway crossing.
    2. Street railroads, § 135*—when contributory negligence of person hilled at crossing question for jury. Whether a bicycle rider exercised due care for his own safety held a question for the jury, where he was struck and killed by an electric car as it emerged from a private right of way onto a city street at a point where the view of the track was obstructed by trees and shrubbery on the right of way, and a defective plank in the crossing caused him to lose control of his bicycle.
    3. Negligence, § 198*—when contributory negligence question of law. Whether a person was in the exercise of due care for his own safety at the time of an injury is a question of law for ttye court only where the undisputed testimony shows that the injury was due to his own negligence.
    4. Negligence, § 198*—when contributory negligence question for jury. Where there may be a difference of opinion as to whether a person was in the exercise of due care for his own safety at the time of an accident, so that reasonable minds may arrive at different conclusions, a question for the jury is presented.
    Charles Troup, for appellant; George W. Burton, of counsel.
    S. F. Schecter and Lindley, Penwell & Lindley, for appellee; Walter C. Lindley, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols- XI to XV, and Cumulative Quarterly, same ° topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the court.

5. Street railroads', § 117 —when ordinance requiring construction of sidewalk admissible in action for death of traveler. An ordinance requiring an electric railway company to construct and maintain sidewalks where its private right of way crossed city streets, is admissible in evidence in an action for the death of a bicycle rider who was struck and killed at a defective street crossing, where the failure to construct and maintain such sidewalk was alleged as negligence.


text:
    John H. Fought, Appellee, v. Joseph Schlitz Brewing Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed April 16, 1915.
    Statement of the Case.
    John H. Fought, the appellee, recovered a judgment for $1,000 against Joseph Schlitz Brewing C.ompany, the appellant, for the failure and refusal of appellant to deliver beer to appellee under a certain contract, from which the defendant appeals.
    A contract in writing was entered into November 17, 1904, by the terms of which the appellee agreed to handle exclusively the beers of appellant in Shelby county for a period of five years, the defendant to loan appellee a beer wagon to be used by him in his beer business, and to allow him five dollars for cold storage of each carload of beer handled under the contract.
    In May, 1905, the city council of the city of Shelby-ville refused to grant licenses for the sale of intoxicating or malt liquors for the municipal year ending May, 1907. At that time the appellee had on hand fifty-two half barrels of draught beer which he shipped back to appellant and was credited with its value on his account. In August, 1906, appellant rendered appellee a bill covering their previous transactions showing a balance due to appellant of seventy-two cents, which appellee paid. In May, 1907, the city council granted licenses for the sale of intoxicating and malt liquors for the municipal year ending May, 1908. Appellees then made a demand on appellant for beer under their contract, and appellant refused to let him have any, on the ground that the contract was terminated when the city council refused to grant licenses in May, 1906, and that the contract had been forfeited, terminated and abandoned. The appellee brought this suit after the contract had expired by lapse of time.
    Abstract of the Decision.
    1. Damages, § 66

      —measure for breach of contract to supply beer. The measure of damages for the refusal of the defendant to furnish heer under a contract with the plaintiff for a term of years is the excess above the contract price the latter was compelled to pay to procure elsewhere beer of similar quality.
    2. Damages, § 61*—when loss of profits recoverable for breach of contract. In an action for the breach of a contract to furnish beer for a term of years, the plaintiff cannot recover for loss of profits, or the expense of putting up ice.
    3. Contracts, § 289*—refusal to grant license as termination of contract to furnish beer. A contract to furnish beer for a term of years for sale within a certain city, held terminated by the refusal of the common council to grant licenses during one year of the stipulated term, where the plaintiff did not order any beer during that year, but settled with the defendant in full.
    Thompson, J., dissenting.
    Chafee, Chew & Baker, for appellant.
    Whitaker, Ward & Pugh, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the court.


text:
    Etta A. Gerdes, Appellee, v. Samuel Niemeyer, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 41

      —when one spouse competent witness for other. Testimony of the plaintiff’s husband in her behalf, held competent in an action to recover for board, lodging and washing.
    2. Witnesses, § 49*—when objection to competency of spouse waived. One who thoroughly cross-examines the plaintiff’s husband when a witness in her behalf, without objecting to his competency, cannot raise such question on appeal.
    3. Instructions, § 151*—refusal of instructions embodied in those given. The refusal of requested instructions is not erroneous when covered by other requested instructions actually given.
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action by Etta A. Gerdes, a married woman, against Samuel Niemeyer for board, lodging and washing, in which she recovered judgment for eighty-one dollars, from which the defendant appeals.
    The husband of the appellee testified that for Ms wife he presented the bill for board to appellant, and that appellant refused to pay it. He testified without objection to Ms competency, and was thoroughly cross-examined by appellant.
    Frank J. Wilkins, for appellant.
    W. R. Curran, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the court.

4. Husband and wife, § 202 —when wife may recover for services. A married woman may recover for board, lodging and washing for the defendant, although he may not be aware that her husband consented to the making of the contract.

5. Evidence, § 461*—when weight of conflicting evidence for jury. When evidence is conflicting its weight is to be determined by the jury.

6. Appeal and ebbob, § 1411*—when verdict on conflicting evidence not disturbed. A verdict will not be set aside by the Appellate Court where the testimony is conflicting, although the finding is against the weight of the evidence, unless it appears that the jury acted under passion or prejudice.

7. New tbial, § 67*—when not granted for evidence not discovered subsequent to trial. A new trial will not be granted for newly-discovered evidence which does not appear to have been discovered since the trial.

8. New tbial, § 68*—when not granted for newly-discovered cumulative evidence. A new trial will not be granted for newly-discovered evidence which is merely cumulative.

9. Husband and wife, § 202*—when evidence sufficient to sustain verdict for wife for labor. A judgment in favor of a married woman for board, lodging and washing for the defendant, held sustained by the evidence. . '


text:
    Lida Corbly, Appellee, v. Lindsey Corbly, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Ford county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied and additional opinion filed May 26, 1915.
    Reversed with finding of fact.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action by Lida Corbly against -Lindsey Corbly, the plaintiff’s father-in-law, for the alleged alienation of her husband’s affections. From a judgment of $5,000 in favor of the plaintiff, the defendant appeals.

      The appellant contended that the evidence did not sustain the verdict. The appellee’s evidence tended to show that she had lived in Paxton all her life with the exception of five years, one of which she lived in Wichita, Kansas, and four years in Auburn Park, Chicago; that Fred Corbly, her husband, as well1 as the defendant were residents of Paxton; that her occupation was that of a milliner; that on the next day after her marriage she and her husband returned to Paxton and lived at a hotel two weeks; that she continued her millinery business, and that her husband went to school at Eureka, Illinois, and that she furnished the money for his tuition; that after graduating from the Eureka Business College her husband returned to Paxton and engaged in the business of shipping stock; that during the first few years of her married life her husband had been affectionate and kind to her; that during the first few years of her married life the defendant did not invite her to his house and would not speak to her or recognize her although he passed her almost every day, and that at one time in her store, brushed up against her and did not recognize her, and that this treatment of her continued until after a revival meeting held about the year 1901, when the defendant came to her crying and asked her to forgive him; and that afterwards she visited the house of the defendant, and the defendant and his wife visited her home until' the last two or three years prior to her separation from" her husband; that these visits and friendly relations continued up until the death of the wife of defendant in 1906; that at one time after the death of the defendant’s wife, while they were eating breakfast, she asked the defendant to pass her the pepper, and he asked, “what are you going to use pepper for,” and on her replying, “on my mush,” he said: “Aint you got no sense at all to eat pepper on mush? Why don’t you use cream on it?” That the appellant would come into her millinery store and in the presence of her husband would say that her father was an old drunkard, never amounted to anything, and never made any money, only sat around and drank; that her brothers were drunkards, and they were all a pack of thieves ; that they were degenerates and thieves; that Sherman had married money and Henry had married money, that Jim had married into the Irish, and that Fred (the husband of appellee) had married no better. That in 1908, the appellee and her husband had taken two little children to educate and raise, and that appellant told his son Fred in the presence of appellee, that those two little girls had parents that were disgraceful and low-down trash, and that he did not intend that any of his money should be spent on such children as those two little girls, and said if Fred continued to live with appellee in that way he would never get any of his money; that he would disinherit him entirely from his estate. That in 1910 appellant told Fred in the presence of appellee, that if he continued to live with appellee he would get in the penitentiary; that all Walkers ought to be in the penitentiary; that they were thieves, and that appellee was no better.
    Mrs. Dedrich, a sister of appellee, testified that she was frequently at the home of appellee and her husband and that from 1896 up to about 1910 the husband of appellee showed great affection for appellee; that in 1910 she saw Fred Corbly, the husband of appellee, slap the appellee on the head and become very angry and kicked things about the house; that in 1910 she heard appellant speak to Fred Corbly in the store about some trouble an Assyrian girl had in Paxton, and he told Fred that if he wasn’t gotten out of the Walker family the next thing they knew they would have him in the penitentiary, and if they did he would get none of his money to help him, and also that if he did not get out of the Walker family he would disinherit him; that the Walkers were thieves and rogues; that when Fred Corbly would return from a visit to his father, he would he very angry and kick things around the house.
    Lizzie Walker, another sister of appellee, testified that she called at appellant’s house for the purpose of collecting some money appellant owed her, and that appellant said to her if she would go to Lida Corbly and get her to give Fred a divorce without any public disgrace, he would pay her every cent he owed her, and if she did not do so she could wait for her money.
    A. T. Carlson testified that Fred Corbly was very affectionate to appellee, and that they frequently hired rigs of him up to 1910.
    The^ evidence offered by appellant tended to show that the appellee had been married to a man by the name of Maddox prior to her marriage with Fred Corbly, and that Maddox had obtained a divorce from her in Wichita, Kansas, on the grounds of adultery; that Fred Corbly had no knowledge of this prior marriage and divorce of appellee at the time he married her; that she married him under the name of Lida Walker, and in her marriage certificate in answer to the question as to the number of bride’s marriage, she gave the answer “first”; that the marriage was kept secret from Fred Corbly’s parents for some time, Fred Corbly staying at his father’s home; that the appellant finally lieqrd of the matter and upon mentioning the fact to 'his son, stated to him that the proper place for a married man was with his wife, and ordered him to go and live with his wife; that the husband then went to live with appellee and they acquired a home; that the appellant gave them considerable lumber for the purpose of building a home; that this house was afterwards sold and defendant erected a business block for the appellee to conduct her millinery business in, with a flat for residence purpose for appellee and her husband overhead; that the store room and flat was occupied by appellee in conducting her business and as a residence for herself and husband, without paying rent for it to the time of their separation, and that the appellee remained therein until the time of trial, without the payment of rent; that at one time defendant kept them in his home for two weeks. The evidence showed that Fred Corbly after living with his wife some eight or ten years "began to be suspicious of his wife’s faithfulness to him, and that he finally drifted into the habit of drinking and gambling.
    Fred Corbly testified that about the, year 1905, the appellee seemed to lose her affection for him and that her attitude towards him changed; that she would go off on trips to Chicago to purchase millinery stock without being accompanied by him, and stay from sixty to ninety days during the fall leaving him home alone; that on one of these trips she left in January and did not return until March; that after one of appellee’s trips to Chicago in the latter part of the year 1910, her husband discovered three letters hidden under a flower vase in her millinery department which aroused his suspicion; that one of the letters was postmarked Chicago, and addressed to appellee in care of a wholesale millinery house, and was written by a traveling salesman for a wholesale millinery house, who asked her to meet him at a certain corner in Chicago, and stated “they would go out and have a good time;” that finally he found a deed among some papers of his wife conveying property in -Wichita, Kansas, to Lida M. Maddox; that at this time he had never heard of his wife’s prior marriage, or that she had ever been known by the name of Maddox, and that on making investigation, he learned of a decree of divorce obtained from his wife by one Simon A. Maddox, at Wichita, Kansas, on the ground of adultery; that prior to this discovery she had refused to permit him to occupy the same bed for a period of several weeks, and that when he made such discovery he at once left and moved to a hotel. He testified that nothing his father had said to him or in his presence induced him to leave his wife or furnished any reason, therefor, and that he left her because he did not think she was true to him.
    Abstract of the Decision.
    1. Husband and wife, § 280

      —when evidence insufficient to sustain verdict for plaintiff in action for alienating affections. The evidence in an action against a father-in-law for alienating the affections of a husband, held insufficient to sustain a verdict for the plaintiff.
    2. Appeal and ebbob, § 1065*—sufficiency of assignment that verdict not sustained 6y evidence. An assignment of error that the court erred in overruling a motion for a new trial is sufficient to raise the question of the sufficiency of the evidence to sustain the judgment, where that was one of the grounds for such motion!
    3. Appeal and ebbob, § 1165*—when single question only considered. When a single question fully disposes of a cause on appeal there is no necessity to determine other questions raised.
    Dobbins & Dobbins and O. H. Wylie, for appellant.
    Kerr & Lindley and Schneider & Schneider, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. ,

   Mr. Justice Scholfield

delivered the opinion of the court.


text:
    John Hillman, Appellant, v. John Stratman, Appellee.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Vendor and purchaser, § 320a

      —when admissions of vendor evidence in action for breach of contract. Evidence of statements or admissions of a vendor that a vendee bought land cheap, and that it was worth more than he agreed to pay for it, held admissible in an action against the vendee for refusing to complete the purchase.
    2. Vendor and purchaser, § 320a*—sufficiency of evidence in action for breach of contract. The evidence in an action for the refusal of a vendee to complete the purchase of land he had contracted to buy, held to sustain a verdict in favor of the vendor for one dollar damages.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case!
    Action by John Hillman against John Stratman to recover damages for the failure of appellee to purchase land according to a written contract. Appellee gave appellant a note for $2,000 for the cash payment provided in the contract, which the appellant returned at the trial. Judgment for appellant for one dollar was entered, from which he. appeals.
    Evidence was admitted of the admissions or statements of appellant “that appellee had bought the land cheap, that it was really worth more than appellee agreed to pay for it.”
    Govert & Lancaster, for appellant.
    H. M. Swope and J. E. Wall, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, a^d Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the court.


text:
    Nellie M. Pressley, Administratrix, Appellee, v. Bloomington & Normal Railway and Light Company, Appellant.
    1. Electricity, § 24

      —when failure to prove allegation immaterial. It is immaterial that the proof in an action hy the administrator of an employee" of a city against a lighting company for negligence, causing the death of such employee, fails to show that the telephone wire which fell across the wires of the lighting company and that of the city on which the deceased was working was owned and controlled hy a certain telephone company, as alleged in the declaration, where the averments of the declaration that the telephone wire was owned hy such telephone company as a part of its system were not essential to the cause of action against the lighting company.
    2. Trial, § 276*—when refusal to submit special interrogatories not erroneous. The refusal of a trial court to submit special interrogatories to the jury is not error where the questions which the court refused to submit related indirectly to ultimate facts involved in the case, but were evidentiary in their nature and did not call for direct answers as to such ultimate facts.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Rehearing denied May 26, 1915.
    Livingston & Bach, for appellant; Sigmund Livingston, of counsel.
    Jacob P. Lindley and Barry & Morrissey, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section numbe?.

   Mr. Justice Scholfield

delivered the opinion of the court.

This is an action by appellee against appellant for negligently causing the death of appellee’s intestate.

The case has been before this court by appeal on three former occasions. Pressley v. Kinloch-Bloomington Tel. Co., 158 Ill. App. 220, 164 Ill. App. 167, 184 Ill. App. 113. The facts in this case are fully stated in the opinions of the court in those cases. The evidence in this case was the same as on the former trial with these exceptions, that several of the city ordinances which controlled the wire constructions were offered in evidence this time by appellant which had not heretofore been offered. There was no change in the pleadings. On the last trial the appellee obtained a judgment for $4,500 against both defendants. This court reversed that judgment and used this language: “The appellants having been sued jointly, and the judgment here appealed from having been a joint judgment against both appellants, the judgment must be affirmed as to both or reversed as to both. There being no sufficient evidence showing the appellant telephone company was the owner of the wire which is alleged to have caused the injury, the judgment as to it is erroneous and must be reversed, and therefore must be reversed as to both appellants.” Immediately prior to the trial of this case, the appellee dismissed her suit as to the codefendant, Kinloch-Bloomington Telephone Company.

It is urged by appellant that there was a fatal variance between the allegations of the declaration and the proof, in that the declaration avers that the telephone wire which fell across the wire of both the wires of appellant and the city was owned and controlled by the Kinloch-Bloomington Telephone Company, while the proof fails to show that it was owned or controlled by that company. The averments in the declaration that the telephone wire was owned and controlled by another company as a part of its system was not essential to the cause of action against appellant, and it was immaterial if the evidence disapproved that averment. Postal Tel. Cable Co. v. Likes, 255 Ill. 249; Linquist v. Hodges, 248 Ill. 491.

It is also urged by appellant that the court erred in refusing to submit its special interrogatories to the jury. The questions which the court refused to submit related indirectly to ultimate facts involved in the case but were evidentiary in their nature and did not call for direct answers as to such ultimate facts. We do not find any error in the giving or refusing of instructions. The jury were properly instructed.

All other questions urged by appellant for a reversal of this- judgment have been settled by the opinions of this court on the former appeals, and we cannot now consider them in the decision of this case. Finding no reversible error in the record, the judgment will be affirmed.

Affirmed.


author: Mr. Justice Schclfield

text:
    Jesse Black, Jr. et al., Appellants, v. John L. Bevan, Appellee.
    1. Attorney and client, § 150

      —when lien not enforceable against purchaser on partition. Where a bill to partition real estate, filed by attorneys for the plaintiff is dismissed by the plaintiff without consent of his attorneys and the land sold to the attorney for one of the defendants in the bill, neither the solicitors who filed the bill nor the solicitor to whom the land was sold being parties to thg partition suit, it is irregular for the plaintiff’s attorneys, after such dismissal, to file a petition under the title of the original partition suit to enforce an alleged statutory lien for solicitor’s fees against such purchaser.
    2. Attorney and client, § 138*—right to lien where partition suit dismissed and land sold. The attorney for the complainant in a bill to partition real estate has no lien upon the interest of the complainant for his fees where the suit is dismissed by the complainant without the attorney’s consent and the land sold to another person.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.

      Jesse Black, Jr., and Beach & Trapp, pro se.

    King & Miller, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Schclfield

delivered the opinion of the court.

One James Stone employed Jesse Black, Jr., of Pekin and Beach & Trapp of Lincoln, attorneys, to file a bill to partition 145% acres of land in which the said Stone owned an undivided one-fifteenth interest.

The bill to partition said real estate was filed by the said attorneys in the Circuit Court of Logan county to the May term, 1914, of said court.

After the bill was filed and before the convening of the May term of said court, the said Stone, without the consent of Black and Beach ■& Trapp, his attorneys, sold and conveyed his undivided interest in the said real estate sought to be partitioned to John L. Bevan, an attorney for one of the defendants in the bill. On the same day that the said Stone conveyed his interest to said Bevan he, the said Stone, without the consent or knowledge of Black, Beach & Trapp, his attorneys, also filed in the office of the Circuit Clerk of Logan county a motion in writing signed by himself, to dismiss the partition suit, which motion was allowed on the convening of court, and the suit dismissed.

After the partition suit was dismissed, Jesse Black, Jr., and Beach and Trapp, complainant’s solicitors in the partition suit, filed their petition, under the title of. the original partition suit, to enforce an alleged lien for solicitor’s fees against John L. Bevan, the purchaser of the interest of James Stone, the complainant in partition suit. The petition sets up that these solicitors had a statutory lien for attorney fees which they had earned, and avers their readiness, ability and willingness to have carried said suit through to a final decree, and that if said partition suit had been prosecuted to a final decree, six hundred dollars would have been a reasonable and customary solicitor’s fee. The petition recites that no fee was agreed upon in advance of the bringing of the suit nor was there any written contract for fees. The petition fails to aver what would have been reasonable compensation for the services rendered in filing the bill. The petition prays that the court will, under the statutes, fix a reasonable-fee for the service rendered by petitioners and order the same paid forthwith, and in default of the payment that ‘ said lien provided by law may be enforced by the order and judgment of this court, and the right, title and interest and estate which the said James Stone owned at the time of filing said bill in and to the real estate herein described, may be sold by and under the direction of the court, and the proceeds applied towards the payment of said fees.”

The petition was demurred to by respondent Bevan for want of equity, and the court sustained the demurrer and dismissed the petition “for want of equity.”

The proceedings are irregular, neither the solicitors who filed the petition nor Bevan were or are parties to the suit for partition, and the court properly dismissed the petition.

The attorneys for the original complainant had no lien on his interest for their fees. The question is fully discussed in Story v. Hull, 143 Ill. 506, and Dougherty v. Hughes, 165 Ill. 384. The statute concerning" liens for attorney fees has no application to this case whatever. Judgment affirmed.

Affirmed.


text:
    Alvin Talbot and Clarence Shoot, Appellees, v. Atlantic Horse Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Coles county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Reversed with finding of facts.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action by Alvin Talbot and Clarence Shoot against Atlantic Horse Insurance Company to recover upon a policy of insurance issued by defendant on the life of a horse which died during the term of -the policy. From a judgment for plaintiff for $1,000, defendant appeals.
    The policy was delivered to plaintiffs on the 20th day of January, 1913, and by its terms commenced at noon on the 22nd day of January, 1913, and was for the term of one year.
    The horse took sick on the 21st day of January, 1913 and died about 1:30 in the afternoon of the 23rd of January, 1913. It was claimed by plaintiffs that the sickness of the 21st was not the cause of the death of the horse on the 23rd, but that in the forenoon of the 23rd the horse became sick from another and different disease, and died the same day.
    By the third clause of the policy it was provided, that in the event of said animal’s sickness, that it should be the duty of the insured to immediately procure the services of a veterinary, and that the insured should also notify the Atlantic Horse Insurance Company, Providence, Bhode Island, by sending a telegram immediately, and should also send a registered letter within twenty-four hours if the animal became incapacitated. “And the failure to perform any of the requirements above mentioned in this paragraph, if death ensue, shall relieve the company of any and all liabilities under the policy.”
    It was admitted by plaintiffs that these provisions, of the policy were valid and that a telegram was not sent to defendant as required by it. The evidence showed that the horse died about 1:30 p. m., and that Talbot, who lived out of town a couple of miles on a farm where the horse was, notified E. D. Stull, the agent of the company, and that Stull went out about 2:30 p. m., and came in and sent a telegram to the Atlantic Horse Insurance Company at Providence, Rhode Island, and wrote a letter that same evening to the company. The evidence showed that the telegram was actually received by the company at 5:23 p. m., of the same day. The telegram stated that the horse had taken sick that morning at 10 and died about 2:30. The letter was more in detail. On the 25th, after receiving the telegram and letter, the company cashed a check for the premium. Afterwards the company sent blank proofs' of loss. The proofs of loss were completed January 30th and sent in. On the 18th of March the company denied liability and returned the premium, which was refused by plaintiff. This was contended by plaintiff to be a waiver of the notice required in the third clause of the policy. The horse was taken sick on the morning of the 21st and there is nothing in the record to show that he recovered from that sickness before his death. The horse was being treated by Talbot for the sickness contracted on the 21st at the time it was discovered he had another disease and from which plaintiff claimed he died.
    There was no evidence in the record that at the time the company cashed the check for the premium or that at the time the proofs of loss were sent that the appellant had any notice whatever that the horse had been sick prior to. the 23rd.
    Thomas J. Graydon and Henry A. Neal for appellant.

      Abstract of the Decision.
    1. Insurance, § 364

      —when acceptance of premium, without notice of breach of condition not a waiver. A live stock insurance company does not waive its rights to have notice of the sickness of a horse which took sick between the date of delivery of the policy and the date when the policy took effect, where the policy provided that in the event of sickness it should be the duty of the insured to immediately notify the company by sending a telegram and by sending a registered letter if the animal became incapacitated, and that the failure to so do would invalidate the policy, and the horse again became sick on the day after the policy took effect and died in the afternoon of the same day, and the agent of the company, upon notification of the second sickness by the insured, telegraphed the company on the same day that the horse had taken sick that day and had died, and gave the details in a letter, and, after receipt of the letter and telegram, the company, without notice of the first sickness, cashed a check for the premium and afterwards sent blank proofs of loss, but, after receiving the proofs of loss, denied liability and returned the premium to the insured.
    2. Insurance, § 221*—when breach of condition as to notice of sickness of horse bars recovery. Where a policy of insurance upon the life of a horse requires immediate notice by telegram and by registered letter of the sickness and. provides that the failure to give such notice shall invalidate the policy, there can be no recovery upon the policy if there is a violation of the condition, even though the horse took sick at a time between the date of delivery of the policy and the date it took, effect, and may have died of another disease which it contracted the day after the policy took effect.
    Charles C. Lee and Albert C. Anderson, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scholfield

delivered the opinion of the

court.