author: Mr. Presiding Justice

text:
    G. S. Beyers, Defendant in Error, v. Anderson Tool Company, Plaintiff in Error.
    Gen. No. 19,495.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action by G. S. Beyers against Anderson Tool Company to recover balance of commissions alleged to be due on sales of scales claimed to have been made as defendant’s agent.
    Plaintiff’s claim was based on a contract claimed to have been entered into with one Fertick acting for defendant, whereby plaintiff was to sell defendant’s scales in Chicago and to receive therefor a commission of thirty-five per cent, of the purchase price, seventy per cent, of such commission to be paid when the sale was made and the remaining thirty per cent, to be paid when the payment for the scale was completed.
    After a trial before the court without a jury, plaintiff secured a judgment for $126.
    To reverse the judgment, defendant sued out a writ of error.
    The principal errors alleged are that the amount of plaintiff’s claim was not precisely set forth and sworn to, that the finding and judgment were against the preponderance of the evidence and that there was error in the admission of certain documentary evidence.
    Bryan, McCormick & Wilber, for plaintiff in error; Howard H. McCormick, of counsel.
    Bell & Cross, for defendant in error.

      Abstract of the Decision,
    1. Municipal Court of Chicago, § 13

      —when statement of claim sufficiently states amount of claim. In an action to recover a balance of commissions claimed to be due plaintiff from defendant on scales sold on commission for defendant, where praecipe and statement of claim state the nature of the claim and that it is for five hundred dollars, and the affidavit of plaintiff’s claim states the demand to be for money due for services and commissions as set forth in the statement of claim, there is a sufficient statement of the amount of plaintiff’s claim to comply with Rules 40 and 16 of the Municipal Court, even though the statement of claim admits that the exact number of scales sold- by plaintiff and the exact number that had been fully paid for could only appear by defendant’s records when produced, and though the affidavit of plaintiff’s claim states there is due to plaintiff from defendant a sum of money, the exact amount of which is unknown to plaintiff.
    2. Principal and agent, § 8*—when evidence sufficient to establish existence of agency in action for commissions. In an action for a balance of commissions claimed to be due plaintiff from defendant on sales by plaintiff of defendant’s scales, plaintiff’s, evidence showed that he was authorized by a third person to sell the scales in Chicago for defendant on a specified commission, part to be paid when each sale was made, the balance when the payment of the purchase price instalments were completed by the purchaser; that said third person represented to plaintiff that he represented defendant in Chicago; that said third person occupied a business place in which were kept defendant’s scales; that said third person gave him blank forms of contract orders, prepared and printed in triplicate, • to be signed by the purchaser also “for” defendants, “by” plaintiff, “salesman,” one of such triplicates to be kept by the purchaser, one by plaintiff and one to be sent to defendant; that on receipt of the first of these orders, defendant sent plaintiff a check for the specified part of the commission; that on transmitting subsequent orders he received the specified part of the commission. For defendant, its secretary and vice-president swore separately that plaintiff was never employed by defendant and that at the time of sales made they were doing business as partners and con- • trolled defendant’s entire output; that the third person with whom plaintiff dealt worked for them and that plaintiff must, therefore, either have worked for them or for said third person. Defendant’s bookkeeper also testified that plaintiff was never in defendant’s “direct employment, that is, * * * never had a contract.” It was also agreed that the third person would have testified that he was sales agent for the partnership. To contradict evidence of defendant’s secretary that his partnership had no authority to employ and had never employed a sales agent for defendant, such a contract was introduced in evidence. To contradict the evidence of defendant’s vice-president and secretary as to when they became such officers, letterheads of defendant were introduced. It was held that .the evidence was sufficient to establish plaintiff’s agency for defendant.

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

   Mr. Presiding Justice

Brown delivered the opinion of the court.

3. Witnesses, § 281*—when documentary evidence admissible to impeach deposition. Documents which show representations by a deponent contradictory to his statements in his deposition are admissible to impeach such statements.

4. Trial,- § 245*—when statement of court as to insufficiency of data for computation of finding not ground for reversal. In an action to recover a balance claimed to be due on commissions on sales, a statement of the judge, at the earlier stages of the trial, that he did not have the data for the computation of a finding is not ground for reversal where it is not shown that he could not afterwards acquire the data.


source: Caselaw Access Project

license: Public Domain

text:
    Eugenia Meily et al., Appellants, v. Robert S. Knox, Executor, et al., Appellees.
    Gen. No. 19,643.
    1. Appeal and error, § 1488

      —when receipt of incompetent evidence by chancellor not reversible error. Incompetent or irrelevant evidence received by a chancellor is not supposed to have been considered or regarded by him unless it appears affirmatively that his ultimate decision was affected by it.
    2. Wills, § 226*—when intention of testator as to demonstrative or specific character of legacy controls. The character of a legacy as demonstrative or specific is controlled by the intention of the testator as expressed in the will.
    3. Wills, § 454*—whether legacy demonstrative or specific. A testator’s will left to certain persons “my property located in Lima, Allen County, Ohio,” describing it, “to be by them sold” and out of the proceeds thereof to pay the following bequests so far' as the proceeds will go in the order indicated.” The following day she executed a codicil changing the trustee and authorized the trustee thus named to sell and dispose of the personalty and realty and directed hei to distribute the proceeds realized from the sale of any or all of said property equally between the testator’s sisters and brothers named in her will, “the proceeds realized from the sale of the Lima, Ohio, property, however to be subject to the specific bequests provided in and by my said last will and testament.” It was held that the legacies payable out of the proceeds of the Lima property were specific, and not demonstrative.
    4. Wills, § 455

      —when specific legacy adeemed. Where a testator who gave a specific legacy payable out of the proceeds of certain realty which she directed her executor to sell, sold the realty herself, the legacy is adeemed.
    5. Wills, § 214*—when allowance of counsel fees to contestants properly denied. In the circumstances of the particular case, held that the allowance of counsel fees to persons contesting executor’s construction of will properly denied.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed January 25, 1915.

      Certiorari allowed by Supreme Court.
    Statement by the Court. March 2, 1909, Sarah J. Tucker of Chicago, the second wife and widow of one Norman Tucker, executed a will. Her husband before his death had changed his residence to Chicago from Lima, Ohio, where he had been a prominent citizen and closely connected with the Protestant Episcopal Church there. Sarah J. Tucker owned some real "estate in Lima. There were at the time the will was made two children of Norman Tucker—stepchildren of Sarah J. Tucker—living in Lima, by name, Chester P. Tucker and Eugenia Meily. Eugenia Meily was the wife of George H. Meily.
    Mrs. Tucker, after providing in the first paragraph of her will that her debts should be paid, devised by the second one certain real estate situated in Chicago to six sisters and a brother share and share alike. The third section of the will was as follows:
    “I give and devise nnto my sisters, Mary Wood, Nellie Mildren, Bessie Knox, Annie Detwiler, Lottie Poland and Emily Villa and nnto my brother, William J. Cooke, share and share alike, my property located in Lima, Allen County, Ohio, and more particularly described as follows:’ ’ (Here follows description) 1 ‘to •be sold by them and out’of the proceeds thereof to pay the following bequests so far as the proceeds will go in the order indicated. . .
    (a) To my stepson Chester Tucker of Lima, Ohio, two thousand ($2,000) dollars, (b) To my stepdaughter Mrs. George H. Meily (nee Eugenia Tucker) of Lima, Ohio, one thousand ($1,000) dollars, (c) Two thousand ($2,000) dollars for the erection of a monument on my lot in Oakwood Cemetery. • (d) Fifteen Hundred ($1,500) Dollars to be expended to place a memorial window in the Episcopal Church founded by my beloved husband in said Lima, Ohio, (e) One Thousand ($1,000) dollars to be invested by the Trustees of The Oakwood Cemetery of Chicago, Illinois, for the purpose of defraying the expenses of keeping my lot in said Oakwood Cemetery in good order and condition. ”
    The fourth clause of the will contains money bequests to a sister and a nephew. The fifth clause distributes various personal effects among ten different people, among them her sisters and her stepdaughter, Mrs. Meily. The sixth clause makes a residuary devise and bequest of all the remainder of her property, real, personal and mixed, to her brother and sisters, share and share alike. The seventh names her nephew, Bobert S. Knox, executor of the will without bond. The will was duly witnessed on its date. On the next day, March 3, 1909, before the same attesting witnesses, Mrs. Tucker executed a codicil to her will of March 2, 1909, after the formal preface, running as follows:
    “I give, devise and bequeath all the of the real estate of which I may die seized and all of the shares of the capital stock in Chicago Railways Company, American Smelting and Refining Company, the United States Steel Corporation owned by me at my death, unto my beloved sister Lottie Poland as Trustee, with full power to said trustee to sell and dispose of the same or any part thereof or any interest therein—such manner as may be deemed wise or expedient by her, and in that behalf convey a good and perfect title to all of said property or any part thereof or any interest therein by trustee’s deed without liability on the part of any of the purchasers from said trustee to look to the proper application of the purchase price paid therefor.
    And I do hereby direct my said trustee to distribute the proceeds realized from the sale of any or all of said property equally between my sisters and brothers named in my said last Will and Testament, the proceeds realized from the sale of the Lima, Ohio, property however to be subject to the specific bequests provided in and by my said last Will and Testament in paragraph 3 thereof.
    I hereby direct that my executor named in my last Will and Testament shall receive as compensation for his services as such Executor the sum of Fve Hundred Dollars.
    I do hereby reaffirm and republish my said last Will and Testament of March 2nd, 1909, except only as modified and controlled by this my first codicil to said last Will and Testament.
    In witness whereof, I have hereunto subscribed my name and affixed my seal this third day of March, A. D. 1909.”
    December 7, 1909, Sarah J. Tucker sold and conveyed by warranty deed to one James 0. Ehler her property in Lima described in her will, receiving therefor $7,500 in cash. January 16, 1910, she died and the will and codicil before recited were admitted to probate in the Probate Court of Cook county March 26th in that year. Letters testamentary were issued to Robert S. Knox as executor. The inventory filed in the Probate Court showed that her estate then consisted of thirty shares of United States Steel Corporation stock, ten shares of American Smelting and Refining Company stock, eight shares Chicago Railways Company stock, $7,386.10 in cash, $1,524.25 worth of personal effects, and certain real estate in Cook county, Illinois.
    October 31, 1911, the appellants herein Eugenia Meily and The Parish of Christ Protestant Episcopal Church of Lima, Ohio, filed a bill in equity in the Superior Court of Cook county, of which, after amendment, the two paragraphs setting forth their alleged grievances and contentions are:
    “5. Tour orators further show that by the terms of said will and the codicil thereto it was the intention of said testatrix as expressed therein that your orators should have and be paid out of the assets of her estate upon her decease the several amounts of money as legacies specified in said third clause; and the said Chester P. Tucker and the Cemetery Association also named in the third clause were bequeathed and were to be paid out of the assets of her estate the several amounts specified therein, and said bequests and each of them were also made a charge upon the Lima property, and upon the sale and transfer of said real estate of the testatrix prior to her decease, said legacies and each of them became general charges upon the remainder of the real and personal estate left by her at her decease; and your orators and the other persons whose legacies were charged upon the Lima property are .entitled to be paid their said legacies out of the general estate of the testatrix.'
    6. Tour orators further show that they have requested Robert S. Knox, the executor of Sarah J. Tucker, deceased, to recognize and pay their legacies, but said executor refuses to do so and claims that under said will and codicil as construed by him and the law, your orators are not entitled to the said legacies provided for in the third clause and in the codicil of the will or to any part thereof, and he has refused to recognize complainants as legatees or devisees under said clause of the will or the codicil, or to make payment of the said legacies to your orators out of the estate of the deceased, and said executor threatens to distribute all of the assets of said estate to the other legatees and to ignore the said legacies and to refuse to pay to your orators or to the said Chester P. Tucker or to the Cemetery Association the several legacies bequeathed to them by said third clause and the codicil to said will.”
    To this bill Robert S. Knox, executor, Lottie Poland as trustee, the six sisters and the brother of Mrs. Tucker (who were her only heirs at law and next of kin), Chester P. Tucker, The Oakwoods Cemetery Association, Albert Smith, Marguerite Poland and Elizabeth Long (the last three being among the beneficiaries of the legacies of personal effects), were made defendants.
    All the defendants but Robert S. Knox, executor, Bessie D. Knox and The Oakwoods Cemetery Association were defaulted. The Oakwoods Cemetery Association answered the bill, admitting its allegations and alleging that upon a proper construction of the will and codicil in question it was entitled to the legacy of $1,000 in the third paragraph of the will mentioned.
    Robert S. Knox and'Bessie D. Knox answered, denying the rights of the complainants and of Chester P. Tucker and The Oakwoods Cemetery Association to have the legacies named in the will paid out of the general assets of the estate, and alleging on the contrary that it was the intention of the testatrix, as shown by her act in selling the Lima property before her death and by other circumstances, that “the amounts therein charged upon the real estate aforesaid should lapse and that the said amounts should not be paid to the various persons and corporations named in said third clause of the will.”
    Replications were filed to these answers and the cause came to a hearing. The final decree found:
    “That the equities in this cause are with the defendants, excepting the defendants The Oakwoods Cemetery Association and Chester P. Tucker, and that the complainants herein are not entitled to all or any of the relief in. said bill of complaint prayed, and. that the defendant The Oakwoods Cemetery Association is not entitled to any of the relief to which said defendant in its answer claims to be entitled, and that neither the complainants nor the defendants The Oakwoods Cemetery Association and Chester P. Tucker are entitled to receive any legacies or payments on account of anything contained in the third clause of the will of Sarah J. Tucker, deceased,” and ordered that the amended bill be dismissed for want of equity at the cost of complainants. From this decree the complainants appealed to this court.
    Simmons & Irving, for appellants.
    Foreman, Levin & Robertson, for appellees.

      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. Presiding Justice

Brown delivered the opinion of the court.

The question before us is simply whether the legacies in question were demonstrative legacies or specific legacies. The assignment of error concerning the admission of incompetent evidence may be treated as practically negligible. A chancellor who receives incompetent or irrelevant evidence is not supposed to have regarded or considered it, unless it appears affirmatively in some way that his ultimate decision was affected by it. There is no reason to suppose that the admission of the letter of December 9, 1909, from Mrs. Tucker to Mrs. Meily, whether or not it were competent, did affect the decision of the court in this cause. Indeed, the inference is very strong from the refusal of the chancellor to admit the testimony of Robert S. Knox and Bessie D. Knox, which counsel said would show that Mrs. Tucker after making the will and codicil in question herself placed a construction on them on the very question herein involved, by saying that she was very happy that the sale of the Lima property had been made “and very glad that it would cut out the Meily heirs, who never had done anything for her,” showed that he did not deem anything which Mrs. Tucker said after the execution of the documents involved competent even to throw light on her intention when phrasing the will as she did. This ruling may have been correct as bearing a relation at least to the general doctrines that as to the intention of the testator the will must be construed as of the date of execution, and that the intention expressed by written instruments generally is to be gathered from the language used in them and not from extrinsic sources.

Nevertheless, in this case, where the gist of the whole contest is really what, in the use of certain language, was the intention of the testator as to limiting the operation of a bequest, a plausible argument could be made to the contrary. The question is not before us, for the court excluded the offered testimony and, as we have said, may fairly be supposed to have ignored the “Dear Jennie” letter (as the letter of December 9, 1909, is called in the argument) as throwing any light upon the meaning of Mrs. Tucker’s will.

Much is said by counsel for the appellant about the impossibility of a “revocation” of the will by anything that could be said or done by Mrs. Tucker except the destruction or cancellation of the old will or the making of a new one. It seems beside the point, for no revocation is claimed or suggested. The real question, as we have said, is simply whether the bequests to Chester P. Tucker, to Mrs. Meily, to Oakwoods Cemetery and to Christ Church were demonstrative or specific legacies. That question, in our opinion, is simply the technical method of stating this inquiry: Do the words employed by Mrs. Tucker in her will and codicil (the codicil indeed being, as her latest expression, controlling and governing) show an intention that these legacies shall be paid only if at her death the Lima property should remain a part of her estate and pass from her to Lottie Poland as trustee; or do they express an intention that they should be páid at all events if her estate contained assets sufficient, but that the proceeds of the Lima property, if the trustee received and disposed of it, should be primarily the fund to be resorted to for their payment?

In the former case they were specific legacies; in the-latter demonstrative. If “specific” they were bequests of a specified p'art of the testator’s estate if it existed at the time of the taking effect of the will at the testator’s death. If it did not exist, because the testator had parted with that part of her estate between the time of making her will and the time of her death, the legacies were “adeemed,” which only means that they were “taken away” by the extinction as a part of the estate of the fund out of which they were to be paid. Mrs. Tucker by her will, for example, bequeathed one blue and gold enamel plaque and nothing else to Elizabeth Long. If Mrs. Tucker had sold the plaque while, living, Elizabeth Long would have received nothing by the will, this being an illustration of a specific legacy concerning which there could be no dispute. If, however, the bequests here in discussion were “demonstrative”—that is, if the language by which they were given showed an intention that whether or not the Lima property remained a portion of the estate at the time of her death, the legacies should be paid; but that if the Lima property was a portion of the estate it should be sold and the proceeds form primarily but not exclusively the fund from which they should be paid—then they were not “adeemed” by the sale of the property by Mrs. Tucker before'her death.

The counsel for appellant with great diligence have made a catena of authorities, many of them containing very interesting discussions of the distinctions between general, specific and demonstrative legacies, and more particularly, as the bequests involved generally raised only that point, the difference between “specific” and. “demonstrative” legacies. The counsel for appellee has discussed some of these cases and cited others, and we have not by any lack of investigation of them rendered this court obnoxious to the criticism which Lord Eldon made on passing a question like that involved herein, “without observation” or “with little observation.” Sibley v. Perry, 7 Vesey Jr. 522. It would be useless, however, for us to load this opinion with an elaborate discussion of the authorities or their varying degrees of weight.

One controlling principle practically runs through them all. It is that while courts may lean to construing legacies as demonstrative rather than specific, that they may not fail, this leaning and all other presumptions will give way if the intent of the testator to the contrary is fairly exhibited by the words of the will.

This is but the corollary of the famous and sound utterance of Mr. Justice Wilmot in the King’s Bench, supporting the opinion of Lord Mansfield in Doe v. Laming, 2 Burrow, 1100, that “the .intention of the testator is the pole star for the direction of devises,” and that all cases which depend upon it “are best determined upon comparing all the parts of the devise itself without looking into a multitude of other cases,' for each stands pretty much upon its own circumstances.”

Many of the cases cited by counsel in this cause very definitely express this controlling principle. We note some as examples.

Lord Cottenham in Creed v. Creed, 11 Clark & Finnelly 491, said in giving his opinion in the House of Lords:

“There are many cases in which though a legacy be charged upon a particular fund, it does not fail by failure of the fund, which are called demonstrative legacies, but these all proceed upon the construction showing a general intent.”

And in George Infirmary v. Jones, 37 Fed. 750, Judge Wallace of the U. S. Circuit Court said:

“Whenever it can be inferred from the language of the will that the testator’s intention was to give the legatee a specified sum, not necessarily out of a particular fund, although incidentally and primarily so, but irrespective of it, the gift will be construed as demonstrative, instead of a specific legacy,” and then he quotes from Walls v. Stewart, 16 Pa. St. 281, certain language of Judge Bell in that case to the same effect. The opinion in Walls v. Stewart contains other statements of the principle. Thus the Court says:
“I think an examination of the authorities English and American will show that wherever an intent is exhibited to make distribution of the value of lands, either by means of a sale and division of proceeds or by the charge of a sum in monies payable by the devisee of the land as a quasi partial purchase of the estate devised, the bequests are always treated as specific, and consequently liable to be adeemed by an alienation of the land in the life time of the testator,” and:
“In this as in other questions springing from the construction of wills, the intention of the testator is principally to be ascertained.”

In Re Stilphen, 100 Me. 146, the Supreme Court of Maine says:

‘ ‘ The distinction between a specific and a demonstrative legacy involves not merely a technical question, depending for its solution solely upon the precise language of the bequest, but a substantial inquiry respecting the intention of the testator as shown by the terms of the particular legacy, examined in connection with all of the other provisions of the will.” And again:
“It is important to observe that two elements are necessary to constitute a demonstrative legacy. It must appear in the first place that the testator intended to make an unconditional gift in the nature of a general legacy, and, secondly, the bequest must indicate the fund out of which it is payable.”

In Stoever’s Estate, 45 Pa. Super. Ct. Rep. 451, the Presiding Judge of the Orphans’ Court of Lebanon county had said in deciding certain legacies specific:

“Bearing in mind the somewhat shadowy distinction of the cases, that courts incline against construing legacies as specific, and that the intention of the testator should be clear to make a legacy specific, we. must, however, not lose sight of the fact that the primary purpose of all rules of construction and interpretation is to arrive at the intention of the testator.”

In affirming the decree the Supreme Court of Pennsylvania said:

“It is clear enough * * * that where the language of a testator # * * fairly exhibits his intention that certain legacies should be classed as specific rather than general or demonstrative, the courts will readily declare and effectuate such intent.”

A Judge of the Circuit Court in Ohio (Sharp v. McPherson, 3 Ohio Dec. 468) said that:

“While the determination of the question” {which was whether a legacy very similar to the one at bar was demonstrative or specific) “is governed somewhat by the rules of law applicable thereto, yet it depends principally upon the intent of the testator. What did he intend? Did he intend to give the specific thing or to limit the gift to the particular subject matter? Or did he intend to give an amount of money in any event and refer to the fund merely as a convenient means of payment?”

We are of the opinion that in this case the question for us to answer is exactly the same. What did the testator intend to give? Did she intend to give the proceeds of the Lima property, if she died possessed of it, up to a certain amount, “so far as those proceeds would go” and “in the order indicated,” or did she' intend to give the sums of money “in any event and refer to the fund merely as a convenient means of payment”?

If the “language of the testator fairly exhibits her intention that the legacies should be classed as specific rather than demonstrative,” we must “declare and effectuate said intent.”

We think that the language used in the will and codicil in this case does fairly exhibit this intention.

The only gift of the legacies involved is found in the direction to pay them out of the land devised. The testator, making other pecuniary legacies, made them in a separate paragraph without limitation. If she had desired these legacies in question paid in any event, there is no particular reason' revealed by the language of the will for making them “demonstrative” rather than like the others, “general.”

Moreover, the language the testator used in the paragraph (3) of her will in which she provides for these legacies is entirely inconsistent with the idea that if the Lima property was for any reason unavailable or even insufficient to pay them, they should be paid out of the general estate as they would be if they were “demonstrative” instead of “specific.” She must have known herself to be solvent and believed that her estate would be, and yet she directed that the legacies should be paid only so far as the proceeds of the Lima property “would go” in a certain order indicated. And when, the day after the will was drawn, she changed her mind as to who should hold the trust of her real estate, she emphatically repeats what we think was the expressed intention in the will—to make the proceeds of the sale of the Lima property the only fund from which these legacies were to be paid. For she leaves all her real estate and all her stocks to her trustee. She gives her trustee power to sell it all, and then directs that the proceeds shall be distributed among her brother and sisters, “the proceeds realized "from the sale of the Lima, Ohio, property, however, to be subject to the * * * bequests provided in and by” her will.

It seems plain to us that the use of this language shows that the proceeds of all the property named except those of the Lima property were not to be subject to the bequests in question.

We have omitted the word “specific” from the above quotation from the codicil because we wished to imply that we did not consider that the force of the argument was much heightened by it. It may have been used, as appellants argue, without reference to its technical. meaning as applied to bequests. But it is certain that the use of it does not detract from the probability of the correctness of the conclusion at which we have arrived.

To our minds, quite as plausible an argument advanced by the appellants in behalf of their contention as that the legacies were demonstrative is that they should be considered as a specific charge transferred from the Lima property to the proceeds of the Lima property in the hands of the testator after she sold that property, and that so far as those proceeds came into the hands of the executor they were affected by the same charge.

But this argument, even if plausible, is not sound. Apart from the question which is raised by the appellees, of the proof of identity of the proceeds with the cash inventoried in the estate, and assuming that identity, we must hold the legacies adeemed from the moment that Mrs. Tucker conveyed the property itself from which they were to be paid. The intention expressed by the terms of the will affects this situation also. The intent to be gathered from the terms of the will, if. it was an intent to make the Lima property in her post mortem estate the fund from which the legacies were to be paid, was an intent also to relieve the general estate from the payment of them. The money into which the land was turned before her death became a part of Mrs. Tucker’s general estate.

There is no question of a revocation of the will, or even of the “revocation of a devise”:—a term which it may be noted the Court in Sharp v. McPherson, supra, with a want of precision uses. It is still all a question of the construction of the will under the guidance of the “pole star” of intent; While, as counsel say, wills cannot he “revoked” by sales by the testator, legacies can be and often are “adeemed,” that is, taken away, because there is nothing left in the estate for them to operate on. That was, in our opinion, done in the matter under consideration.

We do not think this is a case where the court should have used a possible discretion to allow counsel fees to the persons differing in opinion from the executor as to the construction of the will and litigating adversely to him to compel his compliance with their demands.

The decree of the Superior Court is affirmed.

Affirmed.


text:
    John Dooley, Appellee, v. Patrick Ahern et al., on appeal of E. R. Stege Brewery, Appellant.
    Gen. No. 19,751.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Deveb, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Suit for foreclosure by John Dooley against Patrick Ahern, Bridget Ahern and E. B. Stege Brewery.
    The mortgage to foreclose which the suit was brought was in form' a warranty deed, by Patrick Ahern and Bridget, his wife, and was given to secure the payment of loans made' at various times from . September, 1903, to February, 1910, by Dooley to Ahem and the interest on the loans. The premises covered had been occupied by the Aherns, part of the building being used as a store or saloon and part being used by them as a residence. At the time the deed was executed, they had rented out all of the premises, but they had the intention of returning to it as a residence after the expiration of the lease and actually did so. The deed, which was dated and acknowledged October 20, 1911, was filed in the office of the recorder of Cook county on October 21, 1911, at 11 -.34 A. M.
    While conducting the liquor business on the premises, Ahem became indebted to E. B. Stege Brewery and, with his wife, had given to it a judgment note.
    On October 21, 1911, at 12:11 P. M., a narr and cognovit based on the note and power of attorney was filed in the office of the clerk of the Circuit Court of Cook county. Judgment was immediately entered and an execution was subsequently issued and a levy under it made on the premises. Thereafter the premises were sold by the sheriff under the levy and were bought by the Stege Brewery to which a certificate of sale was duly issued. The certificate was duly recorded by the Brewery.
    The decree in the foreclosure proceeding provided that the property should be sold under the usual conditions of a foreclosure sale and that the proceeds should go: First. To satisfy the amount which it secured, with interest from the date of the decree; second, if there should be a surplus, to pay Patrick Ahem one thousand dollars for the homestead which it found him entitled to, subject only to the waiver thereof in the deed of warranty; third, if there should be a further surplus, such surplus to be held by the master making the sale subject to the further disposition which the court might make thereof. In the decree it was also found that the interest of E. B. Stege Brewery was subordinate and subject to Ahern’s homestead.

      Abstract of the Decision.
    1. ' Trial, § 81

      —when reopening of ease by master to hear evidence not an abuse of discretion. On a reference to a master in a proceeding to foreclose a warranty deed given as a mortgage to secure certain loans, the master may, in the exercise of his discretion, reopen the case, after it has been declared closed and the argument heard, to hear evidence on a subsequent promise to pay loans which were barred by the statute of limitations.
    2. Limitation oe actions, § 85*—how affected by giving of mortgage to secure pre-existing debt. The giving of a mortgage to secure a pre-existing debt will stop the running of the statute of limitations or revive a debt where barred.
    '-3. Mortgages, § 56*—when evidence insufficient to show that warranty deed given as a mortgage is fraudulent. The mere fact that there are circumstances tending to show a desire on the part of a debtor to prefer a personal creditor to a business creditor is not sufficient to render fraudulent a warranty deed given as a mortgage securing the indebtedness to the former creditor, where the evidence shows that debt to secure which it was given was for money actually loaned by the personal creditor to the debtor.

      From this decree only E. B. Stege Brewery appeals, alleging as error the admission of improper evidence; the entry of the decree in favor of complainant; the failure to find that a part of complainant’s claim was barred by the statute of limitations; the finding that complainant’s lien was superior to that of E. B. Stege Brewery; the failure to find that the warranty deed was fraudulent; the reopening of the case after the hearing was closed and argument had to admit evidence removing certain of complainant’s claims from the bar of the statute of limitations; the finding that Ahern was entitled to a homestead as against the Brewery,; the allowing complainant the benefit of'fractions of a day in ascertaining the priority of the liens.
    Simeon Straus and Ira E. Straus, for appellant.
    Vincent D. Wyman, 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. Presiding Justice

Brown delivered the opinion of the court.

4. Mortgages, § 13 —when form does not render deed given as mortgage fraudulent. The fact that an instrument which is, in fact, a mortgage is, in form, a warranty deed does not render it either conclusively or constructively fraudulent in so far as it is based upon an actual consideration, even though, in the bill to foreclose it, after accurately describing the apparent form and real nature of the instrument, the complainant adds an alternative prayer that in the .event the deed shall be construed as a trust rather than a mortgage, then the levy of judgment and certificate of sale thereunder to a defendant creditor shall be set aside as a cloud on complainant’s title to the premises.

5. Mortgages, § 56*—when evidence insufficient to raise presumption of fraud in warranty deed given as mortgage. Where the evidence shows that a warranty deed, given as a mortgage was given to secure a bona fide indebtedness, the mere fact that the manner and circumstances in which it was given indicate an intention to prefer one legitimate debt to another is not sufficient to raise a presumption of fraudulent intent.

6. Mortgages, § 56*—when evidence sufficient to overcome possible presumption of fraudulent intent in giving warranty deed as mortgage. Any possible presumption of fraudulent intent which may arise from the fact that an instrument given as a mortgage to secure a debt was in form a warranty deed, and was given in circumstances indicating an intention to prefer the creditor, is overcome by evidence that the debt was bona fide and that the attempt was not to delay or defraud creditors but merely a legitimate and meritorious effort to prefer the grantee.

7. Time, § 4*—when fraction of a day to be considered. In a proceeding to establish the relative superiority of a warranty deed to property and a judgment entered on the same property, equity may take notice of the fact that the deed was recorded thirty-seven minutes before the entry of the judgment.

8. Homestead, § 101*—when evidence insufficient to show intention of owner not to return. On an objection to an allowance of a homestead estate in a debtor’s property, on the ground that he had left the property with no intention of returning, direct evidence of the debtor that this was his intention with evidence that he did, in fact, return cannot be overcome by merely alleging a suspicion that he did not intend to return.

9. Mortgages, § 114*—when prior to lien of judgment. A debtor who was indebted for bona fide loans, gave to the creditor to secure the debt a mortgage which was in form a warranty deed which deed was filed by the creditor for record in the office of the recorder of Cook county the day after it was executed. The same creditor had previously given another creditor a judgment note and on the day the deed was filed for record, but thirty-seven minutes later, the latter creditor filed a narr and cognovit, based on the note and a power of attorney, in the office of the clerk of the Circuit Court of Cook county, judgment was immediately entered thereon and execution was thereafter issued on the judgment, a levy under it was made and the premises were sold under the levy and bought by the judgment creditor, who received a certificate of sale which was duly issued and duly recorded. On a proceeding thereafter to foreclose the mortgage of the first creditor, it was held that his lien was prior to that of the second creditor.


author: Mr. Presiding Justice Brown

text:
    Jacob Feder, Defendant in Error, v. Clara Greenberg, Plaintiff in Error.
    Gen. No. 20,177.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action by Jacob Feder against Clara Greenberg and B. Greenberg.
    The claim was stated to be for “a balance due for labor and material furnished to defendant under a written building agreement * * * between plaintiff and defendant, a copy of which is hereto attached. ’ ’ The copy attached purports to be a contract between B. Greenberg and J. Feder. The balance was made up of claims for “columns furnished by plaintiff to defendant on said building,” and for “hardware furniskecL said building by the plaintiff for the defendant.”
    Abstract of the Decision.
    1. Judgment, § 101

      —when absence of defendant does not render judgment one by default. Where a defendant is in court by appearance, the mere fact that he was not present at the trial does not render the judgment against him a judgment by default, where it was given after evidence and argument had been heard.
    2. Appeal and ebbor, § 787*—when bill of exceptions necessary. A bill of exceptions must be preserved in order to enable the Appellate Court to pass upon an assignment of error that the finding of the trial court is contrary to the evidence.
    3. Pleading, § 50*—when evidence against one defendant admissible in action against joint defendant. The fact that the statement of claim in an action against two defendants shows the claim under one construction of the statement, to be wholly and under another partially founded on a written agreement signed by one defendant only, does not render incompetent any evidence whatsoever which shows a claim against the other defendant alone.

      The affidavit of plaintiff’s claim is to the effect that the nature of his demand is “for balance due for labor and material furnished to defendants by plaintiff and for labor and material as above stated.”
    The Municipal Court rendered judgment by default against the defendants which was, subsequently, set aside on motion. Thereafter the action against B. Greenberg was dismissed. That against Clara Green-berg, who was not present and not represented, was heard by the court without a jury, and the issues were found against defendant and judgment was entered against her for $374.75.
    To reverse this judgment, the defendant Clara Greenberg has sued out this writ of error, the errors assigned being that the finding is contrary to the law' and evidence and that the court had no jurisdiction to enter judgment by default.
    Benjamin E. Cohen, for plaintiff in error.
    Lee & Lee, for defendant in error.

      See Illinois Notes Digest, Vois. 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. Presiding Justice Brown

delivered the opinion of the court.

4. Municipal Court of Chicago, § 13 —when statement of claim in fourth-class case sufficiently exact. Exactness and precision in the statement of claim in a fourth-class case in the Municipal Court of Chicago are not required, hut the claim is sufficient if the defendant is apprised of the nature of the demand against him, and inaccuracy is not a ground for reversal where prejudice therefrom is not shown.

5. Municipal Court of Chicago, § 13*—when variance in statement of claim in fourth-class case waived. Variance in a statement of claim in a fourth-class case is waived by failure to object.


text:
    C. G. Goodwin, Appellant, v. Oregon Short Line Railroad Company, Appellee.
    Gen. No. 20,256.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action of the first class by C. Gr. Goodwin against Oregon Short Line Railroad Company for damages by failure to furnish stock cars at a specified place and time.
    Plaintiff’s evidence showed that he requested defendant’s local station agent to have a certain number of stock cars delivered at a certain station on a specified day; that the agent told him to call again at a later date in reference thereto; that on his inquiring on the later date, the agent postponed his answer to the following day; that on his third inquiry, the agent informed him the cars would be furnished as requested, stating that he had received a telegram from the defendant’s “dispatcher” at another point to that effect; that the cars were not furnished until eighteen days after the date set.
    Abstract of the Decision.
    1. Cabbiers, § 222

      —when station agent not authorized to hind carrier to furnish cars on another line. A local station agent has no implied, presumptive, apparent or incidental authority to make a contract binding the carrier to furnish cars at a station on a foreign road at a certain date for the shipment of live stock.
    2. Cabbiers, § 247*—when burden not on carrier to show shipper’s knowledge of agent’s lack of authority. In an action to recover damages caused by the failure of a carrier to furnish stock cars at a point on another line on a certain day, as its station agent had agreed to do, the burden is not on the carrier to show that the shipper knew that the agent had no authority to make such an agreement, there being no evidence that the agent had either express or implied authority to do so.

      The evidence showed that the station at which the cars were to be delivered was not on defendant’s line nor at a junction point with its line and that the “dispatcher’s” station was not at a junction of its line with the line on which the delivery station was located.
    On an instructed verdict of the jury, the defendant obtained a judgment of nil capiait and costs. From this judgment, plaintiff appeals.
    Charles A. Butler, for appellant; Franklin Raber, of counsel.
    John A. Sheean, for appellee.

      See Illinois Notes Digest, Yols. 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. Presiding Justice

Brown delivered the opinion of the court.

3. Cabbiebs, § 248 —when evidence as to agent’s authority inadmissible. In an action against a carrier for damages caused by its failure to furnish stock cars at a point on another line on a certain day, pursuant to an alleged agreement of its local station agent, it is not' error to refuse to permit the jury to consider on the question of the agent’s authority evidence of the statement by the agent that he had received a telegram from the carrier’s “dispatcher" at a certain station, not a junction point with the foreign line, that the cars would be at the agreed station on a certain day, there being no evidence that the dispatcher’s authority to make such an agreement was any greater that that of the agent.

4. Cabbiebs, § 248*—when evidence insufficient to show ratification of agent’s promise to furnish cars. In an action against a carrier for damages caused by its failure to furnish stock cars at a point on another line, on a certain day, as its local station agent had agreed it would do, the fact that cars were furnished at the point on the foreign line eighteen days later is not evidence of ratification of the agent’s agreement, where the evidence shows that the cars so furnished were delivered by the carrier to the foreign road at a junction point and thereafter the distribution was controlled by such foreign road.

5. Appf.at, and ebbob, § 1466*—when rejection of evidence not reversible error. In an action against a carrier for damages caused by its failure to furnish stock cars on a certain day at a point on a foreign line, in violation of an agreement made by a local station agent, it is not reversible error to refuse to allow or compel the carrier’s assistant general freight agent to answer questions as to the orders to the station agent at another station for the placing of cars on another road, where the answers to similar previous questions did not sustain plaintiff’s case.


text:
    P. E. Short, Appellant, v. Oregon Short Line Railroad Company, Appellee.
    Gen. No. 20,255.
    (Not to be reported in full.)
    Abstract of the Decision.
    Carriers, § 222

      —when not liable for failure to supply cattle cars. The decision herein is controlled by that announced in Goodwin v. Oregon Short Line R. Co., ante, p. 146, which involves the same transactions,
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    The transactions out of which the present action grew are those involved in Goodwin v. Oregon Short Line R. Co., ante, p. 146. While there are some differences in the records, principally that in the present case the plaintiff did not examine Tuttle, defendant’s assistant general freight agent, and that the number of sheep was different, the delay and the shrinkage in weight were greater and larger damages were claimed, the same principles and the same rules of law control, and the judgment for defendant is therefore affirmed.
    Charles A. Butler, for appellant; Franklin Raber, of counsel.
    John A. Sheean, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Lord & Thomas, Appellee, v. Sanitary Drinking Cup Company, Appellant.
    Gen. No. 20,271.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clabence N. Goodwin, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action on contract by Lord & Thomas, a corporation, against Sanitary Drinking Cnp Company, a corporation.
    ' The contract provided for services to be rendered by plaintiff for a term of one year as advertising agent for defendant. Plaintiff was to receive for its services the net cost of all advertising space purchased by it for defendant plus a commission of fifteen per cent, above the cost, to be increased in certain cases to twenty-five per cent. Defendant guarantied that the commissions for the year’s business would be equal to $1,500 annually, and that in the event they fell below that amount defendant would pay plaintiff, twelve months after the date of the contract, the difference between $1,500 and the amount of commissions received. The advertising was discontinued by defendant before the expiration of the contract and when the commissions had reached $122.42.
    Judgment was rendered for plaintiff on December 22, 1913, on an instructed verdict bf the jury for $1,452.48,-representing the balance of $1,377.58 find interest for slightly over thirteen months at the .legal rate, the contract being dated November 8, 1911.
    From this judgment, defendant appeals.
    Louis Brandes, for appellant.
    Moses, Rosenthal & Kennedy, for appellee.

      Abstract of the Decision.
    1. Pleading, § 437

      —when evidence as to defense not pleaded properly excluded. In an action against a corporation to recover the balance due on a contract executed for the corporation by its secretary and treasurer, evidence that he had no authority to execute is properly excluded where the pleadings do not set up the nonexecution of the contract by the defendant as a defense.
    2. Pleading, § 321*—when verification of issue of nonassumpsit insufficient. In an action against a corporation to recover the balance due on a contract alleged to have been executed for the defendant by its secretary and treasurer, defendant pleaded the general issue of nonassumpsit without an affidavit verifying the plea or denying the execution, though it filed an affidavit of merits. It was held that the affidavit did not meet the requirements of sec. 52 of the Practice Act in relation to denying the execution of an instrument sued on.
    3. Corporation, § 382*—when hound hy contract of officer. Where a corporation acknowledged and acted upon a contract executed for it by its secretary and treasurer, express authority to the officer to make it originally is not material.
    4. Damages, § 81*-—when question of liquidated damages or penalty not involved. In an action to recover for the balance due on a contract which provided that plaintiff should receive a certain sum as a minimum for the services undertaken by it and a larger sum in a certain event, where the evidence shows a breach of contract by defendant, no question of penalty or liquidated damages is involved in a verdict for the minimum fixed by the contract.
    5. Interest, § 8*—when allowed in action on contract. Where a contract in writing provides for services for a term of one year and that as consideration for such services the party rendering them shall receive commissions on the amounts expended by him, the other party guarantying that the amounts of such commissions will be equal to $1,500, and that should they not reach that figure said other party will pay the difference between $1,500 and the amount actually recovered, in an action to recover the amount of such difference, it is proper, in a verdict for plaintiff, to include interest.
    6. Corporations, § 66*—when seal unnecessary on contract of corporation. A seal is not necessary on a contract for services for the term of a year entered into for a corporation by its secretary and treasurer.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Anna B. Gilmore, Appellant, v. Joseph E. Bidwell, Jr., Clerk, Appellee.
    Gen. No. 20,294.
    1, Judgment, § 360

      —when collateral attach not allowed. The jury, in a suit in the Circuit Court of Cook county, by an administrator, to replevy certain shares of stock claimed for the estate, found that the right of possession was in the administrator, and assessed one cent as damages “for detention of said property.” Judgment was entered on the verdict that "the plaintiff do have and retain the property replevined herein hy virtue of the writ of replevin issued in said cause,” and that plaintiff recover his damages “in form as aforesaid by the jury assessed.” By an order entered nunc pro tunc in the cause, the court directed that the certificates, which had been introduced as evidence in the cause, he impounded in the hands of the clerk of the court subject to its further order. Thereafter the defendant in that cause made demand of the clerk for the certificate and upon his refusal to deliver, filed an affidavit of replevin. The writ was returned by the sheriff unexecuted, and thereafter defendant filed a declaration in the Superior Court of Cook county joining counts in trover. The defendant in the second suit pleaded a part of the matters recited above and the plaintiff, hy replication, set up the same and additional matter of fact and also matters or conclusions of law derived therefrom. To this replication plaintiff demurred on the ground that plaintiff was attempting in a collateral proceeding, involving the same subject matter, to attack the judgment of a court of concurrent jurisdiction and the jurisdiction of such court in the proceeding. It was held that the demurrer was properly sustained and judgment properly rendered for defendant.
    2. Replevin, § 32*—when officer of court not subject, to. Where an officer of the Circuit Court holds a certificate of stock in his official capacity under the order of the court, replevin for it will not lie against him in a court of concurrent jurisdiction.
    Appeal from the Superior Court of Cook county; the Hon. Riohabd S. Tuthill, Judge, presiding. Heard in this court at the March termj 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Petition for certiorari dismissed by Supreme Court.
    Statement by the Court. July 26, 1911, one John F. Devine, as administrator with the will annexed of Orrin F. Place, deceased, began a replevin suit in the Circuit Court of Cook county against Anna B. Gilmore. The property to be replevied was six certificates of shares of stock in the Saratoga Gold Mining Company of Arizona. The replevin writ was issued and returned by the sheriff with this indorsement:
    “The plaintiff giving security as per bond hereto annexed, I have executed the within writ by reading the same to the within named defendant, Anna B. Gilmore, on the 27th day of July, 1911, and demanded of her that she turn out the within described property, which she refused to do, and being unable to find the said property, which in my custody, I return this writ not executed as to the within described property this 21st day of August, 1911.
    Michael Zimmer, Sheriff,
    by Joel N. Arnett,
    Deputy.”
    The plaintiff filed in the Circuit Court a declaration containing counts both in replevin and trover.
    This cause came on for trial in June, 1912, in the Circuit Court of Cook county before Judge Tuthill of that court, sitting with a jury. In response to a notice in writing served upon the attorneys of Anna B. Gilmore, she produced during said trial, in open court, the stock certificates involved, to be used as evidence. They were offered by the plaintiff in evidence and admitted in evidence. Afterwards, at the request of the plaintiff and over the objection and exception of the defendant, Judge Tuthill orally directed that said certificates be delivered by the plaintiff to Joseph E. Bid-well, Jr., as clerk of the Circuit Court of Cook County, Illinois, for safe-keeping. The judge did not make any memorandum of his said oral order, but in compliance with said oral order the said stock certificates came into the possession of and were impounded in the hands of the defendant as clerk of the Circuit Court of Cook county and have since there remained.

      On June 27, 1912, the same being one of the days of the June term, the jury returned a verdict in said cause in the following words:
    “We, the jury, find the defendant guilty and that the right to the possession of the property in question is in the plaintiff as administrator of Orrin F. Place, deceased, and assess the plaintiff’s damages for detention of said property at the sum of no dollars and one cent.”
    July 13, 1912, also a day of the June term, 1912, of the Circuit Court, a motion for a new trial and a motion in arrest of judgment were made by Anna B. Gilmore and overruled by the court. On the same day a judgment was entered by the Circuit Court as follows:
    “Wherefore it is considered by the Court that the plaintiff do have and retain the property replevined herein by virtue of the writ of replevin issued in said cause, and do have and recover of and from the defendant his damages of one cent in form as aforesaid by the jury assessed, together with his costs and damages in this behalf expended, and have execution therefor.”
    An appeal from this judgment was prayed by Anna B. Gilmore and allowed, but no appeal or writ of error has been prosecuted therefrom.
    On July 26, 1912, one of the days of the July term, 1912, of the Circuit Court, Judge Tuthill caused an order to be entered of record in said cause in the following words:
    “T. N. 10460
    G. N. 307428
    John F. Devine, Admr.
    v.
    Anna B. Gilmore.
    In the Circuit Court of Cook County, Illinois.
    It is hereby ordered that the certificates of stock in the Saratoga Gold Mining Company of Arizona issued to Orrin F. Place as follows: (Here follows a description of the certificates involved in the action) “introduced as evidence in the above entitled case be and . the same are hereby impounded in the hands of the Clerk of this Court for safe-keeping and as evidence and be retained by said Clerk until the further order of this said Court.
    It is further ordered that this order, the same having been virtually made in said case, on the 13th day of July, 1912, be now entered nunc pro tunc as of said 13th day of July, 1912.
    B. S. Tuthill, Judge.
    July 26, 1912.”
    July 24, 1912, Anna B. Gilmore had made a demand in writing upon Bidwell as clerk for said certificates, and on July 25, 1912, the day before the entry of the above quoted nunc pro tunc order, an affidavit for replevin was filed in the Superior Court of Cook county by Anna B. Gilmore, alleging that she was the owner of the stock certificates in question; that on June 26, 1912, Joseph E. Bidwell, Jr., as clerk of the Circuit Court of Cook county, had wrongfully taken them and at the time of the affidavit wrongfully detained them. A writ of replevin was issued and a bond filed with the sheriff on said June 25,1912.
    The sheriff made a return on the writ August 5, 1912, that he had served it on July 25, 1912, on Joseph E. Bidwell, Jr., as clerk of the Circuit Court of Cook county, and demanded of him that he turn out the property named therein, and that Bidwell refused to do so; wherefore, being unable to find the property, the sheriff returned the writ not executed as to the within described property.
    August 6, 1912, the plaintiff in this last mentioned suit, Anna B. Gilmore, filed her declaration in the Superior Court in replevin, joining counts in trover.
    The defendant, Bidwell, pleaded a part of the above recited matters, and the plaintiff, Anna B. Gilmore, by replication set up the same and additional matter of fact and many matters or conclusions of law derived therefrom by her. To this replication the defendant, Bidwell, as clerk, etc., demurred generally and specially. For special causes of demurrer he alleged that the verdict before described made an adjudication against the plaintiff, Anna B. Gilmore, and her privies; that the plaintiff was, “attempting in a collateral proceeding to attack the verdict of a jury, judgment of a court and orders of a court of concurrent jurisdiction with the Superior Court of Cook County, Illinois, in which suit the plaintiff herein was a party defendant, which verdict, judgment and orders are final and conclusive upon the plaintiff and involve the identical subject-matter involved in the suit at bar; ’ ’ that the plaintiff was attempting in a collateral proceeding to correct certain irregularities of form in a verdict and judgment of the Circuit Court of' Cook county in a suit involving the identical subject-matter involved in the suit at bar, and to attack the jurisdiction of said Circuit Court in said case.
    The Superior Court sustained the demurrer of the defendant, the plaintiff stood by her replication, judgment in the action was given for the defendant, the plaintiff appealed and the appeal is before this court for disposition.
    John T. Booz, for appellant.
    Beach & Beach and Francis S. Wilson, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The facts set forth in the prefixed statement—facts alleged in the pleadings and admitted by the demurrer—are such that no argument, however ingenious and plausible, can conceal or controvert the truth of the proposition that what the Superior Court of Cook county was-asked to do in the case at bar was not only to overrule the intent of the judgment and orders of a court of co-ordinate jurisdiction, but even to use the action of that court—contrary to its clear purpose— as a pretext for effecting a result which the Circuit Court supposed it had negatived. It can hardly be expected that this court will be astute to find reasons to compel the Superior Court to do so.

The administrator of the Place estate had a dispute with Anna B. Gilmore regarding the possession of and, presumably, the title to certain certificates of stock in an incorporated company, covering about 400,000 shares. He submitted the dispute to the Circuit Court of Cook county, bringing Anna B. Gilmore into that tribunal in a suit began in replevin. There was a trial; a jury found expressly that “the right of possession of the property in question” was in the administrator of the Place estate, and assessed as damages “for detention of said property” the sum of one cent.

The Replevin statute says: “If judgment is given for the plaintiff in replevin, he shall recover damages for the detention of the property while the same was wrongfully detained by the defendant,”—a provision which sufficiently explains and accounts for the form of the verdict and the nominal damages.

On this verdict the Circuit Court entered a judgment. It was that “the plaintiff” (that is, the administrator aforesaid) “do have and retain the property replevied herein by virtue of the writ of replevin issued in said cause. ’ ’ There is also a provision that the plaintiff have and recover his damages “of one cent in form as aforesaid by the jury assessed.”

The intention of both judge and jury in the Circuit Court to decide the dispute concerning the right to possession of the stock certificates at the time of the verdict and judgment, as well as at the time the suit was brought, is just as plain as though the property in question at the time had been in the possession of the sheriff under the replevin writ, or in the possession of the plaintiff to whom the sheriff had delivered it. It is hardly rendered plainer even by the order of the court at the time of the judgment from which an appeal was prayed and allowed, that the certificates should, until the further order of the court, be impounded with its clerk.

But the appellant in the case at bar says the effect of these actions of the Circuit Court was to make her right to the certificates absolute, requiring only application to a court of co-ordinate jurisdiction to effectually vindicate it. Her argument is: “Because I refused to deliver the certificates to the Sheriff, (although I did thereafter to the Clerk) the administrator of Place must be conclusively presumed to have abandoned his replevin suit and by going on with the suit at all to have elected to proceed in trover,—inasmuch as he joined trover counts with the replevin ones in his declaration and the statute says that if the property is not found by or delivered to the Sheriff, the plaintiff may declare in trover, and if he recover therein shall he entitled to judgment for the value of his property. Then, since the plaintiff elected to proceed in trover, the verdict, contrary to its express words, must be considered a verdict in trover and the damages for the detention be considered an assessment of the value of the property, everything in the verdict to the contrary of this hypothesis to be considered a superfluity or an irregularity and negligible.

The judgment on this verdict is also to be considered as a judgment in trover, changing the title and vesting it in me, although said judgment is plainly in its form a judgment in replevin, just as the verdict was a verdict in replevin, and although the money part of it was purely nominal and although it was accompanied by an order impounding the certificates (which had appeared on the trial) with an officer of the Court.

That the end may crown the work, it is proposed to vindicate the legal right that the Circuit Court has thus, contrary to its undeniable intention, given to Anna B. Gilmore, by securing a judgment of the Superior Court in her favor in an action of replevin against an officer of the Circuit Court, and, as he has refused, to deliver up the certificates, by mulcting him in their value (for the théory which Gilmore invokes in Devine v. Gilmore must be good in Gilmore v. Bidwell) which we may suppose will be put at a much higher figure than one cent in the estimates of the plaintiff in Gilmore v. Bidwell.

The result aimed at is not agreeable to our sense of justice and we think the reasoning sophistical.

We are not prepared to hold that the plaintiff in Devine, Adm’r v. Gilmore “elected to proceed in trover” or that the verdict or judgment was in trover; and we are not of the opinion that the opinion in the criminal contempt case of Yott v. People, 91 Ill. 11, nor the decision in McGavock v. Chamberlain, 20 Ill. 219, that the plaintiff could not at the same time recover the value of some horses, the subject of a suit prosecuted in trover, and also damages for their detention, compels us to do so. The incidental language in the opinions in Reno v. Woodyatt, 81 Ill. App. 553, and Rowersock v. Beers, 82 Ill. App. 396, would not of course be binding or authoritative for us even were it more important.

The action in the Superior Court is an attempt not, as counsel argues, to render effective the judgment of a co-ordinate court, but to set it aside and overrule it. The only proper way to attack that judgment is by an appeal from a writ of error to the court which entered it. The Superior Court, on this ground if no other, was right in sustaining the demurrer to the plaintiff’s replication in the case at bar and giving judgment for the defendant.

But there are other reasons why that action was right. We do not purpose to discuss-the arguments made in the matter of the orders of Judge Tuthill under which the certificates are held by the clerk of the Circuit Court. We think that he received them and holds them in his official capacity under the order of the Circuit Court. Therefore replevin will not lie against him for them. If his holding is essentially wrongful, it should be ended by an application to the court which ordered it, or to some higher court, not to a co-ordinate one. As the Supreme Court of Kansas said in Karr v. Stahl, 75 Kan. 387: “Ample remedy has been given for testing the validity of any law, process or judgment without recourse to an action of replevin.”

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    Annie Curran, Appellee, v. Patrick B. Curran, Appellant.
    Gen. No. 20,328.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Suelivan, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Bill for divorce by Annie Curran against Patrick B. Curran for desertion and extreme and repeated cruelty.
    The evidence showed, and it was admitted, that the husband left complainant on September 27, 1910, and never supported her nor offered to support her thereafter. The bill was filed May 23, 1913. The evidence as to the cause of his leaving was conflicting.
    From a decree for complainant, respondent appeals.
    Patrick B. Curran and C. S. O’Meara, for appellant.
    Kelley, Fardy & Griffin, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

Abstract of the Decision.

Divorce, & 48*—when decree on ground of desertion sustained. Where the evidence on a bill for divorce by a wife against a husband on the ground of desertion shows that the husband left her more than two years before the date of the filing of bill and never supported nor offered to support her thereafter, and the evidence as to the cause of his leaving is conflicting, a decree In favor of the complainant will not be disturbed on appeal.


author: Mr. Justice Baker

text:
    The Philadelphia & Reading Coal & Iron Company, Plaintiff in Error, v. Adolf Kuecken et al., trading as William Kuecken & Company, Defendants in Error.
    Gen. No. 19,572.
    1. Partnership, § 252

      —when instruction as to liability of retiring members proper. An instruction which tells the jury that as to a party with whom a copartnership had dealings, actual notice, or its equivalent, of the dissolution or the withdrawal of any member of the firm must be shown to protect the retiring members from liability for debts subsequently contracted, and that “proof of the mailing of the notice * * * properly addressed to persons having had prior dealings with the firm is prima facie evidence that the notices have been received by the parties to whom they were addressed, but such presumption may be rebutted by proof that the same notices were never received,” held proper.
    2. Partnership, § 252*—when question as to notice of dissolution and retirement of members for jury. In an action to recover for coal sold to a copartnership after the withdrawal of certain members against whom the plaintiff sought to establish liability therefor, held under the evidence the question whether a notice ■of the dissolution and the withdrawal of the members was mailed to the plaintiff a year or more before the purchase of the coal was a question of fact for the jury, on which their verdict was conclusive.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed January 25, 1915.
    Rehearing denied February 8, 1915.
    Ullman, Hoag & Davidson, for plaintiff in error.
    Henry D. Coghlan, for defendants in error.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and Section number.

   Mr. Justice Baker

delivered the opinion of the court.

From 1902 to January, 1910, Adolf, Otto and Minnie Kuecken were copartners under the firm name of William Kuecken and Company, and during that time bought coal of the plaintiff corporation. In January, 1910, the copartnership was dissolved by the written agreement of the parties, and notice of such dissolution was given by publication in a newspaper. It was agreed by the parties that Otto Kuecken should there-, after continue the business under the foriner firm name. Plaintiff sold and delivered coal in January and February, 1912, to the person or persons doing business as William Kuecken and Company, to the amount of $319.10. Otto Kuecken was afterwards adjudged a bankrupt, and plaintiff sought in this action to recover the price of the coal so sold from Adolf and Minnie Kuecken. The jury found a verdict for the defendants, and this writ of error brings in review a judgment of nil capiat entered on the verdict.

The court instructed the jury that as to the plaintiff with whom the copartnership had had dealings, actual notice, or its equivalent, of the dissolution or the withdrawal of any member of the firm must be shown to protect the retiring member from liability for debts subsequently contracted, and that “proof of the mailing of the notice of dissolution of the partnership and of the retirement of certain members thereof, properly addressed to persons having had prior dealings with the firm is prima facie evidence that the notices have been received by the parties to whom they were addressed, but such presumption may be rebutted by proof that the same notices were never received.”

We think the jury were properly instructed. Meyer v. Krohn, 114 Ill. 574; Young v. Clapp, 147 Ill. 176.

We also think that on the evidence in the record the question whether a notice of the dissolution of the copartnership and of the withdrawal of Adolf and Minnie Kuecken was mailed to the plaintiff in September, 1910, a year and longer before the purchase of the coal in. question, was a question of fact for the jury, on which the verdict must be held conclusive.

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

Affirmed.


text:
    Hedwig Anna Schulze, Appellant, v. Anna Matschke et al., Appellees.
    Gen. No. 19,777.
    Wills, § 478

      —when construed to charge legacies on certain realty. Language of a will held to disclose the intention of the testatrix to charge pecuniary legacies in favor of her grandchild upon real estate devised to children of testatrix.
    Appeal from the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed January 25, 1915.
    Arthur Schroeder, for appellant.
    August Marx, August R. Marx, Charles L. Bartlett and Sherman C. Spitzer, for appellees.

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

   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by Hedwig Anna Schulze from a decree sustaining the demurrers of the defendants to her bill of complaint as amended and dismissing the bill for want of equity.

The bill alleged that complainant was the only child of Emma Schulze, deceased, who was the daughter of Anna Zipp, who died January 31,1901, leaving the following will:

“I, Anna Zipp, of the City of Chicago, Cook County and State of Illinois, being of sound mind and memory, do make, publish and declare this to be my last will and testament, hereby revoking all former wills.
“1st. I direct that my funeral expenses and just debts be paid.
“2d. I give, devise and bequeath to my beloved husband, John P. Zipp, all my personal property and household effects absolutely and forever.
“3d. I give, devise and bequeath to my beloved husband, John P. Zipp, all my real estate situated in the Village of Glencoe, Cook County, Illinois, absolutely and forever in fee simple.
“4th. I give, devise and bequeath to my beloved children, John P. Zipp, Jr., and Anna Matschke, the real estate known as Nos. 233, 235 and 237 Clyboum avenue, Chicago, Cook County and State of Illinois, in fee simple, provided, however, that my beloved husr band, John P. Zipp, shall have the use, benefit, income and enjoyment thereof of said last mentioned real estate for and during his natural life. He to pay all taxes, assessments and improvements on said property.
‘‘5th. I request that my children, John P. Zipp, Jr., and Anna Matschke, after the death of my husband, John P. Zipp, pay to my grandchild, Hedwig Anna Schulze, the sum of $1,000 each, provided my grandchild, Hedwig Anna Schulze, is then living. In case of her death all obligations to pay to her the sum herein named shall terminate, and, further, that said sum shall not be paid to her until she is eighteen years of age. And in case she should die before she arrives at the age of eighteen years, said sum of $2,000 to fall back to John P. Zipp, Jr., and Anna Matschke, my said children, in equal shares. I hereby devise and bequeath all the rest, remainder and residue of my real estate, personal and mixed, to my beloved husband, John P. Zipp, and I hereby nominate and appoint my beloved husband executor of this will without security.”

That John P. Zipp, Sr., died in 1906, intestate, leaving his children, Anna Matschke, John P. Zipp, Jr., and complainant, his grandchild, his only heirs at law.

That John P., Zipp, Jr., died in 1909, leaving Elizabeth P. Zipp, his daughter, his only heir at law.

The said Anna Zipp at the time of making her will and at the time of her death had no personal property and had only the real estate in the village of Glencoe and the premises Nos. 233, 235, 237 Clyboume avenue, mentioned in her will.

That the Clybourn avenue property is owned by Anna Matschke and Elizabeth P. Zipp, subject to certain liens, which it is unnecessary to state, and that the same is reasonably worth $14,000.

The only question presented is whether an intent on the part of the testator to charge the legacies given by the wilLto complainant on the real estate devised to testator’s children, John P. Zipp, Jr. and Anna Matschke, can be inferred under the facts and circumstances stated in the bill as amended.

It is further alleged in the bill that complainant has arrived at the age of eighteen, and that defendants Anna Matschke and Elizabeth Zipp have each failed and refused to pay her the sum of $1,000. The prayer of the bill is that Anna Matschke and Elizabeth Zipp may be each decreed to pay complainant $1,000; that she may be decreed to have a lien on their said real estate therefor; and that in default of payment the same may be sold, etc.

The court sustained the demurrers of defendants to the bill as amended and dismissed the same for want of equity, and from such decree the complainant prosecutes this appeal.

That it was the intention of Anna Zipp to give appellant $2,000 if she arrived at the age of eighteen is clearly expressed.

“It is an elementary rule in the construction of wills, that effect must be given to that intention, if it can be done, consistently with the rules of law. In other words, this bequest must not be allowed to abate, unless it shall be found that, by no fair interpretation of the entire testamentary devise, can it be ascertained from what part of his estate the testator intended it should be paid, therefore, the only question here presented for decision is, can it be charged upon the real estate devised to appellees by the fourth or residuary clause? In determining that question it becomes important to ascertain, first, whether by the terms of the preceding clauses it can, consistently with the intention of said testator, be paid out of any other part of his estate.” Reid v. Corrigan, 143 Ill. 402.

That it was not her intention to charge the real estate devised to her husband is clear, and we think it is also clear that she did not intend that the legacies should be paid out of her personal estate, for she bequeathed all her personal estate to her husband. Reid v. Corrigan, supra, p. 406.

One of two things must therefore follow: Either the legacies must abate and to that extent the will of the testator be defeated, or they must be paid out of the real estate devised to Anna Matschke and John P. Zipp, Jr., the father of Elizabeth P. Zipp. The clause of the will which provides that in case complainant shall die, “before she arrives at the age of eighteen years said sum of $2,000 to fall back to John P. Zipp, Jr. and Anna Matschke, my said children,' in equal shares,” we think tends to show that the testator intended to charge the legacies on the real estate devised to Anna Matschke and John P. Zipp, Jr.

On- a careful consideration of this case we are of the opinion that the testator intended these legacies to be paid out of the estate devised to Anna Matschke and John P. Zipp, Jr. A similar conclusion was reached by the Supreme Court in Reid v. Corrigan, supra, and we think the language of the will in this case more clearly discloses such intention than does the will in that case. In that case it was said that the conclusion reached, “in no way conflicts with the rule of law announced in Heslop v. Gatton, Ex’r, 71 Ill. 528.” The cases of Wentworth v. Read, 166 Ill. 139, and Haynes v. McDonald, 252 Ill. 236, only reannounce the rule stated in Heslop v. Gatton.

The decree of the Superior Court is reversed and the cause remanded with directions to overrule the demurrer to the bill as amended.

Reversed and remanded with directions.


text:
    Pasquale Schiavone and Michael F. Schiavone, trading as P. Schiavone & Son, Appellees, v. Donato Zingarelli and Amalia Zingarelli, Appellants.
    Gen. No. 19,901.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action by Pasquale Schiavone and Michael F. Schiavone, trading as P. Schiavone & Son, against Donato Zingarelli and Amalia Zingarelli upon certain notes given by defendants to one Bottigliero for work done on a certain building, the notes having been assigned to plaintiffs. The case was tried by the court without a jury. To reverse a judgment in favor of plaintiffs, defendants appeal.
    Morgan, McFarland & Goodman, for appellants.

      Abstract of the Decision.
    1. Appeal and ebbob, § 450

      —when erroneous admission of evidence not preserved for review. The erroneous admission in evidence of a ledger leaf is not preserved for review, where it was offered, admitted in evidence and made a part of the record without objection, and afterwards counsel stated: “I think these three ledger leaves are objected to,” which was not an objection, and no ruling of the court was asked or made.
    2. Bills and notes, § 326*—when defense of failure of consideration not available. Where the consideration for promissory-notes was the promise of the payee to do certain work, the fact that the payee fails to keep his promise makes him liable for damages but does not constitute a failure of consideration which may be urged as a defense in a suit on the notes.
    3. Bills and notes, § 451*—sufficiency of evidence. In a suit to recover on promissory notes, held that there was not a clear preponderance of the evidence that there was an accounting or accord which would prevent a recovery.
    Frederick A. Brown and William R. T. Ewen, Jr., for appellees; Raymond S. Pruitt and Harry A. McCauley, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    E. H. Johnson, Trustee, Defendant in Error, v. Arthur Feilchenfeld, Plaintiff in Error.
    Gen. No. 20,105.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Cotjbtney, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action of forcible detainer in the Municipal Court of Chicago by E. H. Johnson, trustee of estate of T. F. McKinley, bankrupt, against Arthur Feilchenfeld. To reverse a judgment entered on a directed verdict in favor of plaintiff, defendant prosecutes a writ of error.
    The facts of the case were as follows: Hannah and Hogg rented from the owner in 1905 the entire floor of a building and about 1906 leased to the defendant a -portion thereof 15x58 feet, which he has since occupied. In 1909 Hannah and Hogg leased to Flanigan a portion of said floor adjoining the premises occupied by defendant on the south and east for a term of five years from May 1, 1910. Flanigan, with the consent of the lessors, assigned his lease to Bloom January 19, 1910. Bloom leased to defendant March 5, 1910, a space about 15x25 feet adjoining on the east the premises leased to and occupied by defendant. September 12, 1910, Bloom, with the consent of the lessors, assigned the Flanigan lease to Lane. The lease of the space 15x 25 feet made by Bloom to defendant appears to have been cancelled by consent of defendant and Lane, and Lane, August 4, 1911, leased to defendant a portion of the space leased by Bloom to defendant, approximately fifteen feet square, adjacent to the premises leased to defendant by Hannah and Hogg. April 27,1912, Lane, with the consent of the lessors, assigned the Flanigan lease to Duggan. Duggan and McCarty occupied for a saloon the premises originally leased to Flanigan, with the exception of the 16x15 feet leased by Lane to defendant until in March, 1913, they lost their license. They paid the March rent and Hannah and Hogg sued Flanigan for the April, 1913, rent and recovered. April 16, 1913, Hannah and Hogg leased to plaintiff McKinley for a term of two years from May 1, 1913, the premises originally leased by said lessors to Flanigan.
    This action was brought by McKinley to recover from Feilchenfeld possession of the space fifteen feet square adjoining on the east the premises 15x58 feet originally leased by Hannah and Hogg to defendant. It appeared that the court directed a verdict for the plaintiff on the theory that the lease to Flanigan had been forfeited and that therefore the lease from Lane to defendant for the premises in controversy had become void and of no effect. The lease to Flanigan provides that:
    “It is expressly agreed between the parties that, if default be made in the payment of the rent above reserved or any part thereof, or in any of the cove-, nants and agreements herein contained, to be kept by the second party, it shall be lawful for the first party, or the legal representatives of said party, at any time thereafter, at the election of said first party, or the legal representatives thereof, without notice, to declare said term ended, and to re-enter said demised premises, or any part thereof, either with or without process of law, and the said second party, or any person or persons occupying the same, to expel, remove" and put out, using such force" as may be necessary so to do, and the said premises again to repossess and enjoy, as before this demise, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenants. * * And in order to enforce a forfeiture for non-payment of rent, it shall not be necessary to make a demand on the same day the rent shall become due, but a failure to pay at the place aforesaid, or a demand and a refusal to pay on the same day, or at any time on any subsequent day, shall be sufficient, and shall be deemed a forfeiture for non-payment of rent; and after such default in forfeiture shall be made, the second "party and all persons in possession under him shall be deemed guilty of a forcible detainer of said premises under the statute.”
    Soboroff & Newman, for plaintiff in error; Samuel W. Newman, of counsel.

      Abstract of the Decision.
    1. Landlord and tenant, § 416

      —when provision of forfeiture for nonpayment of rent binding on sublessee. Provisions in a lease held to exact a forfeiture of the lease for nonpayment of the rent by the lessee 'when due, and to be binding on a sublessee so that an action of forcible detainer would lie against the latter on simple proof of the lessee’s nonpayment of the rent.
    ■ 2. Landlord and tenant, § 465*—effect of payment of rent after forfeiture of lease. The payment after forfeiture of lease of rent accruing before forfeiture does not Effect the forfeiture in the absence of any facts connected with the payment tending to show a waiver of such forfeiture.
    No appearance for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Wilhelmine Herrman, Defendant in Error, v. Anton Ernst and Margaretha Ernst, Plaintiffs in Error.
    Gen. No. 18,583.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed upon remittitur; otherwise reversed and remanded.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action by Wilhelmine Herrmann against Anton and Margaretha, Ernst to recover for personal injuries received by plaintiff from being bitten by a dog belonging to defendants. To reverse a judgment entered on a verdict for two hundred dollars, defendants prosecute a writ of error.
    Q. J. Chott, for plaintiffs in error.

      Abstract of the Decision.
    1. Animals, $ 46

      —when recovery for dog hite excessive. A verdict for two hundred dollars for injuries sustained by a dog bite, held excessive to the extent of one hundred dollars, where it appeared plaintiff received a small bite on the leg which healed without delay.
    2. Animals, § 43*—sufficiency of evidence. In an action to recover for an injury resulting to plaintiff from a bite by defendants’ dog, where plaintiff claimed she was bitten by the dog which was chained near the entrance of defendants’ building when she went upon the premises to inquire concerning rooms for rent, and defendant asserted nonliability on the ground that plaintiff was a trespasser and also guilty of contributory negligence, held that a finding for plaintiff was sustained by the evidence.
    No appearance for defendant in error.

      See Illinois Notes Digest, Volt. XI to XV, and Cumulative Quarterly, earn# topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Henry L. Steinke, Plaintiff in Error, v. Julius Eisner, Defendant in Error.
    Gen. No. 19,001.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caveblt, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed January 25, 1915.
    Statement of the Case.
    Action by Henry L. Steinke against Julius Eisner to recover for money loaned and merchandise sold and delivered. Upon a trial without a jury, the testimony of plaintiff in support of his claim was contradicted categorically as to each item by the testimony of defondant. To reverse a judgment entered on a finding in favor of defendant, plaintiff prosecutes a writ of error.
    Abstract of the Decision.
    1. Trial, § 286a

      —necessity of argument. It is not error for the court trying a case without a jury to render a decision without requiring argument of counsel.
    2. Appeal and error, § 989*—when disallowance of motion for nonsuit not presented for review. Refusal of court to allow a motion to be made for a nonsuit is not presented for review where it does not appear from the record any attempt to make such a motion was made.
    Frank Foster, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.