text:
    Daniel F. Blake, Trustee, Appellant, v. F. H. Thwing, Appellee.
    Gen. No. 18,770.
    1. Bankruptcy, § 8

      —rights of trustee. The trustee in bankruptcy represents the creditors and may sue to avoid any conveyance which a creditor could have avoided.
    2. Bankruptcy, § 38

      —when trustee may sue in equity. The trustee in bankruptcy may proceed by bill in equity to set aside a fraudulent conveyance, and will not be relegated to his remedy at law.
    3. Bankruptcy, § 27

      —when conveyance by bankrupt valid. A purchase from a bankrupt, within four months prior to the filing of the petition in bankruptcy, in good faith and for a present fait consideration, is not in contravention of the Bankruptcy Act, and the purchaser cannot be deprived of the property by the application of the principles governing constructive fraud.
    4. Bankruptcy, § 27

      —when conveyance by bankrupt fraudulent. A purchase from a bankrupt within four months prior to the filing of the petition in bankruptcy, which is not based on good faith and a present fair consideration, constitutes actual fraud, and. under the Bankruptcy Act, the sale is void in toto as to creditors of the bankrupt.
    5. Fraud, § 1

      —actual and constructive fraud defined. Actual fraud is intentional fraud, while constructive fraud is such as the law infers from the circumstances of a particular case, regardless of the intent of the parties.

      6. Bankruptcy, § 27

      —■when principles governing constructive fraud inapplicable to conveyance by bankrupt. Where the evidence showed that the defendant and another conspired with the bankrupt in the conveyance of property of the bankrupt to the defendant for the purpose of defrauding, creditors of the former, the principles governing constructive fraud are inapplicable.
    7. Appeal and ebrob, § 1397

      —review of chancellor’s findings based on depositions. Where, in an action by a trustee in bankruptcy to set aside a conveyance as fraudulent, the evidence before the chancellor was in the form of depositions, the rule that the findings of the chancellor will not be reversed unless palpably erroneous does not apply, and the court will determine the facts from the record as they appear just and right.
    8. Bankruptcy, § 27

      —what sufficient proof of fraud in conveyance,by bankrupt. In an action by a trustee in bankruptcy to set aside as fraudulent a conveyance by the bankrupt within four months prior to the filing of the petition in bankruptcy, proof of actual knowledge by the purchaser of the intention of the bankrupt in the sale of the goods is not essential. It is sufficient to charge him with notice, if the facts and circumstances surrounding the transaction are of a character to put a reasonably prudent man upon inquiry, and a purchaser, under such circumstances, is charged with notice of what such inquiry, reasonably and diligently pursued, might have revealed.
    9. Bankruptcy, § 27

      —good faith of purchaser from bankrupt how determined. The good faith of a purchaser from the bankrupt is not to be determined by his testimony alone, but is to be determined from all the facts and circumstances of the case, and may be ascertained by inference from the circumstances surrounding the transaction.
    10. Bankruptcy, § 27

      —rights of fraudulent purchaser to reimbursement. Where a purchase from a bankrupt within four months of the filing of the petition in bankruptcy is invalid as not based on good faith and a present fair consideration, the purchaser is not entitled to be reimbursed for any money he may have actually paid for the property.
    Appeal from the Superior Court of Cook county; the Hon. Citarles A. McDonald, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed February 5, 1914.
    Statement by the Court. This is a suit in chancery, filed in the Superior Court of Cook county, by the appellant (hereinafter called the complainant), a trustee in bankruptcy of the Mitchell Dry Goods Company, Bankrupt, of Kansas City, Missouri, to set aside an alleged fraudulent sale of merchandise to the appellee (hereinafter called the defendant), a short time prior to the commencement of the bankruptcy proceedings. The bill of complaint charges that the complainant is trustee in bankruptcy of Mitchell Dry Goods Company, a bankrupt corporation of Kansas City, Missouri; that a petition in bankruptcy was filed against the said corporation December 18, 1909; that the corporation had been guilty of divers gross frauds; that its assets were sufficient to pay only fifteen per cent, of j-ts indebtedness; that there had been a disappearance of about $200,000 worth of merchandise, which according to the books of the Company should be on hand; that there was a fraudulent transfer of merchandise from the corporation to the defendant, Thwing, while the corporation was insolvent; that the merchandise had been transferred with the intent and purpose on the part of the complainant and the defendant Thwing of defrauding, hindering and delaying the Company’s creditors; that this merchandise had for a long time been concealed in a store in Kansas City, and was finally shipped to Chicago, where it was in the hands of auctioneers; that complainant had no inventory of the merchandise and could not describe the same; that it was being mixed with other merchandise in an auction house and was about to be disposed of; that complainant had been authorized to bring this suit; the complainant prayed that a receiver be appointed, discovery made, the transfer s-et aside and the merchandise declared to be the property of the complainant. F. H. Thwing and Gans & Company, the Chicago auctioneers, were, made defendants to the suit.
    The defendant, Thwing, answered, denying all the allegations of fraud, and averring that he purchased the merchandise in-good faith from one S. H. Gaines; that Gaines had obtained it from the Mitchell Dry-Goods Company, and that Thwing had paid $4,000, an adequate consideration, for the merchandise.
    On February 17, 1910, the date' of the filing of the bill of complaint, on motion of the complainant, a receiver was appointed and the g’oods in question were seized in the auction house of Samuel Gang Company, in Chicago, Illinois. The Gans Company filed a disclaimer and it was dismissed out of the case.
    Before the hearing of the case, the parties stipulated that the goods in question be sold at auction and the proceeds held in lieu of the merchandise to abide the event of the suit. This was done and the goods were bid in for $6,466.75.
    The evidence in the case, practically all of which was introduced by the complainant, takes up a little over 1,000 stenographic pages of the record.
    The case was tried by the chancellor on depositions, and on testimony taken before the master and the referee in bankruptcy, and it was stipulated that the said testimony should be read to the chancellor in like manner as depositions. The chancellor entered the following decree in the. case:
    “The court being fully advised in the premises finds that although the evidence is not conclusive yet a preponderance thereof shows that as between the creditors of the Mitchell Dry Goods Company and the defendant, F. H. Thwing, the sale of the goods in plaintiff’s petition described was a constructive fraud upon said creditors; that the same is therefore voidable, and to the extent of the excess in value of said goods above the actual price paid therefor, by and at the instance of the defendant Thwing to the Mitchell Dry Goods Company, said sale should be pro tanto vacated and held for naught.
    The court further finds that the fair value of said goods at the time and place of the sale thereof to the defendant Thwing is the sum of five thousand five hundred seventy-eiglit and twenty-two one-hundredths dollars ($5,578.22), being the net amount realized from the sale of the said goods by F. H. Culver, the receiver in this cause; that for said goods the defendant Thwing paid to the Mitchell Dry Goods Company out of his own funds the sum of three thousand five hundred dollars ($3,500) and procured one S. IT. Gaines to pay to said company the further sum of five hundred dollars ($500), for which defendant Thwing obligated himself to reimburse said Gaines and that therefore the whole consideration paid by the defendant Thwing for said goods was the sum of four thousand dollars ($4,000).
    It is ordered * * * that the whole amount in the hands of the receiver, including both original amount and accrued interest to date, left after deducting the two sums of one hundred five dollars ($105) and thirty dollars ($30), respectively, which the said receiver has paid for his receiver’s indemnity bonds, is the sum of five thousand six hundred thirty-two and seventy-five one-hundredths dollars ($5,632.75).
    The court further finds that the share of the plaintiff in the said original fund is the sum of one thousand five hundred seventy-eight and twenty-two one-hundredths dollars ($1,578.22), and that of the defendant the sum of four thousand dollars ($4,000), and that the share of each in the interest fund aforesaid is proportionate to the share of each in the original fund. * * *
    The court further finds that the costs of Ibis litigation should be apportioned between the plaintiff and the defendant, F. H. Thwing, in the proportion that the interest of each in the original fund bears to the whole amount thereof.
    It is therefore, by the court, decreed, ordered and adjudged that the receiver forthwith distribute and apply the funds in his hands as follows: First:
    1. To the payment of the costs of this litigation.
    2. That the amount left after paying said costs be divided between and paid to plaintiff and defendant in the proportion represented by the fractional interests of each therein, to-wit:

      (a) To the defendant, F. H. Thwing, the sum of 4,000/5,578.22 of the balance left in the hands of said receiver after paying the aforesaid costs.
    (b) To the plaintiff, Daniel F. Blake, the remainder of said fund left in the hands of the receiver after satisfying the foregoing requirements of this decree. ’ ’
    The complainant prays this appeal and assigns as error that the chancellor failed to award the entire fund to the complainant; that the chancellor allowed the defendant reimbursement; that the decree is against the evidence and in contravention of the law. The defendant Thwing has assigned certain cross-errors, presenting .the proposition to this court that the chancellor erred in holding that the defendant was guilty of constructive fraud; that the chancellor should have held that the purchase of the goods in question by the defendant was made in good faith and “for a present valuable consideration,” and should have awarded the entire net proceeds from the sale of the goods to the' defendant.
    Lipson & Levy, for appellant; Thad B. Landon, of counsel.
    Edmund W. Burke and Guthrie, Gamble & Street, for appellee.

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

      See HJinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Scanlan

delivered the opinion of the court.

This is a proceeding by the complainant, a trustee in bankruptcy, under the Bankruptcy Act of 1898. Section 67e of that act provides that all conveyances, transfers, assignments or incumbrances of his property, or any part thereof, made or given within four months prior to the filing of the petition in bankruptcy, by a person adjudged a bankrupt under the provisions of the Bankruptcy Act, “with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor except as to purchasers in good faith, and for a present fair considerationAnd such property so conveyed or transferred shall be and remain a part of the assets and estate of the bankrupt, and shall pass to his trustee in bankruptcy, “whose duty it shall be to recover and claim same by legal proceedings for the benefit of his creditors, and all conveyances or transfers made by the debtor which are held null and void against the creditors of such debtor by the laws of the State or district in which such property is situated, shall be deemed null and void under this Act against the creditors of such debtor if he be adjudged a bankrupt, and such property shall pass to his trustee and be by him reclaimed for the benefit of creditors.” The trustee represents the creditors and may sue to avoid any conveyance which a creditor could have avoided. Such trustee may proceed for such purpose by a hill in equity, and will not be required to seek his remedy at law. Collier on Bankruptcy, 1039.

That the goods in question were disposed of to the defendant by Mitchell, the president of the bankrupt Company, through his confederate, Gaines, with the intention and purpose of hindering, delaying and defrauding the creditors of the bankrupt Company, is overwhelmingly shown by the proof in the case. The decree in the case, as to the defendant, is predicated upon the fraudulent conduct of Mitchell and Gaines. Counsel for the defendant, in their briefs, practically confine their efforts to a defense of the conduct of Thwing, and inferentially, at least, concede the fraudulent conduct of Mitchell and Gaines in the disposition of the goods.

Practically, therefore, the only question of fact the chancellor had to determine was, did the defendant purchase the goods in question in good faith and “for a present fair considerationf” If, as a matter of fact, the defendant purchased the goods in question in good faith and “for a present fair consideration,” the purchase would not be in contravention of the provisions of the Bankruptcy Act and he could not be deprived of the said goods in whole or in part by the application of principles governing cases of constructive fraud. If on the other hand, as a matter of fact, the defendant did not purchase the goods in good faith and “for a present fair consideration,” the alleged sale to him would constitute a case of actual fraud, and it would be void in toto, as against the creditors of the bankrupt. Actual fraud is intentional fraud. Constructive fraud is such as the law infers from the circumstances of a particular case, regardless of the intent of the parties. The good faith of the defendant in the alleged purchase of the goods in question was a material inquiry. The defendant could only be deprived of the goods in question by a finding that he was guilty of actual fraud, that is, a want of good faith in the purchase of the goods.

The chancellor erred in applying the principles of constructive fraud to this case, and the cases cited by counsel for the defendant, in support of the contention that the chancellor had the right to hold that the defendant was guilty only of constructive fraud, do not apply to a case of this character.

In our determination of the question of the good faith of the defendant in. the purchase of the goods, we have been governed by certain rules laid down by the Supreme Court. In Baker v. Rockabrand, 118 Ill. 370, which was a case tried by a chancellor upon depositions, the Supreme Court said:

‘ ‘ This court has frequently said, that when the trial court saw and heard the witnesses, with the opportunity of observing them while testifying, this court would attach much weight to the finding of the trial court, and would not reverse it upon mere questions of fact unless such finding was palpably erroneous, and we are not disposed to depart from that rule. But in cases where, as in the one at bar, the evidence is in! the- form of depositions, the reason of the rule fails. This court, having the same facility of determining the truth or falsity of the testimony, must determine, from the record, the questions of fact, as shall appear just and right.”

In McGinnis v. Jacobs, 147 Ill. 30, which was a case tried by the chancellor upon depositions, the Supreme Court said:

“The chancellor who heard the case in the court below had therefore no better means of judging of the relative candor, fairness and credibility of the respective witnesses than we have, so that the appeal may be regarded substantially as presenting the case to us for a hearing de novo upon the same evidence heard in the court below.”

The vital question of fact for us to determine, is, was the defendant a purchaser in good faith and for a present fair consideration? In the case of Houck v. Christy, 81 C. C. A. 602, 152 Fed. 612 (opinion by Judge Van Devanter), the Court said:

“One is not a purchaser in good faith, if he purchases with knowledge of the fraudulent intent of the vendor, or under such circumstances as should put him upon inquiry as to the object for which the vendor sells. Jones v. Simpson, 116 U. S., 609, 614; 29 L. Ed., 742. Apart from what Christy had learned through his connection with the bank, he and Cover knew that Stephenson, the bankrupt, was engaged in a business in which men usually have creditors; that he had been recently incumbering his property for small amounts; that he was hastily disposing of all of it for much less than its fair value; that he was insisting that he be paid in cash, which it is easy to conceal from creditors, and that the transaction was altogether unusual. Plainly, therefore, they had knowledge of what reasonably should have put them, as prudent men, upon inquiry as to his solvency and purpose, and were chargeable with all the knowledge which would have been acquired by prosecuting the inquiry with reasonable diligence; which they didn’t do. Wager v. Hall, 16 Wall. 584; 21 L. Ed., 504; Shauer v. Alterton, 151 U. S. 607, 614; 38 L. Ed., 286; Walker v. Collins, 50 Fed., 737. Moreover we think the evidence before recited brings the case well within the rule that badges of fraud altogether inconclusive, if separately considered, may by'their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof of fraudulent intent on the part of both vendor and vendee. Castle v. Bullard, 23 How., 172; 16 L. Ed., 424; Wager v. Hall, 16 Wall., 584; 21 L. Ed., 504.”

In Dokken v. Page, 77 C. C. A. 674, 147 Fed. 438, Eighth Circuit Court of Appeals, it is said, page 439:

“It is full time that speculating purchasers from insolvent debtors should know that under the bankrupt act they cannot stop their ears and shut their eyes lest they may hear or see that such a merchant as Tveten was selling out his1 entire- stock of goods in order to defeat his creditors in the collection of their just claims. Sijch speculators on chance seem to think that they can escape the statute by studiously and cunningly placing themselves in a position to half satisfy conscience by saying: ‘Didn’t know the vendor was bankrupt. He did not so inform me; and I did not ask him. I did not know about his creditors, as I did not examine Ms books. I did not take an inventory of the goods or carefully examine them as I had a general knowledge of their character, and did not look further’-—and the like.”

• Proof of actual knowledge by the purchaser of the intention of the bankrupt in the sale of the goods is not necessary. It is sufficient to charge one with notice if the facts and circumstances surrounding the transaction are of a character to put a reasonably prudent man upon inquiry, and a purchaser, under such circumstances, is charged with notice of what such inquiry, reasonably and diligently pursued, might have revealed. Houck v. Christy, supra; National Bank of Commerce v. Brunswick Tobacco Works Co., 155 Mo. 602. The good faith of the defendant is not determined solely by his testimony on that subject, but it is to be determined from all the facts and circumstances in the case. It may be ascertained by inference, from the circumstances surrounding the transaction. Kennard v. Curran, 239 Ill. 129.

We have carefully studied the record in this case, and we have come to the conclusion that the evidence proves conclusively that the defendant Thwing did not purchase the goods from the bankrupt, or its confederate, Gaines, in good faith, and “for a present fair consideration. ” bio reasonable inference can be drawn from all the facts and circumstances in evidence than that the bankrupt and its confederate, Gaines, conspired with the defendant to defraud the creditors of the bankrupt, and that the alleged sale of the goods in question to the defendant was a result of said conspiracy. It is impossible, without extending this opinion to an unwarranted length, to give in detail the many facts and circumstances that have forced us to the conclusion we have reached.

Under section 67e of the Bankruptcy Act, the fraudulent sale of the goods to the defendant (not a purchaser in good faith) as against the creditors of the bankrupt was null and void, and the defendant, an active participant in the fraud on the creditors, is not entitled to be reimbursed for any money he may have actually paid for the goods. The loss of the amount paid by him is the penalty the law inflicts npon him for his participation in the fraud upon the creditors. To refund to the defendant the money he may have paid would be to remove all risk of loss to a fraudulent grantee. Ott v. Doroshow, 147 Fed. 763; Biggins v. Lambert, 213 Ill. 625; Beidler v. Crane, 135 Ill. 92; 14 Am. & Eng. Encyc. Law, 344. It follows from what we have said that the complainant is entitled to the entire net proceeds of the sale of the goods.

The decree of the Superior Court is, therefore, reversed and the cause is remanded with directions to the chancellor to enter a decree in the case finding the equities with the complainant and awarding him the entire proceeds from the sale of the goods, less the court costs and charges.

The motion of the defendant to tax the complainant for the cost to the defendant of printing an additional abstract of the record in this case is denied.

Decree reversed and cause remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Julia Obermeyer, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,842.
    (Not to be reported in fulls)
    Abstract of the Decision.
    1. Witnesses, § 286

      —impeachment of party’s own witness. A party calling a physician as a witness is not permitted to impeach him by evidence of statements made out of court.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Action by Julia Obermeyer against Chicago City Railway Company to recover for personal injuries sustained in a collision while a passenger on one of defendant’s cars. Defendant conceded its liability, the only dispute, at the trial, being as to the extent of the injury. From a judgment for seven thousand dollars in favor of plaintiff, defendant appeals.
    Jambs Gf. Condon and Charles Le Rot Brown, for appellant; Leonard A. Busby, of counsel.
    John F. Waters, for appellee.

      rSee Illinois Notes Digest, Vols. XI to XV, same topic and section number.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

2. Appeal and erbob, § 1483 -—where admission of impeaching evidence reversible error. Where the evidence was conflicting as to whether pains in plaintiff’s lcnee were due to rheumatism as contended by defendant or to being thrown to the floor of the car in a collision as claimed by plaintiff, the admission in behalf of plaintiff of evidence of statements of her physician, called by her as a witness, for purposes of impeachment constituted reversible error.


text:
    Frank Kuchler, Appellee, v. Ezra H. Stafford, Appellant.
    Gen. No. 18,967.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Action by Frank Kuchler against Ezra H. Stafford for personal injuries sustained as the result of being struck by an automobile owned by defendant while being driven by the latter’s minor son. From a judg*ment in favor of plaintiff for one thousand two hundred and fifty dollars, defendant appeals.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for appellant.
    Albert C. Wenban and George Gillette, for appellee.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Automobiles and gabages, § 2 —what not contributory negligence on part of pedestrian. Plaintiff while crossing a street in a northwesterly direction towards an alley observed an automobile approaching from the west. On reaching the east curb he noticed that the automobile was about to turn into the alley and instead of continuing his course in a northwesterly direction across the alley stepped to a point on the sidewalk near a fence on the property line about two and a half feet east of the alley curb, where he was struck by the machine and crushed against a post of the fence. Held, the fact that plaintiff could have avoided injury by stepping in another direction or by having continued in his original course did not render him guilty of contributory negligence.

2. Negligence, § 75 —when acts in emergencies not contributory negligence. One confronted by sudden danger from a rapidly moving automobile is not guilty of contributory negligence because, in an effort to get out of the way, he acts contrary to what was expected of him by the driver.

3. Appeal and error, § 1702 —when special interrogatories conclusive. A special interrogatory as to whether the plaintiff’s contributory negligence contributed to the injury, answered in the negative, is conclusive on the question where not questioned in the written motion for a new trial, nor attacked in the assignment of errors.

4. Automobiles and garages, § 2 —what constitutes negligence. The driver of an automobile traveling at the rate of ten or twelve miles per hour is guilty of negligence in turning into an alley, across the sidewalk, without having his machine in control, so as to avoid striking persons passing along the street or crossing the alley.

5. Automobiles and garages, § 3 —authority of son of owner. The owner of an automobile cannot question the authority of his son to turn the management of the machine over to his younger brother, in whose charge it was at the time injury was inflicted upon a pedestrian, where the general issue was interposed, since the general issue admitted the ownership of the automobile and that the operator in charge of it was his servant.

6. Trial, § 276 —when special interrogatories properly refused. Interrogatories submitting merely evidentiary or probative facts, and not ultimate facts or facts from which the ultimate facts would necessarily result, are properly refused.

7. Damages, § 129 —when verdict not excessive. As the result of being crushed against a fence post by an automobile plaintiff’s right humerus was broken and his back injured. At the time of the trial the fracture had healed, but his arm was not as strong as it was before the injury, and he was unable to do thé work he was accustomed to doing. Beld a verdict for one thousand two hundred and fifty dollars was not excessive.


text:
    The People of the State of Illinois, Defendant in Error, v. Mary Lachota, Plaintiff in Error.
    Gen. No. 19,515.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Criminal law, § 371

      —what constitutes a variance between information and judgment. Under an information charging that defendant, being the parent of a certain child, “did unlawfully, wilfully and knowingly encourage, aid, cause, abet, connive to the dependency and delinquency to said child, contrary to form of the statutes, etc, a judgment, based on a plea of guilty, reciting that “said defendant is guilty of contributing to the delinquency” of said child is erroneous as not responding to the averments of the information.

      Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 17, 1914.
    Rehearing denied March 2, 1914.
    Statement of the Case.
    Proceeding on information by The People of the State of Illinois against Mary Lachota for abetting and conniving in the delinquency and dependency of her minor child. A judgment of conviction was entered on a plea of guilty, which judgment defendant attempted to have vacated on the ground of a variance between the information and the judgment. The motion to vacate being denied, she brings error.
    George W. Blackwell, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley and Edward E. Wilson, of counsel.

      See Illinois Notes Digest, Yols. XI lo XV, same topic rnd section "umber.

      See Illinois Notes Digest, Vfils, XI to XV, game topic and section number.

   Mr. Presiding Justice Smith

delivered the opinion of the court.

2. Cbimmal law, § 409 —how variance between information and judgment raised. A motion to vacate a judgment entered on a plea of guilty raises the question as to whether defendant was adjudged guilty of the offense charged in the information.


text:
    William J. Bigley, Defendant in Error, v. John J. Sweet, Plaintiff in Error.
    Gen. No. 19,735.
    (Not to he reported in full.)
    Erorr to the Municipal Court of Chicago; the Hon. Feed. C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Motion to strike from the transcript of record the stenographic report or bill of exceptions and to affirm the judgment, on error to the Municipal Court of Chicago, bringing up a judgment for plaintiff in an action by William J. Bigley against John J. Sweet.
    J. K. McMahon, for plaintiff in error.
    W. J. King, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court. >

Abstract of the Decision.

1. Appeal and ebbob, § 839 —filing bill of exceptions nunc pro tunc. Where the hill of exceptions was presented to and signed by the trial judge in time but was not filed until several months after, an order that the bill be filed nunc pro tunc as of the day of signing, for which no basis appears in the record, is void.

2. Appeal and ebbob, § 952 —when bill of exceptions may be stricken from record. Where the bill of exceptions was presented to and signed by the trial judge in time but through the negligence of the attorney was not filed until several months later, when the time for filing had expired, same will be stricken from the record, although ordered filed nunc pro tunc as of the date of signing, no basis for the order appearing in the record.

3. Appeal and ebbob, § 956 —effect of striking bill of exceptions from record. None of the assignments of error can be considered where based exclusively upon the bill of exceptions and stenographic report which was ordered stricken from the record.


author: Mr. Justice Barnes

text:
    Frank Semrau, Appellee, v. Calumet & South Chicago Railway Company, Appellant.
    Gen. No. 18,912.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Action by Frank Semrau against Calumet & South Chicago Railway Company to recover for personal injuries sustained by plaintiff and damages to his automobile resulting from a collision between one of defendant’s cars and plaintiff’s automobile at a street intersection. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendant appeals.

      Abstract of the Decision.
    1. Street railroads, § 131

      —when recovery for injuries resulting from collision warranted by the evidence. In. an action against a street railway company to recover for injuries resulting from a collision between one of defendant’s cars and plaintiff’s automobile at a street intersection, a verdict for plaintiff on conflicting evidence as to the speed of the car and of the automobile at and prior to the accident, held warranted by the evidence.
    2. Damages, § 244

      —when admission of improper evidence of, not reversible error. In an action against a street railway company to recover for personal injuries and for damages to plaintiff’s automobile resulting from a collision with a street car, erroneously permitting plaintiff, over objection, to prove the difference between the market value of the automobile before and after the accident, held not reversible error where the proof of the personal injuries plaintiff received might alone justify the verdict and judgment, and there was no contention that the damages recovered are excessive.
    3. Instructions, § 49

      —when modified instructions as to preponderance of evidence and credibility of witnesses not misleading. An instruction as tendered told the jury that in determining where the preponderance or the greater weight of the evidence lies they were entitled to take into consideration several matters, and ended by saying “and from all these circumstances and others that may occur to you as shown by the evidence, determine the degree of credibility,” etc. The court modified the instruction by striking out the clause “and from others that may occur to you.” Held that the instruction was incorrect, both as tendered and as modified, for the reason that it did not tell the jury to take into consideration all the evidence, but that the giving of the instruction as modified did not mislead the jury in view of other instructions given.
    4. Street railroads, § 148

      —when erasures in modified instruction not misleading. An instruction tendered in effect told the jury that proof of failure of defendant street railway company to give warning was not of itself sufficient to entitle plaintiff to recover, and then stated what plaintiff must prove in order to recover on that ground ending with the sentence “and plaintiff must prove by a preponderance of the evidence that at the time and place of the accident he was in the exercise of ordinary care for his own safety.” The court gave the instruction after striking out the last sentence. Held, the fact that the words stricken out remained legible was not misleading as causing the jury to believe due care on part of plaintiff was unnecessary, the jury being otherwise instructed and the instruction not directing a verdict.

      Warner H. Robinson and Charles LeRoy Brown, for appellant; Leonard A. Busby, of counsel.
    Royal W. Irwin and Frank W. Koraleski, for appellee.

      See Blinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. John Burgess, Plaintiff in Error.
    Gen. No. 19,263.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Information filed in the Municipal Court "by the People of the State of Illinois charging John Burgess with the crime of larceny. The trial was by the court, which found defendant guilty and assessed a fine in the sum of one hundred dollars. To reverse the judgment, defendant prosecutes error.
    "W. W. 0 ’Brier and Thomas H. Mercer, for plaintiff in error; Louis Greenberg, of counsel.
    Maclay Hoyne, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Indictment and information, § 34*—when information charging a crime on an impossible date states no offense. An information stating an offense was committed on the first day of February, A. D., 191, an impossible date, charges no offense, and objection therefor may be availed of on writ of error prosecuted to reverse a judgment of guilty.


text:
    The People of the State of Illinois, Defendant in Error, v. William E. Cline, Plaintiff in Error.
    Gen. No. 19,569.
    (Not to be reported in full.)
    Abstract of the Decision.
    Criminal law, § 330

      —when verdict not responsive to all the issues. Where an information charges the defendant with keeping a common, illgoverned disorderly house for the encouragement of fornication, a verdict finding the defendant guilty “of keeping a disorderly house in the manner and form as charged in the information," held insufficient as not being responsive to all the issues, for the reason that an essential element of the offense as defined by statute was omitted from the verdict, namely, that the disorderly house was kept for “the encouragement of fornication.”

      Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 17, 1914.
    Rehearing denied March 3, 1914.
    Statement of the Case.
    Information by The People of the State of Illinois charging William E. Cline of keeping a common, ill-governed disorderly house kept for the encouragement of fornication, within the limits of Chicago in violation of section 57, ch. 38, R. ’S., J. & A. ][ 3591.
    Richard I. Gavin, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson and Francis E. Hinckley, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Clark

text:
    Owen Monahan, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,823.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 476

      —jerks on alighting sufficiency of evidence. Testimony of plaintiff that as he was preparing to alight from defendant’s car it stopped suddenly throwing him against the end of the car, and as he raised his foot to get on the step “it shot right ahead again” and he was thrown to the ground, supported by the testimony of another witness, held sufficient to sustain a verdict in Ms favor, though disputed by testimony of the conductor and motorman of the car and another passenger.

      Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Action by Owen Monahan against Chicago City Eailway Company to recover for personal injuries alleged to have been sustained by plaintiff on being thrown from defendant’s car by a sudden jerk as he was preparing to alight. From a verdict and judgment for plaintiff for six thousand dollars, defendant appeals.
    Franklin B. Hussey and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    James C. McShane, for appellee.

      6ee Illinois Notes Digest, Yois. XI to XV, same topic and section number.

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

   Mr. Justice Clark

delivered the opinion of the court.

2. Instructions, § 88 —preponderance of evidence. An instruction that: “The preponderance of evidence in a case is not necessarily alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of evidence is, the jury should also take' into consideration, so far as shown by the evidence, the opportunities of the several witnesses for seeing or knowing, the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the evidence, facts and circumstances proved on the trial; and from all these circumstances, and a full consideration of all the evidence, determine upon which side is the greater iveight or preponderance of the evidence,” if erroneous is not prejudicial.

3. Aepeai. and error, § 1563 —when refusal of instruction to disregard declaration harmless. Refusal of an instruction-that plaintiff could not recover under the original declaration is not prejudicial, where there was evidence to support an additional count of the declaration.

4. Damages, § 124 —when verdict not excessive. A- verdict for six thousand dollars in favor of a man seventy years of age, whose earnings prior to the accident were about one hundred dollars per month, is not excessive for injuries consisting of a fracture of the neck of the left femur, making the shaft of that leg. about three-quarters of an inch higher than it should be and incapacitating him from work for a period of nearly three years.


text:
    Joseph Millen, Appellee, v. American Bridge Company, Appellant.
    Gen. No. 18,927.
    (Tiot to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 452

      —Knowledge of danger on part of servant. Plaintiff testified that he was ordered by his foreman to get a steel plate, used in lining an ore pocket, from the bottom of a number of plates piled in the pocket; that to get a tackle for that purpose he stepped on a plate which slipped causing him to fall; that he was obliged to cross the plates to reach the tackle, and that before doing so he did not pay any attention to them, did not know how high they were piled nor how many there were. Held, that plaintiff’s testimony showed that the danger was known to him, or in the exercise of ordinary care would have been known, and he was guilty of contributory negligence as a matter of law.
    2. Master and servant, § 127

      —master’s duty as to safe place where conditions are changeable. The absolute duty of the master to furnish a reasonably safe place for the servant to work is subject to the exception that the master is not liable, where the danger to which the servant is exposed is merely transitory, due to no fault of plan or construction, hut to the fact that the work is of such a character that as it progresses the environment of the servant necessarily undergoes frequent changes, and the injury is traceable to such a transitory change.

      Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Action by Joseph Millen against American Bridge Company for injuries sustained while in the employ of the latter due to a fall caused by the slipping of a plate upon which plaintiff stood. From a judgment for plaintiff, defendant appeals.
    Knapp & Campbell and William Beye, for appellant.
    C. H. Johnson and Daniel Belasco, for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Thomas Hart, Appellee, v. Scully Steel & Iron Company, Appellant,
    Gen. No. 18,951.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 176

      —methods of work. In an action for personal injuries to an employe it was shown that a wagon-load of steel plates, forty feet long, eight inches wide and a quarter of an inch thick, was brought to a railroad station to be loaded on a gondola car; that the entire load was lifted on the car at one time by means of a derrick; that it then became necessary to remove the angle irons on which the load rested while on the wagon from underneath the plates on the car, plaintiff claiming that the usual method was by lifting the plates by means of the derrick, and that while placing a chain around the plates for that purpose the foreman took it away from him, fastened it to the angle irons and immediately signalled the derrick man to hoist, and before plaintiff could get to a place of safety he was crushed against the side of the car by the angle irons. Defendant contended that the method adopted was the usual method for removing the angle irons in such cases. Held, that a verdict for plaintiff was not manifestly against the weight of evidence.

      Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 17, 1914.
    Rehearing denied March 3, 1914.
    Statement of the Case.
    Action by Thomas Hart against Scully Steel & Iron Company, a corporation, for personal injuries sustained by plaintiff while in its employ due to the alleged negligence of defendant’s foreman in doing work in an unsafe manner. From a judgment for plaintiff, defendant appeals.
    Frank M. Cox and E. J. Fellingham, for appellant; Frank T. Winslow, of counsel.
    .Tames C. McShane, for appellee.

      gpe Illinois Notes Digest, Vuls. XI to- Ny, game topic and section number,

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

   Mr. Justice Clark

delivered the opinion of the court.

2. Master and servant, § 242 —toorlcing foreman as fellow-servant. Where the method of doing the work adopted by the foreman is unsafe, resulting in injury to an employe, the fact that the foreman participated in the work did not difest him of the character of foreman or vice principal and render him a fellow-servant.


text:
    Marcus M. Whitney, Executor, Appellee, v. Chicago Railways Company and The City of Chicago. On Appeal of City of Chicago, Appellant.
    Gen. No. 18,963.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Action "by Marcus M. "Whitney, executor of the estate of Fred A. "Whitney, deceased, against Chicago Railways Company and the City of Chicago for the death of plaintiff’s intestate, Fred A. Whitney, due to the front wheel of a wagon on which he was riding sinking in a hole or rut in a public street about two feet from the tracks of defendant Street Bailway Company. The court directed a verdict in favor of the Bailways Company and the jury returned a verdict for fifteen hundred dollars in favor of plaintiff against defendant City, from which it appeals.
    Abstract of the Decision.
    1. Street railroads, § 44

      —liability for injury due to holes in street. Where a person riding on a truck driven by another was killed as the result of the front wheel of the truck dropping into a hole or rut located in a public street about two feet from the tracks of a street railway company, in an action against the City and the Street Railway Company a verdict in favor of the latter was held to have properly been directed.
    2. Death, § 63

      —when verdict for more than nominal damages proper. In an action for wrongful death, evidence that decedent was survived by four brothers and a sister, that the latter was a widow and for the last two or three years of his life decedent had resided with her, paying her for hoard, assisting her in buying clothing, giving her money and otherwise aiding her, was held to support a verdict for more than nominal damages.
    3. Death, § 21

      —proximate cause. Where, as the result of an accident, decedent suffered a splintered fracture involving the upper two-thirds of the femur bone, death following sixteen days after-wards, according to the surgeon’s testimony, as the immediate result of hypostatic pneumonia due to the shock of the accident, the shock of the operation on the splintered bone, the ether which was necessarily used in the operation and the enlargement of blood vessels induced by -the dependent or recumbent position which decedent was obliged to assume because of the injury and the operation, it was held that the proof tended to establish the accident as the proximate cause of death.

      William H. Sexton and N. L. Piotrowski, for appellant.
    David B. Levy, of counsel.
    Charles I. Barker and Bolton, Moriarty & Williams, for appellee.

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

      See Illinois Notes Digest, Yds. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.

4. Appeal and error, § 1463 —when refusal to strike evidence harmless. Error in refusing to strike out testimony of a physician, based on hearsay, that decedent was in good health prior to the accident, is harmless where it was not claimed that decedent "was in bad health prior to the accident and his good health was shown by other competent evidence.


text:
    The People of the State of Illinois, Defendant in Error, v. Robert Wallace, Plaintiff in Error.
    Gen. No. 19,500.
    (Wot to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 17, 1914.
    Rehearing denied March 3, 1914.
    Statement of the Case.
    Proceeding by the People of the State of Illinois on information against Robert Wallace, charging defendant with contributing to the delinquency of a minor female child of the age of sixteen years. From a judgment of conviction, defendant brings error assigning as error the overruling of defendant’s motion to quash the information and in arrest of judgment.
    John L. Hopkins, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court.

Abstract of the Decision.

Infants, § 24a —sufficiency of information charging contributing to delinquency of child. Where an information charged that defendant “did unlawfully, wilfully and knowingly encourage, aid, cause, abet and connive at the delinquency of * * * a minor female child under the age of eighteen years, to wit, sixteen years, and did then and there knowingly and wilfully do acts that directly produced, promoted and contributed to conditions which rendered said * * * a delinquent child, in that the said * * * did then and there take the said * * * to a room in the * * * hotel * * * in the City of Chicago, contrary to the form of the statute,” etc., it was held that the information was sufficient under Criminal Code, div. XI, sec. 6, & A. If 4105, since the portion of the information ending with the words “sixteen years” charged a crime in the language of the statute, and the remaining portion should be regarded as surplusage, and hence “the nature of the offense” could “be easily understood.”


text:
    The People of the State of Illinois, Defendant in Error, v. Ethel Melville, Plaintiff in Error.
    Gen. No. 19,714.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 17, 1914.
    Statement of the Case.
    Proceeding on information by the People of the State of Illinois against Ethel Melville charging defendant with having contributed to the delinquency of a female child in persuading her to visit houses of ill-fame. From a judgment of conviction, defendant brings error.
    Thomas J. 0 ’Hare and Frank H. Bowen, for plain! tiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      Abstract of the Decision.
    1. Criminal law, § 471

      —questions reviewable on record. The record must be taken as it stood on the day of the issuance of the writ of error, and consequently a subsequent order expunging from, the record an order showing arraignment and plea cannot be considered.
    2. Criminal law, § 526

      —failure to arraign as harmless error. On trial by consent by the court without a jury, failure to arraign is not reversible error.
    3. Criminal law, § 430

      —sufficiency of information, how saved. Where the information charges an offense, though defectively, objection can be raised only by motion to quash.
    4. Infants, § 24a

      —sufficiency of 'information charging contributing to delinquency. An information charging that defendant at certain place on a named date “did then and there contribute to the delinquency of one * * * a female of previous chaste life under the age of sixteen years by supplying her with clothing and persuading her to visit houses of ill-fame with one * * * and did knowingly do such acts that directly produced the conditions which rendered such child a delinquent child, viol. Sec. 42, H. B. Chap. 38 Revised Statutes, contrary,” etc., is sufficient to state an offense, though defectively, and objection may be saved only by motion to quash.

      gee Illinois yptes Digest, Yplg. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Fred E. Jahp, Defendant in Error, v. Thomas E. D. Bradley and John T. Lillis, Executors, Plaintiffs in Error.
    Gen. No. 18,489.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 27, 1914.
    Statement of the Case.
    Action by Fred E. Jahp, doing business as Fred E. Jahp & Company, against Thomas E. D. Bradley and John T. Lillis, executors of the estate of Augusta R. FitzSimons, deceased, to recover for feed furnished for two horses belonging to the estate. The claim is for three months’ feed delivered after the death of the deceased. From a judgment in favor of plaintiff against the executors “to be paid in due course of administration,” the executors prosecute a writ of error.
    Abstract of the Decision.
    1. Executors and administrators, § 498

      —when judgment against executor in Ms representative capacity improper. In an action against executors to recover for horse feed furnished after the death of the testator for horses belonging to the estate, a judgment for plaintiff entered against the defendants as executors to be paid in due course of administration, held improper.
    2. Executors and administrators, § 489

      —when executor must be sued in Ms individual capacity. No action will lie against an executor in his representative character upon a claim which accrued subsequent to the death of the testator. The general rule is that no action will lie aguinst an executor or administrator in his representative character except upon some claim or demand which existed against the testator or intestate in his lifetime, and if a claim or demand accrues in the time of the executor or administrator he is liable therefor only in his personal character.
    3. Executors and administrators, § 115

      —personal liability on contracts for benefit of estate. Contracts of executors and administrators, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration moving between their promisee and themselves, are their personal contracts, which do not hind the estate, and they must be sued thereon in their individual capacity. The fact that they are described in a contract as representatives does not affect the rule.
    Samuel A. Harper, for plaintiff in error.
    Patrick F. Murray, for defendant in error; John T. Murray, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Fitch

text:
    Leila Burdell Eaton by Louis J. Pierson, Appellant, v. Western Life Indemnity Company, Appellee.
    Gen. No. 18,845.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 906—when evidence insufficient to prove assessment invalid. In an action to recover upon a membership certificate where a defense is interposed that the membership was forfeited for failure to pay assessments levied to pay death claims, a contention of plaintiff that the assessments were invalid because unnecessary for the reason that the company had a surplus fund of $300,-000 in excess of pending claim, held not established by the evidence, it appearing that the company was authorized by the law under which it was organized and its constitution and by-laws to provide a death fund and a contingent fund, and there being no evidence to contradict defendant’s evidence that there was no money in the death fund at the time the assessments were levied.

      Appeal from the Superior Court of Cook county; the Hon. William E. Disver, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of tlie Case.
    Action by Leila Burdell Eaton, by her next friend, Louis J. Pierson, against "Western Life Indemnity Company to recover an amount claimed to be due upon a membership certificate, in the nature of an insurance policy, issued by the defendant, a corporation organized under the Act of June 18,1883, J. & A. ft 6577, for the purpose of furnishing life indemnity upon the assessment plan to widows or heirs of deceased members. From a judgment entered for defendant upon a directed verdict, plaintiff appeals.
    Clark Varnum and S. B. Clute, for appellant.
    Thomas J. Graydon and Ashcraft & Ashcraft, for appellee; Edwin M. Ashcraft, of counsel.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Insurance, § 853 —when company not estopped from interposing defense. An insurance company does not waive nor is it estopped from interposing a defense other than a forfeiture for nonpayment of assessment, because it based its refusal to pay solely upon that ground with full information as to other facts constituting a forfeiture, where it does not appear that the plaintiff was misled or influenced to her injury by failure to assign other reasons.

3. Stipulations, § 22 —when plaintiff estoppéd to dény stipulation as to pleadings. Plaintiff, on appeal, cannot urge that a defense was not specially pleaded where the record shows that during the trial he did not object to a statement made by the court: “Let the record show that it is agreed by counsel for both parties that there may be introduced in evidence in this case any evidence in support of any plea which might properly be pleaded to the declaration.”

4. Trial, § 191 —when direction of verdict for defendant proper. Where evidence of an affirmative defense is offered, it is proper to direct a verdict for defendant even though all the averments of the declaration are proved, if the evidence of the affirmative defense is not contradicted or explained.


text:
    Sam Barnett and George Barnett, copartners as Barnett Brothers, Appellants, v. Joseph Friedman et al., Appellees.
    Gen. No. 18,866.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Bill filed by Sam Barnett and George Barnett, co-partners, doing business in the name of Barnett Brothers, against Joseph Friedman, D. J. Friedman and John P. Tansey to cancel a contract for the purchase of diamonds and jewelry and to enjoin a suit on. a note given for part of the purchase price. The bill alleged that the complainants purchased the articles from the Friedmans, who guarantied the weight of the diamonds as stated on tags attached thereto, and that they had fraudulently transferred a note given by Sam Barnett for part of the purchase price to defendant Tansey, who took with knowledge of the warranty. From a decree dismissing the bill and granting the relief prayed in Tansey’s cross-bill, complainants appeal.
    Abstract of the Decision.
    Injunction, § 206'

      '—when decree dismissing Mil to enjoin suit on note sustained hy the evidence. On hill to cancel a contract for the purchase of diamonds and jewelry for breach of warranty and to enjoin a suit on a note given for part of the purchase price, it being alleged that the note was transferred by the payees to the party suing on the note who took with knowledge of the conditions of warranty, held that a decree dismissing the original bill and awarding the relief prayed in the cross-bill filed by the holder of the note was sustained by the evidence, it appearing that the note was transferred to holder before maturity and for valuable consideration without notice of the conditions under which the note was given to the payees.
    D. B. Brillow, for appellants.
    F. P. Salisbury and M. Marso, for appellees.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 18,869.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Stjreet bailboads, § 138

      —when direction of verdict is error. In an action against a street railway company to recover for the death of plaintiff’s intestate where the evidence showed that the deceased, in the nighttime, was struck by a northbound street car when he attempted to cross the tracks at a crossing from behind a southbound car, held that a direction of a verdict in favor of defendant was error, there being some evidence tending to show that the view of deceased was obstructed by the southbound car and that the northbound car was running at a high rate of speed.

      Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding..
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 5, 1914.
    Rehearing denied March 17, 1914.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Edward B. Johnson, deceased, against Chicago City Railway Company to recover under the statute for causing the wrongful death of deceased. The deceased was struck by a northbound street car while attempting to cross the tracks from behind a southbound car at a point where the southbound car had stopped to receive passengers. From a judgment entered in favor of defendant upon a directed verdict at the close of all the evidence, defendant appeals.
    Hollett, Sauter & Henkel, for appellant.
    James G. Condon and Watson J. Ferry, for appellee ; Leonard A. Busby, of counsel.

      See Illinois Notes Digest, Veis. XI to XV, same topic and section number.

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

   Mr. Presiding Justice Fitch

delivered the opinion

of the court.

2. Street railroads, § 94 —right of pedestrian to rely on care of company. A pedestrian in attempting to cross street car tracks around the rear of a car which had stopped to receive passengers has a right to presume and to rely to some extent, at least, upon the presumption that a car coming from the opposite direction would not approach without warning.

3. Street railroads, § 95 —effect of failure to stop, loofo and listen. Mere failure of a person to stop, look and listen as he approaches a railroad crossing is not necessarily negligence on his part, as a matter of law, and whether such failure is negligence, in fact, depends upon the facts and circumstances surrounding the accident.


text:
    National Life Insurance Company of the United States of America, Appellee, v. The Title Guaranty & Surety Company, Appellant.
    Gen. No. 18,880.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Action by National Life Insurance Company of the United States of America against The Title Guaranty and Surety Company upon a fidelity bond in which defendant agreed to reimburse plaintiff for “all loss directly occasioned by larceny or embezzlement” on the part of one Burt H. Hopkins, a general agent of plaintiff, in connection with the duties of his office or position “as the same have been stated in writing by the employer to the company.” Defendant contended that the loss claimed by plaintiff, if, occasioned by larceny or embezzlement on the part of Hopkins, did not arise “in connection with the duties of his office or position;” that Hopkins ’ duties as general agent were specifically defined in a contract entered into before the execution of the bond in suit, his duties as so defined not including the collection of premiums other than “first year’s premiums,” and that the only loss proved was the amount of renewal premiums which Hopkins collected and failed to turn over to defendant. At the time of the application for the bond plaintiff was required to answer a list of questions, among which were the following:
    “4 (a) How long have you known the applicant? About two months, (e) How long has he been in your employ? Contract dated 6-15-1910.
    6 (a) What will be the title of applicant’s position? General Agent, (b) Explain fully his duties in connection therewith. Collecting premiums, appointing agents and soliciting. ’ ’
    It was stipulated that “the above answers are to be taken as conditions precedent and as a basis of the said bond applied for. ’ ’ Hopkins was permitted to collect premiums other than first year’s premiums, and there was evidence to the effect this was done in pursuance of an oral agreement entered into after the execution of the written contract, but there was no evidence that defendant had knowledge of the provisions of the written contract at the time of the execution of the bond. The written contract referred to contained the following provisions:
    “The General Agent shall not receive any moneys due or to become due to the Company unless authorized in writing, or in exchange for conditional receipts to be furnished by the Company, or on policies or renewal receipts signed by the President, Vice-President or Secretary, sent to Mm for collection.”

    From a judgment for plaintiff for $2,258.41, defendant appeals.

      Abstract of the Decision.
    1. Indemnity, § 11

      —when defalcation arises in performance of duties of office. In an action on a fidelity bond given to protect an insurance company against embezzlement by its general agent, the contract between the agent and his employer was construed as authorizing the former to collect renewal premiums, and the embezzlement of same accordingly arose “in connection with the duties of his office or position” as required by the terms of the bond.
    2. Indemnity, § 11

      —when defalcation with felonious intent. Where the officers of an insurance company on declaring the accounts of a general agent discovered a shortage, which was admitted by the agent, who stated that the amount of the admitted shortage covered all collections up to the time of the examination, whereas the actual collections were two thousand dollars in excess of that amount, it was held, that a felonious intent on the part of the agent was shown, within a fidelity policy protecting the company against larceny or embezzlement on the part of the company.
    3. Indemnity, § 12

      —what not an extension of time of defaulter. In an action on a fidelity bond, a finding that plaintiff had not given an employe, guilty of embezzlement, an extension of the time within which to pay the amount of his defalcation was held to be sustained by the evidence, the employe having given plaintiff a chattel mortgage which fixed no time for payment, no consideration therefor having been shown, and the testimony of the employe’s wife that she refused to sign the mortgage until plaintiff’s agent promised that six months’ time would be allowed for payment being denied by the agent.
    4. Indemnity, § 12

      —when duties of employe not increased. In an action on a fidelity bond given to protect an insurance company against defalcation by a general agent, it was held that an oral contract subsequent to the written contract of employment did not operate to increase the agent’s duties without the consent of the surety company, because he was thereby permitted to collect other than first year’s premiums, the original contract being construed as giving him that authority.
    Sheriff, Dent, Dobyns & Freeman, for appellant.
    L. A. Stebbins, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Margaret B. Marshall, Appellant, v. Chicago Herald Company and The Chicago Record-Herald, Appellees.
    Gen. No. 18,893.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Ttjthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Action by Margaret B. Marshall against Chicago Herald Company, a corporation, and The Chicago Becord-Herald, a corporation, to recover for libel growing out of the publication of the following article:
    “WOMAN LENDEBS UP.
    Two Officials of Salary Loan Concerns Are Questioned by Judge Landis.
    ONE ACCUSED BY FIBEMAN.
    'Two women officials of salary loan concerns were in the limelight in court proceedings yesterday.
    Mrs. L. Gr. Smith of 5326 Calumet avenue, who holds power of attorney in the Federal Loan Company and a New York concern, was severely questioned by Judge K. M. Landis as to the business of the companies.
    Mrs. M. B. Marshall, who has offices in the Commercial National Bank Building, became the center of an investigation when Stephen Keating, a fireman belonging to engine company No. 32 testified in Municipal Judge Groodnow’s court that he was unable to pay $40 a month alimony to his ■wife because of the grasp Mrs. Marshall had on his pay check.

      SUSPENDED FROM PLACE.
    Keating testified that he had borrowed $100 from Mrs. Marshall last fall with the understanding that he was to pay back $213 and also receive an insurance policy. He said that she refused to tell him how much he had already paid and that in January when he refused to make the regular payment he was suspended from the fire department for three days at the instance of Mrs. Marshall.
    Judge Groodnow withheld a decision in Keating’s case until an investigation could be made as to what he owes the woman loan agent.
    Mrs. Smith, the other agent, gave herself up yesterday after being searched for two weeks by bailiffs of the District Court. She was wanted in connection with the investigation being conducted into the affairs of Luman B. French, owner of the Federal Loan Company and a number of similar concerns. .
    ‘I knew they were looking for me, but I was timid about coming into court, ’ Mrs. Smith explained- to Judge Landis, when asked why she had gone to Unity, N. Y., when she knew the officers were searching for her.
    CALLS FRENCH OLD FRIEND.
    Mrs. Smith looked and talked like anything but a grasping loan agent. She is a little woman, 60 years old, and says she is a dressmaker. She said that she had known French since he was a boy and that she had invested $500 in his business and had given him the right to use her name in connection with the affairs of the loan companies.
    ‘I didn’t know my name was being used in connection with a-New York concern, or exactly what the business was,’ Mrs. Smith said in answer to Judge Landis’ questions.
    In direct contradiction to this testimony two documents bearing her signature were offered in evidence. One granted the nse of Mrs. Smith’s name in connection with the New York concern and the other gave like powers in connection with the Chicago company.
    Abstract of the Decision.
    1. Libel and slander, § 96

      —when meaning of words not to he extended, hy innuendo. It is not permissible in a pleading, to enlarge and extend by innuendoes the meaning of alleged slanderous words beyond their natural import, except so far as such enlarged meaning is warranted by prefatory matter set forth in the inducement or colloquium.
    2. Libel and slander, § 7

      —how words construed. In order to ascertain the meaning of a published article, the whole of the article must be considered, each phrase must be cnostrued in the light of the entire publication, the words are to be taken in their natural and obvious meaning, and in the sense that fairly belongs to them.
    3. Llbel and slander, § 7

      —how headlines of newspaper article construed. The headlines of a newspaper article must be read in connection with the language which follows.
    4. Libel and slander, § 41

      —what not an imputation of fraud and dishonesty. Newspaper article construed and held not in itself or by innuendo to charge plaintiff with practices supposed to be common to “Loan Sharks,” such as dishonesty, fraud and extortion; and the mere fact that plaintiff was engaged in loaning money, and that a newspaper other than defendant was engaged in a campaign against “Loan Sharks” would not change the natural meaning of the words published into an implied accusation of fraud, dishonesty or extortion by plaintiff.
    Mrs. Smith was released on her own recognizance until March 21, when French will he given an opportunity to show Judge Landis why he should not be punished for giving perjured testimony.”
    From a judgment sustaining a general demurrer to the declaration, defendant appeals.
    Emery S. Walker and Walter E. Moss, for appellant.
    Matz, Fisher & Boyden, for appellees.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Thomas Broderick, Appellee, v. Mrs. Augustus D. Curtis, Appellant.
    Gen. No. 18,934.
    (Not to be reported in full.)
    Abstract of the Decision.
    Automobiles and gabages, 2

      —when verdict in action for infnries not against evidence. Verdict for plaintiff in action by street car conductor struck by an automobile while holding up a switch lever in a public street to permit of the passage of his car, held not manifestly against the preponderance of evidence on the questions of the negligence of defendant or plaintiff’s contributory negligence.
    Appeal from the Circuit Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Action by Thomas Broderick against Mrs. Augustus D. Curtis to recover for personal injuries inflicted upon plaintiff through the negligent operation of defendant’s automobile. From a judgment for plaintiff for six hundred and twenty-five dollars, defendant appeals.
    Anson H. Brown, for appellant.
    Pollock, Sullivan & Livingston, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Daniel F. Burke, Appellee, v. City of Chicago, Appellant.
    Gen. No. 18,969.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charms A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Action in the Municipal Court of Chicago by Daniel F. Burke against the City of Chicago to recover interest on local improvement bonds, tried by the court without a jury upon a stipulation stating in substance that when the plaintiff’s bonds matured he demanded payment and the City paid him the interest which was due at that time, but did not then pay the principal “because on said date there was a deficiency in the special assessment fund provided for the payment of the same;” that subsequent to December 31, 1901, thq, plaintiff made frequent demands for payment and that the City made several payments on account, but that the principal was not paid in full until December 31, 1909, “because there had not been funds in said special assessment fund between the date of maturity and said date of payment available for the payment of the same in full;” that no interest was paid subsequent to December 31, 1901, and that the total amount of such interest on the unpaid portions of the principal of said bond, computed at the rate of five per cent, per annum from December 31, 1901, to December 31, 1909, is $1,961.42; that when the last payment of principal was made on December 31, 1909, there remained to the credit of said warrant (i. e., the special assessment fund) on the city comptroller’s books, the sum of $10.29, after which a “surplus began to accrue” which, on April 22, 1912, amounted to $3,086.92; “that at no time from 1901 to 1909 did any money remain to the credit of said warrant in the office of said comptroller without being applied pro rata to the payment of all the bonds issued under said warrant;” that the total amount collected up to April 22, 1912, upon the special assessment levied to defray the cost of the improvement was $593,935.86; that after collecting part of the assessment and prior to December 31, 1897, the City “rebated” or paid back to property owners, before paying the cost of the improvement, $2,962.20; that in the assessment proceeding, the City of Chicago was assessed for public benefits $1,200, and said assessment was confirmed September 18, 1895, but that the City never paid the amount so assessed for public benefits into the special assessment fund.
    Abstract of the Decision.
    1. Municipal cobpobations, § 1166

      —liability for interest on local improvement bonds. Where the stipulated facts showed that owing to a deficiency in the special assessment fund the City was unable to pay interest on local improvement bonds held by plaintiff for a period of eight years; that as payments came in they were applied pro rata to the payment of the bonds, the principal of plaintiff’s bonds having been paid in full, but no interest was paid for eight years prior to the payment of the principal and that before paying for the cost of the improvement the City rebated to property owners a sum in the aggregate more than sufficient to pay the amount of interest due on the bonds held by plaintiff, it was held that the City was liable for the interest claimed by plaintiff, since but for its wrongful act in rebating to the property owners before paying for the improvement it would have had on hand sufficient funds to meet the interest payments.

      From a judgment for plaintiff for $1,961.42, which the trial court on motion refused to vacate, defendant appeals.
    Philip J. McKenna and Howard F. Bishop, for appellant; William H. Sexton, of counsel.
    W. S. Johnson and Tolman & Bedeield, for appellee; Henry P. Chandler, of counsel.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Appeal and ebrob, § 966 —what matters not reviewed. Where plaintiff claimed that hut for the wrongful act of the City in rebating to property owners before paying the cost of the improvement it would have had on hand, applicable to interest payments, a sum sufficient to pay the interest on local improvement bonds held by him, defendant’s contention that it was liable to plaintiff only for his pro rataa share, with other bondholders, of the amount rebated, cannot be considered, where there was nothing in the stipulated facts upon which the case was tried, or in any part of the record, to show that there were any bonds outstanding and unpaid other than' plaintiff’s, or that any bond holder other than plaintiff had, or claimed to have, any interest in the special assessment fund in question.

3. Appeal and ebbob, § 906 —when matters incorporated in transcript not considered. An affidavit that the stipulated facts upon which the case was tried below were inadequate and did not contain all the facts necessary for the proper determination of the issues, appearing in the transcript of the record certified by the clerk but not in the bill of exceptions, is no part of the record and cannot be considered.

4. Appeal and ebbob, § 810 —how affidavits made part of record. An affidavit introduced before the trial court cannot be considered unless incorporated in the bill of exceptions.

5. Appeal and ebbob, § 907 —reference to affidavits in bill of exceptions. A reference in the bill of exceptions to an affidavit introduced before the court below does not operate to incorporate it therein.

6. Municipal cobpobations, § 1166 —burden of proof in action for interest on local improvement bond. In an action by the holder of local improvement bonds to recover interest unpaid thereon, on the ground that but for the wrongful act of the City in rebating to property owners before paying for the cost of the improvement there would have been on hand in the special assessment fund, applicable to interest payments, an amount sufficient to meet plaintiff’s claim, the burden is on the City to show that others had like claims against it, amounting to more than the funds available, before it could require plaintiff to pro rate with other creditors.


author: Mr. Justice Gridlet

text:
    John Storer and Lawrence P. Conover, Appellees, v. Richard A. Morley, Appellant.
    Gen. No. 18,841.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Bbentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Action by John Storer and Lawrence P. Conover against Richard A. Morley for damages for failure of the latter to carry out the terms of a contract between the parties, under which he agreed to resell within a fixed time at a certain net profit certain lands purchased by the plaintiffs. Plaintiffs recovered a verdict for $10,000, from which they remitted $4,000, and from a judgment in their favor for $6,000, defendant appeals.
    The contract referred to was as follows:
    “WHEREAS, said party of the first part has entered into a contract, dated March 2, 1908, with the trustees of the Maxwell Land Grant for the purchase of a certain tract of land therein more particularly described, and situate in Colfax County, New Mexico, * * * containing 20,000 acres, more or less, and
    WHEREAS, the first payment on said contract in the sum of $10,000 has become due, and said parties of the second part, in consideration of the conveyance to them of a portion of said land as hereinafter more particularly described, have agreed to make such payment at the time and in the manner hereinafter described.
    NOW, THEREFORE, it is mutually understood and agreed as follows:

      First. Said parties of the second part agree to pay to the said trustees of the Maxwell Land Grant upon said contract between said trustees and said party of the first part the sum of $10,000, to-wit: $1,000 at the time of the execution and delivery of this contract, and the balance of $9,000 on or before April 10th, 1908, such last payment to be made by depositing said sum with the Commercial National Bank of Chicago, to the credit of the San Miguel National Bank of East Las Vegas, and notifying said last named bank of such deposit.

      Second. Said party of the first part in consideration of said payments hereby agrees to convey or cause to be conveyed to said parties of the second part on or before four months from the datejiereof * * * 2,000 acres of the land described in the contract between the said party of the first part and said trustees, * * * said 2,000 acres to be selected by said parties of the second part within 20 days after notice in writing from said party of the first part notifying said parties of the second part to make such selection.

      Fourth. Said parties of the second part may make a selection of said land at any time hereafter, * * *.

      Sixth. Said party of the first part hereby further agrees that within six months from the date hereof he will sell the 2,000 acres above described for said parties of the second part at a net price to said parties of the second part of $8 per acre, provided, however, that said parties of the second part may, if they so elect, notify said party of the first part in writing of their desire to withdraw said land from the market, in which case the authority of the said party of the first part to sell Said land shall terminate at the end of ten days from the receipt of such notice, and the said party of the first part shall be relieved and discharged of all obligation to sell said land as above set forth or otherwise.

      Seventh. It is understood and agreed that any notice herein required to be given may be given by mailing the- same, postage prepaid, addressed in the case of the said party of the first part to such party by name at East Las Vegas, New Mexico, or in case the parties of the second part by mailing duplicate notices, one to John Storer, Boom 1110, 92 State street, Chicago, Illinois, and one to Lawrence P. Conover, 804 Tacoma Building, Chicago, Ill.
    This contract shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators and assigns.”

    Underneath the signatures and seals of the parties to the agreement, as the same was introduced in evidence, appear two instruments in part as follows:
    “The lands selected under and as provided in the foregoing agreement are:
    All of Sections 8 and 9 and such portion of 'Section 7 as lies east of * * #, and so much of the south portion of Section 4 necessary to make up the total area of 2,000 acres. All of this land located in Township 29 North, Bange 23 East. * * *
    (Signed)' Bichard A. Morley.
    (Signed) John Storer.
    (Signed) Lawrence P. Conover.'
    The undersigned Trustees of the Maxwell Land Grant having received from John Storer and Lawrence P. Conover, parties to the foregoing agreement, the sum of $1,000 on account of the contract between the undersigned and Bichard A. Morley, dated March 2, A. D. 1908, of certain lands in Colfax County containing twenty thousand (20,000) acres, more or less, hereby extend the time in which the balance of $9,000 on the first payment under said contract shall be made until April 10,1908, and hereby agree that in case said balance * * * is paid on or before said date by said John Storer and Lawrence P. Conover, or either of them, and in case said Bichard A. Morley shall default in making the second payment of $15,000 due under said contract between the undersigned and said Morley, the undersigned will either return said $10,000 to said John Storer and Lawrence P. Conover or convey to them by a good and sufficient deed free and clear from all incumbrances the 2,000 acres of land to be selected by them under the terms of the foregoing contract.
    Abstract of the Decision.
    1. Vendor and purchaser, § 65

      —how contract containing resale clause construed. Contract between a vendor and purchaser construed as imposing an obligation upon the vendor to sell the land for the purchaser at a profit within the time fixed in the contract, and not as creating a mere agency authorizing the former to sell the land for the latter.
    2. Vendor and purchaser, § 340

      —when action for damages lies for breach of resale clause in contract. Where, as part of a contract for the purchase of land, the vendor agreed to resell the land for the purchaser at certain net profit within a fixed time, failure of the vendor to carry out the contract as to such provisions entitles the vendee to maintain an action for damages for such breach.
    3. Vendor and purchaser, § 340

      —what not a waiver of breach of resale clause in contract. Where, in a contract for the sale of land, the vendor agreed to deliver a deed to the premises by a certain time, and agreed to resell the land at a certain net profit to the vendee within a fixed time, the acceptance by the vendee of a deed after the expiration of the period during which the vendor agreed to resell the land does not waive the vendee’s right of action ,for failure of the vendor to carry out the provisions of the contract as to resale.

      In testimony whereof, the undersigned have hereunto set their hands and seals this 21st day of March, A. D. 1908.
    (Signed) J. Van Houten ('Seal), Vice Pres, for Trustees of the Maxwell Land Grant.
    (Seal of the Board of Trustees of the Maxwell Land Grant.)
    J. M. Cunningham, Sec’y.”
    Robert J. Folonie, for appellant; Julius A. Johnson, of counsel.
    John S.chwender, for appellees; Frederick A. Brown, of counsel.

      Seo Illinois Notes Digest, Yola, XI to XV, same topic and section number.

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

   Mr. Justice Gridlet

delivered the opinion of the court.

4. Vendos and purchases, § 340 —when tender of conveyance not essential to action for damage T>y vendee. Where the vendor in a contract for the sale of land agreed to resell the same within a certain time at a certain net profit to the purchaser it is not essential that the latter tender a deed to the premises to the vendor before maintaining an action for damages for failure to carry out the contract.


author: Mr. Justice Gridley

text:
    Margaret Burns McHugh, Appellee, v. Harry B. Rubenstein, Appellant.
    Gen. No. 18,865.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Action by Margaret Burns McHugh against Harry B. Rubenstein for personal injuries sustained by plaintiff falling into the basement of defendant’s store. The facts are substantially as follows:
    About five o’clock in the afternoon, April 8, 1911, plaintiff and her sister-in-law, Mrs. Hilda Burns, were walking in a southerly direction on Milwaukee avenue, Chicago, looking for a flat to rent. When they reached the store, then owned and occupied by defendant and known as No. 1907 Milwaukee avenue, they noticed on the front of the store a sign reading “Flat to Rent, Inquire Within. ’ ’ Above the store were two additional stories which were arranged to be occupied as flats, and on one side of one of the windows of the store was a door to a hall leading from the street to the stairways to the flats above. Plaintiff entered the store for the purpose of making inquiries as to the flat for rent, Mrs. Burns remaining on the sidewalk outside. Plaintiff saw no person in the store, and thinking that some one might be back of the partition walked towards the rear of the store, calling out as she advanced that she desired some one to wait upon her. Before she reached the partition she fell through an unguarded opening or stairway into the basement below and suffered the injuries complained of. A boy had been left in charge of the store, but at the time of the accident was out on the street. The defendant and several other witnesses for him testified that the “For Bent” sign was on the hall door. Plaintiff and Mrs. Burns, however, testified that the sign was either on the door of the store or on one of the two front windows of the store.
    Abstract of the Decision.
    1. Negligence, § 33

      -—when owner of premises liable for injury to invitee. Where a person, in response to a sign on the front of a store “Plat to Rent, Inquire Within,” entered the store for the purpose of making inquiry and fell through an unguarded opening or stairway into the basement, it was held that the questions of negligence and contributory negligence were for the jury.
    2. Negligence, § 23

      —who are invitees. One entering a store pursuant to sign “Plat to Rent, Inquire Within” for the purpose of making inquiry and falling through an unguarded opening or stairway into the basement is an invitee and not a mere licensee.
    From a judgment for plaintiff for five hundred dollars, defendant appeals.
    Benjamin P. Buekberg, for appellant.
    Archibald A. McKinley and Arthur A. House, for appellee; Luther F. Binkley, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Me. Justice Geidley

text:
    The Parker-Washington Company, Appellant, v. City of Chicago, Appellee.
    Gen. No. 18,868.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Rehearing denied March 17, 1914.

      Certiorari granted by Supreme Court.
    Statement of the Case.
    Action by The Parker-Washington Company against City of Chicago to recover certain balances claimed to be due on two contracts. One contract provided for the construction by plaintiff of pump pit, suction well and foundations for an engine house and the other provided for the construction of a boiler room, auxiliary buildings and chimneys. The City on paying for the work claimed the right under a provision in both contracts to deduct, and did deduct, as liquidated damages the sum of fifty dollars for each day’s delay in completing the work. The sum sued for is the amounts thus retained as liquidated damages. From a judgment in favor of plaintiff for the balance claimed to be due under the engine room contract and in favor of defendant on the boiler room contract, plaintiff appeals.
    Olsen & Booed, for appellant; Clarence N. Booed, of counsel.
    William; H. Sexton, for appellee; George L. Reker and Max L. Korshak, of counsel.

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

   Me. Justice Geidley

delivered the opinion of the court.

Abstract of the Decision.

1. Damases, § 88 —rule in determining whether provision is for liquidated damages or a penalty. Whether a provision in a contract shall be construed as a provision for liquidated damages or a penalty, the primary and most essential principle of construction is to ascertain the meaning and intent of the parties by reference to the contract itself, the subject-matter thereof and the circumstances under which it was made, the fact that the parties used the words “liquidated damages” in their agreement does not always determine the question.

2. Damases, § 88 —when stipulation for damages in contract with City is for liquidated damages. Where a contract is made with a municipality for the construction of a public improvement, and the parties stipulate that a failure to complete the contract within the time fixed will work an injury to the municipality, that the damages to the municipality or the inhabitants thereof for such failure cannot be calculated with any degree of certainty, and that for such failure the municipality may deduct and retain from the contract price, as liquidated damages, a not unconscionable sum for each day the contract remains incompleted beyond the day fixed, held that the stipulation is for liquidated damages.

3. Municipal corporations, § 412 —when finding that Oity contributed to delay in performance of worh sustained by the evidence. In an action against a City for a sum retained by it as liquidated damages for delay in the performance of work done under a contract between the plaintiff and the City for an improvement, a finding by the trial court that the City contributed to the delay in the completion of the work to such an extent as not to warrant any deduction by the City from the contract price, held not against the weight of the evidence.

4. Municipal corporations, § 412 —admissibility of evidence. In an action against a City to recover a sum which the City retained as liquidated damages for delay in the performance of work under a contract for an improvement between the plaintiff and the City, evidence that the municipality or its inhabitants thereof as a matter of fact suffered little or no damage because the contract was not actually completed within the time fixed is not properly admissible.