text:
    Frank Gibis, Defendant in Error, v. Wallace C. Abbott et al., Plaintiffs in Error.
    Gen. No. 21,203.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Writ dismissed.
    Opinion filed February 24, 1916.
    Statement of the Case.
    Bill filed by Frank Gibis, complainant, against Wallace C. Abbott and others, defendants, to wind up and dissolve a corporation, The Abbott Press, under section 25, ch. 32, Rev. St. (J. & A. 2442). From an order directing that assets be turned into custody of the court, defendants sued out writ of error.
    A receiver was appointed to take possession of its assets to whom the corporation, its officers, agents, etc., were directed to surrender them. The bill charged among other things that the O’Donnell Bromley Company, a corporation, was in possession of assets belonging to The Abbott Press, and had acquired such possession through fraudulent transfers without consideration, on which issue was taken by answer.
    Later the receiver filed a report and petition reiterating the charge and alleging a demand on and failure by said O’Donnell Bromley Company and other defendants to turn over such assets, and asked that they be directed so to do, and in default thereof to show cause why they should not be punished for contempt.
    The matter coming on to be heard on said petition and a joint answer thereto, and the sworn pleadings in the case as evidence, the court entered an order finding that The Abbott Press transferred all of its assets save its franchise to said O’Donnell Bromley Company through another defendant, Jeremiah J. O’Donnell, without any consideration, and also containing the following finding: ‘ ‘ That it is for the best interest of all the parties to this suit that the said assets should be taken into the custody of this court during the pendency of this suit and preserved until the final determination of the issues herein;” and the order directed that respondents turn over to the receiver such assets so transferred as was in their possession or under their control.
    Abstract of the Decision.
    Appeal and error, § 315

      —when order in receivership proceedings not final order for which writ of error may he granted. An order entered by chancellor in receivership proceedings, the language of which indicates the placing of property in custodia legis until the determination of the issues, including the right thereto, is not a final order for which writ of error may be granted.
    This writ of error is sued out to review such order. A motion to dismiss the same on the ground that the order was not final and a writ will not therefore lie was without full consideration thereof reserved to the hearing.
    Frank & Lurie, for plaintiffs in error.
    Gallagher & Messner, for defendant in error.
    U. P. Gallagher, for Harry D. Knight, Receiver.

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

   Mr. Justice Barnes

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    James F. Porter, Defendant in Error, v. Joe Cohn et al., trading as Cohn, Lieberman & Stiefel, Plaintiffs in Error.
    Gen. No. 21,222.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 24, 1916.
    Rehearing denied March 6, 1916.
    Statement of the Case.
    Action for rent dne by James F. Porter, plaintiff, against Joe Colin, Leo Lieberman and Jerome Stiefel, trading’ as Cohn, Lieberman & Stiefel, defendants. From a judgment for plaintiff, defendants sue out a writ of error.
    Porter was the assignee of a written lease of certain premises from one Pope to defendants, a copartnership. About three months after its execution the partnership was dissolved, and its business was sold to Cohn & Levin Cloak and Suit Company, which continued the same business in the same premises and paid the rent as it accrued to Pope until the assignment to Porter and then to the latter. The rent for the last two months of the term remained unpaid, for which judgment by confession was entered, but the case was reopened for trial before a jury. A verdict was directed and the judgment confirmed. It was urged that the judgment was contrary to the law and the'evidence, the defense being that there was a surrender of the premises by the lessees and acceptance thereof by the lessor, and that the latter made a new lease on the same terms to the Cloak Company under which he and afterwards Porter collected rent as aforesaid. Negotiations for a new lease were attempted but never consummated. These facts were undispitted: that when the Cloak Company took over plaintiffs in error’s business one Miltenberg, a broker, at the request of attorneys for plaintiffs in error, asked one Wilson, the real estate agent of Pope, over the telephone whether the lease could be assigned to Cohn & Levin or whether a new lease would be given, and received the reply “to look them up and if they were all right to bring the matter before him;” that Wilson (the only party shown by the record to have been authorized to act for Pope) never had any other talk with reference to the matter nor negotiated any new lease; that Miltenberg who was shown to have acted, not as an agent for Pope but at the request of defendants, prepared a new lease to Cohn & Levin, and left it and a duplicate unsigned with Levin requesting him for references as to his financial standing; that no references were ever furnished, but that the rent was paid by the Cloak Company, as aforesaid, in sums and at times as provided for in the original lease.. While Levin testified that he sent the new leases to Miltenberg and they were subsequently returned bearing’ the name of Pope and that he destroyed them, yet there was no attempt to show that the signature was Pope’s or ever authorized by him, or that the document ever came to Levin from an agent of Pope.
    Abstract of the Decision.
    Landlord and tenant, § 325

      —when verdict for plaintiff for rent properly directed. In an action for rent which was defended on the ground that there was a surrender of the premises by lessees and a new lease to a corporation which took over the business of defendants, and that lessor made a new lease of the premises, in the absence of legal proof of such new lease or surrender of the old one, verdict for plaintiff for rent was properly directed.

      Charles W. Stiefel and John B. Heinemann, for plaintiffs in error, Leo Lieberman and Jerome Stiefel.
    George W. Gordon, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Emma L. Parker, Plaintiff in Error, v. Mrs. William Bryson, Defendant in Error.
    Gen. No. 21,232.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed February 24, 1916.
    Statement of the Case.
    Habeas corpus by Emma L. Parker, relator, to require respondent, Mrs. William Bryson, to produce relator’s child in court to determine right of custody. From judgment remanding child to respondent, relator sues out writ of error.
    While there was evidence of,the mother’s fitness to have the care and custody of the child, there was a stipulation only as to respondent’s fitness, and recognizing as a fact the fitness of each, the trial court’s order rested wholly on findings that the mother had abandoned the child on the date of its birth and that since that time it had been in the care and custody of respondent. Mrs. Parker lived in a country town in Fulton county, Illinois. She had been housekeeper for Dr. E. S. Parker of that town, the father of the child, and about July 1, 1912, had come to Chicago pursuant to arrangements made by him for her approaching accouchement. It was intended that her condition should be kept secret from their friends and especially from his aged, invalid mother who lived with him and to whom he had made the promise not to marry while she lived. In view of relator’s condition, however, he married her secretly at Milwaukee, Wisconsin, July 24, 1912, and though his mother died the following month the marriage and subsequent birth of the child on November 12, 1912, at the Polyclinic Hospital, Chicago, did not apparently become public until after his death in May, 1914. They never lived together after the marriage. She appeared to have been left helpless and alone among strangers and amid circumstances with which she was unfamiliar and unable to cope. In such situation she made known to the matron of the hospital and Dr. Bacon in charge that on account of “conditions at home she could not reveal the marriage nor arrange to care for the baby,” and wanted a good home for it if she could not keep it. Accordingly pursuant to arrangements (of which she was evidently not fully advised), the child was taken from her arms and the hospital on the day of its birth and delivered to the respondent, Mrs. Bryson. She did not know who had the child, and Dr. Bacon, alone, of all her acquaintances did know. She afterwards frequently asked him about it but got no definite or satisfactory answer. Thrown upon her own resources and counsel, and still feeling bound to shield her husband and conceal the situation, she remained in Chicago in respectable employment earning only about enough for her own support. After her husband’s death the matter became public, and learning for the first time through the public press that Mrs. Bryson had her child she immediately demanded possession of it, the refusal to give which resulted in said proceedings.

      Abstract of the Decision.
    Parent and child, § 3

      —when parent entitled to custody of child. Where in habeas corpus proceedings for the custody of a child, it appears that the mother has not forfeited the right to her child by absolute relinquishment or some course of conduct or conditions that render its assertion incompatible with the parental claim and the child’s best interests, she will be given the custody of such child as against the foster mother thereof.
    Shepard, McCormick, Thomason, Kirkland & Patterson, for plaintiff in error; Perry S. Patterson, of counsel.
    Benjamin E. Burr, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    A. J. Bates Company, Defendant in Error, v. Joseph Di Nunzio, Plaintiff in Error.
    Gen. No. 21,233.

      (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 24, 1916.
    Statement of the Casé.
    Action in replevin and trover by A. J. Bates Company, plaintiff, against Joseph Di Nunzio, defendant. From a judgment for plaintiff, defendant brings error.
    Cairoli Gigliotti, for plaintiff in error.
    M. M. Jacobs, for defendant in error.

      Abstract of the Decision.
    Appeal and error, § 864*—when court mil not search record to find matters not appearing in abstract. Where the abstract of record requires court to go through the record to find actual rulings of the court, controlling features of the evidence and instructions to the jury, the Appellate Court will not undertake such a search.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Louis Cohen, trading as Louis Cohen & Company, Appellee, v. Atchison, Topeka & Santa Fe Railway Company, Appellant.
    Gen. No. 21,248.
    1. Caeriees,—when liability as warehouseman for injury to goods fixed by bill of lading. In assumpsit against a railroad company acting as warehouseman for oranges damaged by frost, where the shipment is interstate, and under the terms and conditions of a uniform bill of lading prepared in the form recommended by the Interstate Commerce Commission, the amount recoverable must be computed in accordance with the provisions of such bill of lading.
    2. Evidence, § 107

      —when 'telephone conversation admissible in evidence. A telephone conversation with an unidentified person in the office of a railroad company is admissible in evidence.
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed February 24, 1916.
    Robert Dunlap, Lee F. English, James L. Coleman and Homer W. Davis, for appellant.
    Charles A. Butler, for appellee; Franklin Raber, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment for $305 in favor of Cohen, plaintiff, against the Railway Company in an action of assumpsit for damages to oranges while in the custody of the latter as a warehouseman.

The oranges were transported from Prenda, California to Chicago, Illinois, in interstate commerce over the company’s road, and after arrival in Chicago the car was placed on the team or unloading track for delivery, and the consignee was duly notified thereof. The consignee inspected and found the goods in good condition after their arrival. The claim is that through negligence of the company they were afterwards damaged by frost before being unloaded. .

The case was tried on the theory, and at plaintiff’s request the jury were instructed, that the measure of damages was “the difference between the fair and reasonable cash market value of said oranges in good merchantable condition in Chicago, Illinois, on the day they were delivered by the defendant to said plaintiff and their fair and reasonable cash market value in Chicago, Illinois, at the time and in the condition in which they were delivered to said plaintiff.”

This was error. It was an interstate shipment. Defendant’s tariffs and schedules were duly established under the Federal acts regulating commerce, and the goods were received for transportation under the terms and conditions of a uniform bill of lading, prepared in the form approved and recommended by the Interstate Commerce Commission. The terms and conditions of the bill of lading, so far as necessary to be considered, are precisely the same as those quoted in the opinion of Mr. Justice Pitney of the Supreme Court of the United States, handed down January 10, 1916, since this appeal was taken, in the case of Cleveland, C., C. & St. L. Ry. Co. v. Dettlebach, 239 U. S. 588, and it was there held that the question was Federal in its nature.

Passing upon the question of the carrier’s responsibility under the provisions of that bill of lading and the so-called Hepburn Act, amending the Commerce Act (34 Stat. 584, ch. 3591), the court held that the phrase in the bill of lading “any loss or damages for which any carrier is liable” includes the “carrier’s responsibility as warehouseman,” and that the “reasonable charge for storage would be determined in the light of all the circumstances, including the valuation placed upon the goods.”

In that case the valuation was declared; here it was not. But section 3 of the bill of lading provides that “any loss or damages for which the carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the time and place of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation.”

It follows, therefore, from the opinion above cited that if the Railway Company is liable for damages resulting from its capacity as warehouseman, they must be computed in accordance with the contract provisions quoted. No proof conforming thereto was presented, but the proof adduced as to the amount of damages suffered was in accordance with the theory of said instruction. Under that state of the record the court should have granted defendant’s motion for a new trial. As the judgment must for reasons stated be reversed and the cause remanded, it is unnecessary to discuss other questions argued which may not arise in another trial. We will, however, add that as the telephone conversation with an unidentified person in the company’s office may again be offered, it is admissible under the ruling in Godair v. Ham Nat. Bank, 225 Ill. 572.

Reversed and remanded.


author: Mr. Presiding Justice Pam

text:
    Nellie A. Cross, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 20,638.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 2, 1916.
    Statement of the Case.
    Action by Nellie A. Cross, plaintiff, against the City of Chicago, defendant, on account of personal injuries sustained by her. From a judgment of the Municipal Court of Chicago dismissing her statement of claim because of failure to allege the giving of statutory notice, plaintiff brings error.
    On the second day of the present term the Appellate Court affirmed the judgment of the Municipal Court, but the attention of the court having since been called to the decision in Enberg v. City of Chicago, 271 Ill. 404, the former opinion is withdrawn and the judgment reversed and remanded.
    Edward H. Stearns, for plaintiff in error.
    N. L. Piotrowski, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1802 —when Appellate Court will reverse ancl remand case because of subsequent decision of Supreme Court on similar point. Where Supreme Court holds point of law contrary to holding of Appellate Court in different case but in same term of court, the Appellate Court will reverse and remand such case which it had previously affirmed.

2. Municipal Court of Chicago, § 13*—when statement of claim in action against city for personal injuries sufficient. In fourth-class cases in the Municipal Court of Chicago, a statement of claim in an action against a city for personal injuries need not allege the giving of statutory notice of injuries to the city.


author: Mr. Presiding Justice McSurely

text:
    Fred Miller Brewing Company, Appellee, v. G. Heileman Brewing Company, Appellant.
    Gen. No. 21,835.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 7, 1916.
    Statement of the Case.
    Action by Fred Miller Brewing Company, plaintiff, against G. Heileman Brewing Company, defendant, for the purchase price of saloon fixtures. From a judgment for $1,500 for plaintiff, defendant appeals.
    Plaintiff was lessee of premises at No. 2109 Wabash avenue and the owner of saloon and restaurant fixtures therein. In March, 1912, representatives of plaintiff had a conversation with Walter G. Mueller, who was manager of the Chicago branch of the defendant company, whose main office was in Wisconsin, at which time the saloon business was not conducted in these premises because the saloon license had been revoked. During this conversation it was agreed between these representatives of the respective breweries that the defendant would purchase from the plaintiff the fixtures and furniture contained in the premises and also the lease, which would be assigned to the defendant, but that the $1,500 purchase price would not be paid until Mr. Mueller was sure the license would be restored. The lease was dated January 20, 1912, and ran to the plaintiff as lessee, and at this time, by apt words in writing, the lease was assigned from plaintiff to defendant, the defendant signing ‘‘Gr. Heileman Brewing Company (Seal), by Walter C. Mueller.” The landlord consented to this assignment. At the same time, - by another writing signed by the respective parties in the same manner, it was agreed that the furniture in the saloon should be sold by the plaintiff to the defendant, the defendant agreeing to pay therefor the sum of $1,500 as soon as a saloon license should issue from the City of Chicago for the operation of a saloon on said premises. Later on this license was issued, and on June 13, 1912, the saloon business was resumed.
    Defendant entered into possession of the premises and furniture, and paid rent under the lease from and including June, 1912, until the expiration of the lease on April 30, 1913. It used the furniture in question during all of this time, and never offered to return the same or to reassign the lease. After the license was issued request was made of defendant to pay the $1,500, which was refused by the defendant.
    Wilkerson, Cassels & Potter, for appellant; Edwin H. Cassels and Kenneth B. Hawkins, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee; Arthur C. Marriott, of counsel.

      Abstract of the Decision.
    Corporations, § 384

      —when taking of assignment of lease deemed ratified. Although the representative of a brewing company may not have had authority to take assignment of lease of saloon premises and to purchase the fixtures therein, in the first instance, the company must be held to have ratified the agreement where it had knowledge thereof, and, while protesting as to the price, nevertheless continued to hold possession of the fixtures and leased premises and never offered to return the furniture to the lessee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Walter J. Becker, Appellee, v. Sievert Hollesen, Appellant.
    Gen. No. 21,875.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed March 7, 1916.
    Rehearing denied March 20, 1916.
    Statement of the Case,
    Action by Walter J. Becker, plaintiff, against Sievert Hollesen, defendant, for commission of $1,375 for procuring purchasers for defendant’s real estate. From a judgment in favor of plaintiff for the amount claimed, defendant appeals.
    Plaintiff alleged that in January, 1913, defendant promised to pay him two and one-half per cent, commission if plaintiff would procure purchasers for certain real estate belonging to defendant, at a price of $55,000-; that about April 14, 1913, plaintiff did so, but defendant refused to abide by his promise.

      The evidence tended to show that in April, 1913, defendant owned a tract of land situated in Evanston, Illinois, north of Devon avenue and east of Clark street, which was designated as “the ball park,” and another piece of land near by, which was called “the Schreiber avenue strip.” The ball park was used as such, with grand stand, ticket offices and appurtenances, under a lease for a term of eight years beginning April 1, 1909. A portion of the Schreiber avenue strip was also under lease for a term of three years beginning October 1, 1911, with privilege to the lessee of renewal for an additional period of three years. In the latter part of 1912, or perhaps in January, 1913, plaintiff, a real estate broker, asked defendant what price was wanted for the ball park and defendant gave him a price of $45,000. Afterwards, in April, 1913, plaintiff told defendant that he thought he had a purchaser for the ball park provided the Schreiber avenue strip could also be purchased, and upon inquiring as to the price of that was told that it could be bought for $10,000. Later on the plaintiff and defendant met Henry C. Bartling and Selma Sundsten, prospective purchasers procured by plaintiff, and a written option agreement was drawn up and $1,000 deposited to be held in escrow pending the exercise of the option. This option gave the prospective purchasers the privilege of purchasing on or before October 15, 1913, both the ball park and the Schreiber avenue strip at a price of $55,000, and provided that the option contract should be void if the “leases on the above premises are not removed, ’ ’ and that in this event the escrow money should be returned to the prospective purchasers. After the execution of this agreement attempts were made in divers ways to cancel the lease on the ball park, but without success. By June 25, 1913, all the parties apparently being of the opinion that there was no prospect of canceling or forfeiting the lease, it was agreed by them that the option agreement should be canceled and the money refunded, and this was accordingly done.
    Abstract of the Decision.
    1. Brokers, § 36

      —when owner of real estate not liable for commissions to agent procuring prospective customer. As between a •real estate broker and an owner of property for whom such real estate broker procured customers, the owner of the property was not liable for commissions where the owner verbally put a certain price on land and at such time the broker brought customers to the owner who signed an option agreement which was canceled and where about nine months later the owner raised the price of such land after it had cost the owner a considerable sum to secure cancellation of a lease on the premises, and where there may have been other reasons for raising the price, even though the broker procured the same prospective purchasers as previously, who were willing to pay the sum first asked.

      Defendant continued in his efforts to secure the cancellation of the lease on the ball park, and in August terms were agreed on between him and the ball club which involved a remittance to the club of $1,000 of rent in consideration of which the lease was canceled by mutual agreement. During the following month plaintiff went to defendant and said he had heard that the lease had been canceled, was informed that this was true, and plaintiff said that he would see his parties again. Afterwards he reported to defendant that his parties wanted time to get estimates on paving, sewers and other improvements, as it was contemplated to subdivide the ball park. Defendant then stated that he would not sell the Schreiber avenue strip at all. Some weeks later plaintiff, with Bartling and Sundsten, called upon defendant and was told by bim that he would not sell the Schreiber avenue strip, and that his price on the ball park was $50,000. This the parties refused to pay, and no further negotiations between them were had. Plaintiff claims two and one-half per cent, commission on $55,000, the price originally given him by defendant for all of the said real estate.
    J. F. Crahen, for appellant.
    Guy Van Schaick, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Vendor and purchaser, § 85 —what constitutes cancellation of option contract for purchase of land. A cancellation of an option contract for the purchase of land by parties thereto, held to be a cancellation in fact and in law.

3. Brokers, § 41*—when owner not bound by statement to broker as to price of real estate. An owner of real estate is not bound for an indefinite period by his verbal reply to an inquiry as to the price of such real estate made to a broker who agrees to furnish a prospective purchaser.

4. Brokers, § 36*—when owner of real estate not liable to broker for commissions for procuring prospective customer. Where real estate broker procured prospective customers who were not willing to buy property under existing conditions but who would buy same if freed from a lease thereon, such broker is not entitled to a commission.


text:
    Hiram S. Warner, Appellee, v. Pacific Coast Casualty Company of San Francisco, Appellant.
    Gen. No. 21,914.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed March 7, 1916.
    Rehearing denied March 20, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Hiram S. Warner, plaintiff, against Pacific Coast Casualty Company of San Francisco, defendant, for damages for breach of a contract of insurance agency and for commission. From a judgment for plaintiff, defendant appeals.
    The contract sued on, dated February 1, 1906, provided that plaintiff should have the exclusive right in the state of Illinois to burglary, plate glass and employers’ liability insurance business, his compensation to be forty per cent, of premiums on all policies issued within said territory, and a further commission of ten per cent, upon the net profits; instructions in writing’ to the plaintiff from the home office (in San Francisco) by the defendant to be construed to be part of the contract; contract terminable on thirty days’ written notice by either party. It was claimed that the original compensation of forty per cent, was reduced by agreement to thirty per cent. On April 23, 1907, defendant wrote plaintiff that it did not care for any extended line of this kind of business, that the business would not stand a higher commission rate than thirty per cent, and it would accept such insurance on that basis only, and that if the business could not be written on this basis as general agent commission to not write it. This appeared to have been agreed to by plaintiff, as shown both by his reply letter dated May 6, 1907, and his subsequent conduct in deducting only thirty per cent, of premiums in making remittances.
    The second part of plaintiff’s claim was for forty per cent, commission on liability insurance written by the firm of Burras & Goodbody in the years 1910 and 1911. Defendant claims that in the latter part of 1910 it was agreed by it and plaintiff that the business in Illinois was to be divided so that the firm of Burras & Goodbody should be the general agent for the employers’ liability insurance instead of plaintiff, who was to continue as agent in lines of plate glass and burglary insurance only. Plaintiff and Burras & Goodbody ■ interchanged business, that is, plaintiff brought all liability insurance business coming to him to Burras & Goodbody, who paid plaintiff all the commission thereon, while this firm gave plaintiff its burglary and plate glass insurance business and received the commission.
    Abstract of the Decision.
    1. Contracts, § 252

      —When evidence sufficient to establish modification of contract of agency. As between a casualty insurance company and its agent, a contract for a certain commission held to have been later changed to a lower basis by a letter from the company to its agent and his reply thereto, and the subsequent conduct of such agent in deducting only such lower commission from remittances to the company.
    A letter from defendant dated November 14, 1910, was apparently a threat to sever all relations with plaintiff unless he observed strictly the agreement to divide the business as had been arranged, and in plaintiff’s reply of November 21st lie seemed to resent any suggestion that he had not strictly observed this agreement. Defendant apparently accepted his statement of the fact and did not at that time terminate his plate glass and burglary insurance agency. This was subsequently done, in January, 1912.
    The third part of plaintiff’s claim was for commissions on certain insurance written by agencies amounting to $3,818.47, against which defendant claimed certain amounts which appear to be credits given to defendant by plaintiff in the copy of account attached to his declaration.
    Thurman, Hume & Kennedy, for appellant.
    Daniel S. Wentworth, George W. Plummer and David B. Maloney, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Contracts, § 86 —what constitutes sufficient consideration for contract for commissions. The acceptance of liability insurance by an agent after notice from his principal, a casualty insurance company, that the company would not accept same except on a certain lower commission basis, is sufficient consideration for the contract for such lower commission.

3. Contracts, § 251*-—when instrument under seal may he modified hy executed parol agreement. A parol agreement to reduce commissions of a liability insurance agent is valid and binding, when executed, so as to modify an instrument under seal.

4. Contracts, § 252*—when evidence sufficient to establish modification of contract of agency. An agreement between a casualty insurance company and its prior exclusive agent, held modified so as to divide insurance business between such agent and another agent, where it appeared that a letter was sent by the company threatening to discontinue the agency of such prior agent, and the prior agent and subsequent agent exchanged business on the basis of such division.

5. Contbacts, § 86*—what constitutes sufficient consideration for modification of contract of agency. Where a casualty insurance company threatened to discontinue agency and insisted that its previously exclusive agent divide business with another agent, the continuance of the agency of the prior agent was sufficient consideration for the modification of the contract of agency as insisted upon by the company.

6. Pleading, § 42*—what does not constitute part of declaration. A copy of an account which is attached to a declaration does not constitute a part of the declaration.

7. Appeal and error, § 743*—when copy of account attached to declaration not part of record. A copy of an account which is attached to a declaration must be introduced in evidence, like any other writing, to become a part of the record, as it does not constitute a part of the declaration.


text:
    Mary Von Der Brelie, Appellant, v. Henry Von Der Brelie, Appellee.
    Gen. No. 21,949.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Husband and wiee, § 217

      —when wife not justified in refusing to live with husband so as to be entitled to separate maintenance. Refusal of husband to convey some of his property to his wife or to cancel a certain lease to his son-in-law does not give her legal grounds for refusing to live with him, under Hurd’s Rev. St., ch. 68, sec. 22 (J. & A. H 6159), so as to entitle her to separate maintenance.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 7, 1916.
    Statement of the Case.
    Bill for maintenance and support and other relief by Mary Von Der Brelie, plaintiff, against her husband, Henry Von Der Brelie, defendant. From a decree dismissing her bill of complaint and the amendments thereto, complainant appeals.
    It was alleged that the husband had refused to convey certain real estate to his wife and to cancel a certain lease to his son-in-law. Under advice of a physician he left his wife for a period of rest, which was said to have been necessitated by the conduct of his wife.
    Coburn & Bentley, for appellant.
    Atwood, Pease & Loucks, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Husband and wife, § 222 —when husband not guilty of desertion of wife so as to entitle her to separate maintenance. Desertion of a wife by her husband, so as to entitle her to separate maintenance under Hurd’s Rev. St. eh. 68, sec. 22 (J. & A. % 6159), does not take place when husband, under the advice of a physician, leaves her for a period of rest, and he is impelled thereto by the conduct of the wife.


text:
    Richard Devine by Mamie Lenihan, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 21,982.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John H. Fornoff, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 7, 1916.
    Statement of the Case.
    Action on the case by Richard Devine, a minor, by Mamie Lenihan, his next friend, plaintiff; against Chicago Railways Company, defendant, for injuries sustained when he was struck by defendant’s car. From a verdict and judgment for $12,500 in favor of plaintiff, defendant appeals.
    Plaintiff, aged seven years and seven months old, attended a school in Chicago located at the corner of Wells and Wendell streets. On December 26th, at about 11:30 o’clock in the morning he was dismissed from school and started to cross Wells street when he was struck by one of defendant’s cars. Plaintiff alleged in his declaration the existence of an ordinance of Chicago which declared it unlawful to run a street car at a greater speed than five miles per hour while within 250 feet of a sehoolhouse, between the hours of 11 a. m. and 1:45 p. m., of any day when school was in session and that defendant in violating such ordinance caused the accident to plaintiff.
    Abstract of the Decision.
    1. Street railroads, § 78

      —when violation of speed ordinance not negligence per se. The violation of an ordinance as to speed of a street car within a certain distance of a school building during a certain period of the day, resulting in injury to a child, is simply prima facie evidence of negligence from which the jury may infer negligence, and which may be rebutted by other evidence, and does not constitute negligence per se.

    2. Street railroads, § 142*—when instruction as to liability for negligence in operation of car in violation of ordinance erroneous. In an action against a street railroad for injuries to a child which was attempting to cross the street, an instruction that if defendant violated the ordinance as to speed of street cars within a certain distance of school buildings during a specified period of the day and plaintiff was exercising due care defendant was liable, held erroneous.
    3. Damages, § 213*—when instruction as to damages recoverable by child not erroneous. In an action for damages for personal injuries to a child who was run over by a street car, an instruction limiting the amount of damages for loss of future earning capacity to the time after plaintiff shall have reached his majority, held correct.
    4. Street railroads, § 147*—when instruction referring to amount of damages alleged in declaration not misleading. In an action for damages for personal injuries to a child which was run over by a street car, an instruction referring to the amount of damages claimed and alleged in the declaration held not misleading.
    Weymouth Kirkland and Charles Le Roy Brown, for appellant; John B. Guilliams, of counsel.
    Elmer & Cohen, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Speer Hardware Company, Appellee, v. Consolidated Adjustment Company, Appellant.
    Gen. No. 21,997.
    (Not to be reported in full.)
    Abstract of the Decision.
    Estoppel, § 89

      —when agent estopped to deny failure of principal to furnish proper accounts for collection. A collection agency which selects the accounts upon which it undertakes to guaranty collection cannot be heard to say in a suit against it based on such guaranty that plaintiff is in default as to the kind of accounts to be furnished by it.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 7, 1916.
    Statement of the Case.
    Action by Speer Hardware Company, plaintiff, against Consolidated Adjustment Company, defendant, upon a guaranty in a contract whereby defendant undertook to collect certain accounts for plaintiff. From a judgment for plaintiff, defendant appeals.
    The contract sued on was similar to that in Barstow Stove Co. v. Consolidated Adjustment Co., 175 Ill. App. 449.
    Delavan B. Cole, for appellant; Adelor J. Petit, of counsel.
    Henry & Robinson, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Galveston Shoe & Hat Company, Appellee, v. Consolidated Adjustment Company, Appellant.
    Gen. No. 21,999.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Estoppel, § 89

      —when agent estopped to question character of accounts furnished hy principal for collection. A collection agency-having guarantied in a contract the collection of certain accounts, a provision in that contract, whereby the agency reserves the right to cancel the contract and surrender all claims listed thereunder at any time within six months from date, estops the agency from questioning the character of such accounts after the elapse of such six months.

      Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 7, 1916.
    Rehearing denied March 20, 1916.
    Statement of the Case.
    Action by Galveston Shoe & Hat Company, plaintiff, against Consolidated Adjustment Company, defendant, on guaranty by defendant to collect certain accounts. From a judgment by default for plaintiff, defendant appeals.
    The contract sued on was similar to that in Barstow Stove Co. v. Consolidated Adjustment Co., 175 Ill. App. 449, and noted in Speer Hardware Co. v. Consolidated Adjustment Co., ante, p. 190.
    Delavan B. Cole, for appellant; Adelor J. Petit, of counsel.
    Daniel S. Wentworth, David B. Maloney and John P. Reed, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Contracts, § 390 —when question whether reasonable time has elapsed after expiration of contract within which to collect accounts for jury. In an action against a collection agency for breach of a guaranty to collect a certain number of accounts, whether a reasonable time has elapsed after the expiration of the contract within which to collect what they had guarantied is one of fact to be ascertained by the consideration of evidence.

3. Municipal Court op Chicago, § 13*—when order of court refusing to strike affidavit of defense from files not reversed. An order of the Municipal Court of Chicago in refusing to strike an affidavit of defense from the files on the ground that it was not filed in time will not be reversed where such course is not necessary to prevent a failure of justice.


text:
    Texas Company, Appellee, v. Consolidated Adjustment Company, Appellant.
    Gen. No. 22,000.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 7, 1916.
    Rehearing denied March 20, 1916.
    Statement of the Case.
    This case is in every respect substantially like Galveston Shoe & Hat Co. v. Consolidated Adjustment Co., No. 21,999, ante, p. 191, and what was said in that opinion applicable herein is reaffirmed. ' For the reason indicated in that opinion, the judgment in this case is reversed and the cause remanded.
    Delavan B. Cole, for appellant; Adelor J. Petit, of counsel.

      Daniel S. Wentworth, David B. Maloney and John P. Reed, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    C. L. Gray Lumber Company, Appellee, v. Otto Scharmer, trailing as Scharmer Construction Company, Appellant.
    Gen. No. 22,016.
    (Hot to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 7, 1916.
    Statement of the Case.
    Action by C. L. Gray Lumber Company, plaintiff, against Otto Scharmer, trading as the Scharmer Construction Company, defendant, for refusal by defendant to take lumber, according to an agreement, to be furnished by plaintiff. Prom a judgment in plaintiff’s favor, defendant appeals.
    There were several letters between the parties leading up to the final order of March 27, 1913, which was sued on and is as follows:
    “March 27th, 1913.
    “C. L. Gray Lumber Co.,
    “Meridian, Miss.

      ‘ ‘ Gentlemen :—
    We herewith place an order with yon for 300,000 Ft. 3x6 at $21.50 per M. F. O. B. Cars Chicago, to be 12-14-16 feet long. This is for prospective work and we do not know the exact lengths in quantities we will need. This is to be held subject for call within six months.
    Abstract of the Decision.
    1. Sales, § 16

      —when order for goods definite in terms. A letter from defendant to plaintiff ordering lumber in the light of previous letters of the parties and the testimony of witnesses, held to be definite enough to disclose a cause of action, in particulars of quantity, price, time of delivery and character of materials.
    2. Contracts, § 198*—when meaning of trade terms may be explained by experts. The meaning of trade terms used in letters or contracts may always be explained by persons experienced in the particular business.
    3. Contracts, § 377*—when evidence inadmissible to aid in construction of contract. Where testimony of a third person as to a conversation between plaintiff and defendant subsequent to the making of the contract sued on would corroborate defendant’s testimony but would not modify, change or aid construction of such contract, it was not error to refuse admission of such testimony.
    “Otto Scharmer.
    “Agreed
    “ (Signed) C. L. G-ray Lumber Co., per
    “C. L. G-ray.
    “Note: Any slight difference in the amount of quantity used more or less to be adjusted at the above price. ’ ’
    The court refused to admit the evidence of Scharmer’s bookkeeper, Miss Crane, as to a conversation between Scharmer and G-ray. The alleged conversation was said to have taken place some two months after the contract was made. According to Scharmer, he only expressed doubt as to his ability to order lumber, as he was short of work.
    Gustav E. Beerly, for appellant.
    Archibald Cattell, for appellee; Carl A. Waldrom, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. City Council of the City of Chicago, Appellant, v. Board of Education of the City of Chicago, Appellee.
    Gen. No. 22,226.
    1. Municipal corporations, § 45

      —when city council power to examine records of board of education as to expenditures. Under Hurd’s Rev. St., ch. 122 (J. & A. 10022 et seq.) and the special charter of 1863 of the City of Chicago, the duty of control of expenditures of the board of education by the city council necessarily involves knowledge of receipts and expenditures and the right to obtain this knowledge through examination of records of the board of education.
    2. Municipal corporations, § 45*—when city council entitled to access to records of board, of education as to expenditures. The duty of the Chicago Board of Education to communicate to the city council such information as may he required does not deprive such council of the right of access to the original sources of information from records of such board.
    3. Municipal corporations, § 45*—when city council may examine records af board of education as to expenditures. While Act of 1909, Hurd’s Rev. St. ch. 122 (J. & A. If 10022 et seq.), to establish and maintain a system of free schools, gives the Board of Education of the City of Chicago exclusive right of management of-many details of the schools, it has not taken from the city council the right, under the special charter conferred in 1863, to examine the original records of receipts and expenditures of such hoard.
    4. Municipal corporations, § 45*—when city council may examine records of board of education as to expenditures. The animus or motive of the Chicago City Council in seeking to make an examination of the records of receipts and expenditures of the hoard of education of such city cannot affect its right to so do.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed March 7, 1916.
    Donald R. Richberg, for appellant.
    Angus Roy Shannon, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Upon relation of the City Council of the City of Chicago a petition for mandamus was filed, praying that the Board of Education of Chicago be commanded to give to the city council full and complete access to all books, records, documents and information concerning the receipt and expenditure of moneys in possession of the board. To this a general demurrer was filed and subsequently sustained, and the petition ordered dismissed. Petitioners elected to stand by their petition, and by this appeal seek the reversal of the order of the court.

Is the city council empowered by law to examine the records of receipts and expenditures of the money of the board of education? We hold that it is.

Under the special charter of Chicago, year 1863, the council was given power (quoting from People v. Healy, 231 Ill. 629, 635) “to manage the school funds, school houses and school matters generally, and the board of education only had control subject to the regulations prescribed by the common council.” Under section 2, chapter 9, of the special charter, the council was given power to levy and collect a school tax, and under the Constitution adopted in 1870, the council was given power to appropriate moneys for school purposes. In 1872 the Legislature passed an act entitled: “An Act to establish and maintain a system of free schools,” approved April 1, 1872. In 1875 the City of Chicago became incorporated under the general law for the incorporation of cities and villages, and it was held in Brenan v. People, 176 Ill. 620, that the special charter thereby became no longer in force, except so much of it as was not inconsistent with the general law. The Cities and Villages Act contains no provision relating to schools; hence the provisions of the special charter relating to schools were not abrogated, and the division of powers between the city council and the board of education was to be determined under the provisions of the special charter and of the School Act of 1872. In People ex rel. Neal v. Roche, 124 Ill. 9, the Supreme Court stated this division of powers as follows:

“It seems clear, from all the legislation on the subject, it was the intention of the legislature the city, in cities having over one hundred thousand inhabitants, should have the title to all real estate held for school purposes, and the city treasurer should have the custody of all school funds, no matter from what source derived. The board of education in such cities is given no independent powers as to the real estate held or to be purchased for school purposes. Whatever the board can do in reference to buying or leasing sites for school houses, or issuing bonds for the erection of buildings thereon, can only be done ‘with the concurrence of the city council. ’ The powers and duties, the board may exercise, independently of the city council, relate mostly to furnishing school houses, the employing of teachers, and the management of schools generally. But all school property and funds are placed in and under the care of the city council or some city officer.”

This division of powers was not changed by the passage of the School Act of 1889. Brenan v. People, 176 Ill. 620.

In 1909 the Legislature passed an act entitled: “An Act to establish and maintain a system of free schools,” approved and in force June 12,1909, Hurd’s Ill. St., ch. 122 (J. & A. 10022 et seq.), which is the statute now in force. This act did not substantially change the respective powers of the city council and of the board of education from the status fixed by the prior statutes. Sections 128 to 150 (J. & A. jfjf 10163-30185), inclusive, of the present statute provide for the organization and regulation of the “boards of education in cities of 100,000,” and these provisions apply to the Board of Education of Chicago. Under the present statute the hoard is given exclusive control of the management of the schools with reference to providing furniture for school buildings, hiring rooms for use of the board or schools, employing teachers and fixing compensation, prescribing school books, establishing rules for government, and other similar details stated in some twenty-four paragraphs in section 132 (J. & A. If 10167) of the statute. With the concurrence of the city council the board has power (1) to erect or purchase buildings for school houses and to keep them in repair; (2) to buy or lease school houses with grounds, or condemn land for the same “in the name of the city in trust for the use of schools”; (3) to borrow money upon the credit of the city. The statute also provides that the city shall take title to all real estate, and no sale shall be made except by the city council upon written request of the board; that all moneys raised by taxation “shall be held by the city treasurer as a special fund for school purposes, subject to the order of the board of education, upon warrants to be countersigned by the mayor and the city comptroller or, if there be no city comptroller, by the city clerk.” The statute in terms specifically negatives any implication that the board has authority to levy or collect taxes, this power remaining in the city council under the special charter. It is made the duty of the board to report to the city council, from time to time, any suggestions they may deem expedient or requisite in relation to the schools and the school fund, or the management thereof, and generally to recommend the establishment of new schools and districts ; to prepare and publish an annual report, which shall include the receipts and expenditures of each school, specifying the source of such receipts and the object of such expenditures; “to communicate to the city council, from time to time, such information' as may be required.” It is also.provided that “no power given to the board of education shall be exercised by the city council of such cities.”

Upon the city council is laid not only the duty of furnishing funds' for school purposes, but also the duty of control óf expenditures in a large measure. It is self-evident that such a duty cannot be performed with intelligence and judgment unless the council is fully and accurately informed as to the" requirements for school purposes. This necessarily involves knowledge of the receipts and expenditures, and the right to obtain this knowledge through examination of the records of the board inheres in the mutual relations of the parties and must be upheld unless the statute has clearly closed this avenue of information.

Does the statute, in terms or by implication, forbid the city council to obtain the needed information by first-hand examination of the records? There is nothing in the general scheme of the statutory provisions to indicate that this is so. Bather the requirement of concurrence by the council in financial matters indicates to the contrary. Neither do we think the duty of the board to communicate to the city council such information as may be required negatives the right of the council to examine the basis of the communication. The obligation to convey information to the council, when requested, is a rule of convenience and necessity in the transaction of their concurrent business. It serves a reasonable and proper purpose, but it would require a strained construction to give this rule of convenience the force of an inhibition of the inherent right of the council to have access to the original sources of information.

Our conclusion is that under its special charter the city council has complete control of the schools except as specifically modified by the statute; that the statute, while giving to the board exclusive right of management of many details of the schools, has not taken from the council the right to examine its records of receipts and expenditures; that the animus or motive of the council in seeking to make such examination cannot affect its right (Murphy v. Chicago, R. I. & P. Ry. Co., 247 Ill. 614); that the council is not required to consider a communication from the hoard as its sole and ultimate source of information. It is not important whether the field of the council’s financial action be small or large; whatever it is, the intelligent exercise of the council’s powers will be promoted by knowledge even of those details over which it has no direct control.

We hold that it was error to sustain the demurrer, and the order dismissing the petition is reversed and the cause remanded with directions to overrule the demurrer and for further proceedings not inconsistent with what is herein expressed.

Reversed and remanded with directions.


author: Mr. Justice Holdom

text:
    Mary McCausland, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,890.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed March 7, 1916.
    Rehearing denied March 20, 1916.
    Statement of the Case.
    Action by Mary McCausland, plaintiff, against Chicago City Railway Company, defendant, for damages for personal injuries. From a verdict and judgment for plaintiff, defendant appeals.
    Defendant while rehabilitating its street car tracks in Chicago laid a temporary north and south track on Halsted street at the intersection of Thirty-sixth street. When plaintiff was about to board defendant’s southbound car at that point, she alleged, the car swayed and struck, causing the injury sued on. The rail nearest plaintiff (the west rail) was about three-quarters of an inch higher than the other rail (east rail) of the southbound track. Defendant’s men were detailed to watch the temporary track to keep it surfaced, lined and gauged. The west rail (nearest plaintiff) was four feet from the curbstone. The overhang of defendant’s cars was twenty-two to twenty-four inches on each side. Plaintiff testified that she stood one foot from the curb while waiting for the car, and was so standing when the car struck her.
    Abstract of the Decision.
    1. Carriers, § 421

      —when intending passenger struck by street car guilty of contributory negligence. An intending passenger who stands so close to a moving street car on which he intends to take passage as to be struck is guilty of contributory negligence.
    2. Appeal and error, § 1802*—when case reversed with finding of fact. When it is patent from the evidence that plaintiff cannot maintain the action, the Appellate Court should reverse with a finding of fact.
    3. Negligence, § 90*—when contributory negligence bars recovery. There can be no recovery when the accident, on account of which suit is brought, could not have happened but for plaintiff’s contributory negligence, even though defendant was guilty of negligence which may have contributed in some way to bring about the accident.
    Franklin B. Hussey and Charles Le Roy Brown, for appellant; John B. Guilliams, of counsel.
    Thomas E. Rooney and Ferdinand Gross, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Anton J. Cermak for use of C. J. McCarty, Appellee, v. Guggenheim Laundry Machinery Company and Charles T. Luckow, Appellants.
    Gen. No. 21,923.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Replevin, § 161

      —when judgment conclusive as to ownership of goods. As between the parties to an action on a replevin bond, the question of ownership of the goods is res adjudicata settled by the proceedings in the replevin suit.
    2. Replevin, § 165*—when suing out of writ of retorno habendo not condition precedent to maintenance of action on bond. It is not incumbent on plaintiff in suit in replevin bond to sue out a writ of retorno habendo as a condition precedent to such suit, the goods should have been returned in accordance with the judgment in the replevin suit.
    3. Costs, § 73*—when expense of additional abstract filed by plaintiff may not be taxed to defendant. Where plaintiff filed an additional abstract of record and defendant’s abstract contained all that was necessary, expense of such additional abstract cannot be taxed as costs against defendant.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 7, 1916.
    Statement of the Case.
    Action on replevin bond by Anton J. Cermak, for the use of C. J. McCarty, plaintiff, against the Guggenheim Laundry Machinery Company and Charles T. Luckow, defendants. From a judgment for the penalty of the bond and for damages for plaintiff, defendants appeal.
    Sabath, Stafford & Sabath, for appellants.
    E. S. Hartman, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Charles A. Treadwell, Appellee, v. Central Bank of West Lebanon, Warren County, Indiana, Appellant.
    Gen. No. 21,950.
    1. Pleading, § 359

      —when plea of statute of another State should not be stricken summarily from files. Pleas setting up statutes of another State and the construction thereof by such State do not set up matters of law and may not be summarily eliminated from the record on motion to strike from the files, but like every other question of fact should be permitted to remain as defenses.
    2. Pleading, § 359*—when striking of pleas and affidavit of merits from files reversible error. It is reversible error to strike the pleas and affidavits of merits of defendant from the files on motion and to proceed to judgment as in cases of default.
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 7, 1916.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This action is brought upon three certificates of deposit, of which plaintiff is the holder and owner by indorsement, issued by the defendant bank to Columbia Casualty Company. Among other defenses pleaded were the statutes of the State of Indiana governing negotiable instruments of the nature of the certificates of deposit in suit, together with an affidavit of meritorious defense. An amended affidavit of merits was filed by leave of court, setting up defenses claimed to inure to defendant in virtue of the statutes of Indiana and the decisions of the Indiana courts construing such statutes. This amended affidavit was on motion of plaintiff stricken from the files, and on like motion the pleas were for want of a sufficient affidavit of merits also stricken, damages were assessed by the court and judgment entered as in default cases, for $496.37, and defendant appeals.

The trial court erred in thus summarily eliminating from the record the defenses interposed by defendant and assuming to construe the statutes of Indiana as matter of law. The Indiana statutes and the construction thereof by the Indiana courts were pleaded as matters of fact, and like every other question of fact the trial judge should have permitted the pleas to remain as defenses and allowed the statutes and decisions of Indiana to be given in evidence thereunder, in the same manner as any other question of fact is proven at law.' After such evidence had been received in the case, then the facts so proven would become questions of law, and the duty of instructing the jury. as to the law under the statutes and decisions of Indiana, so received in "evidence, would devolve upon the trial judge. In Barth v. Farmers & Traders Bank, 195 Ill. App. 318, it was held to be reversible error to strike the pleas and affidavit of merits of defendant from the case and to proceed to judgment as in cases of default.

For the reasons and under the authorities set forth in this court’s opinion in the Barth case, supra, the judgment of the County Court is reversed and the cause remanded for a trial under the pleas interposed by defendant to plaintiff’s declaration.

Reversed and remanded.


text:
    John M. Gavin, Appellee, v. State Bank of Monticello, Indiana, Appellant.
    Gen. No. 21,951.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 7, 1916.
    Statement of the Case.
    Action by John M. Gavin, plaintiff, against State Bank of Monticello, Indiana, defendant, to recover amount of certificate of deposit, with interest, issued by defendant bank to Columbia Casualty Company, which certificate plaintiff claimed was indorsed to him. From a judgment by default in favor of plaintiff, the defendant appeals.
    The errors assigned in this case are the same as those in Treadwell v. Central Bank of West Lebanon, ante, p. 208, and court referring to such case holds that for the reasons stated in that opinion the judgment of the County Court should be reversed and remanded for new trial.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Charles D. Albright, Appellee, v. Farmers & Traders Bank of La Fayette, Indiana, Appellant.
    Gen. No. 21,952.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; _±he Hon. David T. Smiley, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 7, 1916.
    Statement of the Case.
    Action by Charles D. Albright, plaintiff, against Farmers & Traders Bank of La Fayette, Indiana, on a certificate.of deposit, title to which plaintiff claims by indorsement. From judgment by default for plaintiff, defendant appeals.
    For the reasons stated in Treadwell v. Central Bank of West Lebanon, ante, p. 203, the judgment is reversed.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    United States Fidelity & Guaranty Company, Appellee, v. Elizabeth G. Dickason, Executrix of the Last Will and Testament of Livingston T. Dickason, Deceased, Appellant.
    Gen. No. 21,996.
    1. Limitation of actions, § 116

      —when correspondence subsequent to date of tolling of statute of limitations inadmissible. In Probate Court proceedings wherein the representative of the estate of one who agreed to indemnify a surety company contended against such company that the statute of limitations had run against interest prior to a specified date on the penalty of the bond sued on, held that letters offered by the company, dated subsequent to a certain date and after the statute of limitations had tolled, were properly excluded.
    2. Equity, § 79*—when statute of limitations tolled as against interest on bond. In proceedings in the Probate Court commenced on May 14, 1914, by a corporation which was surety on the bond of a contractor, who abandoned his contract on account of which the surety company paid the penalty of such bond, against the estate of deceased who had agreed in a condition of such bond to indemnify such corporation, and such corporation sought to charge interest against the estate from January 1, 1902, when the liability on the bond was fixed, and such estate contended that the statute of limitations had run against interest prior to June 7, 1911; and it appeared that deceased did not make any representations to such corporation inducing them not to commence action on the bond within the time when the statute of limitations was tolled, nor promise to pay the bond or amount of judgment thereon recovered against such corporation, but on the contrary denied his liability persistently; that such corporation never threatened suit within the period of the running of the statute, nor made demand upon deceased; that there was no proof of fraud, deceit or concealment of any fact which lured such corporation to refrain from suit against deceased within the proper time, and that deceased was not cognizant of any material fact in the matter not equally known to the corporation, held that the liability of the estate was for the penalty of the bond with interest thereon from June 7, 1911, and not from January 1, 1902.
    3. Equity, § 79*—how statute of limitations applied in equity. Equity courts in cases of concurrent jurisdiction are bound by the statute of limitations which govern the courts in like cases, and this, rather in obedience to the statute, than by analogy.

      Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed March 7, 1916.
    Rehearing denied March 20, 1916.
    Parker & King and Ashcraft & Ashcraft, for appellant.
    Judah, Willard, Wolf & Reichmann, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This action was started by the filing of a claim in the Probate Court of this county,-which was allowed for the amount claimed. From such allowance the executrix took an appeal under the statute to the Circuit Court. In the Circuit Court the claim was tried before the court with a jury and a judgment entered, bad in form, on a verdict instructed by the court, in the sum of $33,663.85, and the executrix from that judgment prosecutes this appeal, seeking a modification of the amount of the judgment on the theory that neither the testator nor his estate is liable for interest on the penalty of the bond in suit prior to the time that appellee paid the judgment of the Federal Court of Kentucky against it and in favor of the Ohio and Kentucky Railroad Company.

The material condition of the bond, the subject matter of this litigation, is that if the obligors—

“C. E. Loss and L. T. Dickason, their heirs, executors and administrators, shall at all times hereafter save harmless and keep indemnified the said United States Fidelity & Guaranty Company, its successors and assigns, against all suits, actions, debts, damages, demands, costs, charges and expenses, including court costs and counsel fees, at law or in equity, and against all loss and damage whatever that shall or may at any time hereafter happen or accrue to the said United States Fidelity & Guaranty Company, its successors or assigns, for or by reason of the suretyship of the said United States Fidelity & Guaranty Company, as aforesaid, then this obligation to be void,” etc.

We quote the following from the opening statement of counsel for appellant as being a fair statement of the case with admissions of fact binding appellant and which relieve appellee from the burden of proving that which, but for the admissions, would be incumbent upon it to prove:

“For the purpose of this trial I now admit that on January 8, 1900, Colonel Dickason executed the bond, copy of which is attached to the claim in this case, being a bond in the penal sum of $20,000 to indemnify this claimant, the United States Fidelity & Guaranty Company, for signing the bond of C. E. Loss & Company to the Ohio and Kentucky Railway Company. I admit the execution of the bond of C. E. Loss & Company and the claimant on the same date, January 8, 1900, to the Ohio and Kentucky Railway Company and the delivery of each of these bonds on the day of their date; that C. E. Loss & Company, under its contract with the Kentucky and Ohio Railway Company, proceeded with its work on that contract mentioned in the bond; that on the 16th day of January, 1901, it abandoned that contract; that a claim was made against the Surety Company, the claimant in this suit, by the Railway Company, for damages during the year 1901; that the claim became an obligation in favor of the Ohio and Kentucky Railway Company on the 1st ■ day of January, 1902, for the purpose of this trial, in the amount of $35,000; that it brought suit on that claim in March, 1903; that Colonel Dickason was notified to defend that action; that he did defend the action in co-operation with the claimant here, the Surety Company; that they furnished all the aid and assistance they could in the defense of that action and that it resulted in a judgment for a total amount of $30,126.66 against the claimant in this case; that on June 10, 1911,” (should be June 7) “claimant in this case paid the Railroad Company $32,748.11.
“I admit a claim should be allowed in this case by the court and the jury' against the estate of Colonel Dickason for $20,000 and interest on that amount from the day the Surety Company paid that claim at the rate of 5 per cent per annum and the costs of this case.
“I admit that the breach on the liability side of this bond occurred the 1st of January, 1902.
“I admit that the claimant in this case notified Colonel Dickason to defend the suit; that he did defend the suit the best he could with the co-operation of the claimant; that the claimant hired its lawyer and Colonel Dickason hired his lawyer and they co-operated in the defense; that the Surety Company did all it could to aid in the defense in every way.”

Appellant introduced no evidence save the admissions of counsel already referred to. On the contention of appellant that the evidence in the case presented no fact for the determination óf the jury, counsel moved the court to instruct the jury as follows:

“The court instructs you as law in this case, that the claimant is entitled to a verdict of $20,000 and 5% interest per annum on that sum from June 7th, 1911, and you will so find. ’ ’

This motion the court overruled and refused to instruct the jury as requested. Thereupon appellee moved the court to give to the jury the following instruction :

“The jury are instructed that you should find in favor of claimant, United States Fidelity and Guaranty Company, in the sum of Twenty Thousand Dollars ($20,000), together with interest thereon from January 1,1902, to date, at the rate of five (5) per cent per annum, amounting to the sum of Thirteen Thousand Three Hundred Thirty Dollars and Fifty-five Cents ($13,330.55), being the total sum of Thirty-three Thousand Three Hundred Thirty Dollars and Fifty-five Cents ($33,330.55) ”

which instruction, against the objection of appellants, the court gave, and a verdict in accord therewith was returned.

In this condition of the record it is apparent that, notwithstanding the very elaborate and able briefs of counsel, discussing with legal acumen every possible angle of the case on both law and fact, but one question is really in dispute, and this one question is the only question necessary to determine in order to settle the rights of the parties-—that is, whether the statute of limitations was tolled as against interest upon the bond in suit. That question can be settled by determining which of the two instructions requested should have been given to the jury. The opinion of the learned trial judge found in appellee’s brief, delivered orally at the close of the proofs, is of no assistance to the court and was not so intended, as is apparent from the judge’s opening statement that: “This is both a new and interesting question to me, and all I can treat any of you to is a quitclaim opinion on the subject.”

The following are the important dates and events involved in this suit: The liability on the bond was fixed in a suit in Kentucky between appellee and the Ohio and Kentucky Railroad Company, as of January 1, 1902. The litigation between the parties on this liability in the Kentucky Federal Court culminated in a judgment, from which no appeal was perfected, on June 9, 1910, for the penalty of the bond with interest from January 1, 1902. Appellee paid that judgment with interest on June 7, 1911. On March 22, 1913, Livingston T. Dickason, appellant’s testator, died. The suit of the railroad company against appellee was commenced in March, 1903. The claim involved in this suit was filed in the Probate Court on May 14,1914.

Counsel for appellee complain in their brief of the omission from the abstract of certain letters offered by them and excluded on the motion of appellant. While counsel for appellee failed to set forth these letters in their brief or by filing an additional abstract, we have gone to the record and And that the correspondence encompassed within these letters was subsequent to January 1, 1912, and after the statute of limitations, it is argued, was tolled. They were therefore properly excluded.

While it is admitted that the testator, in co-operation with appellee, defended the suit against the Ohio and Kentucky Kailroad Company, we fail to find any evidence in this record, or any admission by appellant’s counsel, that the testator made any representations to appellee or its counsel which induced them not to commence an action upon the bond within the time in which the statute of limitations was tolled. Nor was there any promise made by the testator that he would pay the bond or the amount of any judgment which the railroad company might obtain against appellee. On the contrary, the testator seems to have persistently not only avoided making any such promise, but openly denied his liability.

We can find nothing in this record, conceding the law to be as contended by appellee, which would raise an estoppel against appellant advantaging of the statute of limitations. Appellee never even threatened suit within the period of the running of. the statute of limitations, and, furthermore, the testator made no promise to pay within that time. Had the statute of limitations expired during the defense of the railroad company’s suit, a different question would be presented for solution; but at the time appellee paid the railroad company’s judgment nearly seven months remained, before the expiration of the statute, in which it could have commenced suit against the testator upon the bond now in suit, during which time it remained inactive. During that seven months no demand was made upon the testator for payment and no excuse is made to appear why appellee did not during that time commence its action. Testator became liable under the “loss and damage” clause of the bond in suit at the time appellee paid the railroad company’s judgment, June 7, 1911, and while the testator did not die for more than one year and nine months thereafter, no action was taken against him to force a recovery and no overt step looking to an enforcement of appellee’s claim under testator’s bond taken until the filing by appellee of its claim in the Probate Court on May 14, 1914,—nearly three years after the amount of the liability of the testator on the bond became fixed.

There is no proof that appellant’s testator was guilty of any fraud, deceit or concealment of any fact which lured appellee to refrain from commencing suit to enforce its claim within the period of the running of the statute of limitations; nor does it appear from the record that appellant was cognizant of any material fact that was not equally known to appellee. Even were we to concede, which we do not, that appellee was in a position to invoke equitable defenses, such even would be unavailing in a court of equity. Boone v. Colehour, 165 Ill. 305, states the doctrine applicable to equitable defenses with precision.

As said in Hamilton v. Downer, 152 Ill. 651: “If it has ceased to be a charge through her failure to pursue in due time the remedy given by the statute, a court of equity will render her no assistance.” And in Godden v. Kimmell, 99 U. S. 201, the court states the general rule thus: ' ‘ Equity courts in cases of concurrent jurisdiction should consider themselves bound by the statute of limitations which govern courts of law in like cases, and this rather in obedience to the statute of limitations than by analogy.”

We think the observation of the court in Ennis v. Pullman Palace Car Co., 165 Ill. 161, is pertinent to the case at bar. “* * * But a party should not be allowed to trust too long to the anticipated outcome of such proceedings and until, his right to legal remedies has been lost by lapse of time. ’ ’

We therefore conclude that the liability of appellant is for the penalty of the bond, $20,000, with interest at five per cent, per annum from June 7, 1911, when appellee paid the judgment against it of the Ohio and Kentucky Railroad Company, to the present time.

The judgment of the Circuit Court is reversed and judgment entered here for $24,750.

Reversed and judgment here for $24,750.


text:
    Tomasz Narkiewicz, Appellee, v. Valentine Wachowski, Appellant.
    Gen. No. 22,008.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 7, 1916.
    Rehearing denied March 20, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action in assumpsit by Tomasz Narkiewicz, plaintiff, against Valentine Wachowski, defendant. From a judgment against him, defendant appeals.
    This is a second appeal. The material facts in the case are contained in the decision on the previous appeal. See Narkiewicz v. Wachowski, 183 Ill. App. 318.
    Cheney & Evans, for appellant; White & Wilson, of counsel.
    Beach & Beach, for appellee.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1411

      —when verdict on conflicting evidence not disturbed. A verdict will not be disturbed as against the manifest weight of evidence where the evidence is in sharp conflict and a verdict might have been rendered for a larger sum.
    2. Trial, § 191*—when motion to direct verdict properly denied. A motion to direct a verdict is properly denied where the questions raised are merely those of fact.
    3. Appeal and ebbob, § 1088*—what brief must contain. The Appellate Court will not go to the record to ascertain the facts as to misconduct of counsel for the purposes of reversal where the particular conduct complained of does not appear in appellant’s brief.
    4. Appeal and ebbob, § 1413*—when verdict not disturbed. When two juries, as well as two trial judges, have concluded that the plaintiff’s claim is meritorious and there is no substantial or prejudicial error apparent in the record, the Appellate Court will not disturb the judgment appealed from.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley

text:
    Oscar Trybon, Defendant in Error, v. August W. Miller, Plaintiff in Error.
    Gen. No. 20,528.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed on remittitur.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Action by Oscar Trybon, plaintiff, against August W. Miller, defendant, to recover for wages, overtime, and disbursements for car fare and telephone expenses. From a judgment for plaintiff for $359.50, defendant brings error.
    Defendant hired plaintiff to work from April 4, 1913, to November 23, 1913, to solicit consents for granite paving.
    In his amended statement of claim plaintiff claimed that he was entitled to receive as wages $80 for the month of April, $85 for each of the months of May, June, July, August, September and October and $65.40 for the month of November, or a total of $655.40; that he received from defendant from time to time during the months of April to September, inclusive, as wages, the total sum of $315, and that he also received from defendant on January 12, 1914, the sum of $50, leaving a balance due him of $290.40 for wages as distinguished from moneys due him for overtime and disbursements. The defendant, in his second amended affidavit of merits, admitted that plaintiff had earned as wages said total sum of $655.40, but claimed that from time to time up to and including January 12, 1914, he had paid plaintiff the total sum of $531, leaving only a balance due plaintiff for wages of $124.40.
    On the question as to the allowance of plaintiff’s claim for $69.10 for disbursements during the period of his employment for car fare and telephone expenses, defendant’s evidence was to the effect that he at no time made any agreement with plaintiff to reimburse him for such expenses. While plaintiff testified that during the month of April, 1913, defendant gave him $2 for car fare and telephone expense, he also testified that he had no further conversation with defendant relative to such expenses and that at no time during his employment did he render any bill to defendant for such expenses. In testifying plaintiff read from his account or memorandum book containing items of wages, overtime and expenses.
    Hebel & Haft, for plaintiff in error.

      Abstract of the Decision.
    1. Master and servant, § 84

      -—when evidence sufficient to sustain verdict. Finding by trial court that defendant owed plaintiff $290.40 for wages, the evidence with regard thereto being conflicting, held not to be against the weight of the evidence.
    2. Master and servant, § 84*—when evidence insufficient to sustain finding that master promised to allow servant expenses. Where plaintiff in action for wages claimed allowance of car fare and telephone expenses during his employment by defendant, and plaintiff testified that on one occasion defendant gave him $2 for such expenses but that he had had no further conversation with defendant relative to such disbursement and that during his employment, a period exceeding seven months, he never rendered any bill to defendant for such expenses and there was no express promise by defendant apparent in the record, to reimburse plaintiff therefor, or sufficient evidence from which such promise may be implied, held such expenses should not be allowed plaintiff.
    3. Master and servant, § 82*—when use of memorandum 6y witness not prejudicial error. In an action by a servant against his master for wages alleged to be due, held that the act of the court in allowing plaintiff to read from an account or memorandum book which contained items of wages received by him from time to time was not prejudicial error in the light of plaintiff’s evidence.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.