text:
    Charles C. Martin, Administrator, Plaintiff in Error, v. St. Luke’s Hospital, Defendant in Error.
    Gen. No. 21,252.
    1. Death, § 21

      —when nonaction not proximate cause. In an action against a hospital corporation to recover for the death of plaintiff’s intestate under Hurd’s Rev. St., ch. 70, sec. 1 (J. & A. If 6184) providing an action “whenever the death of a person shall be caused by wrongful act,” etc., where it appeared that decedent was brought to defendant’s hospital after a fall occurring elsewhere, with which accident the cause of death was plainly connected, and that the immediate cause of death was cerebral compression and hemorrhage, held that no right of action accrued to plaintiff against defendant, upon the sole ground that defendant failed to cause decedent to be operated upon in order to save his life, for the reason that the words of the statute refer to the direct cause which, without the intervention of any other cause, produces death, and do not include within their meaning a failure to arrest the natural progress of accidental injuries.

      2. Executors and administrators, § 506

      —when award of execution erroneous. An award of an execution for costs against an administrator held erroneous for the reeason that such costs should have been directed to be paid in the due course of administration.
    Error to the Superior Court of Chicago; the Hon. M. L. McKinley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed as modified.
    Opinion filed December 6, 1915.
    James R. Ward and Alfred O. Erickson, for plaintiff in error.
    Sheriff, Dent, Dobyns & Freeman, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff seeks to have reversed a judgment of nil capiat entered on a directed verdict finding the defendant not guilty in an action of trespass on the case.

John S. Erickson, while cleaning electric lights in the passenger station of the Chicago & Northwestern Bailroad, touched a live wire and received a shock which caused him to fall from a ladder. He sustained a fractured skull and other injuries. He was taken to the defendant’s hospital and on the following day he died.

The theory of plaintiff’s claim against defendant is that, knowing that a surgical operation was immediately necessary, the superintendent and employees of defendant “neglected to cause * * * the necessary surgical operation to he performed to arrest the effect of said injuries * * * and as a result of said injuries and the aforesaid.neglect to relieve them he died,” with right of action accruing under the statute for the benefit of the next of kin."

Action to recover for the death of a person is permissible only by virtue of the statute,—section 1, ch. 70, Illinois Statutes (J. & A. ¶ 6184). This provides for an action, “Whenever the death of a person shall be caused by wrongful act,” etc. It is self-evident that the cause of Erickson’s death was connected witli the fall from the ladder. A doctor testified that “the immediate cause of death was cerebral compression and hemorrhage.” A post-mortem disclosed a blood clot on the brain about the size of a fist. We fail to see how any “failure to arrest the effect of said injuries” by surgical operation can be said to be the cause of death as these words are used in the statute. To say that the failure of a physician to prevent death is the cause of death is merely to play with words. The words in the statute mean the direct cause which, without the intervention of any other cause, produces death. We are referred to no decisions holding a defendant answerable in damages in a death case for failure to arrest the natural progress of accidental injuries.

We find no evidence of any circumstances which gave rise to an obligation upon defendant to furnish surgical services. Erickson was sent to the hospital by Dr. Owen, chief surgeon of the Chicago & Northwestern Railroad, under an arrangement between him and the defendant by which defendant was to furnish “board” and a nurse. Medical attendance apparently was to be furnished by Dr. Owen. So far as the evidence discloses, the hospital was merely a place for boarding and nursing patients under his care. There being no obligation shown by the evidence upon defendant for the services of a physician, it follows there can be no recovery against it for any failure to operate on Erickson.

These considerations are sufficient to justify the judgment, and it is unnecessary to discuss other points presented.

It was technically an error to award execution for costs against the administrator instead of the proper direction that they be paid in due coure of administration. The judgment is modified here in this respect and is otherwise affirmed.

Affirmed as modified.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Frank S. Matousek, Appellee, v. Lawrence Quirici, Appellant.
    Gen. No. 21,267.
    1. Landlord and tenant, § 14

      —when tenant under void lease liable for use and occupation. Even though a parol lease of a building is void under the Statute of Frauds, yet the lessor may recover for use and occupation for so long a time as such use and occupation of the building continue.
    2. Landlord and tenant, § 8

      —what constitutes occupancy. In an action to recover for use and occupation of a building under a parol lease, where it appeared that defendant leased the building in question for the purpose of preventing its occupation as a fruit store in competition with that of defendant, held that defendant was in the use and occupation of the building so as to bind him on his oral contract except as to the term, notwithstanding the fact that defendant did not occupy such building during the period for which rent is sought to be recovered, for the reason that as defendant, held the right to occupy, or to prevent others from occupying, he had an interest from month to month and thereby exercised use and occupation, in which case the actual physical presence of defendant on the premises was not necessary.
    3. Appeal and error, § 1411

      —when verdict not disturbed where evidence conflicting. In an action to recover for use and occupation of a building under a parol lease, where the evidence was conflicting as to whether defendant gave notice of a termination of the contract, a finding that such notice was not given, held not erroneous because the trial court believed plaintiff’s testimony to such effect.
    Appeal from the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Short, Davis & Rust, for appellant.
    Charles A. Churan, 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.

Plaintiff brought suit before a justice of the peace and had judgment, from which defendant appealed to the Circuit Court. Upon trial in the Circuit Court plaintiff had judgment for eighty dollars, from which defendant has appealed to this court.

After considering the variant testimony we think that the trial court might reasonably have believed that defendant ran a fruit store on 25th street in Chicago; that across the street was a vacant store; that defendant’s predecessor in business had leased this vacant store and had kept it vacant so as to prevent any business competitor from occupying it; that defendant upon succeeding to the business desired to make the same arrangement with plaintiff concerning the vacant store, and that a verbal lease of it was made whereby defendant agreed to pay ten dollars a month for it; that defendant kept this store vacant and paid rent therefor for three months. This suit is for eight months’ rent following the period for which defendant paid rent.

■ Plaintiff concedes the parol lease to be within the Statute of Frauds, but says he is entitled to recover for use and occupation of the premises, to which- defendant replies that he did not have the use and occupation of the premises.

Even if the contract of leasing is void, the landlord may recover for use and occupation for so long a time as such use and occupation continue. Warner v. Hale, 65 Ill. 396. Was the defendant in the use and occupation of the premises? We hold that he was. The actual physical presence of the defendant on the premises was not essential. By holding the right to occupy for his own business or to prevent others from occupying he exercised use and occupation of the premises, and for such a period as he held that right he is liable. He had an interest from month to month, and until this interest was terminated he was bound by his oral contract, except as to the term. Marr v. Ray, 151 Ill. 340.

There is conflicting testimony as to whether or not defendant told plaintiff at the end of the three months’ period for which he paid rent that he did not wish the premises for any longer time, but we cannot say that the court was not justified in believing plaintiff’s testimony to the effect that no such language was used or anything said which the court might construe as a notice of termination.

Seeing no convincing reason for reversing the judgment, it is affirmed.

Affirmed.


text:
    Rose Henning, Appellee, v. Henry Quindel, Appellant.
    Gen. No. 21,279.
    1. Contracts, § 385

      —when evidence sufficient to show existence. In an action to recover on a contract alleged to have been made between defendant and a third person for the benefit of plaintiff, evidence examined and held to prove a contract whereby defendant received money on condition that he pay the amount sued for to plaintiff, and the balance to another.
    2. Contracts, § 377

      —when letters and statements admissible. In an action to recover on a contract to deliver money made between defendant and another for the benefit of plaintiff, where it appeared that on being shown by plaintiff letters of such third person to her, stating the nature of the contract sued on, defendant said: “I have got the money, Mrs. Henning, but I cannot turn it over to you,” also giving his reasons therefor, held that the letters were competent as was also defendant’s statement after reading them, notwithstanding the fact that the letters were written by another, as tending to prove an admission by defendant of the correctness of the statements made in the letters, the attitude of defendant towards the contents of the letters making them competent.

      3. Contracts, § 377

      —when evidence incompetent. In an action to recover on a contract between defendant and another whereby defendant agreed to pay money to plaintiff, where it appeared that such third person had taken money from a partnership of which he was a member, evidence of money so taken held properly excluded, for the reason that such evidence was incompetent as having no bearing on the question of the money to be paid to plaintiff under' the contract.
    4. Contracts, § 349

      —when beneficiary may sue. One for whose benefit a contract is made may maintain an action thereon although the consideration of such contract does not move from her.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Rathje & Wesemann, for appellant; Guy Van Schaick, of counsel.
    Newman, Poppenhusen & Stern, for appellee; Lawrence A. Cohen, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit upon an agreement entered into between her husband, Frank Henning, and the defendant. She had judgment for $415, from which defendant appeals.

The Farmers’ Bank of Shaumburg is a private bank and a copartnership. Frank Henning was one of the copartners and the defendant also was a copartner. Henning took money of the bank to a large amount, said to be $42,000. He was arrested in New York City and placed in the Tombs prison there, where the defendant had an interview with him for the purpose of recovering the money of the bank. The jury were justified in believing from the evidence that at this interview Henning told the defendant that he had in his possession $2,415, that $2,000 of this belonged to the Farmers’ Bank but that $415 belonged to his wife (the plaintiff); that Henning gave Quindel a check for $2,415, on condition that defendant pay $2,000 to the bank and $415 to his wife, and that defendant took the check subject to those conditions and agreed thereto. Subsequently, when plaintiff requested defendant to turn over to her the $415, defendant refused. Upon one occasion plaintiff showed defendant two letters she had received from her husband which told of the arrangement with defendant to deliver to her $415, which letters were read by the defendant, who then said: “I got the money, Mrs. Henning, but I cannot turn it over to you; I have got to wait and see what the courts decide.” There was also testimony as to another admission by defendant of the aforesaid agreement with Frank Henning. The evidence was sufficient to prove a contract by defendant to give the $415 to plaintiff.

Were the letters above referred to incompetent? They were competent together with defendant’s statement after reading them, as tending to prove an admission by him of the correctness of the statements in the letters that defendant had agreed to turn over the money to plaintiff. The fact that the letters were written by the husband of plaintiff is not material. It is the attitude of defendant towards their contents which makes them competent. Freet v. American Elec. Supply Co., 257 Ill. 248. See, also, Rich v. Flanders, 39 N. H. 304, beginning at the bottom of page 339, where appears a statement of the rule precisely in point.

It was not error to exclude evidence as to moneys taken by Frank Henning which had no bearing upon the $415 in controversy. Other points made by defendant are equally without merit.

The plaintiff, for whose benefit the defendant made the agreement, may maintain an action although the consideration does not move from her. Steele v. Clark, 77 Ill. 471.

Plaintiff was clearly entitled to recover, and the record being free from reversible error the judgment is affirmed.

Affirmed.


text:
    Edwin S. Thomas, Appellee, v. Stephen D. Seaman and Henry A. Blair, Appellants.
    Gen. No. 21,304.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by Edwin S. Thomas, plaintiff, against Stephen D. Seaman and Henry A. Blair, defendants, in the Municipal Court of Chicago, to recover back money paid under a contract for land and shares of stock alleged to have been breached by defendants.
    The contract was dated March 11, 1911. By it plaintiff agreed to buy and defendants to sell certain land in Colorado, and certain shares of the capital stock of an irrigation company for $5,400, payable in four instalments, $1,800 down, which was paid, and the balance in three instalments, the first due on or before March 11,1912, the others in two and three years respectively. "When the payment due on or before March 11, 1912, was made, plaintiff was to be “entitled to an abstract of title and to a warranty deed to said land,” and the “seller agrees to furnish abstract of title and transfer said land and ditch stock as herein provided.” Further provisions are:
    “While buyer is not in default, he may have possession of said premises and use of water on said ditch stock until title, by deed to said land and ditch stock is delivered.”

      Abstract of the Decision.
    1. Vendor and purchaser, § 92

      —when delay in performance waived. Although a contract for the sale of land may provide that time shall be of the essence thereof, such a condition may be waived by retaining possession of the land after the right to rescind has accrued.

      “If seller fails at any time to carry out the terms of this contract, then all the purchase price and the interest that has been paid at such time may be returned to buyer by seller in full accord and satisfaction of all claims of buyer hereunder.”
    Also that “time shall be the essence of this contract.”
    Between March 11 and April 4, 1911, plaintiff took possession of the land. On April 4,1911, he paid the instalment due on or before March 11, 1912. Defendants did not then deliver the stock, abstract and deed, nor any of them, and made no tender until December 26,1912, when a deed was tendered and refused. Plaintiff remained in possession of the premises from about April 4, 1911, until June, 1912, abandoning them at that time after having in April, 1912, demanded performance by defendants, saying that if the deed was not forthcoming within three days suit. would be brought. Later plaintiff wrote letters indicating a willingness to buy the land at the contract price, providing defendants gave or allowed him sufficient compensation for damages caused by delay. No agreement as to such compensation was ever made. There was evidence that prior to bringing this action plaintiff had considered exchanging properties with other persons.
    From a judgment for plaintiff for $3,334.25, defendants appeal.
    Howard M. Carter and F. W. Walker, for appellants.
    Haase & Howard, for appellee.

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

      See Illinois Notes Digest, Vola. 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, § 87 —what acts sufficient to show rescission. In an action to recover back money paid under a contract to purchase land, where the evidence shows that defendants failed to deliver a deed and abstract at the time of the payment of an instalment as provided by the contract, and plaintiff, about thirteen months after the time for delivery, notified defendants that if performance was not made within three days suit would be brought, and later, upon defendants still failing to perform, abandoned the land, such notice and abandonment amounted to a valid rescission of the contract, the only obligation between the parties at this time being money due and owing from defendants to plaintiff.

3. Vendor and purchaser, § 106 —when right to rescind not waived. In an action to recover back money paid under a contract where plaintiff claims a rescission, letters written after the acts relied on to show a rescission expressing a willingness to purchase the property if defendants gave or allowed compensation for damages resulting from their delay in performing, held insufficient to prove either a waiver of reeission or a want of intention to rescind, it nowhere appearing that the amount of compensation to be paid was ever agreed on.

4. Vendor and purchaser, § 106 —when evidence insufficient to show retraction of rescission. In an action to recover back money paid under a contract to purchase land where plaintiff had effectively rescinded, and where defendants were urging plaintiff to come to some agreement as to the controversy, the fact that plaintiff discussed with third persons an exchange of the property in question for property belonging to them, held not sufficient to show a waiver of the rescission, as the terms which plaintiff might be willing to make with defendants might depend on what disposition he could make of it.

5. Customs and usages, § 16 —what effect of custom, as to actual delivery of stock certificates. In an action to recover back money paid under a contract to purchase land and stock of a Colorado ditch corporation, the fact that no certificates of the stock were ever tendered, held immaterial where it appears that both by the contract and the method of handling such matters in Colorado no actual delivery of stock was contemplated by the parties.

6. Vendor and purchaser, § 123 —when vendor required to furnish abstract and deed in reasonable time. Where a contract to purchase land provides that the vendee shall be entitled to an abstract of title and a deed on making certain payments, such abstract and deed must be furnished within a reasonable time after such payments were made.

7. Vendor and purchaser, § 123 —what delay in furnishing abstract and deed unreasonable. Where a contract to sell land is construed to require grantors to furnish an abstract of title and deed within a reasonable time after certain payments were made, a delay of one year and eight months in making tender of such deed and abstract held unreasonable.


author: Mr. Justice Baker

text:
    City of Chicago, Defendant in Error, v. Louis Kohn, Plaintiff in Error.
    Gen. No. 20,681.
    (Not to be reported in full.)
    Abstract of the Decision.
    Evidence, § 10

      —when judicial notice not taken of ordinances. On a writ of error bringing up for review a judgment of conviction rendered by the Municipal Court of Chicago on a complaint charging the violation of an ordinance, where the stenographic report merely gives the number of the ordinance alleged to have been violated and does not set it out, the Appellate Court cannot review the question of the sufficiency of the evidence to "sustain the judgment'.
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Prosecution by the City of Chicago against Louis Kohn, defendant, in the Municipal Court of Chicago, for a breach of the peace. To reverse a judgment of conviction and sentence of a fine of one hundred dollars, defendant prosecutes this writ of error.
    William E. Cloves, for plaintiff in error.
    Johh W. Beckwith and A. J. W. Appell, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Joseph Majewski, Appellant, v. Stanislaus Pozdol et al., Appellees.
    Gen. No. 20,988.
    1. Appeal and error, § 633

      —when appeal from refusal to vacate decree may he allowed. An appeal from the denial of a motion to vacate a decree may be allowed at a term later than that at which the decree was actually entered, provided such -motion was made at such prior term and was continued to the term when the appeal was taken, for the reason that a judgment or decree does not become final until disposition is made of a motion to vacate such judgment or decree, if made at the term when the judgment or decree was entered, although such motion may be continued to a later term.
    2. Appeal and error, § 1197

      —when review limited to order appealed from. An appeal from a decree dismissing a bill for want of prosecution and assessing damages on dissolution of an injunction brings up for review only that part of the decree assessing damages and does not bring up the question of dismissal of the bill where neither the prayer for appeal nor the bond show an appeal from the decree dismissing the bill.
    3. Injunction, § 324

      —when suggestion of damages essential on dissolution. It is error for a court to hear evidence and assess damages on the dissolution of an injunction without the filing of a suggestion of damages, a suggestion of damages being necessary to give such court jurisdiction to act on such questions.
    4. Injunction, § 324

      —when evidence insufficient to show filing of suggestion of damages. Where on dismissing a bill and dissolving an injunction the court heard evidence and assessed damages, evidence examined and held insufficient to show that a suggestion of damages had been filed.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1915.
    Decree modified.
    Opinion filed December 6, 1915.
    William J. Stapleton and A. Z. Zietlein, for appellant.
    David Gilmour, for appellees.

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

   Mr. Justice Baker

delivered the opinion of the court.

The bill in this case was filed by Majewski against Pozdol to vacate the default of Majewski and the decree against him entered November 25, 1910, on a creditor’s bill filed by Pozdol against him and others, whereby certain real estate, of which Majewski in his bill claimed to be the owner, was decreed to be the property of one George W. Chamberlin, and ordered to be sold to satisfy a judgment recovered in an action for fraud and deceit by Pozdol against the administrator of George W. Chamberlin, to be paid in due course of administration, and a personal judgment against Emma B. Chamberlin. The propriety of a judgment against a surviving tort feasor and the personal representative of a joint tort feasor is not brought before us for review by this appeal. The court in the case mentioned decreed that the real estate in question be sold by a master to satisfy the judgment, and it was sold under the decree January 30,1911, to Pozdol.

The master’s report of sale was confirmed and a certificate issued to the purchaser. August 24, 1911, the bill in this case was filed and the defendant enjoined from taking out a master’s deed. Pozdol answered the bill; a replication was filed and the cause was in the call of July 3, 1914, for hearing. It was reached that day and the complainant did not appear. The bill was dismissed for want of prosecution, and the court immediately proceeded to hear evidence as to the damages of defendant sustained by reason of the injunction, and directed counsel to prepare a decree. The decree was entered July 9th. July 8th complainant moved the court to vacate the order dismissing the bill for want of prosecution. The decree orders that the bill be dismissed for want of prosecution; finds that defendant was wrongfully deprived of the profits of the premises for two years and eight months, and sustained damages thereby to the amount of $700; decrees that “a judgment be entered for the amount of $700 as damages,” etc.; and further finds that defendant was compelled to pay and did pay $150 solicitor’s fees in obtaining the dissolution of the injunction and orders that “a judgment for damages be entered against complainant” for $150, etc.

The decree was entered at the June term. July 18th, the last day of that term, the complainant moved to vacate the decree entered July 9th, and the court continued the hearing of the motion to August 18, 1914. The August term began August 17th, and August 18th, a day of the August term, the plaintiff moved • to vacate so much of the decree entered July 9th as assessed damages against complainant for the wrongful suing out of the injunction in the case, and the court denied the motion. The complainant prayed an appeal, “from the order of the court denying said motion,” and “from the decree assessing damages for the suing out of said injunction,” which was allowed on the complainant filing a bond, etc.

The bond recites that “whereas, Pozdol recovered a decree against Majewski July 9, 1914, for $850 and costs, from which decree and from an order entered August 18, 1914, denying a motion to vacate same, Majewski has prayed for and obtained an appeal to the Appellate Court; Now therefore,” etc.

It appears to be well settled by the later decisions of our Supreme Court that if at the term at which a judgment or decree is entered a motion is made to set aside the same, the judgment or decree does not become final until such motion is disposed of, even though the motion is continued to a subsequent term. Grubb v. Milan, 249 Ill. 456; Hosking v. Southern Pac. Co., 243 Ill. 320; Donaldson v. Copeland, 201 Ill. 540; Village of Hinsdale v. Shannon, 182 Ill. 312; People v. Gary, 105 Ill. 264; Hearson v. Graudine, 87 Ill. 115.

It is true that most of the cases above cited presented the question of right of the judge’ to sign at a subsequent term a bill of exceptions containing the evidence heard at the trial. The appeal must be prayed at the term at which the judgment or decree is rendered. The bill of exceptions must be signed at the judgment term unless an order is made allowing further time, and if the bill of exceptions may be signed at a subsequent term on the ground that the judgment does not become final until the motion to vacate made at the judgment term is disposed of, it follows that an appeal in such case may be allowed at the subsequent term on the ground that the judgment does not become final until the motion to vacate is disposed of; and therefore the judgment must be regarded as entered at the subsequent term. This appeal therefore brings before us for review that part of the decree which “assessed damages for the suing out of the injunction,” but not that part of the decree which dismisses the bill for want of prosecution, because the prayer for an allowance of the appeal and the appeal bond fail to show an appeal from the decree dismissing the bill.

To confer jurisdiction on a court to hear evidence and assess damages on the dissolution of an injunction, a suggestion of damages should be filed, and it is error to assess damages without such suggestion.

Hamilton v. Stewart, 59 Ill. 330; Forth v. Town of Xenia, 54 Ill. 210; Winkler v. Winkler, 40 Ill. 179. The rule is different in an action on the bond. Shackleford v. Bennett, 237 Ill. 523.

The evidence fails, in our opinion, to show that the defendant filed a suggestion of damages in writing before the damages were assessed. The decree orders, paragraph 1, that the case be dismissed for want of prosecution at complainant’s costs; paragraph 2, that complainant’s bill and the amendments -thereto be dismissed and judgment entered for damages and costs; paragraphs 3 to 6 recite facts to show that defendant sustained damages by reason of the injunction. The certificate of evidence recites that the bill was dismissed for want of prosecution, and “thereupon the defendant at once moved the court to assess damages for the suing out of the injunction in said cause, which motion was granted, and immediately following evidence in support thereof was heard.” Defendant called as a witness his son, Michael, who in answer to the question whether he saw Mr. Grilmour, one of defendant’s counsel, pass up a paper that he said was a suggestion of damages, answered, “If my memory serves me right, I have.” In answer'to another leading question by complainant’s counsel, as to whether there were two documents “put over” to the clerk by Mr. Grilmour, the witness said, “If my memory serves me right, I have.” Asked offi cross-examination to pick out from the files the two papers, he picked out one which was a motion for leave to file a suggestion of damages, and another which was the decree, which manifestly was not prepared until later. J. W. Bichey, Esq., who had had charge of the case up to the hearing, and who was present at the hearing, was called by the court and testified that he saw no written suggestion of damages presented to the court at any time. Mr. David Gilmour, defendant’s solicitor, filed an affidavit in which he stated that two papers offered with his affidavit were copies of a petition for leave to file a suggestion of damages and a suggestion of damages. The suggestion of damages presented with the affidavit does not purport to be signed by any one; there was no motion to restore lost files or documents and there is in the record no suggestion of damages in writing. It was error to assess damages by reason of the injunction before a suggestion of damages was filed, and for this error that part of the decree which assesses damages by reason of the injunction will be reversed. That part of the decree which dismisses the bill is not, as we have said, brought before us by this appeal.

That part of the decree assessing damages against defendant by reason of the injunction is reversed at the cost of the appellee.

Decree modified.


text:
    Ike Price, Plaintiff in Error, v. Chicago Real Estate Index Company, Defendant in Error.
    Gen. No. 21,130.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by Ike Price, plaintiff, against the Chicago Real Estate Index Company, defendant, in the Municipal Court of Chicago, to recover damages due to defendant’s negligence in giving plaintiff incorrect information as to the ownership of certain real estate whereby plaintiff lost an opportunity of satisfying a judgment. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    The defendant furnished, for pay, information to its customers regarding the ownership of real estate. Plaintiff recovered in the Municipal Court against one H. Galowich a judgment for $400, December 10, 1913, and through his attorneys on that day inquired of defendant by-telephone if Galowich was the owner of the real estate known as No. 3431 W. 38th Place, Chicago. Some one in defendant’s office answered by telephone that Galowich was not the owner of said real estate, but one Zuitman was. The" attorney asked for a written report and received it the next day. It is stated that Zuitman was the owner of real estate subject to a trust deed from Zuitman to Haugan, trustee, recorded August 16,1912, to secure $2,500 due in various amounts during five years. The report bore the following memorandum:
    “In furnishing the above information the company assumes no pecuniary liability to the applicant except in case of special written notice that same is to be used in a legal proceeding, in which ease an additional fee must be paid, and this report must be signed by an authorized agent of the company.”

      Abstract of the Decision.
    1. Contracts, § 245

      —when failure to comply with condition defense to action for breach. In an action to recover for damages due to defendant’s negligence in giving plaintiff incorrect information as to the ownership of real estate, whereby plaintiff lost an opportunity of satisfying a judgment, where it appeared that defendant was in the business of supplying such information for hire, and where the written report conveying such information contained a stipulation excusing defendant from pecuniary liability to plaintiff in furnishing the information except on certain conditions, held that the stipulation as to liability was part of the contract, and that the conditions named must be complied with to charge defendant with liability.

      One of plaintiff’s attorneys testified that it was the custom of defendant in its dealings with them to confirm the telephone conversation by such written reports. Plaintiff put in evidence another report sent to his attorneys by defendant, from which it appears that the real estate was conveyed to Zuitman by a deed recorded June 9, 1911; that August 15, 1912, he executed a trust deed to Haugan, trustee, to secure $2,500, which was recorded August 16, 1912; that he conveyed the property to Galowich by deed recorded March 15, 1913, and that Galowich conveyed it to Jacobson by deed recorded January 4, 1914. Defendant was not notified that the information was to be used in legal proceeding, and the report was not signed by an authorized agent of the defendant. The only evidence regarding the title to the real éstate was the two reports made to plaintiff by defendant. Each showed a trust deed to Haugan executed by Zuitman, recorded August 13, 1912, to secure $2,500. The first report stated that the Board of Review valued the property at $200 for taxation, which was the only evidence in the record tending to show the value of the property. The second report stated that Zuitman conveyed the property to Galowich by deed recorded March 15,1913, and that he conveyed it to' Jacobson by deed recorded January 8, 1914. It also showed a certificate of levy on an execution against Galowich and that a satisfaction piece was filed, but did not show that the property was sold under the execution against Galowich.
    Winston & Lowry, for plaintiff in error.
    Bither, Goff & Francis, for defendant in error.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

2. Contracts, § 384 —when evidence insufficient to show damages from breach. In an action to recover for damages due to defendant’s negligence in giving plaintiff incorrect information as to the ownership of real estate, whereby plaintiff lost an opportunity to satisfy a judgment evidence, held insufficient to show that plaintiff was damaged.


text:
    John Hemwall Automobile Company, Plaintiff in Error, v. Michigan Avenue Trust Company, Defendant in Error.
    Gen. No. 21,149.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed with judgment here.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by the John Hemwall Automobile Company, a corporation, plaintiff, against the Michigan Avenue Trust Company, a corporation, defendant, to recover back money paid on a contract for the purchase of automobiles. To reverse a judgment of nil capiat, plaintiff prosecutes this writ of error.
    May 27,1913, plaintiff and the Midland Motor Company entered into a written contract whereby the motor company agreed to sell and deliver to plaintiff six automobiles, Model T-6-50, “fully equipped as per catalogue” at $1,400 each, and to deliver one car by May 29th and the others within two weeks from the date of the contract; and the defendant agreed to pay for said cars, “fully equipped as per catalogue and covered in this agreement $600 cash upon signing of this agreement ; this amount being a deposit of $100 on each of the six cars; it being mutually understood that we are to deduct $100 from the net price of each car as delivered, making a balance due of $1,300 on each car delivered.” The defendant took over the contract and undertook its performance. It delivered two cars to plaintiff for which the latter paid, but complained that the cars so delivered were not equipped as required by the contract, and notified defendant that it would not accept other cars until they were fully equipped as required by the contract. The defendant tendered four cars, but plaintiff refused to accept them on the ground that they were not equipped as required by the contract. The defendant then sold the cars for $1,300 each and claimed on the trial the right to set off the $100 difference on each car between the contract price and the price at which the cars were sold, against the claim of plaintiff for the $400 deposited as an advance payment on the four ears.
    It was conceded that the cut in the catalogue, purporting to be a cut of the automobile specified in the contract, shows six rims and six tires on each car and a gas tank on the rear of the car, and that the cars delivered and those tendered did not have six rims or six tires. White, a witness called by defendant, testified that the automobiles tendered were not equipped according to pictures and cuts in the catalogue. The specifications in the catalogue do not specify the number of tires or rims.
    The cashier of defendant in a letter to plaintiff dated July 1,1913, said: “Mr. Sackett (an employee of defendant) advises that the' next car you receive is to be delivered without tires, in view of the fact that you had to equip the last one you sold with Firestone tires; we will therefore make a reduction covering the cost of a set of tires from the price of the car.”
    Abstract of the Decision.
    1. Contracts, § 224

      —how stipulation as to equipment of automobile construed. Where a contract for the purchase of automobiles “fully equipped as per catalogue,” and where a cut purporting to be a cut of the type of car contracted for which was printed in said catalogue shows a particular equipment of tires and rims, the cars tendered in performance of the contract must be similarly equipped, although the printed specifications for such cars in such catalogue do not require such equipment, the cuts being as much part of the catalogue as the specifications.
    2. Contracts, § 387

      —when evidence insufficient to show performance. In an action to recover back money paid under a contract for automobiles “fully equipped as per catalogue,” where plaintiff refused to accept cars tendered in performance of the contract on the ground that such cars were not as required by the contract, evidence held insufficient to show that the cars tendered were equipped as required by the contract.
    Cavender, Kaiser & Wermuth, for plaintiff in error.
    Brown, Brown & Brown, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    B. J. Grogan, Defendant in Error, v. Consumers Company, Plaintiff in Error.
    Gen. No. 21,163.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.

      Abstract of the decision.
    Automobiles and garages, § 2

      —when evidence supports findings as to negligence. In an action to recover for injury to plaintiff’s automobile alleged to have been caused by negligence of the driver of defendant’s wagon, evidence held to sustain a finding that plaintiff was not guilty of contributory negligence and that defendant’s driver was negligent.
    Statement of the Case.
    Action by B. J. Grogan, plaintiff, against the Consumers Company, a corporation, defendant, in the Municipal Court of Chicago to recover damages caused to an automobile by the negligence of a servant of defendant while driving a wagon. Plaintiff was driving east on Jackson boulevard, and defendant’s wagon was going east on Loomis street. The tongue of the wagon struck the automobile and inflicted the damage complained of. To reverse a judgment for plaintiff of $96.25, defendant prosecutes this writ of error.
    McKinley & Hansen, for plaintiff in error.
    P. J. Tuohy, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    L. W. Hubbell Fertilizer Company, Defendant in Error, v. D. Jacobellis, Plaintiff in Error.
    Gen. No. 21,184.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Rehearing denied December 20, 1915.

      Statement of the Case.
    Action by L. W. Hubbell Fertilizer Company, a corporation, plaintiff, against D. Jacobellis, defendant, in the Municipal Court of Chicago, to recover on a guaranty by defendant of the debt of another. To reverse a judgment for plaintiff for $467.75, defendant prosecutes this writ of error.
    April 16, 1914, an order to plaintiff to ship twenty tons of fertilizer to Joe Ogden, signed by Ogden and the Indiana Colonization Society by defendant as president, was forwarded to plaintiff at its office in Buffalo, New York. April 21st plaintiff sent defendant the following telegram: “Buffalo, N. Y., April 21, 1914. D. Jacobellis, 832 W. Ohio St., Chicago.. Care Jacobellis Bros. Indiana Colonization Co. not rated, will you personally guarantee payment twenty tons fertilizer -ordered? Answer collect. L. W. Hubbell Fertilizer Co.” The defendant testified that he received this telegram and threw it on the desk. The same day plaintiff received at Buffalo the following telegram: “Chicago," April 21, 1914. L. W. Hubbell Fertilizer Co., Buffalo, N. Y. I will personally guarantee payment 20 tons fertilizer ordered by Indiana Colonization Co. D. Jacobellis.” Defendant testified that he had never sent or caused to be sent to the plaintiff any telegram in relation to any matter. The original of the telegram of April 21st, purporting to be a telegram of defendant to plaintiff, was produced at the trial by an officer of the telegraph company, and certain letters and documents signed by the defendant, which he admitted that he signed, were put in evidence. The original of the telegram was marked, “Exhibit 3” for identification, and Wells, a witness for plaintiff, testified that the signature to the telegram was the signature of the defendant. The defendant admitted the receipt of the telegram from plaintiff of April 21st.

      Abstract of the Decision.
    1. Appeal and error, § 903

      —when original document not contained in record considered as in evidence. In an action to recover on a guaranty where the guaranty was made by telegram, and where the original of the telegram constituting the guaranty in question was not contained in the record, on review the Appellate Court will treat the telegram as being in evidence, it appearing that such original was produced in the trial court, identified, and testimony introduced concerning it.
    2. Evidence, § 304

      —what authentication of original of telegram, sufficient. The original of a telegram received by plaintiff and purporting to be signed by defendant is made competent by the testimony of a witness that the signature is that of defendant.
    3. Evidence, § 304

      —when signing of telegram, a question of fact. The question whether the original of a telegram alleged to have been sent by a party is signed by him is a question of fact.
    4. Contracts, § 4

      —when written contract may be made by telegram. Contracts required to be written may be validly made by .telegram.--.!—^ ~ ~ ~ : “ ~
    5. Evidence, § 304

      —when telegram received in answer to another telegram presumed genuine. The rule applicable to letters received in the due course of mail purporting to be in answer to a letter previously sent by the receiver, that such letters are presumptively genuine and admissible, is equally applicable to telegrams similarly received, a presumption arising in each case that the letter or telegram of the receiver was duly forwarded and received by the addressee, and that the answer received was sent by the addressee.
    6. Appeal and error, § 378

      —when defense wot raised in trial court waived. The defenses of res adjudicata and want of consideration are not available in the Appellate Court where such defenses were not raised in the trial court.
    7. Guaranty, § 30

      —where recovery may be had against principal and guarantor in separate actions. Although a plaintiff may recover against a principal in one action and against the guarantor in another, he can have but one satisfaction of the debt guarantied.
    Cairoli Gigliotti, for plaintiff in error.
    Allen G. Mills, for defendant in error.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

8. Guaranty, § 2 —when guaranty binding when executed before delivery of goods. A guaranty is binding where the goods are contracted for by the principal one day and the guaranty is executed the next and delivered to the seller before the goods are delivered, for the reason that the sale is not complete until delivery of the goods.


text:
    George J. Williams, Plaintiff in Error, v. J. C. Veeder, Defendant in Error.
    Gen. No. 21,205.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.
    Heard in this court at the March term, 1915.

      Reversed and remanded.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by George J. Williams, plaintiff, against J. G. Veeder, defendant, in the Municipal Court of Chicago, to recover rent due under a lease. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    The term stated in the lease was one year from May 1, 1913, with the provision that “if said lessee does not give said lessor written notice sixty days prior to the expiration of this lease of his intention to vacate said premises at the expiration of the term hereby granted, the failure to give such notice shall operate as a renewal of the tenancy'for the further period of . one year, at the option of the lessor.” The lessee did not give notice of his intention to vacate. The habendum clause in the lease is as follows: “To have and to hold the above described premises with appurtenances unto the said lessee from the first day of May A. D. 1913, until the 30th day of April A. D. 1914, except as hereinafter provided.”

      Abstract of the Decision.
    1. Landlord and tenant, § 431

      —when provision for extension of lease by lessor not covenant. A lease demising premises for the term of one year which also provides that if lessee shall fail to notify lessor sixty days before the end of the term of his intention to vacate at the end thereof, shall, at the option of lessor, operate to extend the term for a further period of one year, such provision is a present' demise in case such notice is not given, and on the exercise of the option by lessor, the legal effect thereof is the same as though the lease in express words had embraced a term of two years, and it is not merely a 'covenant specifically enforceable in equity or on which an action at law is maintainable.
    2. Landlord and tenant, § 434

      —when commencement of action for rent by landlord election to renew lease. Where a lease for one year provides that the failure of lessee to give certain notice shall at the option of lessor operate to extend the term of the lease for a further period of the same length, the fact that lessor brings an action to recover for rent due under the lease as so extended is an election by him to treat the lease as being renewed for the further term, it appearing that the notice required was not given.
    3. Landlord and tenant, § 432

      —when consideration exists for extension of lease by faAlwre to give notice. Where a lease for one year provided that the failure of lessee to give certain notice should operate at the option of lessor to extend the-term of the lease, the same consideration which supports other provisions of the lease will support the condition that failure to give the notice provided for should extend the lease, for the reason that the contract was entire.

      Defendant vacated the premises April 30,1914, and the lease provided that in case he should vacate, the same might be relet by the lessor for such a rent and upon such terms as he might see fit, and if a sufficient sum should not be thus realized to satisfy the rent thereby reserved, the lessee agreed to satisfy and pay the deficiency. Plaintiff was not able to rent the premises until June 15th.
    Charles S. Williston, for plaintiff in error.
    No appearance for defendant in error.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

4. Landlord and tenant, § 284 —when lessee liable for rent upon abandonment of premises. Where a lease provided that in case lessee should vacate before the end of the term the lessor might relet the premises on such termís as he should see fit, in which case the lessee would be liable to make good the deficiency, held that lessor could recover rent for the period during which he was unable to rent the premises, it appearing that lessee vacated before the end of the term.

5. Landlord and tenant, § 431 —when tenant bound by lease providing for extension of term. In an action to recover rent due under a lease containing a provision that failure of defendant to give certain notice should at the option of plaintiff operate to renew the lease for a further term of the same length, where it appeared that the amounts sought to be recovered were for rents accruing during the term as extended, a peremptory instruction for defendant held erroneous, it also appearing that defendant failed to give the notice required, and that plaintiff exercised his option to treat the lease as extended for a further term.


text:
    The People of the State of Illinois ex rel. Mary Volska, Defendant in Error, v. Vincent Murphy, Plaintiff in Error.
    Gen. No. 21,250.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Prosecution by the People of the State of Illinois ex rel. Mary Volska against Vincent Murphy, defendant, in the Municipal Court of Chicago, in which defendant was charged with bastardy. To reverse a judgment of conviction, defendant prosecutes this writ of error.

      Abstract of the Decision.
    1. Evidence, § 45

      —what constitutes prima facie proof. Prima facie proof or evidence is that which, standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed, and if not rebutted will be sufficient for that purpose.
    2. Bastards, §22

      —where evidence sufficient to establish prima fade case. In a prosecution for bastardy, where defendant pleaded the statute of limitations (Hurd’s Rev. St., ch. 17, sec. 16, J. & A. ¶ 718), providing that “no prosecution under this Act shall be brought after two years from the birth of the bastard child: Provided, the time any person accused shall be absent from the State shall not be computed,” a finding and judgment of conviction held not erroneous, where there was evidence sufficient to prove prima facie that defendant was absent from the State for a period sufficient to prevent the statute from being available in defense, and where defendant offered no evidence to contradict or rebut such prima facie proof.

      Defendant pleaded the statute of limitations. The evidence showed that the child was born May 20, 1911; that a warrant in the bastardy proceeding was issued October 30,1911, but complainant was unable to serve the warrant and the proceeding was abandoned. The complaint in the present case was filed January 21, 1915. The defendant when in Chicago lived with his mother at 92nd street and Buffalo avenue. The relator testified that defendant remained in Chicago up to about the 22nd of September; that he left about October 30, 1911, and she did not see him nor know where he was until September, 1914. The Secretary of the Court of Domestic Relations testified that she went to the neighborhood of 92nd street and Buffalo avenue two or three times a week from the time the child was born to September, 1914, and did not see defendant at any place in Illinois during that time. The witness was not cross-examined nor did defendant offer any testimony to explain or contradict the testimony given for the prosecution.
    John Curtin, for plaintiff in error; Chauncey N. Clements, of counsel.
    Maclay Hoyne and Elmer J. Schnackenberg. for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Liberty & Company, Defendant in Error, v. The Almini Company, Plaintiff in Error.
    Gen. No. 20,506.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by Liberty & Company, a corporation, plaintiff, against the Almini Company, a corporation, defendant, in the Municipal Court of Chicago, to recover for merchandise sold and delivered. That there was an agreement as to the amount of the claim was denied only by Stewart, the president of defendant company. Aside from that it was clear that on the • amount agreed upon by Stewart as due, defendant paid the sum of $400 twice, and the balance of the sum due is the amount of the judgment. Defendant sent a letter transmitting a check of $400 on account saying that the check was sent as promised. One Voorhees testified that there was an agreement as to the amount due and an agreement of Stewart to pay the same. In an account appearing in the claim of plaintiff and in some amendments thereto the amounts were stated in francs and centimes, but the American equivalents for the French money were also stated. To reverse a judgment for plaintiff for $246.65, defendant prosecutes this writ of error.
    Abstract of the Decision.
    1. Corporations, § 597

      —how far succeeding corporation liable for predecessor's debts. The liability of defendant corporation for the obligations of a former corporation which it succeeded and the relations of individuals thereto, held to have been settled in Quinlan v. Almini Co., 191 Ill. App. 568.
    2. Pleading, § 1

      —when use of foreign words immaterial. In an action to recover for goods sold and delivered, where it appears that an account contained in plaintiff's pleadings stated the amount due plaintiff in terms of francs and centimes is not an infraction of the constitutional requirement that all court proceedings shall be in the English language, notwithstanding the fact that such statement would be a statement of French money, for the reason that defendant could not have been misled thereby, especially where the same pleading also shows the American equivalent for such French money, and where it does not appear that the statement of such equivalent was incorrect.
    3. Sales, § 329

      —when evidence sustains recovery. In an action to recover for goods sold and delivered, evidence examined and a finding and judgment for plaintiff held sustained by the evidence.
    George W. Wilbur, for plaintiff in error.
    Hoyne, O’Connor & Irwin, for defendant in error; Carl J. Appell and Heymann F. Tucker, 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.


text:
    Louis Friedman, Defendant in Error, v. Schreiber Brothers Company, Plaintiff in Error.
    Gen. No. 20,538.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.

      Statement of the Case.
    Action by Louis Friedman, plaintiff, against the Schreiber Brothers Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on a contract of employment, executed by both parties to the action, which was in the following words:
    “Memorandum of agreement made this 21st day of August, 1912? by and between Louis Friedman, of the City of Chicago, County of Cook and State of Illinois, party of the first part, and Schreiber Brothers Co., a corporation, duly organized under the laws of the State of Illinois, party of the second part, witnesseth:
    “That the said party of the second part hereby employs the said party of the first part in the capacity of Foreman, Bectifyer and Supervisor of the business of said corporation, for which said corporation agrees to pay said party of the first part for such services the sum of Twenty-seven Dollars and, Fifty Cents ($27.50) every week, said payments to begin on September 1st, 1912, and every week thereafter to September 1st, 1913; and the sum of Thirty Dollars ($30.00) every week beginning from September 1st, 1913, to September 1st, 1914; all of above mentioned payments are to be made on Friday of each week.
    “The said party of the first part agrees during the time of this contract not to engage in any other line of business, and shall receive two weeks vacation each year with full pay.”
    Plaintiff was discharged by defendant December 10, 1913, without cause, and received, substantially, payment at the rate fixed by the contract to the time of such discharge. He was again employed February 14, 1914.
    Defendant tendered to the court propositions of law to the effect that the contract was void for want of mutuality and indefiniteness, and that it was terminable at defendant’s pleasure, and that therefore plaintiff could recover only for the time he actually worked.

      Abstract of the Decision.
    1. Master and servant, § 3

      —when contract not void. In an action to recover on a written contract of employment, contract construed and propositions of law to the effect the contract was void for want of mutuality and indefiniteness held properly rejected by the trial court as not correctly stating the law of the case.
    2. Master and servant, § 14

      —when contract not determinable at will. In an action to recover on a written contract of employment, contract construed and held that a proposition of law to the effect that the contract was terminable at the pleasure of defendant, and that plaintiff could recover only for the time he worked thereunder, was properly rejected as not correctly stating the law of the case.
    3. Master and servant, § 14

      —when contract construed as for definite period. A contract providing that plaintiff shall be employed by defendant and requiring defendant to pay to plaintiff for his services a stated sum each week, commencing at a named date and continuing thereafter until a named date, is susceptible only of the construction that the term of such contract is intended to be two years, where it appears that the mutual covenants of the contract continue over a period of two years, although such period is nowhere therein stated as the term thereof, since equivalent words are found in such contract.
    4. Master and servant, § 14

      —when terms employed, indicate contract for definite period. Where a contract of employment does not in express words state the term during which the contract is to operate, but provides for a series of payments to be made each week without interruption during a period which is in fact two years, and which also provides that plaintiff “is to have two weeks vacation in each year with full pay,” held that there was no ambiguity in the contract; “each year,” as used therein meaning “each year” of a two years’ contract.

      To reverse a judgment for plaintiff for $500, defendant prosecutes this writ of error.
    Harry G. Wexler, for plaintiff in error; Hyman Soboroff, of counsel.
    Dulsky & Dulsky, for defendant in error; Edward H. Taylor, 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.


text:
    Davella Martin, Appellant, v. Illinois Commercial Men’s Association, Appellee.
    Gen. No. 20,823.
    1. Insurance, § 667

      —when medical testimony not discredited by testimony of plaintiff. In an action to recover on a policy of accident insurance wherein plaintiff, the wife of deceased, was named as beneficiary, plaintiff cannot be heard to discredit a medical witness of defendant who testifies that deceased’s death was caused by fatty degeneration of the heart, superinduced by chronic alcoholism, where it appears that plaintiff previously had secured a divorce from deceased on the ground of drunkenness, in which action she testified and procured others to testify that deceased was an habitual drunkard, and where it appears that such decree of divorce was granted on the faith of the verity of such testimony.
    2. Insurance, § 667

      —when evidence insufficient to show accidental death. In an action to recover' on a policy of accident insurance conditioned to pay to the beneficiary named therein a sum of money “in case of bodily injury or injuries received through violent and accidental means, which shall independently of all other causes result in the death” of insured, where the only evidence of an accident was that deceased arose in the night exclaiming, “Oh, my God!” and falling, struck a chiffonier resulting in cuts of the lip and nose, with profuse bleeding, a peremptory instruction for defendant held not erroneous, there being medical testimony that the cause of deceased’s death was fatty degeneration of the heart superinduced by chronic alcoholism, and where it appeared that deceased told a physician that he had heart trouble and carried strychnine to stimulate his heart action.
    3. Insurance, § 667

      —when evidence nsufficient as to cause of death. In an action to recover on a policy of accident insurance conditioned to pay a sum of money to the beneficiary named therein in case insured came to his death “through violent and accidental means, independently of all other causes,” where there was evidence that the cause of death was fatty degeneration of the heart super-induced by chronic alcoholism, evidence held insufficient to prove that deceased’s death was the result of an accident within the meaning of the policy, the only evidence of an accident being that deceased fell and received cuts, although such fall may have hastened the death, for the reason that such evidence is insufficient in its probative value to establish the fact that deceased’s death was caused by the fall “independently of all other causes” without which proof there could be no recovery on the policy.
    4. Insurance, § 436

      —what is effect of failure to furnish proofs of death. Where in a policy of insurance the by-laws of the company are made part thereof, and where a by-law requires as a condition precedent to recovery thereunder that proofs of death be presented to the company within a named time, a failure to present such proofs within the time fixed by such by-law will preclude recovery unless there is a waiver of such condition.
    5. Insurance, § 120

      —how policy construed. Since contracts of insurance are to be construed like other contracts, an ambiguous insurance contract will by construction be given the meaning more favorable to insured, for the reason that the words are the words of the insurer and therefore any ambiguity is chargeable to it, but where the contract is not ambiguous, neither party will be favored by construction.
    6. Contracts, § 165

      —when provisions enforced notwithstanding hardship. Where a stipulation in a contract is lawful and has not been actually or inferentially waived, the courts will enforce the stipulation as made and cannot avoid a hardship resulting from the enforcement of rigorous and inflexible terms by making a new contract for the parties.
    7. Insurance, § 460

      —when delay in sending Manic form of proofs of death not a waiver thereof. Where a policy of insurance as a condition precedent to recovery theréunder required that proofs of death be presented to insurer within a named time, the fact that insurer delayed sending blanks for such proof when requested has no tendency to prove a waiver of the condition, where neither the terms of the contract nor the law require insurer to furnish such blanks.
    8. Insurance, § 452

      —when insurer not estopped to assert failure to furnish proofs of death. In an action to recover on a policy of insurance which, as a condition precedent to recovery that proofs of death be presented to insurer within a named time, and where no fraud is shown in the delay of insurer to furnish blanks for such proof, insurer is not estopped to insist on the condition for the reason that where fraud is absent there can be no estoppel.

      9. Insurance, § 439

      —when mailing proofs of death not a compliance with by-laws. Where a policy of insurance made the bylaws of insurer a part of the contract and where such by-laws required as a condition precedent to recovery that proofs of death be presented to insurer within a named time, mailing such proofs to insurer, held not a presentment within the meaning of the bylaw, although such proofs were mailed within the time fixed thereby.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 6, 1915.
    John A. Brown, for appellant.
    Ryan & Condon, for appellee; Irvin I. Livingston and D. A. Callahan, of counsel.

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

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

      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 is an action on an accident insurance policy for $5,000 issued by defendant upon the application of one James W. Martin, in which plaintiff, his wife, was named as beneficiary. The court, upon the conclusion of plaintiff’s case, on the motion of defendant, instructed a verdict in its favor, upon which verdict a judgment of nil capiat and for costs was entered, and plaintiff appeals.

The policy contains a provision that “in ease of bodily injury or injuries received through external violent and accidental means, which shall independently of all other causes result in the death of said member, there shall be payable to Davella Martin, wife of James W. Martin, if living, * * * the sum of $5,000.” It also recites that “any and all such payments or liability to pay shall be in accordance with and subject to each and all of the provisions of the bylaws of said association,” including amendments, alterations and new issues of such by-laws. The by-laws in force at the time the policy was issued and at the death of the insured provided that notice in writing must be sent to the secretary of the association within fifteen days after the happening of the accident resulting in death, and that claims for death benefits must be presented to the association within thirty days after death, together with full proof of death and of the particulars of the accident claimed to have caused death.

The facts concerning the death of the insured are, in brief, that in the night of January 16,1912, plaintiff, the wife of the insured, was awakened by the insured arising from his bed, in which she also was sleeping, and hearing him exclaim, “Oh, my God!” Plaintiff thereupon arose and went to her husband and found him on the floor upon his hands and knees trying to pull himself up. . It was then discovered that the insured had in falling struck a chiffonier, resulting in the cutting of his lip and nose, from which he freely bled. A physician was called, but the insured died before his arrival. This physician, one Thomas J. Fox, gave a certificate of death, certifying that death was caused by fatty degeneration of the heart superinduced by chronic alcoholism.

Plaintiff and the insured were twice married to each other, first on December 22, 1897, and second on March 12, 1910. In August, 1909, plaintiff divorced her husband, the insured, on the ground of his being an habitual drunkard. On the trial of the divorce suit plaintiff testified that the insured was an habitual drunkard and procured others so to testify, and in the faith of the verity of her own testimony that the insured was an habitual drunkard the divorce was granted "and the matrimonial bond sundered.

In the light of these facts, her attempt in this suit to cast doubt upon the fact of the inebriety of the insured must fail. Dr. Fox, a witness for plaintiff, verified by his oath on this trial the facts set forth in his certificate as to the insured’s death. He also testified that he knew that the insured was afflicted with heart trouble and that this information was communicated to him by the insured personally. Dr. Fox testified that the insured told him that he had heart trouble and that he carried strychnine for his “pump,” as he designated his heart. While Dr. Fox would not state positively that the insured stated to him the quantity of strychnine he was in the habit of taking, still he was certain that the insured did tell him that he used strychnine to stimulate the action of his heart, and continually carried it with him for the purpose of meeting any emergency which might arise from the defectiveness of that organ.

In this condition of the testimony, reasonable minds could not well disagree upon the proposition that the insured did not come to his death by accidental means within the terms of the policy, but that he in fact died from fatty degeneration of the heart, resulting from chronic alcoholism. Hence, the instruction of the court to the jury to render its verdict for defendant was without error.

The insurance policy in suit is an accident and not a life policy, and its provisions and conditions bind the parties. That the death of the insured may have been hastened somewhat by the fall may not be doubted, yet his death was not the result of bodily injuries sustained through violent, external and accidental means, independently of all other causes. Unless death did result from bodily injuries sustained through violent external and accidental means, independently of all other causes, there can be no recovery. The evidence in the record on the part of the plaintiff utterly fails in its probative value to establish that the death of the insured was accidental within the conditions of the policy, but on the contrary such evidence establishes that the death of the insured was attributable to fatty degeneration of the heart, and that such fatty degeneration was caused by chronic alcoholism.

The by-laws of the defendant company are by the policy made a part of the contract of insurance. One of these by-laws provides, in part, that no death claim will be paid “unless said claim for death benefit be presented to the association within thirty days after the death of the deceased member, together with full proof of the death and of the particulars of the accident claimed to have caused said death.” The furnishing of the proofs of death within the time required by the by-laws is one of the conditions essential ‘to be performed by the claimant to entitle such claimant to receive from the defendant company the insurance money. A failure to furnish such proofs within the time limited by the by-laws will, unless waived by the company, preclude a recovery. There seems to be no ambiguity in the by-law referred to, and as said in Norwaysz v. Thuringia Ins. Co., 204 Ill. 334: “Contracts of insurance are to be construed like other contracts. If ambiguous terms are used, the meaning more favorable to the insured will be adopted, not because he is the sufferer in a recent loss or because of a disparity in the financial condition of the two parties, but because the words are those of the insurer, and the ambiguity is chargeable to it. Where, however, there is no ambiguity in the terms, neither party is to be favored. If the stipulation is one that the parties could lawfully make, and, having been made, is not actually or inferentially waived, it is the function of the court to enforce its observance as the parties made it, and not to make a new agreement for the purpose of mollifying the hardship that the rigorous and inflexible terms occasion.”

The rule as thus laid down is equally the rule of construction to be enforced in this case in holding the parties to their contract obligation, of which time provided for the furnishing of proof of death and claim is a material and essential part. In Love v. Modern Woodmen of America, 259 Ill. 102, it was held that a by-law containing a provision similar to the one found in this record was binding upon the member.

That proofs were not furnished to the defendant within the time required by the by-law is not disputed. Plaintiff, however, contends that defendant waived the time limit in the by-law and also contends that the mailing of the proofs to defendant within the thirty days was a substantial compliance with the by-law, regardless of the time when such proofs were actually received by defendant. We find no fact in this record warranting this court in holding that defendant by any act waived the by-law regarding the time in which proof of death and claim should be furnished. The fact that defendant delayed sending blanks requested in behalf of plaintiff upon which the proof could be made is of no moment, for the reason that it had not obligated itself to furnish such blanks and the law did not require it so to do.

A failure to furnish such blanks was held in Great Western Ins. Co. v. Staaden, 26 Ill. 360, not to operate as a waiver. The doctrine of estoppel does not arise upon the evidence in this record. Fraud is neither charged nor proven as the reason of the delay by defendant in sending the blanks requested. Where fraud is absent, there is no estoppel. Holcomb v. Boynton, 151 Ill. 294. Plaintiff urges upon us Manufacturers & Merchants’ Mut. Ins. Co. v. Zeitinger, 168 Ill. 286, as authority for the contention that the mailing of the proofs within the thirty days was a sufficient compliance with the by-law. We think the Zeitinger case, supra, clearly distinguishable from the case before us. In the Zeitinger case the words interpreted were, “shall render a statement to the company.” Here the words are entirely different, rendering their significance and interpretation wholly at variance with the words above quoted. The by-law in the case at bar is that written notice shall be presented to the defendant within thirty days after the death of the deceased member. Mailing the proof directed to the defendant was not a presentation nor a compliance with the by-law.

In Miller v. Milwaukee & Mechanics' Ins. Co., 181 Ill. App. 133, it was held that a condition in a policy requiring proof of loss within sixty days is not complied with where such proofs are furnished sixty-one days thereafter, and that such failure to furnish such proofs within the time required relieved the defendant from liability.

The Municipal Court did not err in instructing a verdict for defendant, and its judgment is therefore affirmed..

Affirmed. .


text:
    Ralph E. Hyatt, Defendant in Error, v. A. Volney Foster, Plaintiff in Error.
    Gen. No. 21,028.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and judgment here.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Ralph E. Hyatt, plaintiff, against A. Volney Foster, defendant, in the Municipal Court of Chicago, to recover the interest of plaintiff in the profits of a transaction with another. To reverse a judgment of $635 for plaintiff, defendant prosecutes this writ of error.
    The evidence shows that plaintiff was employed by the United States Silica Company, of which defendant was president, and also by defendant in the interest of the estate of Volney W. Foster, deceased, at a salary of $250 a month, $150 of which was paid by the Silica Company and $100 by the Foster estate. It was agreed that plaintiff should have twenty per cent, of the profits of the company in excess of $10,000 per year. It appears, and is not disputed, that plaintiff overdrew his account to June 30,1912, to the amount of $3,483.23. During such employment plaintiff had a verbal agreement with defendant that he should receive one-fifth of the profits of a certain deal made with the Thornton Stone Company. It was subsequently agreed between them that plaintiff’s share of such profits was $635. This item of $635 is the subject-matter of this suit. The evidence shows that defendant wrote plaintiff a letter substantially as follows:
    “August 27, 1912.
    Ealph E. Hyatt,
    Chicago.
    Dear Sir: I hand you herewith statement of accounts of U. S. Silica Co. to July 1, 1912, made by Audit Co. of Illinois. You will note the wide discrepancy between your overdrafts as they appear on your books and as analyzed by the Audit Co. as follows:”
    Here follow the items of debit and credit which show the state of the accounts and conclude with the item of “Overdrawn as of June 30, 1912, $3,483.23,” and continues:
    “In accordance with my understanding with you, you were to receive in addition to your salary of $150 per month, you shall receive a bonus of 20% of the net profits of the company in excess of $10,000 per year.
    There is a wide discrepancy between your books and the report of the Audit Co. with reference to your account and you admit the falseness of your account in that respect.
    Two courses are now open to me in recovering the company’s loss. First: By applying to the Surety Company fdr compensation under their surety bond which we hold guaranteeing your honesty. Second: To retain you in your present position under the following conditions:
    1. You to give the company your 5% demand note for $3,483.32 together with any amounts you may have drawn since June 30, 1912, in excess of your regular salary of $250 per month * * * and that said demand note shall be reduced by $100 each month to be taken out of your salary of $250 per month until all the above note with interest is cancelled.
    2. That you assign to the Silica Co. all profits which may be coming to you in accordance with your understanding with me, in connection with Thornton Stone Co., said profit, if any, to apply toward reduction of your note.
    3. All bonuses accruing to you shall apply on above note until it is paid with 5% interest.
    4. The Audit Company have promised to say nothing to the injury of your reputation, and I also bind myself to the same condition.
    Very truly yours,
    A. Volney Foster.”
    Defendant testified, and it was not denied, that he had some conversation with plaintiff about the letter and that plaintiff said to him on the day after its date that the proposition outlined in the letter was acceptable to him.
    It was uncontroverted that plaintiff continued in his employment until the following April. He gave to the United States Silica Company his demand note for $3,525.66, which plaintiff testified was the amount due according to the letter, with amounts overdrawn since June 30th added. There was no evidence that the Audit Company or defendant said anything after the date of the letter to plaintiff’s injury.
    Matz, Fisher & Boyden, for plaintiff in error.
    Cantwell & Smith, for defendant in error.

      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.

Abstract of the Decision.

1. Assignments, § 22 —what effect of. Where, in an action to recover part of the profits of a transaction claimed by plaintiff under acceptance of an offer of compromise which involves the assignment of such interest by plaintiff to a corporation of which defendant is an officer, defendant introducing as evidence thereof a letter from him to plaintiff in which it is stated that plaintiff may retain his position in the employ of defendant and the corporation on the condition, among others, that he assign to the corporation all his share in the profits of the transaction, to be applied on a note to be given in settlement of an indebtedness due from plaintiff to the corporation, it is error for the trial court to refuse to hold as a proposition of law that if plaintiff accepted the proposal contained in the letter, he could not recover.

2. Assignments, § 36 —when evidence sufficient to show. In an action to recover plaintiff’s interest in the profits of a transaction, where the defense was that prior to the commencement of the action plaintiff had assigned his claim for such profits to another, evidence held sufficient to prove such assignment as a fact.

3. Assignments, § 13 —when oral assignment valid. No particular form is necessary to the validity of an assignment of a chose in action, but it may be assigned orally, and it is not essential to the validity of such an assignment that there be written evidence thereof.

4. Assignments, § 22 —when title passes. The unconditional acceptance of an offer of compromise which involves the assignment of a chose in action operates to pass the title thereto to the assignee immediately.

5. Compromise and settlement, § 4 —when act of officer is act of corporation. An offer of compromise made on behalf of a corporation by an individual in his own name to an employee of the corporation is to be construed as the offer of the corporation where the individual making the offer is an officer of the corporation and is acting for it.


text:
    J. Spencer Turner Company, Defendant in Error, v. Bruno Schwill, Plaintiff in Error.
    Gen. No. 21,068.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 384

      —when objection must be saved below. Where irregularities occur in the trial court without objection by plaintiff in error, such irregularities cannot be availed of for the first time in the Appellate Court.
    2. Appeal and error, § 493

      —when judgment in excess of ad damnum not available in absence of objection below. The objection that the judgment sought to be reversed exceeds the ad damnum is not available when made for the first time on review, especially where defendant could not have been misled thereby, as where copies of the notes sued on were part of plaintiff’s pleadings, although it may appear from the statement of claim that the judgment is for an amount in excess of what is due.
    3. Appeal and error, § 1313

      —what presumed where no propositions of law submitted. Where in a case tried without a jury no propositions of law are submitted to be held by the trial court, it will be presumed on review that all questions of law were, correctly decided.

      Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by the J. Spencer Turner Company, plaintiff, against Bruno Schwill, defendant, in the Municipal Court of Chicago. To reverse a judgment for plaintiff for $10,561.77, defendant prosecutes this writ of error.
    Rosenthal & Hamill, for plaintiff in error; Charles H. Hamill, of counsel.
    Litzinger, McGurn & Reid, for defendant in error; Edward R. Litzinger, of counsel.

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

      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.

4. Appeal and error, § 594 —when motion for new trial ineffective to preserve question for review. A motion for a new trial in an action tried without a jury preserves no questions of law for review, for the reason that such motion is aimless and serves no purpose available in a higher court.


text:
    E. H. Bayley, Defendant in Error, v. A. E. Coy, Plaintiff in Error.
    Gen. No. 21,092.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Rehearing denied December 20, 1915.
    Statement of the Case.
    Action by E. H. Bayley, plaintiff, against A. E. Coy, defendant, in the Municipal Court of Chicago, to recover back money received by defendant with which to purchase stock and misappropriated by him. To reverse a judgment for plaintiff for $787.50, defendant prosecutes this writ of error.
    Defendant, it was claimed, was the agent of plaintiff to purchase 35,750 shares of stock of the Mina Grand Mining Company, for which purpose plaintiff gave him $1,787.50, upon the representation of defendant that such stock could be bought for that sum and no less. Subsequently plaintiff ascertained that defendant bought 40,000 shares of said stock for $1,000 and applied to his own use, unbeknown to plaintiff, the remaining $787.50, together with 4,250 shares of the stock.
    It appeared that for a long time defendant had been in the confidence of plaintiff in various deals in stock and that he was in the habit of confiding in defendant’s representations in regard to them. The plaintiff lived in Minnesota, while defendant lived in Chicago. Defendant wrote plaintiff under date of March 22, 1906: “lam having the stock transferred as per your instructions and will send the same to you by registered mail this afternoon. You must promise to never say to any one anything about the price paid nor from whom you did the business with. You know I am supposed to do what I can to sell treasury stock for 20c per share, but I could not let the opportunity pass to let you in on this deal.”
    Abstract of the Decision.
    1. Principal and agent, § 8

      —when evidence sufficient to show existence of relation. In an action to recover back money paid to defendant as plaintiff’s agent to purchase stock, evidence held sufficient to prove that defendant acted as plaintiff’s agent in the transaction.
    2. Limitation of actions, § 20

      —when statute begins to run against action based on fraud. In an action at law based on defendant’s fraud, the statute of limitations will not begin to run until plaintiff discovers the fraud, or might, by the use of reasonable diligence, have discovered it.
    3. Frauds, § 45

      —when laches not defense. The rule applicable to an action in equity, that plaintiff’s failure to use reasonable diligence to discover the fraud practiced on him is excused so as to prevent his cause of action from being barred by the statute of limitations or laches where defendant sustained a relation of trust and confidence, making it his duty to disclose the truth to plaintiff, is equally applicable to an action at law based on defendant’s fraud.
    4. Fraud, § 112

      —when evidence sufficient to show. Evidence that a defendant who had received money from plaintiff with which to purchase stock failed to inform plaintiff of the real price paid for the stock, and wrote plaintiff a letter calculated to deter him from making inquiries on his own account, is sufficient to prove fraud on the part of defendant.

      Harris F. Williams, for plaintiff in error; W. Scott Hodges and Eldon M. Votaw, of counsel.
    Charles Daniels and Sumner C. Palmer, for defendant in error.

      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.