text:
    Annie E. Williams, Appellee, v. Bankers’ Union of Chicago, Appellant.
    Gen. No. 15,910.
    1. Fraternal benefit societies — when statute requiring medical examination complied with. In the event of a re-organization of a fraternal benefit society as to change its incorporation from another state to that of Illinois a medical examination taken by a member while such society was incorporated in the original state, is, after acceptance of dues by the society after ineoi’poration in Illinois, a compliance with the Illinois statute.
    2. Fraternal benefit societies — when limitation as to time within which suit shall he brought will not bar recovery. If the delay in instituting the suit is induced by the action of the defendant the limitation period will not bar the action.
    3. Pleading — when overruling demurrer harmless error. If upon the trial issues were heard as though such demurrer had not been overruled, its overruling is harmless error.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed December 21, 1911.
    J. W. Burdette, for appellant.
    Wallace Streeter, for appellee; James HamiltoN Lewis and CorNelius LyNde, of eonnsel.
   Mr. Justice Smith

delivered tlie opinion of tlie court.

Tlie appellee brought suit in the Municipal Court of Chicago against the appellant to recover for the. death of her son, Walter J. Williams, on an insurance policy issued to the said insured by The Bankers Union of the World, a Nebraska society, and a certificate of reinsurance issued by appellant, an insurance society organized under the laws of Illinois. The jury found the issues for the appellee and the court entered judgment on the verdict for the sum of $1041.

The insured was killed by an explosion of dynamite at Coenr D’Alene, Idaho, on April 17,1907. The suit to recover as aforesaid was begun May 25, 1908. By the terms of the policy transferred to and assumed by the appellant, the same was subject to the constitution and by-laws of the society, which contained the following provisions:

“No action can or shall be maintained on any policy issued by The Bankers’ Union of the World unless brought within one year from the date of the death of the member holding said policy * * *. Persons engaged in the following kinds of business or professions shall not be admitted as beneficiary members: * * * employed around or in gun powder, nitroglycerine or dynamite factory, or any one handling or using- explosives, * * * blasters * * *. If a «person engages in any of the employments or occupations herein enumerated after becoming a member of this fraternity, his benefit certificate shall become null and void by such act. ’ ’

Counsel insists that the appellee failed to prove a cause of action. The contention is that the appellant was organized under the law of’ 1893 as a fraternal benefit society for the sole benefit of its members and their beneficiaries and not for profit; that said Act required on organization “the plan of doing business be clearly and fully defined * * ■ * and, that medical examinations are required.”

The evidence showed that the insured took a medical examination and became a member of The Bankers Union of the World, the Nebraska society; that the said Bankers Union of the World in securing the reinsurance of its members in the appellant society, The Bankers Union of Chicago, by its supreme secretary wrote the insured, and all its members, in part as follows:

“You will be pleased to know that we have thought it best to make the Bankers Union of the World practically an Illinois institution. That State is older than Nebraska and has very much superior laws governing Fraternal Orders. The Illinois Insurance Department has at its office always a regular actuary on insurance, whose special work it is to see to it that the plans of insurance societies operating under the said insurance department and under charters issued by such department, are safe and that they will fully protect the membership of such societies. The said Insurance Department of Illinois has issued a Charter to the Bankers Union. All the Insurance Department of said State requires us to do is simply to attach a Eider of Eeinsurance of the Bankers Union of Chicago, to the policy of the Bankers Union of the World. No medical examination is required of you nor any other item involving any expense. You will continue to pay the same premium rate as heretofore, and you will be. fully protected in all the rights and privileges of the policy you now hold in the Bankers Union of the World. The Bankers Union of Chicago is practically under the same management as the B. U. W. The headquarters will be moved from Omaha to Chicago. Future remittances will be made to that point, for which purpose I hand you under separate cover a dozen self addressed envelopes of the Bankers Union. I also hand you herewith in duplicate transfers or reinsurance riders of guarantee, which please sign, retaining one copy to file with your B. U. W. policy and mail the other copy to me in the enclosed stamped envelope to be filed with the Bankers Union of Chicago.”

That the said Supreme Secretary was at the same time the secretary of the appellant; that one E. C. Spinney was also at that time the president of both of said societies; that the insured consented, in writing, to the said transfer in form as requested in said communication, and paid to appellant all dues and assessments thereon. On the proposition that the insured took no medical examination, it is claimed he was not a member of appellant society at the time of his death, and hence there could be no recovery.

We are of the opinion that the evidence tended to show a reorganization of the Nebraska society and was in effect a mere continuation of the business of the Nebraska society by the Illinois society and the medical examination taken by the insured in becoming a member thereof was, under all the circumstances in evidence, and so treated by the appellant, a compliance with the statute of this State in respect to the membership of the insured in the appellant society. It clearly appears that the appellant, with knowledge of said communications, accepted, considered and dealt with the insured as a member, and to say that it did not so consider the insured would be to confess being a party to a fraud practiced on all members’ so secured.

It is urged, by the appellant that the suit not being brought within one year from the death of the insured, there was no right of recovery. The jury found specially that the appellant held out to the appellee reasonable hopes of a settlement of the claim. We think the evidence sufficient to sustain the finding and also that the same tended to show that the appellee was thereby induced to delay bringing suit. Under the circumstances the appellant is held to have waived the said limitation clause. Allemania Fire Ins. Co. v. Peck, 133 Ill. 220; Illinois Live Stock Co. v. Baker, 153 Ill. 240; Mutual Benefit Assoc. v. Coats, 48 Ill. App. 185; German Fire Ins. Co. v. Johnson, 52 Ill. App. 585; Phoenix Ins. Co. v. Stewart, 53 Ill. App. 273.

The appellant claims that the evidence showed that the insured was occupied in blasting out stumps with dynamite. The insured resided with his father and other members of the family. About five thirty in the morning of the day of the accident there was an explosion of dynamite in the kitchen of their home, killing the insured and his father and doing great damage to the house. The appellant claims that the circumstances, there being no eye witness surviving, tended to show that the insured was occupied with dynamite to use in blasting stumps. The appellee claims that the circumstances tended to show that the father was placing sticks of dynamite in the stove to thaw them out and the insured, party dressed, entered the kitchen just before the explosion. The evidence tended to show that the father was using dynamite to blast out some stumps in the yard, and that at some time prior to the morning in question the insured was with him when he blasted out a stump. The evidence conclusively showed the occupation of the insured was that of harness maker, and he had been so continuously employed for some time prior to the accident. The jury specially found the insured was not engaged in blasting with, or handling, dynamite, and was not killed while handling dynamite. We think the findings were clearly supported by the evidence.

It is claimed that the court erred in overruling the appellant’s demurrer to appellee’s replication to the fifth plea, involving the question of waiver of the time limitation for beginning suit. The same issue thereby raised was also presented, and a trial had thereon, by the fourth plea, replication thereto and rejoinder to said replication. The error, if any, in overruling the 'said demurrer, resulted in no injury to appellant and would not be held reversible error. Barker v. Barth, 192 Ill. 460; Chicago City Ry. Co. v. McMeen, 206 Ill. 108.

The argument of the appellant on the merits of the defense interposed by the sixth plea, that of ultra vires, will not here be considered, for the reason that the said plea was withdrawn by the appellant before the trial. Lake St. Elev. Ry. Co. v. Carmichael, 184 Ill. 348; Chicago Pneumatic Tool Co. v. Munsell, 107 Ill. App. 344.

We have carefully considered the various objections of the appellant to the rulings of the court pertaining to the evidence and the instructions of the court to the jury, and the same present no grounds for reversal.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Me. Justice Smith

license: Public Domain

text:
    John Maier, Administrator, Appellee, v. Chicago City Railway, Appellant.
    Gen. No. 15,919.
    1. Statute oe Limitations — when declaration does not set up new cause of action. If the cause of action set up in the amended count is merely a correct statement of the cause of action defectively stated in the original counts, a new cause of action is not set up and the Statute of Limitations does not apply.
    2. Trial — when overruling of challenge will not reverse. Even though a challenge to a jury be improperly overruled such ruling will not reverse where the party who made^ the challenge does not exhaust his peremptory challenges.
    3. Evidence — when ordinance incompetent. In an action on the ease for personal injuries an ordinance is incompetent unless the evidence brings the cause within the terms of the ordinance.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Thomas C. Windes, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed December 21, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    FeaNkliN B. Hussey, C. Le Boy Bbowh and P.,W. Wemple, for appellant.
    QuiN O ’Bbieh and Lawbehce W. Pottee, for appel-lee ; RiNGee, Wilhaetz & Louee, of counsel.
   Me. Justice Smith

delivered tlie opinion of the court.

The appellee, hereinafter called the plaintiff, obtained a verdict against the appellant, hereinafter called the defendant, and the court entered judgment thereon for the sum of $10,000.

The plaintiff’s intestate in an attempt to reach his home boarded a south bound Wentworth avenue car at Clark and Harrison streets, and by reason of the crowded condition of the car, with four or five others stood upon the right hand front step of the car facing south and holding onto an upright iron bar. He paid his fare and near Twelfth street was struck by an iron pole alongside the track that was used by defendant to support its electric wires. The questions of fact pertaining to the motion and speed of the car, the distance between the pole and the track and also the side of the car, and the conduct of the decedent pertaining to the movements of his body just prior to and at the time he was struck, whether the motorman warned the decedent of impending danger in his position, and other circumstances in connection therewith, were in controversy. The only serious question, in our minds, in consideration thereof is whether or not the decedent was guilty of contributory negligence. The position the decedent was permitted to take and occupy as a passenger was a dangerous one, and as an ordinarily prudent man he was required to exercise care and caution commensurate therewith. That he was struck and killed by coming in contact with the said pole was admitted, but the cause of his body extending beyond the side of the car far enough to strike the pole is by no means certain or clear from the evidence. There is evidence tending to show that the pole was about twelve inches from the side of the car, and also that a movement was made by the defendant about the time of being struck, in order to secure a transfer from the conductor. In the position of the decedent, standing on the step and hanging onto the side iron, it would not require much of a movement in shifting his position to bring him in contact with said pole if it stood as close to the car as plaintiff claims it did.

It is difficult to find from the record evidence of any particular act or conduct on his part that would warrant us in holding (contrary to the verdict of the jury) that such conduct was not that of a reasonably prudent man under like conditions and circumstances; unless it be held that the fact that he was hit by the pole or that tlie taking the position lie did under the circumstances constitued, either alone or considered together, contributory negligence, which we are not inclined to do. After careful and repeated examinations of all the evidence, we conclude that we should not disturb the verdict on the ground urged by defendant, that the decedent was guilty of contributory negligence as a matter of law.

The court did not err in sustaining the plaintiff's demurrer to the defendant’s plea of the Statute of Limitations, for the reason the causes of action set out in the amended counts were not new and different than those defectively set out in the original counts, but the same causes of action. It is also complained that there was no demurrer filed by plaintiff to said plea of the Statute of Limitations. The order of the court was: “This cause coming on to be heard upon the demurrer to the defendant’s plea of statute of limitations filed in said cause after arguments of counsel and due deliberation by the court said demurrer is sustained.” It is apparent that the court heard counsel on a demurrer ore tenus, and while the practice is not now usual, and is not commended, we know of no rule of law that prohibits the same.

We consider the objections made to the rulings of the court on the examination of the jury and to remarks of plaintiff’s counsel not well taken. Whether the court improperly overruled the defendant’s challenge for cause as to Mr. Gluck, whom it then challenged, peremptorily, is not material, for the reason that it appears from the record that the defendant on, its examination of the jury on the voir dire did not exhaust its peremptory challenges, and its cause was tried by an impartial jury. The defendant not being prejudiced by the court refusing to allow the said challenge for cause, there was no error. Graff v. The People, 208 Ill. 312.

The defendant introduced in evidence an ordinance of the City of Chicago as follows: “All new overhead construction shall consist of one (1) trolley wire suspended over each track by span wires attached to poles set at the curb line or suspended from brackets attached to poles;” and offered an instruction: “The court instructs the jury that the City of Chicago by virtue of the section of the city ordinances introduced in evidence, fixed the location of the poles at the curb line and, ’ ’ etc., which the court refused to give. There was no evidence that the pole was set or the said line constructed under said ordinance, or that it was new construction, hut the evidence tended to show that the line was constructed and the pole set prior to the passage of the said ordinance, and it was therefore not error to refuse the said instruction.

The jury was fully and properly instructed, and the criticisms of the instructions given on behalf of the plaintiff are hypercritical and without merit.

The judgment is affirmed.

Affirmed.


text:
    Martin Maremont, Appellee, v. Sarah Muller et al., On Appeal of Max Muller, Appellant.
    Gen. No. 17,724.

      Injunctions — when preliminary injunction presumed properly issued. On a praecipe record, held, that the court would presume that the interlocutory injunction complained of was issued on notice, or that sufficient showing was made to the chancellor by affidavit on which to base the injunetional order.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. M. M. Gkidley, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed December 21, 1911.

      Samuel Gr. CeodsON, for appellant.
    Fowlee, MoDoNNell, EoseNbeeg & MacPhaxl, for appellee.
   Me. Justice Smith

delivered tlie opinion of the court.

The appellee filed a hill in the Superior Court of Cook county on March 23, 1911, alleging, among other things, that he was the assignee of a contract dated February 10, 1911, whereby Sarah and Israel Muller agreed to sell and convey certain described premises, also known as No. 1239 South Kedzie avenue, in-the city of Chicago, attaching to and making a part of the bill copies of said contract and assignment; that he had made a tender of the sum of $5300, as provided by the terms of the said contract, to said Sarah and Israel Muller; that he was ready and willing to carry out said contract, but the said Mullers refused to accept said tender and carry out said contract, and prayed that specific performance of the contract be enforced. On June 22, 1911, appellee filed a supplemental bill, making the appellant an additional defendant, therein alleging the filing of the bill described; that a demurrer thereto had been overruled, an answer and replication thereto filed, and the cause referred to a master in chancery to take testimony, etc.; that thereafter, to-wit, June 5, 1911, the said appellant, Max Muller, a son of said Israel Muller, filed for record in the recorder’s office,of Cook county a writing purporting to be a warranty deed, dated May 10,1910, conveying said described premises by said Sarah and Israel Muller to said Max Muller; that the said conveyance was made for the purpose of preventing the specific performance of the said contract, etc., etc., and prays that the said Max Muller be restrained from conveying or encumbering the said described premises during the pendency of said cause.

The court issued an interlocutory injunction re7 straining the said Max Muller as prayed in said supplemental bill, “until final determination of this suit, or until further order of said court,” and said Max Muller appeals therefrom.

A praecipe record is filed in this court, consisting of the bill, supplemental bill, injunction order and bond and appeal bond; also the order of the appellant that the clerk prepare transcript of the record containing the foregoing.

The appellant urges the reversal of the interlocutory injunction on the ground the said injunction was issued without notice, and there is no showing of any nature that the rights of appellee would be unduly prejudiced if the injunction be not issued immediately or without notice, as provided by statute. On the praecipe record as here presented this court will presume' that the interlocutory injunction was issued on notice, or that sufficient showing was made to the chancellor by affidavit, as .provided by statute, on which to base the order. Seneff v. Olivet Baptist Church, 89 Ill. App. 352; Callies v. Callies, 91 Ill. App. 305; 2 High on Injunctions, Sec. 1697.

It is objected that the verification of the supplemental bill is upon information and belief, and there is no equity therein warranting the issuance of the injunction. We think the verification not subject to the objection, and sufficient showing on the merits was made on the face of the bill to warrant the chancellor in preserving the status quo until final hearing.

An additional praecipe record was presented by the appellee and a motion made for leave to file same. The appellant objected and the court, reserving the questions raised as to the merits or validity thereof, allowed same to be filed. On an examination of the records we conclude that the additional praecipe record so filed was subject to objections made thereto by the appellant, and we therefore have given it no consideration in the determination of the questions presented by the appellant on the appeal.

The interlocutory injunction is affirmed.

Affirmed.


author: Mr. Justice Clark

text:
    John Yaeger, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,978.
    1. Verdicts — when duty of Appellate Cowrt to reverse. It is the duty of the Appellate Court to reverse a judgment if the verdict is found against the manifest weight of the evidence.
    2. Verdicts — when not excessive. Held, in an action on the case for personal injuries, that the verdict for $6000 was not excessive where it appeared that the damages capable of exact ascertainment were proven to the extent of nearly $700; that the plaintiff’s leg was shortened and other physical injuries sustained; and that his ability to perform labor was impaired.
    3. Passenger and carrier — right of former to rely upon exercise of care. A passenger has a right to assume that a motorman will not be negligent.
    4. Damages — when injuries in personal injury action need not he described. Where general damages only are claimed it is not necessary that the injuries received by the plaintiff should be described with particularity in the declaration.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the October, term, 1909.
    Affirmed.
    Opinion filed December 22, 1911.
    Rehearing denied January 9, 1912.
    James G. CoNdoN and C. LbRoy BrowN, for appellant; Leohard A. Busby, of counsel.
    Gallagher & Messner, for appellee; Charles H. Bryce and Matthew J. Huss, of counsel.
   Mr. Justice Clark

delivered the opinion of tlie court.

Snit was brought by the appellee against the appellant for damages for personal injuries received while a passenger on one of its cars. Other parties were joined as defendants, but the suit as to them was dismissed before judgment. There was a verdict in favor of the appellee and judgment entered theréon against the appellant in the sum of $6,000.

The accident occurred at the intersection of State and Fourteenth streets, in the city of Chicago. State street runs north and south, and Fourteenth street runs east and west. Appellee was standing on the front platform of the car. The car was proceeding south on State street, and just before reaching Fourteenth street met a truck wagon being driven north-wardly. The pole of the truck wagon ran into the east side of the front dashboard of the car, penetrating it and knocking the controller-box loose from its fastenings. The controller-box fell against Yaeger and broke the tibia and fibula of his left leg. He claims to have sustained other external — as well as internal — ■ injuries. After the accident the wagon was backed and driven to one side of the street.

The other parties referred to as having been joined as defendants were so joined on the theory that some of them were the owners of the wagon. The jury found specially that the wagon was owned by Taft Brothers, and rendered a verdict against the appellant and James M. Taft, who was the only member of the firm of Taft Brothers served with summons. Because certain instructions offered by James M. Taft were inadvertently neither given nor refused by the court, the court granted a motion for a new trial as to him, whereupon suit was dismissed as to the defendants other than the Chicago City Railway Company, and judgment entered on the verdict against that defendant.

The grounds upon which it is alleged the judgment should he reversed are, that the verdict was against the clear preponderance of the evidence; that there was reversible error in admitting proof of. damages at variance with the declaration; that the damages are grossly excessive; that the court erred in ruling on instructions.

We have carefully read the evidence in the record and the arguments of counsel in reference thereto. We were also assisted by oral arguments of counsel on the questions involved, particularly as to the facts of tbe case.

The jury found both the driver of the wagon and the motorman of appellant negligent. It would of course be our duty to reverse the case if the verdict of the jury should be found to be against the manifest weight or preponderance of the evidence. Nelson v. East St. Louis Railroad Co., 235 Ill. 625.

The wagon, as heretofore stated, was coming towards the car. It is clear from the evidence that it had been proceeding upon the northbound tract, and there would have been no collision if it had remained upon that track. The testimony on the part of the appellant tends to show that at the time of the collision the car was going at a rate of speed not to exceed four or five miles an hour, and that the wagon, when the car was within ten feet (or less) of it, abruptly turned upon the southbound track; that the motorman immediately applied the airbrake and had the car almost stopped at the time of contact.

On the part of appellee the testimony tends to show that when the horses started to make the turn the car was about two hundred feet away from the heads of the horses, and that tbe motorman sounded the gong vigorously but did not attempt to stop the car. The plaintiff and another witness named McLinden testified that McLinden, when the ear was about two hundred feet away, said to the motorman: “Look out, you’ll hit that fellow.”

The motorman testified that when he first paid any attention to the team and wagon they were fifty or seventy-five feet away from the car.

It is only where the verdict is clearly and manifestly against the weight or preponderance of the evidence that this conrt should reverse because of lack of proof. We cannot say that snch is the situation in the case now being considered.

It is insisted by the appellant that the appellee has not shown himself to be guiltless of contributory negligence. The degree of care required of a passenger is entirely different from that of one who is in a vehicle which comes in contact with a car, whether the latter be the driver or the companion of the driver. The appellee had the right to assume that the motorman would not be negligent. Hickey v. Chicago City Ry. Co., 148 Ill. App. 197. We think that the question as to whether or not the appellant was guilty of negligence, and the question as to whether or not the ap-pellee himself was guilty of contributory negligence, were both properly left to the jury to determine.

Testimony was introduced with reference to an attack of empyema, which appellee claimed to have had after the accident. It is insisted that this evidence was improperly admitted. The declaration charges that the appellee was “severely, dangerously and permanently injured, both internally and externally, and divers bones in plaintiff’s body and limbs were then and there fractured and broken.” In a subsequent paragraph of the declaration the following language is used: “that prior to receiving said injuries, plaintiff was a strong, healthy and vigorous and robust man, and was able to and did earn large sums of money at his occupation and business.” It is insisted by appellant that the attack of empyema was not a new disease but that it was, if anything, a recurrent attack of a disease, from which appellee had theretofore suffered. It is true that the record discloses that in 1903 the ap-pellee had an attack of empyema, and that he was operated on by the same surgeon who attended him at the time of the accident now under consideration. There is evidence, however, tending to show that he had recovered from this attack some months at least prior to the accident, and also evidence tending to show that the second attack was brought on by the accident.

It has been held that where general damages only are claimed, it is not necessary that the injuries received by the plaintiff shall be described with particularity in the declaration. C. & A. R. R. Co. v. McDonnell, 194 Ill. 82. Whether or not appellee had fully recovered from his first attack of empyema, and whether or not the second attack was brought on by the accident in question, were matters for the. jury to determine. If he had fully recovered, then the language in the latter part of the declaration as to his being in good health prior to the accident was warranted by the proof. We do not think that the judgment should he reversed on the ground that improper evidence was received.

The amount of the verdict is, in our opinion, large, but we do not think it so excessive as to require us to reverse the judgment. The point was urged before the trial judge, upon the motion for a new trial, and a new trial denied. The record shows that damages capable of exact ascertainment were proven to the extent of nearly $700. The damages for which appellee should receive compensation because of his inability to perform as much labor as he did prior to the accident, damages on account of shortening of the leg, and those occasioned by the attack of empyema, if that attack was caused by the accident, in addition to those on account of pain and suffering, are necessarily not the subject of direct ascertainment, and while, as heretofore stated, we think the amount fixed by the jury is large, we do not think it so excessive as to warrant a reversal of the judgment.

We are next asked to reverse the judgment because of three instructions offered by the appellee and given by the court, and on account of the refusal of the court to give one instruction as requested by the appellant. Ah examination of the record shows that the court gave thirteen instructions requested by the appellant, without modifying the same; that he gave with slight modifications two additional instructions asked by the appellant'. It also shows that he prepared himself and read to the jury an instruction. These sixteen instructions, some of which are of great length, together with those given at the request of the appellee, we think fully advised the jury as to the law by which they should he governed in arriving at their verdict. In our opinion, none of the instructions given at the request of the appellee is subject to serious criticism.

The judgment will he affirmed.

Judgment affirmed.


author: Me. Justice Claek

text:
    Anna Beresh et al., Appellees, v. Supreme Lodge Knights of Honor, Appellant.
    Gen. No. 15,006.
    Statute of limitations — when joint action not barred on account of infancy. If an action be not severable, if it is not barred as to one of the parties on account of Ms infancy at the time the cause of action arose, it is not barred as to either of the parties.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 22, 1911.

      Ashcbapt & Ashcbaet, for appellant; E. M. Ash-cbaet, of counsel.
    'Kbatjs, Alschulee & Holden, for appellees.
   Me. Justice Claek

delivered the opinion of the conrt.

On October 3, 1893, Eugene Beresh became a member of a subordinate lodge of appellant, and there was issued to him a policy or certificate for $2,000 payable upon his death to Otto and Freddie Goldberger. In the application Beresh stated the Goldbergers were his nephews. Beresh died in December, 1893, and in February, 1895, Otto and Freddie Goldberger brought suit for the use of Anna Beresh, the wife of the insured, against the appellant. In 1896 a judgment was recovered in this suit. On appeal to this court the judgment was reversed because Chicago Lodge No. 932 of appellant was improperly made a party to the judgment, although it had never been served with process. In the order reversing the judgment the Circuit Court was directed to enter judgment against the Supreme Lodge Knights of Honor alone. Supreme Lodge v. Beresh, 72 Ill. App. 320. The order of this court was reversed by the Supreme Court because such judgment was improperly directed to be entered. 175 Ill. 19. In 1902, on the case being redocketed in the Circuit Court, the defendant, who is the appellant here, interposed pleas alleging that the plaintiff had no insurable interest in Beresh and that he had falsely stated they were his nephews. After a demurrer to these pleas had been overruled appellees Anna and Edward Beresh were substituted as plaintiffs and a new declaration was filed. This declaration alleges that on the third day of October, 1893, defendant was a mutual benefit order having subordinate lodges; that among the objects of defendant, as declared in its constitution and by-laws, was the promotion of benevolence and charity by establishing a Widows’ and Orphans’ Benefit Fund, from which on the death of the member a snm not exceeding $2,000 should he paid to sneh member or members of his family, blood relations, or person or persons dependent npon him, as he might direct by name. That on the third day of October, 1893, there existed in Chicago a subordinate lodge, Chicago lodge No. 932, and on that date Eugene Beresh was a member of said lodge, and that on that date defendant issued and caused to be delivered to Beresh a certificate of membership which is set out in haec verba.

Plaintiffs allege that by the constitution of the dé-fendant it was provided that each applicant should enter upon his application for membership the names and relationship or dependence of the members of his family or those dependent upon him to whom he desired his benefit paid; that Eugene Beresh entered upon his application the name of Otto and Freddie Q-oldberger and stated that they were related to him as nephews and they were included in said benefit certificate as beneficiaries; that Otto G-oldberger 'and Freddie Goldberger were not the nephews of Beresh and were not members of his family, nor blood relatives, nor dependent upon him, and were ineligible to take the benefit of the provisions in the certificate mentioned ; that at the time Eugene Beresh died he was in good standing; that proof of death was made, and plaintiffs were members of his family; that Anna Ber-esh was his wife and Edward Beresh his adopted son; that they lived with him and were dependent upon him, and that by reason of the premises, they were entitled to the money.

' The second count of the declaration is substantially the same as the first, except it does not allege that the plaintiffs were living with Beresh or that they were dependent upon him. To these two special counts the common counts were added.

To this declaration the defendant interposed a plea of the statute of limitations, alleging that the causes of action in the amended declaration did not accrue to the plaintiffs at any time within five years before the commencement of the suit by the filing of the amended declaration.

Three replications were filed to this plea. The first replication sets up facts from which it would appear that the cause of action set out in the amended declaration is the same as that set out in the original declaration. The second sets up facts from which it would appear that the plaintiff Edward Beresh did not become of age until April 16, 1902, which was less than two years prior to the filing of the amended declaration; and the third that the suit was upon an instrument in writing, and that the cause of action did accrue to the plaintiffs within ten years next preceding the filing of the amended declaration.

Appellant filed a demurrer to each of the three replications. The court overruled the demurrer to the second replication, but sustained those to the first and third. The appellant elected to stand by the demurrer to the second replication, and judgment was entered against it for the amount of the certificate, viz.: $2,000 with interest thereon from the time Anna Beresh and Edward Beresh were substituted as plaintiffs. From this judgment this appeal was taken, and assignments of errors and cross-errors have been filed. The errors assigned by the appellant relate to the overruling of the demurrer to the second replication. The cross-errors assigned by the appellees relate to the sustaining of the demurrer to the first and third replication.

In the view we take of the case, the only question that needs to be considered, save that as to the allowance of interest, is the action of the court in overruling the demurrer to the second replication. The point in question seems never to have been decided in this State. Elaborate briefs filed show the extensive research which counsel have made for authorities bearing upon the proposition, and we are favored with citations to many cases.

The language of the Statute of Limitations is:

“If the person entitled to bring an action mentioned in the nine preceding sections is, at the time the cause of action accrued, within the age of 21 years * * * he or she may bring the action within two years after the disability is removed.”

The question we are called upon to decide is whether or not the exception which extends to the appellee Edward Beresh because of his minority, is one that relates only to an action which may be brought solely by him, or whether it extends also to an action which must be brought by him jointly with another.

, The contention of the appellant is that the statute contemplates only a protection to an infant, lunatic, or other person, who has vested in him a sole causé of action. The appellees, on the other hand, insist that the protection extends to him also in a ease like the one which we are now considering, in which the claim sued upon is joint. The argument of appellant is that the statute of limitations as incorporated in the laws of this State is clearly of English origin; that it was interpreted in respect to the point now under discussion by the Supreme Court of the United States before it was enacted by the General. Assembly of the State of Illinois, and that the construction so placed upon it must have been in the contemplation of the General Assembly and the enactment made with this construction in mind.

In Marsteller v. McLean, 7 Cranch, 156, Mr. Justice Story, speaking for the court, said: “It seems to be a settled rule that all the plaintiffs in a suit must be competent to sue, otherwise the action cannot be supported. ’ ’

In Davis v. Coblens, 174 U. S. 719, language used by the Court of Appeals is quoted, to the effect that the rule is a hard one, but that the Court of Appeals of the District of Columbia is bound by the decision of the Supreme Court of the United States in Marsteller v. McLean, supra, and that as there has been no legislation affecting the rule of practice in the District of Columbia the courts of that district are bound to obey the rule as laid down by the Supreme Court.

In several states as well as in the District of Columbia the rule so laid down seems to have been consistly followed, upon statutes similar to that of Illinois, notably in Kentucky, North Carolina and Tenessee. Baker v. Grundy’s Heirs, 1 Duvall (62 Ky.) 281; Weare et al. v. Burge et al., 10 Ired. (N. C.) 169; Allen v. Farrington, 2 Sneed (34 Tenn.) 526.

In other states having similar statutes the contrary rule has been established as to causes not severable, notably in Ohio, South Carolina and Connecticut. Meese v. Keefe, 10 Ohio 362; Powell v. Koehler, 52 Ohio St. 103; Sanford et al. v. Button et al., 4 Day (Conn.) 310; Garett v. Weinberg, 48 S. C. 28.

In Meese v. Keefe, supra, this rule is laid down:

“Where common interests can be severed the protection extends no further than to him within its protection ; but where no such severance can be made and the protection of tlie statute cannot be secured without covering other interests, the benefit of the statute claimed by one avails all. ’ ’

In Moore v. Capps, 4 Gil. 315, the Supreme Court of this State had before it a somewhat similar question upon a writ of error sued out from that court. ' In that case the statute of limitations was pleaded to a writ of error brought by several plaintiffs, and replication that two of them were still infants and that another arrived at full age within five years next before the suing out of the writ of error. It was held that the statute permitting any one of several parties to remove a cause by appeal or writ of error into the Supreme Court (and to use the names of others, if necessary), those plaintiffs in the case who had been of full age more than five years could not avail themselves of the non-age of some of their co-plaintiffs to accomplish indiréctly what they would not he allowed to do directly. The court said: “The supreme court of Kentucky held under a statute precisely like this, that where some of the plaintiffs in a writ of error were within the saving clause of the statute, the case was saved as to all of the plaintiffs. Kennedy v. Duncan, Hardin’s R. 365. The decision, however, was put expressly on the ground that the parties could not sever, hut must all join in the writ of .error; and as those of full age could not maintain a several writ of error, and had not the right of compelling the infants to join with them, the saving for the benefit of the infants must necessarily accrue to the benefit of the adults; otherwise, the latter would be deprived of their right without their fault. ’ ’ The court then goes on to say that such would undoubtedly be the rule here but for the provision of the statute, under which either one of two or more persons against whom a judgment or decree may be rendered shall be permitted to remove the suit to the Supreme Court by appeal or writ of error, and for that purpose may use the names of all persons, if necessary.

In some of the cases to which we have, been referred it has been suggested that the harshness of the rule is mitigated by the fact that in a suit brought by an adult where a minor is a necessary party, the minor may be joined and be represented by a guardian or next friend. If, however, a guardian or someone acting as next friend did not join in the proceeding as suggested, then the minor upon reaching his majority would find himself helpless, although without fault himself, and thus the protection with which the statute seeks to surround him would be destroyed.

In tlie present case, in the suit originally brought by the Groldbergers the appellee Anna Beresh was named as usee. After years of litigation it was determined that the right of action against the appellant, if it existed at all, was in Anna Beresh and her adopted son, the appellee, Edward Beresh. Thereupon appellees were substituted as parties plaintiff. At the time of this substitution the statute of limitations had not run as against the appellee Edward Beresh. If he is not now permitted to maintain the suit because of the fact that the statute of limitations has run as against the co-appellee, then to use the language apparently, adopted by the Supreme Court in Moore v. Capps, supra, he would be deprived of his right without his fault.

As a rule must now for the first time be established in' this State, we think it should be based upon what seems to be the more equitable doctrine, announced by the Supreme Court of Ohio as heretofore indicated, and by the courts of other states which have arrived at a similar conclusion, as did the learned judge by whom the present case was heard in the Circuit Court.

We think no error was committed by the trial judge in allowing interest. Grand Lodge B. of L. F. v. Orrell, 206 Ill. 208.

As we find no error in the record, the judgment must be affirmed.

Judgment affirmed.


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    Nonotuck Silk Company, Plaintiff in Error, v. Adams Express Company, Defendant in Error.
    Gen. No. 16,147.
    1. Common carriers — who not 'bound by limitations of liability. A consignee who lias not participated in any way in tlie fraud in connection with obtaining a low rate at the time of shipment and who has not assented to the terms of limitation, is not barred of a recovery where he sues for loss resulting from the negligence of the carrier.
    2. Common carriers — when presumption of negligence arises. If the carrier does not claim that the loss sustained was by fire or other mischance, the presumption obtains that the same was occasioned by the negligence of such carrier.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and judgment entered here.
    Opinion filed December 22, 1911.
    Rehearing denied January 9, 1912.
    Brode B. Davis, for plaintiff in error.
    Charles B. Elder, for defendant in error.
   Mr. Justice Clark

delivered tlie opinion of tlie court.

This case comes before ns for review upon a judgment entered in the Municipal Court, the case having been tried before the court without a jury upon an agreed statement of facts, together with the deposition of a lawyer of the city of New Tort with respect to the decisions of the courts of New York as to the limitation of liability in a receipt given by a common carrier to a shipper of freight. This deposition is not important, as there is no dispute between the parties, as we understand the record, as to what the law of New York is, the only difference being as to its application in the present case.

From the stipulation filed in the case it would appear that the plaintiff in error purchased goods from A. D. Juilliard. & Co. of the value of $170.97, the order for the goods reciting that they were to be shipped by express, but no particular express company was mentioned. The goods, which were wrapped in a paper covering, were delivered to the defendant in error, one of its drivers having gone to the place of business of Juilliard '& Co. for the purpose of receiving them. At the time of the delivery of the goods to the driver, a receipt which had been prepared by Juilliard & Co. upon a form of the Express Company was presented to him for his signature and was signed by him. This receipt was in the usual form, and limited the liability of the Express Company to $50 unless a greater value should be declared. The receipt did not have upon it any words or figures indicating the value placed upon the package by the shipper or consignee other than the stipulated limitation. In it the plaintiff in error was made the consignee.

It is admitted in the record by the stipulation that Juilliard & Co. and its employes had been in the habit of using these forms, and that likewise the plaintiff in error used them in its business in Chicago; also that the members of the firm of Juilliard & Co. and its officers together with the person who had filled out the re.ceipt had read the terms and conditions of the receipt and were familiar with the same; that they knew that the regular rates of the defendant were based upon a valuation of not exceeding $50 in the case of each shipment on which no valuation was declared, and that this rate increased with the increase in value of the goods shipped, when such value exceeded $50. The only portion of the stipulation having reference to the knowledge of the plaintiff is that at and prior to the time of shipment the plaintiff, the Nonotuck Bilk Company, had been accustomed to shipping goods by the Adams Express Company, and to filling out receipts, and that the receipts of the defendant were and are of the sainé form and contain the same printed provisions as tlie one offered in evidence in the case. The stipulation sets ont substantially that the Express Company had complied with the Interstate Commerce law with respect to the filing of schedules of its charges, etc.; that the goods shipped were never delivered to the Silk Company, but were lost by the Express Company, which has been unable to find them, although it has used all reasonable or possible efforts in that direction. It is further stipulated that where goods of a value exceeding $50 are shipped, and the value declared, each package of such value is handled separately, under the supervision of an employe of the defendant throughout its transportation; that each employe to whom the goods were delivered gave an individual receipt therefor, and kept the goods in his personal custody until he delivered the same to some other employe from whom be took a like receipt; that as a result the Express Company was able to fix the responsibility for each package so handled; that packages of a less value than $50 were not handled separately but were handled on waybills with other packages; that the package of goods in question was transported in the customary manner of handling goods of a value not exceeding $50; that tender of the amount of $50 was made to plaintiff in error and also to Juilliard & Co., but was refused by both of them, this tender having been made subsequent to the time that the plaintiff in error paid Juilliard & Co. for the goods.

The court found that the plaintiff in error was bound by the language of the receipt, and could recover in this action only $50. Judgment for this amount was rendered, but without costs.

The defendant in error insists that the case is governed by the decision in Ellison v. Adams Express Company, 245 Ill. 410. In that case suit was brought for a shipment made under very similar circumstances, and the defense, among others, was that the shipper knowingly and wilfully, by failing to state the value of the merchandise delivered, obtained transportation for each shipment at less than the regular rate, in violation of section 10 of the Interstate Commerce Act, and therefore could not recover. The third paragraph of section 10 reads as follows:

“Any person and any officer or agent of any corporation or company who shall deliver property for transportation to any common carrier, subject to the provisions of this act, or for whom as consignor or consignee any such carrier shall transport property, who shall knowingly and wilfully, by false billing, false classification, false weighing, false representation of the contents of the package, or false report of the weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation shall be deemed guilty of fraud, which is hereby declared to 'be a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed be subject for each offense to a fine of not exceeding five thousand dollars or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court. ’ ’

The Supreme Court held that the defense interposed in the last mentioned case was well founded. Among other things it was said:

“Courts of justice will not assist parties who have participated in a transaction forbidden by statute to assert rights growing out of it. There can be no right of recovery upon a contract which is against good morals, forbidden by law or opposed to public policy. ’ ’

The court further said:

“Compliance with the requirements of the act by the shipper as well as the carrier is essential to its successful operation, and we cannot presume that Congress intended that the contracts forbidden by it should be valid and should be enforced to the same extent as if there were no prohibition, merely subjecting the offender to penalty if detected and prosecuted. ’ ’

In the present case suit was brought by the plaintiff in error as consignee and as owner of the goods, upon the theory that the goods were lost through negligence of the Express Company. There is nothing in the record to show that the plaintiff in error participated in any fraud or deceit for the purpose of obtaining a rate less than the regular rate, as was the situation in the case last referred to. If there was any wrongdoing it was that of the employe of Juilliard & Co. in not disclosing to the Express Company the actual value of the goods at the time he prepared and handed to the driver of the Express Company the receipt which was taken and thereby obtaining a rate less than the legal rate. If this suit were brought by Juilliard & Company, in our opinion no recovery could be had, under the authority of Ellison v. Adams Express Company, supra.

It is stipulated that the goods were delivered to the Express Company and lost by it. The Express Company does not claim that the loss was by fire or any other mischance, by reason of which it is exempt from liability under the terms of the contract made with the shipper. We think, therefore, that it comes within that class of cases in which the presumption obtains that the loss was occasioned by the negligence of the carrier. Hutchinson on Carriers, sec. 1346 et seq.

It has repeatedly been held in this state that the owner of goods is not limited to the valuation expressed in the bill of lading, unless it is shown that he knew and consented to the same; and where suit is brought by the consignee it must affirmatively appear that the consignee knew of the limitation in the bill of lading or that the consignor had authority to hind the consignee in that respect.

In the present case the plaintiff in error simply directed the goods to he shipped by express, without specifying by what express company. The mere knowledge, therefore, on its part of the usual conditions m bills of lading used by the Adams Express Company would not of itself show authority in the consignor to bind the consignee by any contract it might make with the Adams Express Company; much less would it be evidence of the fact that the plaintiff in error authorized the consignors or their agent to enter into a contract with the Express Company of such a character as would render the agents or employes of Juilliard & Co., as well as the plaintiff in error, amenable to the criminal provisions of the Interstate Commerce Act.

Our conclusion therefore is that the case should be governed by the decision in Plaff v. Pacific Express Company, 251 Ill. 243. The language quoted in that ease from Merchants’ Despatch Transportation Company v. Joesting, 89 Ill. 152, is particularly applicable :

“In this case appellees did not see the shipping receipt and were not aware that it contained the exception until after the goods passed to appellants. But it is said the merchants of whom the goods were purchased knew of the exceptions when they shipped them. Concede this to be true, and there 'is no evidence that appellees ever authorized them to make a contract limiting the carrier’s liability. In the absence of evidence the presumption would be that they had only the authority to ship them with all the liabilities of the common carrier attaching, without exception of any description. So it is seen that appellant has failed to show that appellees ever expressly or by implication assented to the exemption from liability by loss from fire.”

We express no opinion as to whether or not Juil-liard & Co. or its agents would be liable over to the Express Company for the deceit which apparently was practiced.

For the reasons stated, we think the court erred in not entering a judgment in favor of the plaintiff in error for the full value of the goods as shown by the record. This value, as heretofore stated, was $170.97. The judgment of the Municipal Court will therefore be reversed and a judgment entered in this court in favor of the plaintiff in error, Nonotuck Silk Company, and against the defendant in error, Nonotuck Silk and against the defendant in error, Adams Express Company, for the sum of $170.97.

Judgment reversed and judgment entered here.

Mr. Presiding Justice Baldwin took no part in the decision of this case.


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    Nonotuck Silk Company, Plaintiff in Error, v. Adams Express Company, Defendant in Error.
    Gen. No. 16,148.
    This ease is controlled by the decision in Nonotuck Silk Co. v. Adams Express Co., ante, p. 519.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and judgment entered here.
    Opinion filed December 22, 1911.
    Rehearing denied January 9, 1911.
    Brode B. Davis, for plaintiff in error.
    Charles B. Elder, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Plaintiff in error purchased a bill of goods from A. D. Juilliard & Company of New York, and ordered them to be shipped by express, without specifying the name of the company. The goods were delivered to the defendant in error and by it lost in transit. Their undisputed value was $490.12, which amount was paid by the Nonotuck Silk Company to Juilliard'& Company.

The case was tried upon a stipulation of facts and a deposition exactly the same as that in ease No. 16147 between the same parties, excepting as to the description of the goods and their value. (Ante, p. 519.)

For the reasons stated in the opinion filed this day in the case last mentioned, the judgment must- be reversed and a judgment entered here in favor'of the plaintiff in error, Nonotuck Silk Company, and against the defendant in error, Adams Express Company, for $490.12.

Judgment reversed and judgment entered here.

Mr. PresidiNg Justice Baldwin took no part in the decision of this case.


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    Robert Schengel et al., Defendants in Error, v. United States Brewing Company, Plaintiff in Error.
    Gen. No. 16,196.
    Landlokd and tbnant — folien latter cannot cancel. If the right to cancel a lease is reserved if a saloon license cannot he obtained or is revoked, such right cannot he exercised for failure to obtain a license, if no bona fide effort was made to that end.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed December 22, 1911.
    WiNSTON, Payne, Strawn & Shaw, for plaintiff in in error; Garrard B. Winston, of connsel.
    Kruse & Peden and Roy C. Merrick, for defendants in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought for rent claimed to be due on a written lease made by the parties hereto. The 7th clause of the lease is as follows:

“7th. It is mutually covenanted and agreed, by and between the parties hereto, that this lease is made upon the express condition and consideration that if the City of Chicago license to conduct a saloon business in said premises, at any time during the said term, is' not granted or if granted shall, at any time during said term, be revoked, then and in such case said lessee shall have the right to terminate this lease by giving thirty days notice in writing of its intention so to do, and upon the exercise of said option said lease shall become null and void.”

The defense is that no license to conduct a saloon business was or could be obtained, and that thereupon the Brewing Company gave the thirty days ’ notice required by this paragraph of the lease and thereby revoked it.

At the trial it was agreed that the lease had been executed; that on the first day of May the defendant below gave notice, which was received by the plaintiffs; that the defendant vacated the premises on or abont the first day of June, and that no rent was paid from that time to the beginning of the snit; that if the plaintiffs were entitled to anything they were entitled to ten months ’ rent at $50 per month.

The ordinance of the Town of Hyde Park also was considered in evidence, and provides “that any person who shall desire to obtain a license to keep a saloon shall present his application in writing, which application shall be signed by a majority of the prop-, erty owners, according to the frontage on both sides of the street in the block in which snch dram-shop is to be kept, and shall be signed by a majority of the bona fide householders and persons or firms living in, or doing business on each side of the street in the block upon which such dram-shop shall have its main entrance. ’ ’

The testimony of three witnesses was introduced in the court below in an effort to establish the fact that plaintiff in error had made a bona fide attempt to obtain a license. No application for a license was offered in evidence. A statement as to this matter made by counsel for the Brewing Company was accepted as being correct. That statement was to the effect that at the trial of another case in which the same issues were involved before another judge, the application for a license and the petition for the signatures that were endorsed thereon were offered in evidence and taken by that judge and retained in his files until after the decision of the case; that the attorney for the defendant in that case endeavored to obtain the exhibit from snch judge, but it had been mislaid and the attorney was unable to obtain the same; that counsel did not know where the application or the petition then was or whether it was in existence or not; that he had not seen it since it was in the possession of the judge referred to. Nothing that purported to be a copy of the application was offered in evidence, but the Brewing Company contented itself with introducing the testimony of three witnesses by whom it was shown that there were twenty-seven houses on the two sides of the street in the block where the proposed saloon was to be established, and that these three men at different times called at all of these houses, and on several occasions sought to get signatures to the petition, but were unable to get more than six or seven. In some instances the canvasser was told that .the person to whom he applied was the owner of the house and also the householder occupying the same. In other instances he was unable to say whether it was the owner or householder whom he saw. No effort was made to prove that the owners of all the property were seen. For the purposes of this case perhaps this was not necessary to be shown, because if a majority of the bona fide householders and persons or firms living in or doing business on each side of the street in the block in which the dram-shop was to have had its main entrance did not sign the petition it would be useless to obtain the signatures of the owners of the property.

The case was tried before the court and a jury and a verdict rendered in favor of the defendants in error for the sum of $435, the deduction of $65 evidently having been made because of the testimony of the defendant in error, Robert Schengel, from which it might appear that the defendants in error obtained $65 from renting a portion of the premises to others during part of the ten months’ period.

We are asked to reverse the judgment and enter a judgment here, on the ground that there was no evi-denc tending to sustain it. In the argument of plaintiff in error it is said: “The only question left for the jury to determine in this case was whether the brewing company had made a bona fide effort to obtain a license.” We infer from this that its position is that by the testimony of the three witnesses heretofore referred to it did prove a bona fide effort to obtain a license. It is true that the testimony of these three witnesses tended to show that they had endeavored to get the necessary signatures from the householders and property owners whose signatures were required, and had failed to do so.

The court charged the jury orally upon the questions involved in the case, and no complaint thereof is made in the briefs.

We do not think the testimony of the witnesses for the plaintiff in error of such a character as would enable us to say that, as a matter of law, a bona fide attempt to obtain a license was made. On their cross-examination they confessed themselves unable to give the names either of the property owners or the householders, etc., whose signatures were necessary in order to make the application effectual. As heretofore stated; the application itself was not offered, nor was a copy of it, and the witnesses did not state who the applicant for the license was. In our opinion the case was properly submitted to the jury on the question as to the bona fides of the effort of the plaintiff in error to obtain a license. The judgment will therefore be affirmed.

Judgment affirmed.


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    Kunz, Marsh & Pendleton, Defendant in Error, v. Louis Ginocchio et al., Plaintiffs in Error.
    Gen. No. 16,207.
    Accord and satisfaction — when established. If there is a dispute between the parties at the time a cheek is sent in payment of an amount its acceptance under such circumstances constitutes an accord and satisfaction.
    Error to the Municipal Court of Chicago; the Hon.- Mancha Bruggemeyer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of fact.
    Opinion filed December 22, 1911.
    Gridley, Culver & ICiNG, for plaintiffs in error.
    Frederick S. Baker, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The controversy in this case arose over the purchase by the plaintiffs in error from the defendant in error of a carload of pineapples. The plaintiffs in error, who were the defendants below, and who are hereinafter called the defendants, telegraphed to the defendant in error, which was the plaintiff below, and hereinafter referred to as plaintiff, asking for lowest price on a car of “Indian River Florida” of certain sizes. A price was made of $1.35 for each crate “f. o. b. Stuart, Florida.” The car arrived in Chicago on May 27, 1909, and was inspected- by the defendants salesman two days later. The pineapples were claimed to have been found in bad order, whereupon the defendants telegraphed to the plaintiff notifying it of that fact and stating they would sell them on account of the plaintiff. Plaintiff did not reply but sent a representative to inspect the pineapples. Their representative reported that he found 21 per cent, decay in the carload. On May 24, 1909, the defendants received an invoice from the plaintiff, the total amount of the invoice being $419'.85. On June 22nd, following, defendants wrote to plaintiff as follows:

“Enclosed please find N. T. Exchange No. 196693 for $331.50 to cover invoice pineapples No. 17885. "We have deducted $87.50 for shrinkage and 85 cents excess freight charges, as per freight bill enclosed. Car arrived here when-weather was very warm and market demoralized with decay of from 25 to 30 per cent. As we are not accustomed to turning down cars in such conditions, and as we believe inproteeting shippers at all times, we took same in, for if we had not done so, you would have lost more than half the car. Hope you will appreciate the manner in which we handled this car, we-remain.”

No reply was made to this letter, but afterwards an attorney for the plaintiff called upon the defendants and presented claim for the balance alleged to be due, namely, $87.50, which the defendants refused to pay. On July 2, 1909, a letter was written by plaintiff to the defendants in which they stated they were still holding defendants’ check for $331.50 in abeyance pending payment of the balance due them. After-wards, and before beginning suit, the check was accepted by plaintiff and paid in the usual course of business.

There was a trial before the court without a jury, and finding and judgment in favor of the plaintiff for $87.50.

We think this judgment should be reversed for two reasons. The goods were purchased on board cars at Stuart, Florida, at a stipulated price. There is no proof in the record that they were in merchantable condition when delivered to the railroad company at that point. An inspection of the fruit in Chicago showed that it was not merchantable when it reached here. This was shown not only by the employes of the defendant, but also by tbe testimony of tbe inspector who examined tbe fruit at tbe request of tbe plaintiff. While it is true tbe fruit may bave been damaged because of delay in transit, we think it was for tbe plaintiff to show tbe condition wbicb it was in when shipped. Tbe plaintiff therefore failed to prove its case by a preponderance of tbe testimony. On tbe other band, in our opinion tbe finding of tbe court was against tbe manifest weight or preponderance of tbe evidence in tbe particular mentioned.

From the statement of the case already made, it is perfectly apparent that there was a dispute between the parties at the time the check sent in payment of the account was accepted by the plaintiff. It bad already written to the defendants that the check was being held in abeyance pending payment of the balance claimed or alleged to be due. The acceptance of the check under such circumstances constituted an accord and satisfaction. Ostrander v. Scott, 161 Ill. 339.

Tbe judgment will be reversed.

Judgment reversed with finding of fact.

Mr. PresidiNG Justice Baldwin took no part in tbe decision of tbe case.


text:
    Wildman Boiler Works, Defendant in Error, v. Great Western Smelting and Refining Company, Plaintiff in Error.
    Gen. No. 16,228.
    Appeais AND errors — when finding of court not disturbed. The finding by the court as to the facts will not be set aside on review unless clearly and manifestly against the weight of the evidence.
    Error to the Municipal Gourt of Chicago; the HoN. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 22, 1911.
    EastmaN, Eastman & White, for plaintiff in error.
    Steele & Silber, for defendant in’error.
   Mr. Justice Clark

delivered tire opinion of the court.

The defendant in error brought suit against the plaintiff in error in the Municipal Court for work done and material furnished in the repairs of a cast iron kettle used in melting metals.

There was a trial before the court without a jury, and a finding and judgment for the plaintiff.

We are asked to reverse this judgment, principally on the ground that- the finding was against the preponderance of the evidence. We have carefully read the testimony in the case and the briefs and arguments of counsel, and cannot say that the finding is so manifestly against the weight of the evidence that there should be a reversal.

The finding of a court which sees and hears witnesses is entitled to the same consideration in this court as the verdict of a jury, and it has repeatedly been held that it is only where this court can determine that the manifest weight of the evidence is against the finding that a judgment will be reversed on that account.

Objection is also made that tbe court committed error in peremptorily everruling tbe motion of plaintiff in error for a new trial, without giving tbe plaintiff in error an opportunity to be heard upon tbe same. "We do not find any point raised by tbe record which would justify the granting of such a motion, and no claim is made in tbe argument that any reason existed for tbe granting of a new trial except that tbe finding was against tbe weight of tbe evidence. All that tbe court could have done under tbe circumstances, in bearing tbe motion, would have been to listen to a re-argument of tbe case, and this we do not think it was called upon to do.

It ought to be observed also that where a case is tried before a court without a jury no motion for a new trial is necessary to protect the rights of tbe defeated party.

We find no error in the record, and tbe judgment will be affirmed.

Judgment affirmed.

Mr. PresidiNG Justice Baldwin took no part in tbe decision of this case.


text:
    Charles J. Schwartz, Plaintiff in Error, v. Chicago, Rock Island & Pacific Railway Company, Defendant in Error.
    Gen. No. 17,340.
    Statute of Limitations — when amendment not retroactive. The amendment which reduces the time within which a writ of error must he sued out is not retroactive.
    Error to the Superior Court of Cook county; the Hon. Axel Chy-traus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed December 5, 1911.
    Rehearing denied December 19, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    HeNRy S. Wilcox and Edward F. Comstock, for plaintiff in error; Jesse Wilcox, of counsel.
    M. L. Bell and A. B. ENoch, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

In this case there was interposed by the defendant in error a plea of the Statute of Limitations to the writ of error. To this plea a demurrer has been filed by the plaintiff in error. The case now comes before us on the motion of the plaintiff in error that the demurrer he sustained and the judgment he reversed and the cause remanded.

The record in this case shows that judgment was rendered in the.Superior Court on February 17, 1906. The writ of error was sued out February 16, 1911. The plea avers that the plaintiff in error ought not to have his writ of error against the defendant in error because the writ of error was sued out more than three years after the rendition of the judgment complained of.

Prior to the enactment of the present Practice Act, which went into effect July 1, 1907, the time limit for suing cut of writs of error was five years after tile rendition of judgment. By section 117 of the present act the time is limited to three years. In the present case, therefore, it is apparent that if the Practice Act of 1907 is to apply then the demurrer to the plea should be overruled and the plea sustained. It has been held, however, that section 117 is not retroactive, and that as to all cases wherein judgment was rendered prior to July 1, 1907, the period of limitation is five years from the rendition of judgment. George v. George, 250 Ill. 251.

The case last cited is also authority for the proposition that the effect of the plea of the Statute of Limitations to a writ of error is to confess that there is error in the record, for which the judgment or decree must be reversed. It follows, therefore, that under the pleadings in the present case the judgment should be reversed and the cause remanded. An order to that effect will be entered.

Reversed and remanded.

Mr. PresidiNG Justice Baldwin did not participate in the decision of this case.


text:
    William E. Mason, Executor, Appellee, v. James H. Hooper, Appellant.
    Gen. No. 17,614.
    1. Receiverships — when failure to require bond will not reverse. Unless the necessity of giving a bond as provided by statute is dispensed with in the order of appointment, an order reversing the order appointing the receiver will not be entered.
    2. Receiverships — when improper in foreclosure cases. In the absence of a showing a receiver before sale is improper in a foreclosure proceeding where the trust deed does not provide therefor and this notwithstanding the rents and profits are pledged for the payment of the mortgage debt.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed December 22, 1911.
    Rehearing denied January 9, 1912.
    A. Gr. Dicus, for appellant.
    Charles E. Pope, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This is an appeal from an interlocutory decree appointing a receiver of property covered by a trust deed sought to be foreclosed by a bill in chancery brought for that purpose.

The record shows that a trust deed was given by Susan Kobliska and Joseph Kobliska, her husband, on October 1, 1902, to secure a promissory note for the sum of $500, payable three years after the date thereof, and is in short form, pledging the rents, issues and profits as security for the payment of the amount of the incumbrance, but not providing for the appointment of a receiver in the event of foreclosure proceedings.

The bill alleges as ground for foreclosure that the defendants have suffered the premises to be sold for tases and that the purchaser at such tax sale is now entitled to a deed.

It appears from the record that the appellant, Hooper, who was made defendant, filed his appearance and resisted the appointment of a receiver. Prior to perfecting his appeal by filing a bond, he interposed a general demurrer in the case.

The grounds upon which it is insisted by the appellant that the order should be reversed are that the provisions of section 53 and 54 of Chapter 22 of the Revised Statutes were not complied with; that the verification to the bill was insufficient and afforded no foundation for.the appointment of a receiver; that there was no proof that the original maker of the note is insolvent; that the proof shows that the property was sufficient security, and that the clause in the trust deed granting the trustee or his successor in trust the right to enter into and upon and take possession of the premises does not grant the power to the holder of the note as sole complainant to have a receiver appointed.

Section 53 of chapter 22 of the Revised Statutes is to the effect that before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge, conditioned to pay all damages, including attorney’s fees, sustained by reason of the appointment and acts of such receiver. It also provides that bond need not be required when, for good cause shown, and upon notice and full hearing, the court is of the opinion that a receiver ought to be appointed without such bond.

The order appointing a receiver does not in terms dispense with the requirement of the statute that the receiver give a bond to the complainant. In Watson v. Cudney, 144 Ill. App. 624; Staar v. Moy Tong Koon, 145 Ill. App. 341; Ayers v. Boal, 150 Ill. App. 137, and in the case of Aevermann v. Rizek, 160 Ill. App. 648, it has been held that unless the necessity of giving a bond so provided for bv the statute is dispensed with in the order of appointment, an order reversing the order appointing the receiver will be entered in this court. These decisions were all rendered in this district, and we feel that thev should be followed by us, even if our own views might be different were the question one that had not previously been'passed upon. By so holding uniformity of the practice is secured.

In the First National Bank v. Illinois Steel Co., 174 Ill, 140, it was held that where a trust deed provides in terms for the appointment of a receiver npon the institution of foreclosure proceedings, the appointment of a receiver is a right which the owner of the note secured by the trust deed has, and that the appointment is not one that rests in the discretion of the chancellor.

The trust deed in the present case was executed in October, 1902; the act referred to did not take effect until July 1, 1903. It has been suggested that therefore the act does not apply. We think it is unnecessary for ns to determine whether or not it would apply in a case like that last referred to (First National Bank v. Ill. Steel Co., supra) because in the present case the trust deed does not provide for the appointment of a receiver, although the rents and profits are pledged for the payment of the mortgage debt.

For the reasons given the order appointing a receiver will be reversed.

We find it unnecessary to discuss the other points mentioned in the briefs.

Order reversed.