text:
    Sarah T. Burge, Appellee, v. St. Louis, Springfield & Peoria Railroad, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Sarah T. Burge recovered a judgment against the St. Louis,' Springfield & Peoria Railroad for seven hundred dollars, in action for damages for personal injuries received through alleged negligence of appellant while she was alighting from one of its cars. The defendant appeals.
    The plaintiff claimed that the appellant so negligently managed and controlled its car that it was not stopped at a certain crossing, so as to permit the appellee to alight upon the crossing, but that the car was negligently and carelessly stopped so that the steps thereof were about six feet north of the north line of the crossing, and that the agents and servants of the defendant negligently failed to exercise due and proper care in assisting plaintiff to alight from the car; that by reason of the darkness, she could not by the exercise of ordinary care for her own safety, observe and know that the steps of the car were not over and above, the crossing, and that while in the exercise of due care, and having good reason to believe and believing that said steps were above the crossing, she was, by reason of the great distances and the uneven and slanting condition of the ground, there caused to fall and sustain an injury.
    Abstract of the Decision.
    1. Carriers, § 396-r-«?7iem. duty to stop street car with step over crossing. It is not the duty of a carrier to stop a street car in a city or village so that its steps are directly over a crossing.
    2. Carriers, § 401a*-—v)hen duty to assist passenger in alighting from, street car. It is not the duty of a carrier, under ordinary circumstances, to assist passengers in alighting from street cars.

      The verdict is alleged to be contrary to the law and the evidence. The evidence showed that appellee resided near the crossing in question, which was constructed of brick and was about three feet wide. The street where the appellee alighted was the ordinary unpaved street of a country town, and while it probably was somewhat lower than the crossing itself, no dangerous conditions were shown to exist therein. When the car came to a stop, appellee and a friend proceeded to get off, the latter leaving the car first in safety. Appellee followed, and as she stepped off the car she missed her step and her foot turned under her, and her ankle was dislocated and sprained.
    Rinaker & Rinaker, J. B. Hardaway and Burton & Hamilton, for appellant.
    Edward C. Knotts, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

3. Cashiers, § 476*—when liable for injury to passenger in alighting from street car. Where a street car was stopped in the nighttime with its steps several feet from a cross walk at a point where the ground was lower than the walk, or slightly uneven, and a passenger in alighting missed her step and sprained her ankle, held that no negligence on the part of the carrier was shown.


source: Caselaw Access Project

author: Mr. Presiding Justice Eldredge

license: Public Domain

text:
    Josephine Weakley, Appellee, v. Adolph G. Mizell and Cora C. Mizell, Appellants.
    1. Bills and notes, § 378

      —when possession of note evidence of payment. The fact that a maker after maturity has possession of a note is prima facie evidence of its payment.
    2. Bills and notes, § 451*—when presumption of payment of note overcome. The possession of a note by the maker after maturity, together with a receipt from the payee for the payment of the amount represented by the instrument, is prima facie evidence of payment, which can he overcome only by clear and convincing proof.
    3. Fraud, § 89*—who has burden of establishing. The person alleging fraud has the burden of proving it.
    4. Appeal and error, § 1175*—when error assignable on verdict of jury in chancery case. Even in the absence of a motion to set aside a verdict and for a new trial, error may be assigned on the admission of evidence, the instructions of the court, and such other questions as might be determined on such a motion, where a decree is entered in a chancery cause upon the pleadings and the verdict of a jury, without any independent findings by the chancellor.
    5. Equity, § 379*—conclusiveness of verdict of jury. On the trial of a feigned issue in chancery the chancellor may adopt the verdict of the jury, or set it aside and enter such a decree as in his judgment equity demands; or if his conscience, is satisfied from the evidence as to where the equities lie, he may enter a decree without setting aside the verdict, since the parties are entitled to his independent judgment as derived from his consideration of the evidence regardless of the verdict.
    6. Mortgages, § 499*—who has burden of proving payment. An instruction in a suit to foreclose a mortgage and to cancel a release alleged to have been fraudulently procured by the mortgagor, that the burden of proof was upon the defendant to prove payment of the secured debt by a preponderance of the evidence, held erroneous, where prima facie evidence of payment arose from the defendant’s possession of the note secured by the mortgage.
    7. Feaud, § 89

      —burden of showing possession of note and release of mortgage fraudulently obtained. One who alleges that the possession of a note and the release of a mortgage were fraudulently obtained by the mortgagor has the burden of proving the truth of the charge.
    8. Trial, § 131*—when insinuations against female witness reversible error. Where counsel in his opening statement attacked the reputation of a female witness for the opposite party, and after an objection thereto was sustained renewed the attack, and objection was again sustained, and during his examination of the witness, without any basis therefor, he put insinuating questions to her impugning her character, notwithstanding the sustaining of repeated objections, held to be reversible error.
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with directions.
    Opinion filed April 16, 1915.
    W. C. & T. M. Headen, D. G. Thompson and George B. Rhoads, for appellants.
    E. A. Richardson, Whitaker, Ward & Pugh and W. C. & W. L. Kelley, for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellee, Josephine Weakley, filed her bill to foreclose a mortgage executed by appellants and to cancel a release of said mortgage which had been entered on the margin of the record thereof and executed by her. The hill avers that the mortgage was executed to secure a principal note .of $4,000, dated June 24, 1908, payable to the order of appellee within three years with interest at the rate of six per cent, per annum. To the original note were originally attached six semiannual interest coupon notes of $120 each. The mortgage covered two pieces of property situated in 'Shelbyville and owned by appellant, Adolph Gr. Mizell. One was a residence property and the other was a business property. The mortgage contained a provision that when the sum of $1,500 shall have been paid on the principal note secured therein, the last above described real estate shall be released of record by the mortgagee. The coupon interest notes became due each December 24th and June 24th, successively, after date of the principal note and mortgage.

The bill further avers that on June 24, 1910, A. G. Mizell paid $2,000 on the principal note and requested her to release the mortgage as to one of the premises described therein; that she at his request went to the recorder’s office, being entirely ignorant of all matters pertaining to the releasing of mortgages, and that A. Gr. Mizell fraudulently procured her to sign her name on the margin of the record by falsely representing to her that she was only releasing the mortgagee as to one of said premises; that at the time said fraudulent release was obtained the principal note and unpaid coupons were in her possession and so remained until December 24, 1910, when A. Gr. Mizell paid her the interest due on one coupon; that until a few days before this suit was brought she supposed she still had possession of said principal note and the last interest coupon; that on June 24, 1911, the balance of the $2,000 of said principal note became due, together with the interest; that when she requested Mizell to pay the same he refused and claimed that he had fully paid the total debt June 24,1910, and that he had possession of the principal note aiid interest coupons.

The bill further avers that said principal note and interest notes were procured by Mizell through some trick or artifice “which had escaped the attention of your oratrix at the time the same were so obtained,” and prays that said release be set aside and said mortgage foreclosed for the balance of the principal note of $2,000 and. accrued interest.

The answer of appellants denies all allegations of fraud and avers that the payment on June 24, 1910, was $2,120 and not $2,000 as averred in the bill, and that said amount together with the prior payments fully satisfied and discharged the entire debt, both principal and interest, and that said mortgage was released by appellee of her own free will and accord with the intention of releasing the entire mortgage as to all the property, as the entire indebtedness was fully paid.

Two feigned issues of fact were submitted to the jury: First, did appellants procure the release of the mortgage by fraud; and second, has the principal note been paid in full? The jury returned a verdict on both issues in favor of appellee. Appellants did not make a motion for a new trial, but moved the court to disregard the verdict and to enter a decree dismissing the bill, which motion the court overruled, and the decree recites: “Thereupon coming on for final hearing upon the bill of complaint herein, the answer of the defendants thereto and the replication of the complainant to said answer, and the verdict of said jury; and the court being fully advised in the premises, doth find:”—and proceeds to find all the facts in favor of appellee, orders the release to be set aside and the mortgage foreclosed.

Appellant, A. Gr. Mizell, was a practicing physician •and there is no dispute in the evidence but that on December 23, 1908, he paid the first coupon interest note in currency to appellee and received the note and also a receipt for its payment from her; that he paid the second coupon interest note in currency June 23, 1909, and received the note and also a receipt for its payment; that he paid the third coupon interest note in currency December 24, 1909, and received the note and also a receipt for its payment.

The controversy in the case arises over a payment claimed to have been made by Dr. Mizell May 27,1910. In May, 1910, he and his wife visited his father’s home in New Burnside and while there he claims to have written appellee a letter stating that he intended' to pay a part or all of the principal note on or before June 24, 1910. Appellee admits she received this letter from him, but claims that nothing was said in the letter except that he intended to pay the interest. The letter was not produced by appellee. The note itself provides the privilege of paying $100 or more on the principal on any interest date upon giving thirty days ’ notice of intention so to do, and Dr. Mizell testifies that the purpose of writing the letter in question was to give this thirty days’ notice that he was going to make a payment on the principal. Such explanation is entirely reasonable as there was no necessity to give any written notice that he was going to pay the interest. He testified that on May 27,1910, after he had returned from his visit to his father’s home, he met Mrs. Weakley on the streets in Shelbyville, and that Mrs. Weakley said she had received his letter and expressed regret that he should pay any part of the principal but that she would accept it and that he told her he could pay her now; that appellee repliéd that she did not have the note with her and he said that she could give him a receipt for the payment and credit the amount on the note later, and that he and appellee went to his office where he took from his safe $2,000 in currency and paid the'same to her; that he gave her five packages containing $300 each and one package containing $500; that she counted it and put it in her handbag; that he prepared a receipt for her to sign for the $2,000, which she did, and went away. This receipt was introduced in evidence, was dated May 27, 1910, and is for $2,000 “payment on note of $4,000.” Appellee admits that her signature to this receipt is genuine, but claims that she was not in Dr. Mizell’s office on that day or about that time and does not know when, how or why she signed it. Dr. Mizell is more or less corroborated by three other witnesses, who were in his office on that day, and who testify positively that they saw appellee there at that time.

On June 24,1910, Mrs. Weakley accompanied by her niece, Mrs. DeWald, went to the office of Dr. Mizell and it is not controverted that he at that time paid to Mrs. Weakley by a draft the sum of $2,120. Dr. Mizell testified that Mrs. Weakley at this time surrendered to him the principal note to which were attached the remaining three coupon interest notes, and also a receipt for the payment, which was a receipt for $2,120 “in full balance due on note with interest in full to date.” Mrs. Weakley admits that she signed a receipt for this sum at this time but did not know what the contents of said receipt were. Mrs. DeWald testified that she read the receipt at the time Mrs. Weakley signed it, and that the words quoted above were not at that time embodied in the receipt. Mrs. De-Wald testified that Mrs. Weakley on this day did not have the principal note in Dr. Mizell’s office, while Mrs. Weakley testified that she did have said note there at that time. After this payment of $2,120, Dr. Mizell, Mrs. Weakley and Mrs. DeWald went to the office of the circuit clerk for the purpose, as claimed by Mrs. Weakley, to have one of the properties, only, released from the mortgage, while as claimed by Dr. Mizell it was for the purpose of releasing the whole mortgage. The clerk produced the record book in which the mortgage was recorded and the usual marginal release. of the mortgage was executed by Mrs. Weakley and witnessed by the clerk. The evidence does not disclose that anything was said or done by any of the parties at this time other than the clerk was asked to produce the record, which he did, and Mrs. Weakley signed the marginal release, which the clerk witnessed, though Mrs. DeWald testifies that she cautioned Mrs. Weakley to he careful. Dr. Mizell testifies that when he handed Mrs. Weakley the draft for $2,120 she said that she though! he was only going to pay the interest and had only brought the note and not the mortgage and that he told her that was all right, that she could give him the note and a receipt for the draft, go to the courthouse, release the mortgage, and hand him the mortgage any day.

There have been two trials on these issues, and on the first trial Mrs. Weakley testified that Dr. Mizell made two payments of interest on this note after June 24, 1910, and that she cut the coupons from the note each time and delivered them to Dr. Mizell. The evidence shows conclusively that she was mistaken as to this, as the note itself shows that the last three coupons had never been detached therefrom. On this trial she admits that she was mistaken in the testimony given by her in this regard on the former trial. Her statements on the two trials are conflicting as to when she first discovered she did not have possession of the original note. The above presents, in substance, the testimony as it appears in the record.

The possession of the principal note by Dr. Mizell, which was past due when the bill was filed, was prima facie evidence of its payment, and the receipt of May 27th for the $2,000 is prima facie evidence of the payment of that amount at that time, and the legal effect of the receipt and the possession of the note can only be overcome by clear and convincing proof. The principal circumstances argued to support the contention that the payment of the $2,000 on May 27th was never in fact paid by Dr. Mizell, is the fact that he claims to have paid this amount in cash taken from his safe. The evidence shows that every payment of interest made upon the note had been made in cash, and that before he made the last payment of $2,120 he went to the bank and asked for that amount in cash, but through the advice of the cashier procured a draft instead. This last payment of $2,120 was made up partly of his own money and partly of money procured from his father. It is also argued that because Dr. Mizell when he paid each of the coupon interest notes not only received the note, but also took a receipt for its payment, is evidence of fraudulent intention on his part for laying a foundation to subsequently defraud Mrs. Weakley out' of a portion of her money. While these methods of payment were not possibly in accord with modern business methods of conducting such transactions, yet they were not in and of themselves evidence of fraud, and the burden of proving the fraud was upon appellee.

It is insisted that as appellants made no motion to set aside the verdict and for a new trial, they are now precluded from assigning any errors on the admission of evidence or the instructions of the court or upon any other questions which might have been determined upon such a motion if it had been made. This undoubtedly would have been true if the decree of the chancellor had been based upon his independent findings. Riehl v. Riehl, 247 111. 475; Fanning v. Russell, 94 111. 386. The decree in this case, however, appears to be based simply upon the pleadings and the verdict of the jury. In the trial of feigned issues in chancery, the chancellor may adopt the verdict or may set the same aside and resubmit the issues to the jury or may disregard the verdict entirely and enter such a decree as in his judgment equity demands, and if his conscience is satisfied as to where the equity lies from the evidence, he may enter a decree without setting the verdict aside, but the parties to the suit are entitled to the independent judgment of the chancellor derived from his consideration of the evidence regardless of the verdict of the jury. It follows, therefore, that the decree, being based solely upon the verdict of the jury, if the verdict may have been procured or -influenced by the wrongful admission of evidence or erroneous instructions in regard to the law, the decree cannot be sustained. Guild v. Hull, 127 Ill. 523.

The seventh instruction given on behalf of appellee instructs the jury that upon the issue as to whether the principal note offered in evidence had been paid in full, the burden of proof was upon the defendant to prove such payment, and that unless it believed that the defendants had proven the payment of said principal note in full by the preponderance or greater weight of the evidence, then it should find the issue in favor of the complainant. The possession of the note by defendants was prima facie evidence of its payment. The bill alleges that defendants claim to have possession of the note and if they did have possession of the note it was procured by fraud. The burden of proof upon this issue was clearly upon complainant. The instruction was erroneous and might well have been responsible for the verdict.

In the opening statement of counsel for appellee he made an attack upon the reputation of one of the witnesses who appeared for appellants, who was a woman. An objection to the remarks was sustained, but almost, immediately afterwards a similar attack was made to which an objection was again sustained, and during the examination of the witness insinuating questions were propounded to her impugning her character. Notwithstanding that objections were sustained, counsel repeated the questions. So far as the record discloses, there was no basis for this attack upon the character of the witness, and the result of such remarks and examination could be but to prejudice the jury against her testimony. The repetition of -such erroneous conduct is error even -though objections thereto are sustained.

The decree must be reversed, and in'accordance with the chancery practice in such cases, with directions to the chancellor to either set aside the verdict and grant a new trial upon the issues, or to enter a decree based upon his independent judgment derived from the evidence.

Reversed with directions.


text:
    J. A. Matheny, Appellee, v. E. L. Lees, Appellant
    (Not to he reported in full.)
    Appeal from the City Court of Pana; the Hon. D. W. Maddox, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Appeal by the defendant, E. L. Lees, from a judgment recovered against him by J. A. Matheny for $246.37, in an action of assumpsit, based upon the following written memorandum:
    “Paha, III., 4-9-’ll.
    This is to certify that J. A. Matheny has half interest in the note and mortgage on Tower Hill meat market, less expenses, amount about $600.00.
    (Signed) E. L. Lees.”
    Such instrument was given to appellee by appellant at the conclusion of a real estate deal in which both had an interest. The note and mortgage taken in the name of appellant represented the commissions of appellee and appellant for negotiating the sale of the property.
    The evidence showed that appellee and appellant had been partners in the insurance business for about a year, and that in addition to that business they negotiated several real estate deals.

      Abstract of the Decision.
    1. Partnership, § 102

      —when question for jury whether obligation between partners relates to partnership matter. Whether a written promise to pay given by one partner to his copartner relates to a partnership transaction so as to prevent the maintenance of an action at law thereon, is a question for the jury.
    2. Appeal and error, § 1411*—when verdict on conflicting evidence conclusive. A finding of a jury based on conflicting evidence, that a promise of one" partner to pay a sum of money to his copartner did not relate to a partnership transaction, is conclusive on appeal.
    3. Trial, § 276*—-when special interrogatories submitted to jury. A special interrogatory should not be submitted to the jury unless it relates to an ultimate fact.
    4. Trial, § 276*—when special interrogatory does not relate to ultimate fact. A requested special interrogatory held not to relate to an ultimate fact.
    It was the contention of appellee that the real estate deals constituted no part of the partnership business, but were carried on as independent transactions and that at the conclusion of each a settlement was made for the work each had done in reference to the same; and that the only deal remaining undisposed of at the time of the suit in question was that here involved. Appellant contended that these real estate deals were partnership affairs, and that one partner cannot sue another at law until a dissolution of the. partnership.
    The court refused to submit to the jury the following special interrogatory requested by the appellant:
    “Did the plaintiff and the defendant, during the time they were associated together, deal in real estate generally for their mutual profit, sharing the profits, losses and expenses incident to said business?”
    E. E. Dowell and R. J. Monroe, for appellant.
    George T. Wallace, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Phoebe Nye, Appellant, v. E. E. Clark, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action on the case brought by Phoebe Nye against E. E. Clark for malpractice in the treatment of her eye. The plaintiff appeals from the judgment rendered on the verdict finding the defendant not guilty.
    When appellant was twenty-three years of age her left eye was removed from the socket. Pour years later a surgeon at Cincinnati unsuccessfully performed an operation including a grafting of skin in and about the eyelids for the purpose of permitting the use of an artificial eye. Twenty-four years later she went to appellee, who was a specialist in the diseases of the eye, ear, nose and throat, for the purpose of having one of her ears treated, when the condition of her eye and the possibility of the use by her of an artificial eye through another operation was frequently discussed, and resulted in appellee performing the operation on her eye over which this controversy arose. Appellant testified that appellee assured her he could perform the operation successfully, while appellee testified he told her that there was a fair chance of a successful operation, but he rather discouraged it on account of the appellant’s age. Appellee grafted skin taken from the arm of appellant onto the eyelids. The operation, so far as the grafting was concerned, appeared to have been successful, but the eyelids shrank to such an extent that an artificial eye could not be used; and appellant claims that as a result of the operation the eyelashes on the upper lid were destroyed so as to disfigure her more than she was before the operation. Appellant then went to Chicago and had another operation performed by a specialist in that city, which" was also unsuccessful. Afterwards she went to Joliet and had still another operation performed, which was likewise unsuccessful. She then brought this suit against the appellee.
    Abstract of the Decision.
    1. Physicians and surgeons, § 20

      -—who has burden of proving surgeon’s negligence. The plaintiff in an action against a surgeon for negligence in unsuccessfully grafting skin to an empty eye-socket for the purpose of permitting the use of an artificial eye, has the burden of proving that the operation was negligently and unskilfully performed.
    Appellant introduced no evidence, except her own as to the skilfulness of the operation performed by appellee. While the evidence for appellee, shown by a number of experts, tended to prove that the operation was skilfully performed and in accordance with the modern scientific knowledge of such operations. It is a matter of great doubt from the evidence whether the disfigurements now complained of were caused by the operation performed by appellee or the subsequent operations performed by the other specialists.
    The jury were instructed that ’ the appellee was bound only to exercise the ordinary skill and care such as physicians in good practice ordinarily use, and the appellant also requested and caused the court to give instructions announcing the same rule.
    R. F. Anderson and R. Allan Stephens, for appellant.
    W. R. Jewell, Jr., for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

2. Physicians and surgeons, § 22 —when evidence sufficient to sustain verdict for defendant in action for malpractice. A verdict for the defendant in an action against a surgeon for unsuccessfully grafting skin to the plaintiffs empty eyesocket for the purpose of permitting the use of an artificial eye, held sustained by the evidence, where twenty-four years before a similar operation proved unsuccessful, as did two other operations performed after that of the defendant.

3. Evidence, § 440*—sufficiency of objection to hypothetical question. Objections to hypothetical questions put to expert witnesses must specifically point out the grounds thereof.

4. Physicians and surgeons, § 23*—instruction as to shill of specialist. An instruction in an action against a specialist for malpractice, given at the request of the defendant, to the effect that he was held to the exercise of ordinary skill only, is not erroneous where a similar instruction was given at the request of the plaintiff.

Scholfield, J., took no part in the consideration of this case.


text:
    Ruth Baker, Appellee, v. Mode Millinery Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October ■ term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Ruth Baker recovered a judgment in the sum of five hundred dollars in an action of assumpsit against the Mode Millinery Company for breach of a contract of employment from which the defendant appeals.
    The evidence showed that the appellee, who was an experienced manager of millinery stores, was employed by appellant as manager of its store in Bloomington, under a contract, made January 15, 1913, for one year, her employment to commence February 10, 1913. Appellee claimed she was to receive twenty-five dollars per week, while the appellant company contended that her employment was for fourteen weeks beginning February 10, 1913, provided that she “made good.” That after appellee worked about three weeks she was told that as the business was not paying, she must discharge one of the clerks, which she refused to do as she had employed the clerk for the season ending in July, and rather than break her agreement with the girl, who was only receiving ten dollars a week, she agreed to pay her five dollars per week out of her own salary, to which the appellant agreed, and thereafter the appellee received twenty dollars a week until about July 12th, when she was told that expenses were too high and that during the dull season, which lasted from July 1st until about August 15th, her salary would have to be cut from twenty dollars to ten dollars a week; that she told appellant that she could not live on ten dollars a week, and the appellant said he would make it fifteen dollars a week until the busy season started about August 15th, and then he would make it twenty-five dollars a week until February 10, 1914; that appellee worked at fifteen dollars a week until about August 12th, when she was discharged under protest; she immediately tried to "secure a similar position with several merchants -in Bloomington, which she was unable to do at that season of the year, and she then went to Chicago where she also failed to secure employment, and finally returned to Bloomington and accepted a position as a clerk in the millinery department of another store at a salary of fifteen dollars a week for ten weeks; that the one hundred and fifty dollars thus received for the ten weeks was all that she was able to earn from the time she was discharged to February 10, 1914; that in seeking this employment she was put to an expense of twenty-five dollars.

      Abstract of the Decision.
    1. Continuance, § 7

      —when continuance denied on amendment of pleadings. Where on sustaining a motion to strike out the plaintiff’s evidence as to a contract ‘of hiring, because within the Statute of Frauds, he was permitted to file a special count alleging a special agreement not within the statute, a continuance on the ground of surprise was properly denied the defendant, where the cause of action set up in the special count was identical with that disclosed by the affidavit which accompanied the original declaration.
    2. Frauds, Statute of, § 86a*—modification of contract mihin. Where a contract of hiring is within the Statute of Frauds, there may be a recovery on a substituted agreefnent not within the statute, made on the abandonment of the original contract.
    The original declaration consisted of the common counts, with which was filed an affidavit of the amount due, stating that the amount sued for was for wages and damages due the appellee from appellant from August 19, 1913, to February 10, 1914. During the trial appellant made a motion to exclude all the testimony introduced by appellee concerning the original contract made on January 15, 1913, on the ground that it was void under the Statute of Frauds, which motion the court sustained. By leave of court appellee filed an additional special count, which was based upon the agreement made by appellee and appellant on July 12th, by which appellee was to receive fifteen dollars per week from that time until August 15th, when she was to receive twenty-five dollars a week until February 10, 1914, when appellant’s motion for a continuance on the ground of a surprise was overruled.
    Light & Light, for appellant.
    DeMange, Gillespie & DeMange, for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

3. Damages, § 66 —when expense of seeking other employment recoverable in action for breach of contract of hiring. An experienced manager of millinery- stores, when wrongfully discharged before the expiration of a contract of hiring, may in an action for the breach of the contract recover money expended in seeking similar employment elsewhere.


text:
    W. L. Wright and W. H. Fry, Appellants, v. T. H. Lane, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Montgomery county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action of assumpsit brought by W. L. Wright and W. H. Fry against T. H. Lane, to recover damages for an alleged breách of a contract. Judgment was entered in favor of the defendant, and plaintiffs appeal.
    The case was tried before the court without a jury. No propositions of law or fact were asked, the appellants claiming that the court should have found differently on the facts.
    The evidence showed that appellants contracted August 8, 1907, to undertake the sale of two hundred lots to be laid out and platted from a-tract of land owned by appellee, and as a guaranty of good faith agreed to pay appellee $1,000 within thirty days from the acceptance of the contract, to be considered as an advance payment on the purchase price of the land; that appellants also agreed to pay the interest on a note for the principal sum of $3,500 secured by mortgage on the land; that the lots should be sold at an average price of $100; that the contract also provided the compensation the appellants were to recover for their services, and for the payment of the appellee from the proceeds of the sales, and for the conveyance of title; that the tract consisted of about one hundred and fifteen acres of farm land located from one-fourth to three-fourths of a mile from the city limits of the city of Litchfield; that appellants paid to appellee the $1,000 mentioned in the contract and had the land platted, but nothing further was ever done by the parties under the contract until the year 1910, except that appellants paid the interest on the note and some of the taxes; that no lot was ever sold; that in June, 1909, the appellee conveyed to another party forty-five acres of the tract and told appellants that he could not wait any longer for them to proceed under the contract and intended to sell a portion of the land.
    It is contended by appellants that they- had no knowledge of this sale until about May 1, 1910, when they went to Litchfield for the purpose of advertising a sale of the lots; and they claim that such sale by appellee constituted a breach of the contract, and prevented them from proceeding under the terms thereof. There was evidence tending to show, that the contract had been abandoned by the parties, and that several attempts had been made by appellants to sell the farm en masse. Appellee claims that his loss of crops from the land for the seasons from 1907 to 1910, by reason of the failure of appellants to sell the lots, more than offset the payment of $1,000 and the interest and taxes and other expenses paid by them.
    W. L. Colby and Amos Miller, for appellants.
    Hill & Bullington and T. A. Gasaway, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

Contracts, § 387 —breach of contract for platting and sale of land. A finding for the defendant in an action for the breach of a contract for the platting and sale of land, held sustained by the evidence.


text:
    Arthur Milliron for use of J. P. Gately, Appellee, v. Electric Wheel Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action was instituted by Arthur Milliron for the use of J. P. Gately, before a justice of the peace, to recover from the Electric Wheel Company, the employer of Arthur Milliron for a suit of clothes and two pairs of shoes sold to Milliron for the Gately Credit Clothing Company. On an appeal to the Circuit Court, appellee recovered a judgment against appellant for the sum of $17, from which it appeals.
    Milliron assigned and set over to the Gately Credit Clothing Company all wages or salary, commissions and credits due or to become due or payable to him in the next five years following his last pay day, from the Electric Wheel Company and every succeeding employer, together with a power of attorney to J. P. Gately, or any other person whom he might substitute and appoint for him in his name,.place and stead, to execute and deliver to said clothing company an assignment or assignments or other instrument in writing, which should effectually and legally convey and transfer unto the clothing company any and all wages or salary due or to become due or payable to him from any and every employer whom he might have within the next five years. Appellant was notified by the Gately Credit Clothing Company of such assignment.
    Abstract of the Decision.
    Assignments, § 31

      —who may sue on contract of assignment. Without an assignment to him, J. P. Gately cannot maintain an action against an employer on an assignment of an employee’s wages to the Gately Credit Clothing Company, although the company is not a corporation and is controlled hy J. P. Gately.
    Appellant contended that as the suit was brought for the use of J. P. Gately and not the Gately Credit Clothing Company, and there being no assignment of the wages to Gately, the judgment could not be. sustained. The only evidence as to who and what constitutes the Gately Credit Clothing Company, was that it was not a corporation, and that it was under the control of J. P. Gately.
    Govert & Lancaster, for appellant.
    F. W. Munroe, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Estate of Frances E. Harwood, Deceased, Appellee, v. Hemon C. Harwood, Executor, Appellant.
    1. Executors and administrators, § 74

      —jurisdiction of petition for citation to compel inventory. A County Court sitting in Probate has jurisdiction of a petition for a citation to compel an executor to inventory money invested by him under a power of attorney, for the testator in his lifetime, since the attorney in doing so acted as a trustee under a fiduciary relation.
    2. Executors and administrators, § 74*—sufficiency of evidence to require executor to inventory property. Where a person seven months before the death of a testator gave to the latter’s children a schedule of investments made for the testator under a power of attorney, such schedule is, in a proceeding for a citation to require him as executor to inventory certain property of the estate, prima facie evidence that the property so scheduled was in his possession at the time of the testator’s death.
    3. Executors and administrators, § 74*—when answer in proceeding for citation not evidence in execiotor’s favor. Since no formal pleadings are necessary or required in a proceeding before a County Court sitting in Probate for a citation to require an executor to inventory property, an allegation of his answer that a certain note was given him by the testator is no evidence of that fact.
    4. Witnesses, § 132*—when executor competent witness in citation proceedings. An executor is not a competent witness in his own behalf unless called upon by the court to testify, in a proceeding for a citation to compel him to inventory property alleged to belong to an estate.
    5. Gifts, § 27*—presumption and burden of proof’ as to gift from parent to child. A son who makes investments for his mother under a power of attorney occupies a fiduciary and confidential relation towards her, so that after her death there is a presumption against the validity of a gift from her to him; and to sustain the gift he has the burden of proving good faith, and full knowledge and independent action on the part of the donee.
    6. Executors and administrators, § 73*—when executor not excused from inventorying note. An executor, who acted for the testator during his lifetime under a power of attorney, is not excused from inventorying a note which belonged to the testator, because before his death the attorney deposited the note with a bank as collateral for his own debt, since the note was, within the meaning of the statute, in his possession at the time of the testator’s death.
    7. Witnesses, § 140

      —when testimony of executor inadmissible on proceeding for citation. The fact that on an appeal from a County Court to the Circuit Court in a proceeding for a citation to require an executor to inventory certain property, the petitioner introduced a portion of the testimony given by the executor in the County Court which tended to show that during the testator’s lifetime the executor, under a power of attorney, made investments in his own name for the testator, does not render the remainder of his testimony admissible in his own behalf.
    8. Executors and administrators, § 74*—sufficiency of evidence to require executor to inventory property. The evidence in a proceeding for a citation to require an executor to inventory certain property, held to show the correctness of a schedule made by him for the benefit of the children of the testator, seven months before the latter’s death, showing investments made by him under a power of attorney for the testator during his lifetime.
    9. Executors and administrators, § 74*—when errors of law assignable in citation proceedings. Since the court is not called on to pass upon propositions of law in proceedings for a citation to require an executor or administrator to inventory property, errors cannot be assigned on the court’s ruling on questions of law.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    James C. Riley and Livingston & Bach, for appellant.
    Taylor & McWilliams and DeMange, Gillespie & DeMange, for appellee.

      See Illinois Notes Digest, Yois. 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 Eldredge

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court entered on a hearing on a petition filed in the County Court for a citation directed against appellant, one of the executors of the estate of Frances E. Harwood, deceased, to compel him to inventory certain personal property and real estate claimed to be the property of said estate. The canse was heard in the Circuit Court on appeal from the County Court.

The petition was filed by Bernadine H. Holdredge, one of the devisees and also an executrix of said estate. Frances E. Harwood died testate April 8, 1913, leaving her surviving Hemon C. Harwood, Kirk B. Harwood, her sons, and Bernadine Holdredge, her daughter. By her will she appointed Bernadine Holdredge executrix, and Hemon C. Harwood executor thereof. David B. Harwood, husband of Frances, and father of the above mentioned children, died June 8, 1912. D. B. Harwood and Hemon C. Harwood since 1904, and up to the time of the former’s death, had been in business together as D. B. Harwood & Company. The business was that of loaning money, dealing in real estate and insurance. In 1904 Frances E. Harwood, now deceased, received an inheritance of $50,000. The father and son as D. B. Harwood & Company invested this money for her. Some of it was used in the purchase and sale of real estate and some' was loaned. Hemon C. Harwood, according to his testimony, had a power of attorney from his mother, Frances E. Harwood, deceased, authorizing him to loan her money, take the securities therefor and make real estate and other investments therewith in his own name and these things were done by him. After the death of the father in June, 1912, Kirk Harwood and Bernadine Holdredge demanded of Hemon C. Harwood a statement of their mother’s property and affairs. Pursuant to such request appellant on the twenty-second day of August, 1912, furnished a schedule of personal property consisting mostly of notes secured by mortgage amounting to over $30,000, and also a number of tracts of real estate. The schedule concludes with the following certificate signed by appellant :

“Above properties, mortgages, etc.-, owned by Frances E. Harwood on eighth month, twenty-second day, 1912, according to my knowledge and belief. Hemon C. Harwood.”

The schedule was sent to Kirk B. Harwood and was accompanied by a letter from appellant stating in part as follows:

“In reply to yours of the 17th inst., will say that I am enclosing statement of mother’s affairs, the same that I gave Bernadine a few day’s ago.”

After the mother’s death in April, 1913, appellant filed- his inventory of .the property belonging to her estate, in which notes and accounts were inventoried to the value only of $6,560.20. Six months later he filed a supplemental inventory and added thereto notes and accounts to the value of $1,000. The order of the Circuit Court directed him to inventory a large portion of the items of the personal property set out in the schedule, and dismissed the petition without prejudice as to the real estate items mentioned therein.

It is urged that the hearing on this citation involved a trial as to the right of property and that the County Court sitting in Probate had no jurisdiction to determine this question. When appellant used his mother’s money- to invest under the power of attorney mentioned, he did so as trustee and a fiduciary relation was created. Under these circumstances a petition for citation is a proper remedy. Dinsmoor v. Bressler, 164 Ill. 211; Martin v. Martin, 170 Ill. 18.

It is insisted that the admission in evidence of this schedule was error for the reason that, it having been made substantially seven months prior to the mother’s death, it did not tend to show that appellant was in possession of the notes and accounts listed therein, at the time of her death. Appellant having had absolute control of all his mother’s estate after his father’s death, and at least equal control with his father since 1904 prior to that time, and having furnished the schedule mentioned on the demand of his brother and sister for the express purpose of giving them information of the state of their mother’s financial affairs, which was wholly within his own means of knowledge, the schedule was prima facie evidence that he had in his possession at the time of her death as assets of the estate the notes and accounts mentioned therein. Under these circumstances, the period of seven months did not make it's execution so remote as to destroy its character as such proof. Appellant introduced no competent evidence of any kind to overcome it. One note for $10,000 listed in the schedule, executed by one Maurice McCarthy, he claims as his own by reason of it being a gift to him by his mother before her death. This note was deposited in the Corn Belt Bank at Bloomington as collateral for money borrowed by him personally from the bank. There was no evidence of any kind that this note was a gift to him from his mother except that he claims the same to be such in an answer filed by him to the petition for citation.. This answer was not evidence of such fact. No formal pleadings are necessary or required in proceedings of this character. Martin v. Martin, 170 Ill. 18; Kepple v. Crabb, 152 Ill. App. 149. Appellant, unless called upon by the court to testify, was incompetent as a witness in his own behalf. Wade v. Pritchard, 69 Ill. 279; Merchants’ Loan & Trust Co. v. Egan, 222 Ill. 494. He could not introduce self-serving evidence by way of an answer to the petition. On account of his occupying this fiduciary and confidential relation with his mother, there was a presumption against the validity of the gift, and the burden was on him to prove good faith, full knowledge and independent action on the part of the donor. Gilmore v. Lee, 237 Ill. 402.

It is insisted also that even if the evidence did not establish this note to be a gift, yet the fact that it was deposited in the bank as collateral showed that it was not in his possession at the time of his mother’s death and he was not required to list it in the inventory. This contention cannot be sustained. The note was an asset of the estate, and appellant cannot be heard to say that because he assigned it to the bank as collateral for his- own indebtedness he is thereby excused from inventorying it. It was in his possession within the meaning of the statute.

Another note for the principal sum of $1,100, called the Charles P. Lippe note, requires mention. On the trial of this cause in the County Court appellant was called by the court as a witness. A part of appellant’s testimony given on the hearing in the County Court was introduced by the petitioner on the trial in the Circuit Court. Only such part was introduced, however, as related to the facts as to who composed the firm of D. B. Harwood & Company, and that appellant had said power of attorney from his mother and made investments and loans generally with her money in his own name. Counsel for appellant thereupon attempted to introduce all the rest of the testimony given by appellant in that court. Objections were properly sustained to a large portion thereof, but, over objection, the Circuit Court admitted the following testimony given by appellant in the County Court:

“Q. Now, you were asked about the Lippe note.
A. Yes, sir.
Q. Which you say was traded on the Normal deal?
A. Yes, sir.
Q. That had been traded off at the time you made this statement?
A. Yes, sir.”

It is insisted that this evidence shows that appellant should not be charged with this note. The court erred in admitting this evidence, and as the note is ordered to be inventoried, it is evidence that the court considered the testimony incompetent. In this connection it is insisted that by introducing a portion of appellant’s testimony given by him in the County Court, lie was thereby made a witness by petitioner, and that all the testimony given by him in such court thereupon became competent. The evidence given by appellant in the County Court, introduced by the petitioner, was received upon the theory that it was an admission and is to be treated as such, and any evidence given by him in that court pertaining to the subject-matter of that part introduced would be competent. But by introducing certain parts of his testimony there taken, he was not thereby called as a witness by the adverse party, and his incompetency, other than as to the subject-matter of the evidence introduced by the petitioner, was not affected. Merchants’ Loan & Trust Co. v. Egan, supra. The evidence of appellant in the County Court introduced on the trial in the Circuit Court was confined substantially to the matters hereinabove mentioned and did not pertain to the Lippe note nor to any other particular note.

It is claimed in the argument that the schedule made by appellant was simply a copy of the books of D. B. Harwood & Company; that they were incorrect, were partly kept by the father in his lifetime; that appellant did not in fact have in his possession at the time of the mother’s death any of the notes mentioned, except those set forth in the inventory filed by him. There is no competent evidence of these facts. Appellant did not introduce nor offer to introduce the books in question. He did not introduce nor offer to introduce any evidence whatever in regard to any one of the disputed items except the. incompetent evidence of his own testimony taken in the County Court. He did not introduce nor offer to introduce the evidence of the maker of any one of the notes in question nor of any other person, to show whether it had been paid or traded off for other property, or any other disposition of it. A few of the notes he claims he did not inventory because they were secured by mortgages and the mortgages were in process of foreclosure, but no court proceedings were introduced to show that such were the facts, and even if they were, he would not thereby be excused from listing them as the property of the estate. Other notes he did not inventory because he claims they had been reduced to judgments, but no records of such judgments were offered in evidence.

If these notes and accounts were not in his possession at the time he made the schedule and at the time of his mother’s death, or if any of them were not in fact the property of his mother’s estate, it is highly improbable that such facts could not have been proven by competent evidence, and the prima facie case made by the schedule rebutted.

Error is assigned as to the holding of the court upon certain propositions of law submitted. Courts are not called upon to pass upon propositions of law in actions of this character, and no error can be assigned thereon. We find no reversible error, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Willis Samuel and O. N. East, trading as Samuel & East, Defendants in Error, v. Wabash Railroad Company, Plaintiff in Error.
    1. Railroads, § 907a

      —when railroad leasing property may limit liability for fire. When a railroad permits the erection of an elevator or other buildings on its right of way, it has a right to impose such conditions as it sees fit in the terms of the lease, and has a legal right to provide in such lease that it shall be exempt from liability from fires communicated by its locomotives, or otherwise.
    2. Railroads, § 907a*—when limitation in lease does not relieve from liability for fire. A lease of ground for elevator purposes from a railroad company—stipulating that the lessee agrees to assume all risks or loss, injury or damage of any kind or nature whatsoever to any building or other structure, or appurtenance belonging to such lessee, or which may be thereafter placed on such premises, or on land adjacent or adjoining thereto and which are used in connection with the building, and all risks of loss, injury or damage of any kind or nature whatsoever to the contents of the buildings or structures, or to any goods, merchandise, chattels, or other property then or thereafter on such premises or on land adjacent thereto, whether belonging to lessee or others, and whether such loss, injury or damage results from fire or other agency and whether the same he caused by the negligence of the railroad company or its employees or otherwise—should not he construed so as to cover a carload of oats which had been loaded and had passed into the custody and control of the railroad company, although the loss was due to a fire communicated from the elevator which was itself destroyed by a fire due to some unknown cause.
    3. Fires, §1

      —when lessee nop liable for loss of lessor’s property from, under terms of lease. A lessee of ground for elevator purposes is not liable for the loss of railroad property caused by communication from a fire on elevator property belonging to lessee, due to an unknown cause, under a lease stipulating that the lessee agrees to assume all risk of loss by fire to the elevator property or other property, or to the contents of such buildings, or to chattels on or thereafter on such premises or adjacent premises, and whether such loss results from fire or other agency, and whether caused by negligence of the railroad company or its employees, or otherwise, and to indemnify the railroad company from all claims and suits growing out of such loss.
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Lillard & Williams, for plaintiff in error.
    Livingston & Bach, for defendants 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. Presiding Justice Eldredge

delivered the opinion of the court.

The writ of error in this case is prosecuted to review a judgment rendered against plaintiff in error in the court below for the sum of $619.81. No question is raised on the pleadings of the facts. As to the pleadings, the parties stipulated that the plaintiffs might recover under the declaration any legal claim they might have against the defendant and that the defendant under the plea of general issue might prove any defense it might have to the cause of action, including recoupment and set-off. As to the evidence, all the facts were stipulated.

The cause was heard before the court without a jury. The facts are substantially as follows: Defendant in error Samuel erected and operated an elevator upon the right of way of appellant at Milmine, in the county of Piatt in this State under a written lease containing the following provision:

“Party of "second part (defendants in error) agree to assume all risks or loss, injury or damage of any kind or nature whatsoever to any building or other structure or appurtenance thereto, belonging to said second party, his heirs, incoming partners, sub-lessees or others, which may be now or hereafter placed upon said leased premises, or on land adjoining or adjacent thereto, and which are at the time connected with or used in connection with any building or structure upon said leased premises, and all risks of loss, injury or damage of any kind or nature whatsoever, to the contents of any such building or structures, or to any goods, merchandise, chattels or any other property now or that may hereafter be upon said leased premises, or land adjacent thereto, as aforesaid, whether belonging-to said second party or to others, and whether such loss, injury or damage results from fire or other agency, and whether the same be caused by the negligence of the party of the first part, or any of its employees, agents or servants, or otherwise; and to save and keep harmless the party of the first part from all claims and suits growing out of any such loss, injury or damage.”

The elevator was erected close to one of plaintiff’s in error side tracks in such manner that cars thereon could be loaded or unloaded from or into said elevator directly therefrom, and said track was used by defendants in error for such purposes in connection with the operation of the elevator. A car had been loaded with oats by defendants in error on the afternoon of August 5, 1910, and a bill of lading had been issued therefor on that same day. About two o ’clock on the following morning the elevator, from some cause unknown, was destroyed by fire, which fire was communicated to the car of oats and the oats were damaged so that defendants in error suffered a loss of $619.81. Plaintiff in error suffered from the loss to the car, and other damages by reason of the fire, the total sum of $683.64.

The contentions of plaintiff in error are, first, that the terms of the lease absolved it from any liability for the loss of the oats in controversy, and also that defendant in error became liable to plaintiff in error for the damages it sustained to its property by reason of said fire.

When a railroad company permits the erection of an elevator or other buildings upon its right of way, it has a right to impose such conditions as it sees fit in the terms of the lease, and has a legal right to provide in such lease that it shall be exempt from liability from fires communicated by its locomotives or otherwise. Checkley v. Illinois Cent. R. Co., 257 Ill. 491; Large v. Wabash R. Co., 168 Ill. App. 310. The provision of the lease above mentioned is a valid agreement between the parties, and the difficulty arises in its application to the facts in this case. The exemption provided thereby is very broad and the question is, whether its terms include the property of defendants in error after it has been delivered to the custody and possession of plaintiff in error for the purpose of transportation. Counsel for plaintiff in error urge that the provision applies to the facts in this case for the reason that if the elevator had not been placed on the right of way the damage to the property of defendants in error would not have taken place. This, together with the fact that the damage was actually caused through the instrumentality of the elevator which was owned and controlled by defendants in error themselves, and through no fault of plaintiff in error so far as the record shows, appeals with much force to at least the sense of right in the matter. The trial court held that as the carload of oats had passed from the possession and control of defendants in error to that of plaintiff in error, it was taken out of the terms of the lease and the same cannot be applied thereto, and we are inclined to the opinion that this is technically true although the question is not' free from doubt.

As to the second contention of plaintiff in -error, that the court should have given judgment in its favor on its claim of set-off, we think it clear that the terms of the lease do not bear the construction that defendants in error are liable to plaintiff in error for injury to its own property which might be damaged by fire. We find nothing in the language used in this provision of the lease which warrants the construction that defendants in error assume any liability for any loss to any property of plaintiff in error by reason of the erection and maintenance of the elevator or its destruction by fire.

The judgment will be affirmed.

Affirmed.


text:
    Frank Steward, Appellant, v. A. M. Kitchell, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostiit D. Myebs, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case..
    Bill by Frank Steward against A. M. Kitchell for the purpose of setting aside a release, executed' by plaintiff, releasing and forever discharging defendant from any and all causes of action, claims and demands which plaintiff then had or might thereafter have for injuries to himself and property caused by an automobile driven by defendant. From a decree for the defendant upon the original bill and cross-bill, plaintiff appeals.
    The bill averred that the release was procured by fraudulent misrepresentations on the part of appellee, that appellant did not know its contents when he signed it, and that it would bar an action at law brought to recover said damages unless the same was annulled and canceled. Appellee answered the bill and filed a cross-bill averring that appellant had brought an action at law against appellee for damages on account of said injuries, and praying that appellant be perpetually enjoined from prosecuting said action at law.
    D. D. Donahue and Murray & Morrissey, for appellant.
    Livingston & Bach, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

Equity, § 336 —when complainant cannot dismiss. Under the Chancery Act, sec. 36 (J. & A. § 916), providing that a complainant may not dismiss his hill after a cross-hill has been filed without the consent of the defendant, it is not error to overrule a motion by complainant to dismiss the original bill where the cross-bill is germane to it.


text:
    Archilles W. Cook, Appellee, v. Chicago, Burlington & Quincy Railway Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Reversed with finding of fact.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action on the case by Archilles W. Cook, against the Chicago, Burlington and Quincy Railway Company to recover damages for personal injuries alleged to have been received on account of the negligence of the defendant. From a judgment for plaintiff for $5,000, defendant appeals.
    The plaintiff was injured while attempting to drive across a railroad track at a regular crossing in front of a slowly-backing freight train, which he had observed for two blocks back, to catch a ferry boat whose leaving signal he had heard just as he was about to cross the track. The plaintiff disregarded the warning signal of the crossing watchman and the call of a brakeman on the next to the last car of the train.

      Abstract of the Decision.
    1. Railroads, § 633

      —when not required to have brakeman on rear car of backing train. It is not the duty of a railroad company to have a brakeman on the rear end of a freight train which is slowly backing towards a public crossing, where the brakes are efficiently operated by power applied from the locomotive.
    2. Railroads, § 645a*—when absence of brakeman from rear of backing train not proximate cause of injury. The absence of a brakeman on the rear car of a freight train-slowly backing towards a crossing is not the proximate cause of an injury to one driving over the crossing to catch a ferry boat which has given its leaving signal, where the driver had observed the progress of the freight train for two blocks back, and was warned by the crossing flagman and by a brakeman on the car next to the rear.
    3. Railroads, § 695*—when declaration does not aver duty to place brakéman on rear of backing train. An allegation in a count in a declaration in an action for personal injuries received while attempting to drive across a track in front of a backing freight train, that it became the duty of defendant railroad company if the cars and engine intended to pass over the crossing, “to station some person on-one of such cars, or on the ground at the crossing,”" for the purpose of warning all persons about to cross the track that the train was being backed towards the crossing and intended to cross over the crossing, does not allege any duty to have some person stationed on the rear car.
    4. Railroads, § 713*—what evidence admissible under count charging general negligence. Proof that there was no brakeman on the rear car of a freight train slowly backing towards a public crossing is competent under a count charging general negligence in the operation of the train, in an action to recover damages for personal injuries alleged to have been received on account of the negligence of the railroad company.
    Samuel Woods and Matthew F. Carrott, for appellant; J. A. Connell, of counsel.
    John E. Wall and George H. Wilson, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

5. Railroads, § 647 —when failure to warn not proximate cause of injury. The failure to sound warning signals upon the approach of a freight train slowly backing towards a public crossing is not the proximate cause of an injury to one attempting to drive over the crossing in front of the approaching train, where he had known for two blocks back that the train was approaching the crossing.

6. Railroads, § 678*—when contributory negligence to cross in front of approaching train. One who has knowledge of the approach of a freight train which is slowly backing towards a public crossing, not only as a result of his own observation but also because of warnings by a crossing flagman and by a brakeman on the next to the rear car, and attempts to cross, does not exercise due care, and is guilty of contributory negligence.


text:
    Henry Kern et al., Appellants, v. Pekin Public Hospital et al., Appellees.
    Charities, § 10

      —when bequest to unorganized corporation valid. A valid bequest to charity for the founding of a hospital, may be made to a corporation not in existence at the time of the execution of the will or the death of the testator.
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Jesse Black, Jr., for appellants.
    George O. Rider and Prettyman, Velde & Pretty-man, for appellees.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This is an appeal from the decree of the Circuit Court sustaining a demurrer to a bill to construe the will of George Vetter, deceased, and dismissing the same for want of equity.

The testator, George Vetter, died May 14,1913. The following clauses of his will are the only ones requiring consideration:

“8th: I give, devise and bequeath to Henry Kern, Frederick Kern, Louis Kern, William Kern, and Emma K. McLin, children of my deceased sister Catherine Kern, the sum of one hundred ($100.00) dollars each. ’ ’
“15th: I give, devise and bequeath to the trustees of a public hospital in Pekin, Illinois, which is to be erected and maintained in Pekin, Illinois, the sum of four thousand ($4,000.00) dollars, conditioned that if there is no hospital erected and maintained within the City of Pekin within two years after my death, that this legacy is to be null and void, and in that case, my executor is hereby directed to pay said sum of four thousand ($4,000.00) dollars to the heirs of my deceased sister, Catherine Kern.
‘ ‘ 16th: All the rest and residue of my personal estate of which I die seized and possessed or to which I shall be entitled at my decease, I give, devise and bequeath to be equally divided between Eliza M. Vetter, my wife, the Evangelical Synod of North America of St. Louis, Missouri, and the trustees of a public hospital to be erected in Pekin, Hlinois, that is, after paying all of the above legacies out of my personal estate, I direct that my executor divide the unapportioned part into three equal portions or parts and pay one part to my widow, Eliza M. Vetter, and one part to the Evangelicál Synod of North America of St. Louis, Missouri, and the third and last part to the trustees of a hospital to be erected in Pekin, Hlinois. This bequest is made with the provision that if said hospital as is mentioned in clause 15th is not erected or in process of erection within twp years after my death, that this legacy shall be null and void and then in that event the one-third part hereby devised to said trustees of said hospital is to be paid to my beloved wife, Eliza M. Vetter.”

'The complainants in the bill are the children of the deceased sister, Catherine Kern, and it is conceded by them that they have no interest whatever in the 3.6th clause of the will.

The bill avers that the 15th clause of said will is void because at the time of the execution thereof and at the time of the death of the testator there was no public hospital in Pekin. The bill further avers that after the death of the testator certain citizens of Pekin caused to be incorporated under the laws of this State the Pekin Public Hospital, the charter of which said corporation was issued June 25, 1913, and that the trustees of said hospital are making some demands upon the executor by virtue of the 15th and 16th clauses of said will. The prayer of the bill is that the court decree that said hospital take nothing by virtue of the 15th and 16th clauses and that the sum of $4,000 mentioned in the 15th clause be decreed to be paid to complainants as the heirs of Catherine Kern. The whole contention of appellants is that said 15th clause is void for uncertainty. This is a charitable bequest and comes within the statute of 43 Elizabeth (J. & A. If 11565) which.is in force in this State. It has been held repeatedly that a valid bequest to charity may be made to a corporation not in existence at the time of the execution of the will or the death of the testator, for the founding of a new college, hospital, library or other charitable institution; and it is not necessary even that the contemplated corporation should be thereafter created, but a court of equity will uphold, protect and enforce the gift for the charitable use. French v. Calkins, 252 Ill. 243, and eases cited. The above rule has obtained in this State through a long, unbroken line of decisions and is too well established to require further discussion. The bill avers that a corporation had been formed within the two years for the purpose of erecting a public hospital in Pekin and therefore the bill itself alleges facts which make it clear complainants have no interest in the 15th clause. The procedure of attempting to defeat a bill for the construction of a will by demurring thereto on the ground that the construction sought by the complainants is not the correct one, is of doubtful propriety. We doubt whether complainants did not have a right to have appellees file an answer and upon a hearing have a decree entered giving a construction to this clause of the will defining the rights of the' parties thereunder, even though such construction might be adverse to that sought by them. It would certainly be of interest to the defendants, including the executors and the trustees of the hospital, to have such a decree entered. However, as none of the parties have made any objection to the procedure adopted, the decree will be affirmed.

Affirmed.


text:
    Supreme Council of Western Catholic Union, Appellee, v. Ozra Saule et al. Frank P. Drennan, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Bill by the Supreme Council of Western Catholic Union against Ozra Saule and others to foreclose a mortgage given to secure a note, upon which there was an existing indebtedness. Upon a decree foreclosing the mortgage and leaving questions of deficiency judgments against certain persons claimed by one of the defendants in his cross-bill for further determination, such defendant appeals.

      Abstract of the Decision.
    1. Mortgages, § 487

      —when decree may he entered on original hill without disposing of cross-hill. A decree upon an original bill to foreclose a mortgage which is a prior lien to that of a party filing a cross-bill, and asking for a deficiency judgment against the maker and successive owners who assumed the mortgage, may be entered without first having a hearing on the cross-bill and having settled all issues raised thereunder, where the issues in no way affect the interests of the holder of the prior mortgage.
    2. Mortgages, § 632*—when deficiency decree may he entered. A deficiency' decree upon a bill to foreclose a mortgage need not be provided for in the original decree.
    3. Mortgages, § 656*—when omission of party harmless error. The omission in an original bill to foreclose a mortgage of the name of a necessary party who executed the note and mortgage is not prejudicial where the evidence shows that the party died several years before the bill was filed and at the time of her death had no interest in the premises except an inchoate right of dower.
    4. Mortgages, § 665*—when attorney’s fee not excessive. Where the amount of an attorney’s fee in an action to foreclose a mortgage was fixed at $238 by the trial court upon the evidence taken in support thereof, it will not be held upon appeal to be excessive where the facts and circumstances shown by the record appear to warrant the charge.
    Frank P. Drennan answered the bill and filed a cross-bill averring ownership of a mortgage covering said premises to secure a note for the principal sum of $1,500 payable to his order, and asking for deficiency judgments against the maker of the mortgage and subsequent owners of the property who had assumed the judgment thereof, if the mortgaged premises should not sell for enough to pay the whole of the mortgage indebtedness.
    F. P. Drennan, pro se; W. H. Nelms, of counsel.
    Matthew F. Carrott, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Samuel C. Forsythe, Appellee, v. Samuel R. Killam, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Automobiles and garages, § 2

      —when negligence a question for jury. Where there is a direct conflict in the evidence as to the actions of the driver of1 an automobile and the driver of a team upon approaching each other, the questions of the negligence of the driver of the automobile and the contributory negligence of the driver of the team are for the jury to determine.
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action on the case by Samuel C. Forsythe, against Samuel R. Killam, to recover damages for injury to his person and buggy resulting from a collision between his buggy and an automobile driven by defendant. From a judgment for plaintiff for eight hundred dollars, defendant appeals.
    A. H. Bell and Peebles & Peebles, for appellant.
    Edward C. Knotts and Rinaker & Rinaker, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Frank Adams, Appellee, v. James Hogan, Appellant.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    Assault and battery, § 23

      —when verdict not disturbed. The Appellate Court will not reverse a verdict in an action in trespass for an assault and battery as against the weight of evidence, where the testimony of the witnesses ■ of the opposing parties is in direct conflict and the verdict of the jury was approved by the trial court, and there is sufficient evidence to sustain the judgment.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action in trespass for an assault and battery by Frank Adams against James Hogan, which resulted in the fracturing of both of the jaws of the latter. From a judgment for plaintiff: for $1,000, defendant appeals.
    A. M. Fitzgerald, for appellant; Gillespie & Fitzgerald, of counsel.
    John G. Friedmeyer and Sampson & Putting, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. James H. Belt, Plaintiff in Error.
    Banks and banking, § 64

      —acceptance of deposit when insolvent. A member of a banking firm who makes false representations as to the bank’s financial condition by continuing in business and holding out an invitation to the public to do business with the bank when it is in fact insolvent, to his own personal knowledge, and receives money for deposit through one of his employees, giving a time certificate of deposit, and the money is lost, is guilty of embezzlement under the Criminal Code, Act of 1903 (J. & A. If 3617).
    Error to the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    John G. Friedmeyer and Peebles & Peebles, for plaintiff in error.
    James H. Murphy, for defendant in error; Edward C. Knotts and Rinaker & Rinaker, of counsel.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Plaintiff in error was convicted of the crime of embezzlement upon an indictment consisting of eight counts returned at the September term, 1913, of the Circuit Court of Macoupin county, and was sentenced to pay a fine of $300 and to imprisonment in the penitentiary for two years. The counts are substantially the same and aver, in substance, that James H. Belt on the thirteenth day of September, 1913, in the county of Macoupin, then and there doing a banking business under the firm name and style of Belt Brothers & Company, corruptly, wilfully, fraudulently and feloniously did then and there receive from Theodore Keuthe as a deposit a certain sum of money, the said deposit being received by the said James H. Belt, doing a banking business as aforesaid, through one Budd, assistant cashier of said Belt doing a banking business as aforesaid, the said Budd being then and there authorized and empowered by said Belt doing said banking business to receive said deposit; that when said deposit was so received said Belt was insolvent and that he knew that he was insolvent and that said money so deposited by Keuthe was then and there lost to said Keuthe.

The indictment is based upon that section of the Criminal Code which as amended in 1903 is as follows (J. & A. 1J 3617) :

“That if any banker or broker, or person or persons, doing a banking business, or any officer of any banking company, or incorporated bank doing business in this State, shall receive from any person or persons, firm, company or corporation, or from any agent thereof, not indebted to said banker, broker, banking company, or incorporated bank, any money, check, draft, bill of exchange, stocks, bonds, or other valuable thing which is transferable by delivery, when at the time of receiving such deposit said banker, broker, banking company or incorporated bank is in his or its knowledge insolvent, whereby the deposit so made shall be lost to the depositor, said banker, broker or officer, so receiving such deposit, shall be deemed guilty of embezzlement, and upon conviction thereof, shall be fined in a sum double the amount of the sum so embezzled and fraudulently taken, and in addition thereto, may be imprisoned in the State penitentiary, not less than one nor more than three years.”

On the morning of the day named in the indictment, Theodore Keuthe deposited in the bank of plaintiff in error $150 in money and received from the assistant cashier thereof the following certificate of deposit:

“Belt Brothers & Company, Bankers.
No. 11491.
Bunker Hill, III., June 13, 1913. Not Theodore Keuthe has deposited in this
sub- bank One Hundred and Fifty-two and ject twenty-five hundredths Dollars ($152.25), to payable to the order of himself, ‘due and
cheek. payable six months after date’ in current funds on the return of this certificate properly endorsed.
William N. Budd, Assistant Cashier.”

On June 15, 1913, plaintiff in error delivered the key to his bank to a committee of its depositors, and on June 20, 1913, united with them in asking for the appointment of a receiver by a bill filed in the Circuit Court of Macoupin county. On his voluntary petition in the United States District Court he was adjudged, a bankrupt. There is no contention but that on June 13,1913, plaintiff in error was hopelessly insolvent and that he knew that he was insolvent at that time. The principal and substantially the only error presented to this court for review is that the court erred in refusing to hold as a matter of law that the transaction with Keuthe was a loan and not a deposit; that as the Supreme Court has considered that time certificates of deposit are in legal effect promissory notes (Bank of Peru v. Farnsworth, 18 Ill. 563), the, relation of borrower and lender between the plaintiff in error and Keuthe was created, and that under the authority of Kribs v. People, 82 Ill. 425, and Rauguth v. People, 186 Ill. 93, the failure of plaintiff in error to properly account for the money received from Keuthe, who had relied upon the honesty of the former to return the same with stipulated interest, does not subject him to criminal prosecution for embezzlement. Several instructions based upon this theory were offered by appellant and refused.

There is no analogy between the facts in the Kribs and Rauguth cases, supra, and those in this case. In neither of the former cases were the defendants bankers doing a banking business, nor were the transactions therein involved connected with such business, and the Act of 1903 above mentioned was not then in existence. It is a matter of common knowledge that the custom of receiving time deposits is a common practice in the banking business. Such deposits are seldom made with any one but a banker. The fact that plaintiff in error was a banker and doing a banking business unquestionably influenced Keuthe in making the deposit. Plaintiff in error received such deposits on the very ground that he was a banker doing a banking business. The Supreme Court of Wisconsin in the case of Baker v. State, 54 Wis. 368, in discussing a somewhat similar statute of that State, said:

“The manifest object of the statute in question was to suppress the business of banking or brokerage by any insolvent person, company or corporation. It therefore inflicts punishment upon persons so engaged, knowing the fact. A banker is one who traffics in money, receives and remits money, negotiates bills of exchange, receives money in trust, to be drawn again, or its equivalent, as the owner has occasion to use it. Banking is the business or employment of the banker, or the business of the bank. * * * The very nature of the business prevents it from being conducted by a person isolated from all communication with others. The business, therefore, not only affects the banker or broker, but every person who deals with him as such. The business is not confined to the property of the banker or broker, but involves all property passing through his hands or entrusted to his keeping. A bank implies capital, and capital invites confidence. A man holding himself out as a banker or broker thereby gives public proclamation that he has money, and property readily convertible into money, in his possession and subject to his control, and for that reason he may be .safely trusted. It requires no argument to show that such assurance is most inviting and influential with the mass of the people, especially with those unacquainted with the history and character of the man. With them the banker or broker is entrusted with money merely because he is a banker or broker, and hence supposed to have surplus capital as a standing guaranty of his agreements and his integrity. For an insolvent banker, company or corporation to continue the business of banking is to hold out assurances of responsibility and surplus capital where neither exists. 'To do so knowingly is to secure the confidence, and hence obtain the money, of the ignorant and unwary by an implied deception. It is the old story of securing the victim by a display of false colors. To suppress this mischief, to save the public from being induced to deposit money with such insolvent by the implied assurance of responsibility and wealth essential to the business, when they do not in fact exist, was the evident purpose of the statute. * * * The imprisonment here is not for any debt, much less for a debt arising out of or founded on any contract, but upon a charge of an act made a misdemeanor by the statute, to wit, the receiving of money on deposit as a banker by one knowing himself or such bank to be insolvent.”

The statute of this State does not differentiate or make any distinction between the character of deposits made with the bank, but is most comprehensive in its terms and includes, “any money, check, draft, bill of exchange, stocks, bonds, or other valuable thing which is transferable by delivery.” Just as great an injury would be inflicted upon the public by permitting insolvent bankers to receive time deposits as by permitting them to receive deposits of any other character. It is the false representations of the financial responsibility of the banker, and the inducements and invitation held out and extended to the public to make deposits with him by reason thereof, that constitutes the offense.

Twenty-eight instructions were given on behalf of plaintiff in error and there was no other material proposition of law contained in any of the refused instructions which was not covered by those given.

There is some contention that the court made errors in the admission of evidence, but as they have not been pointed out, we have no means of knowing what errors in this record are complained of without searching the record and determining that question for ourselves. This we cannot do, and we have a right to assume that if they were of a serious character they would have been presented to us in the proper way for our consideration.

The judgment will be affirmed.

Affirmed.