text:
    Simon Kostellic, Administrator, Appellant, v. Sydney Whitaker, Appellee.
    Gen. No. 6,023.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Putnam county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action brought by Simon Kostellic, as administrator of the estate of Frank Kostellic, deceased, against Sydney Whitaker to recover for the death of the intestate. There was a judgment for the defendant, and the plaintiff appeals.
    The deceased, a boy about thirteen years of age, was killed by coming in contact with an electric light wire lying on or near a sidewalk, in the village of Granville, ill Putnam county. The wire was a part of an electric lig’ht system owned and operated by the defendant. On the evening' before the accident a storm broke off a portion of a tree the upper part of which fell over and upon the wires, and about seven o’clock the next morning the wires gave way and the tree fell over and upon the sidewalk, leaving the wires hanging from the poles and reaching to and upon the ground. One person living in the vicinity noticed the position of the wires at the time they broke, but did not notify any one of their condition.
    The deceased was last seen alive when returning from an errand for his parents, about 11:30 in the morning, going towards the sidewalk on which the tree was lying and about half a block from it. He was next found lying near the tree dead, with one wire under him and another lying, on his breast, spitting fire, with his clothing on fire. There were no eyewitnesses. The engineer in charge of the electric power plant testified that about seven o’clock he felt a jerk or jolt in the machinery, and believing that there was something unusual on the line, made tests with the appliances at hand for that purpose, but found no evidence that any wires were grounded, and that he paid no further attention to the matter until informed of the accident a few minutes after it happened; that the appliance used-by him was known as a “plug-in circuit breaker.” There was testimony given by several experts in electrical matters that the use of such an appliance was of no avail to determine whether there was a broken wire, unless used at the very instant the wire fell, or unless it remained on the ground so as to make a complete circuit; but that had there been a “static ground detector” or an “automatic circuit breaker” in use upon the switchboard of the plant, the current would have been automatically shut off the instant the wires parted. A static ground detector was in the plant at the time of the accident but had not yet been installed.

      Abstract of the Decision.
    1. Electbicity, § 28

      —when negligence in equipment or operation of light plant question for jury. It is for the jury to determine whether there was negligence in equipping or operating an electric lighting plant, or in failing to take steps to ascertain whether any accident had happened to its wires after an engineer observed unusual movements of the machinery several hours before a person was killed by electricity from a broken wire hanging in a street.
    2. Instructions, § 85*—instruction requiring proof of allegations of every count of declaration. An instruction that separate and distinct counts of a declaration setting up different grounds of action must be treated as separate, distinct and sole causes of action and must be so established by the plaintiff by the greater weight of all the evidence before the jury can find in his favor under either of the counts, held, erroneous.
    3. Electbicity, § 29*—sufficiency of instruction in action for death caused by coming into a contact with brohen uHre. An instruction in an action for the death of a person by .coming in contact with a charged broken electric light wire hanging in a street, that there could be no recovery if the defendant’s machinery at its plant was equipped with approved and modern appliances in good repair, to prevent and detect the escape of electricity from its wires, and its machinery was properly and carefully managed, held erroneous as excluding from the consideration of the jury the question whether it was negligent in not detecting several hours before the accident, the breaking of the wire, and repairing it.
    4. Electbicity, § 29*—instruction as to degree of care in use of electricity. An instruction in an action for the death of a person by coming into contact with a charged, broken electric light wire hanging in a street, that it -was sufficient if the defendant used a high degree of diligence in equipping its machinery with standard appliances, devices and apparatus generally recognized as effective for detecting the condition of the repair of its wires, held erroneous, because ignoring evidence tending to show that the defendant failed to maintain such appliances in good condition and to operate them in a careful and skilful manner.

      Tracy & Tracy and Clarence W. Heyl, for appellant.
    George W. Hunt, 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. Justice Dibell

delivered the opinion of the court.

5. Electricity, § 28 —when question of negligence in failing to discover broken wire is for jury. The question of the negligence of the defendant held for the jury, in an action for the death of a person by coming into contact with a charged, broken electric light wire hanging in a street, where the evidence tended to show that the engineer of the plant noticed something wrong with the machinery which led him to believe that there might be a broken wire, but which the use of the apparatus at hand failed to detect, and he made no further effort to discover the condition of the wires until several hours after the accident.

Niehaus, J., took no part in this decision.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Louisa J. Owens, Appellee, v. Gerhardt M. Cassens, Appellant.
    Gen. No. 6,027.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied April 15, 1915.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Suit in assumpsit brought by Louisa J. Owens against G-erhardt M. Cassens to recover $2,000 loaned the defendant, $2,000 held by him in trust for the plaintiff, $650 intrusted to him with which to pay for certain patents, $1,000 realized by him as plaintiff’s share from the sale of other patents, $1,000 due on various accounts, and $600 paid defendant as the purchase price of other patents. Defendant pleaded the general issue and filed a counterclaim, whereby he sought to charge the plaintiff with a loan of $3,000 and $1,000 expended by him for the use of the plaintiff, $2,000 for the purchase of a half interest in certain patents, $1,000 paid a third person for the plaintiff’s benefit, and with $1,000 accrued interest on these various sums.
    Abstract of the Decision.
    Assumpsit, action of, § 89

      —sufficiency of evidence to sustain recovery for money advanced for investment. The evidence in an action for money advanced the defendant by the plaintiff for "the purchase of certain patents, and also as a loan, held sufficient to sustain a finding for the plaintiff.
    The case was tried by the court without a jury, and a judgment entered in favor of the plaintiff for $1,345, from which the defendant appeals.
    The evidence was not only conflicting but in many respects vague, indefinite and uncertain; but it tended to show that the plaintiff conducted financial transactions with the defendant involving considerable sums of money and extending over many years, but that neither of the parties were able to give definite testimony regarding the details thereof.
    Royce A. Kidder and Walter N. Haskell, for appellant.
    H. A. Brooks, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Martha Coppock, Appellee, v. John Schlatter, Appellant.
    Gen. No. 6,034.
    1. Automobiles and gabages, § 3

      —sufficiency of evidence of ‘want of care in operating automobile. The evidence in an action for injuries received by a pedestrian who was knocked down by an automobile, held sufficient to warrant a finding that neither the driver of a commercial car nor his assistant were looking ahead a sufficient length of time before the accident to avoid striking the plaintiff.
    2. Automobiles and gabages, § 2*—duty of driver to give warning to pedestrians. The driver of an automobile is bound to assume that pedestrians will be using street crossings and to give them, or to be ready to give them, reasonable warning of the approach of his car.
    3. Automobiles and gabages, § 3*—when question for jury whether chime of bells sufficient to give warning. Whether a chime of small bells attached to an automobile was sufficient to give a pedestrian warning of the approach of the car, held a question for the jury in an action for personal injuries.
    4. Automobiles and gabages, § 3*—directing verdict for defendant in action for injury to pedestrian. The refusal in an action for injuries to a pedestrian by being struck by an automobile, to direct a verdict for the defendant, held not erroneous.
    5. Automobiles and gabages, § 3*—sufficiency of instructions ih action for injury to pedestrian. Held, that there was no reversible error in the giving or refusal of instructions in an action for injuries sustained by a pedestrian Who was struck by an automobile.
    6. Appeal and bbbob, § 1241*—when invited error in instructions not reversible error. Where an instruction is given at the request of an appellant on an erroneous theory, he cannot complain of the adoption of such theory by the court in giving other instructions.
    Niehaus, J., took no part in this decision.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Stevens, Miller & Elliott, for appellant; George B. Foster, of counsel.

      Kirk & Shurtleff, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Shortly before eight o’clock in the morning of the sixth of May, A. D. 1913, Martha Coppock was walking in a northeasterly direction on Adams street in the city of Peoria. While attempting to cross over Liberty street, at its intersection with Adams street, she was struck, knocked down and injured by an electric automobile, owned by John Schlatter and then being operated by his employees in connection with his laundry business. She was severely injured and brought this suit tq recover damages therefor. She filed a declaration which 'alleged negligence on the part of the defendant in the operation of said automobile, and failure to equip the automobile with a suitable signal device and to keep the same in repair, and negligence m running said automobile against plaintiff without giving her notice or warning of its approach. Defendant filed a plea of the general issue, and upon a jury trial a verdict was rendered in favor of plaintiff for $1,000. A motion for a new trial was overruled, plaintiff had judgment on the verdict and defendant below appeals.

The intersection of Adams and Liberty streets is in the heart of the retail business district of the city of Peoria, and the evidence shows that at eight o’clock on the morning in question many persons were passing to and fro and there was considerable traffic on the streets. Appellee was a seamstress and roomed a few blocks from her place of employment and proceeded there on foot. When she came to Liberty street, she stopped at the curb and looked in both directions before attempting to cross the street. She testified that she neither saw nor heard any vehicle coming from the southeast, the direction from which she was afterwards struck; that a touring automobile was coming towards this crossing from the northwest, sounding a loud, shrill Klaxon horn, and directly in front of it was d two-horse truck; that she at once saw that she had time enough to get across the street before either of these two vehicles could reach the crossing and so started across; that she was then struck, but did not see or hear what struck her and knew nothing about it until she was restored to consciousness later; and the proof shows that she was nearly across Liberty street when she was struck. The top and back of her head were cut and bruised, her neck and right shoulder were injured, her right arm was broken, the wrist and small bones of her right hand were crushed, and she will probably never recover the full use of her right hand. There is no dispute but what she was seriously injured and, if she is entitled to recover at all, the amount awarded her by the jury is small, in view of what she has suffered.

Appellant’s automobile was used as a delivery wagon in connection with the laundry business which he carried on under the name of the Ideal Laundry, and at the time of the accident was being operated by James Bodine. Robert Nieberg was also employed on this automobile, taking bundles of laundry into and out of houses, hotels, etc., and at the time of the accident was riding on the seat with Bodine. The testimony of Bodine is conflicting and contradictory on several points, and he is impeached by several witnesses as to statements made by him after the accident. Bodine testified that as he approached Adams street crossing he was looking straight ahead and that there was no one crossing over ahead of him; that he did not turn aside to speak to Nieberg; and that he did not see appellee at all until just at the instant the automobile "struck her and knocked her down. Later, he testified that he did look around at Nieberg while they were coming up Liberty street towards Adams street, and that he was talking to Nieberg, who was fumbling with something in the back of the machine. He also told the jury that he had wonderful control of his eyes; and that, at the time in question, he was turned slightly to the right and could look at Nieberg and watch what he was doing and with his left eye could see what was going on up Liberty street; that he was relying on his left eye to see what was in front of him, as his right eye was somewhere else. He also stated that, just before the accident, he had his head turned towards Nieberg. A bystander testified that he passed in front of this laundry wagon about five seconds before appellee was struck; and that then the boy who was not driving the machine (Nieberg) was looking back into the wagon for some bundles, and the boy who was driving (Bodine) was talking to him and was looking around back over his shoulder at him. We consider that the evidence warranted the jury in finding that neither Bodine nor Nieberg were looking ahead of this automobile in the direction in which it was going for an appreciable time before the accident, and that, if either of them had been so looking, he would have noticed appellee in time to have avoided running upon her.

The automobile here in question had a foot gong alarm intended to be operated by the pressure of the driver’s foot, but it is admitted by appellant that this gong was not sounded by Bodine as the machine approached this crossing, and the evidence, though contradictory, tends to establish that this gong had been out of order for several days. The automobile also had on its top a series of bells, nine in number, in width from one inch and a half to four inches inside the base. Each of these bells was supplied with two hammers suspended in such a way that when the automobile moved, the hammers would hit the bells and ring them. Because of the varying size of the bells they make a sound like a chime and they are referred to as such. The testimony regarding the degree of sound made by this chime, which was the only warning given by this automobile in crossing the intersection of Adams and Liberty streets on the morning in question, is conflicting. Appellant himself testified that different pavements had different effects upon the bells; that when the automobile went over a street car track or over cobble stones the bells would make more noise than when going over smooth pavements; and that both Liberty street and Adams street, in that intersection, were paved with smooth wooden creosote blocks, as smooth as a floor. Other witnesses for appellant testified that this chime could be heard for half a block; another for from fifty to sixty yards. Witnesses for appellee, regarding this chime, testified that at that time and place it could not have been heard twenty feet away; that the noise these little bells make is not sharp and shrill but is a continuous ring; it is not such a ring as will startle a person. The Motor Vehicle Law of this State requires that upon approaching a person walking upon or along a public highway, the operator of a motor vehicle shall give reasonable warning of his approach, etc. Although the operator of this particular machine testified that he did not see appellee before his machine ran into her, still he was bound to assume that people would be at or upon this crossing, and he should have either given ‘‘reasonable warning of his approach” or else he should have been ready to give such warning, if any person did appear to be about to use said crossing. It is evident that the operator of this machine performed no physical act towards giving warning of his approach to this crossing, but appellant claims that the continuous ringing of this chime constituted a reasonable and sufficient warning and that appellee was guilty of negligence in not hearing such warning signal. As the evidence stands, it was a question for the jury whether or not this chime was a sufficient warning signal, and we do not feel justified in disturbing their conclusion that it was not.

The court did not err in refusing to instruct the jury to find the appellant not guilty at the close of the evidence, and did not err in .refusing to so instruct under the second and third counts of the declaration. The first count, as copied into the record, is not as set out in the abstract and is perhaps defective, but appellant did not ask an instruction as to said first count, and if it had it would not have been reversible error to refuse it, so long as there was sufficient evidence to authorize a verdict for appellee under the second and third counts. The court did not err in giving the instructions requested by appellee. The court refused four instructions requested by appellant. The statute concerning motor vehicles, in section 9 (J. & A. ff 10009), requires every motor vehicle while in use on a public highway to be provided with good and sufficient brakes and also with a suitable bell, horn or other signal device; and in section 16 (J. & A. ff 10016), requires that upon approaching a person walking upon or along a public highway, the operator of a motor vehicle shall give reasonable warning of his approach and use every reasonable precaution to avoid injuring such person and, if necessary, shall stop said motor vehicle until he can safely proceed. Appellant’s refused instruction No. 1 was intended to relieve appellant of any duty to sound a horn or give a warning. Its second refused instruction omitted any reference to that duty and would have instructed the jury to find appellant not guilty without any reference to the question whether such warning was given, and it assumed that there was evidence tending to show that appellee ran into the automobile, when there was no such evidence. The third refused instruction would have authorized a verdict for appellant without requiring any warning to be given, and so would the fourth refused instruction. The court modified five instructions requested by appellant and gave them as modified. The first four of said instructions, as offered, would have required appellee to prove that said bells gave no sound whatever and they were therefore erroneous. The court modified them by inserting the word “sufficient,” so as to require sufficient notice or warning of the approach of the automobile. It is claimed that this was a stronger requirement than the law imposes. If so, appellant cannot avail thereof, because in the second instruction, requested by it and given without modification, it required in order to exonerate appellant that said bells “continued to ring sufficiently” loud to give notice to all pedestrians of the approach of said automobile. Having induced the court to require that the bells should have given “sufficient notice,” it cannot complain that the court adopt its theory in other instructions. The fifth modified instruction was properly modified. The judgment is affirmed.

Affirmed.

Mr. Justice Niehaus took no part in this decision.


text:
    Carl Muenter, Appellee, v. Moline Plow Company, Appellant.
    Gen. No. 6,039.
    1. Appeal and errok, § 800

      —when denial of motion to strike remand order from files reviewaile. Since the clerk of a Circuit Court has no power to certify into a common-law record the written reasons assigned for nor the proof heard on a motion to strike from the files a remanding order of the Appellate Court until the costs of both courts are paid, such matter, when not embodied in a bill of exceptions, will be stricken from the record by the Appellate Court on a subsequent appeal.

      2. Appeal and errob, § 990

      —when denial of a motion to strilce remand ord'ór from files reviewable. Where, on a motion to require the plaintiff to give security for costs, the defendant offered in evidence a motion and supporting affidavits and papers, filed at a former term, to strike from the files a remanding order from the Appellate Court, and which were afterwards incorporated in a bill of exceptions to the denial of the motion for security, the action of the trial court at the previous term, in denying the motion to strike, is not open to review thereunder.
    3. Costs, § 38*—when motion for security to be made. A motion made during the trial of an action, to require the plaintiff to give security for costs on the ground that the defendant just learned that the plaintiff had conveyed his homestead, which was incumbered, to his son by a voluntary deed, filed for record a week before the opening of the trial, for the alleged purpose of preventing the defendant from collecting the costs of a previous trial, held properly denied, where the defendant did not levy execution and have the homestead, which was worth more than the exemption, set. off, since under the circumstances the motion should have been made before going to trial.
    4. Appeal and ebrob, § 991*—when refusal to permit juror to be questioned is error. The refusal to permit certain questions to be put to veniremen, who were not accepted and who did not sit on the trial of a case, will not be reviewed, although the defeated party exhausted his peremptory challenges, where the abstract does not show that an unfair jury was put upon him or that he thereafter desired to and was denied the right to challenge other jurors.
    5. Appeal and ebror, § 1625*—when exclusion of evidence cured by subsequent admission. Where objections are improperly sustained to questions put to a witness on cross-examination, the error is cured where the answers sought were subsequently elicited before the cross-examination of the witness was completed.
    6. Witnesses, § 178*—how witness interrogated as to testimony at former trial. On a second trial of an action, a question put to a witness as to his testimony at the former trial held properly rejected, where the question embodied many questions and answers, some of which were in harmony with the witness’ testimony given at the last trial, since the questions should have been separated.
    7. Evidence, § 52*—when evidence of place of birth admissible. It is not reversible error for the plaintiff on direct examination in an action against his employer for personal injuries, to state that he was born in Sweden, where he had been in this country for three years and his superiors thought it necessary to address him in Swedish, and it did not appear that any person of that nationality was a juror.

      8. Trial, § 73

      —when evidence in chief admissible on cross-examination of opposite party. When the plaintiff is the first witness examined in an action against his employer for personal injuries, the defendant cannot on his cross-examination introduce in evidence a model, diagram or plan of the machine by which the injury was caused, nor can he suspend the cross-examination of the witness and introduce evidence in his own behalf to prove the correctness of such exhibits and then proceed with the cross-examination.
    9. Evidence, § 459*—when evidence of witness at former trial may not be shown by bill of exceptions. On the second trial of an action, the defendant cannot show the evidence of the plaintiff and his witnesses at the former trial by introducing a bill of exceptions in which such testimony was embodied.
    10. Master and servant, § 605*—when statements of employer's representatives admissible in action for injuries to employee. Evidence as to what was said to a factory employee by his superiors; as representatives of their employer, is admissible in an action against the latter for personal injuries.
    11. Master and servant, § 622*—when evidence as to condition of machine after accident admissible. Evidence as to the condition of a machine three days after an employee was injured by it is admissible in an action against his employer, where in the meantime the machine was operated but fifteen minutes immediately following the accident.
    12. Master and servant, § 457*—when duty of employee to inspect machinery for defects. Where an unskilled employee working at a drop hammer was not required to give attention to mechanism located fifteen feet above the floor, other tnan to twice a day place oil in certain holes in the bearings, he was under no duty to inspect the mechanism for defects.
    13. Master and servant, § 339*—when employee assumes risk of nonrepair of machinery. Where an unskilled employee working at a drop hammer was not required to give attention to mechanism fifteen feet above the floor, other than to put oil on the bearings twice a day, he does not assume the risk of injury from the nonrepair thereof.
    14. Master and servant, § 709*—when defective condition of machine question for jury. Whether the overhead mechanism operating a drop hammer was left in an improper condition after repairing, and whether it was in that condition at the time of an employee’s injury by the premature dropping of the hammer, is a question for the jury, where the device which sustained the hammer when not in operation was left in such a condition as to prevent it safely performing its necessary functions.

      15. Master and servant, § 711

      —when question for jury whether master properly inspected machine. Whether an employer properly performed his duty in inspecting the overhead mechanism operating a drop hammer is a question for the jury, in an action hy an employee for injuries sustained hy a premature movement thereof, where such machine was repaired and the device which sustained the hammer when not in use was left in a defective condition so that the hammer frequently dropped when the machine was at rest.
    16. Master and servant, § 751*—when question of servant’s due care in pushing iron through drop hammer for jury. Whether an employee was in the exercise of due care when his hand was injured hy the premature fall of a drop hammer is a question for the jury, where at the time he was reaching under the hammer 'in a manner commonly pursued, pushing a piece of iron into a cart on the opposite side of the machine, which was safe when the hammer was in proper repair.
    17. Damages, § 131*—when judgment for injury to hand not excessive. A judgment for $5,763.61 is not excessive for the loss of three-fourths of the palm and all of the fingers except the index finger of an employee’s right hand.
    18. Master and servant, § 795*—tohen requested instructions properly denied. Requested instructions are properly denied in an action against an employer for injuries received by an employee, when they assume a state of facts not sustained by the evidence, or based on conflicting testimony, or when covered by the general charge given.
    19. Master and servant, § 174*—when following customary manner of work not negligence. An instruction in an action for injuries to an employee caused by the premature action of a drop hammer he was operating, to the effect that he could not recover if he was doing his work in an unnecessary manner, of which his employer was not aware, nor of which he could not have known by the exercise of ordinary care, was properly refused, where an assistant superintendent and several foremen in the defendant’s employ were aware that the injured employee was doing his work in the manner commonly followed by other employees.
    20. Master and servant, § 685*—when verdict rendered for injured servant in absence of showing of defect responsible. The jury may find for the plaintiff in an action for injuries sustained by an employee from the premature action of a drop hammer, although the evidence does not show the precise defect that caused the accident, where the declaration charges that the employer negligently permitted the machine to become and remain out of repair and in a dangerous condition, to the plaintiff’s injury.

      ■ 21. Master and servant, § 182

      —when violation of rule hy injured employee no defense. That an injury to an employee’s hand, hy the premature action of a drop hammer, was due to his violation of a rule of his employer prohibiting the pushing of pieces of iron through the hammer, is no defense to an action against the latter, where the continued violation of such rule was known to the assistant superintendent and several foremen in the defendant’s employ, and the injured employee had been instructed to do as other employees did.
    22. Master and servant, § 795*—when requested instructions properly refused. Requested instructions in an action by an employee for injuries to his hand, caused by the premature movement of a drop hammer, held properly refused.
    23. Master and servant, § 799*—when instructions in action for injury to hand proper. The instructions given in an action for injuries to a hand of an employee by the premature action of a drop hammer, held to be correct.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Searle & Marshall, for appellant.
    J. T. & S. R. Kenworthy and Andrew Olson, 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.

      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.

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

   Mr. Justice Dibell

delivered the opinion of the court.

This case was considered by this court in Muenter v. Moline Plow Co., 182 Ill. App. 578, and we refer to that opinion for a statement of the case. We reversed a former judgment and the cause was reinstated in the court below and tried b}1- a jury and there was a verdict for plaintiff, a motion hy defendant for a new trial denied, plaintiff had a judgment for the verdict and interest thereon and defendant appeals.

From the recitals in the record kept by the clerk it appears that the appellant in the court below moved to strike from the files the remanding order from this court and to strike the cause from the docket, and objected to the reinstatement of the case and moves that all proceedings be stayed until appellee paid the costs of the Circuit Court and of this court, and appellant filed certain affidavits in support of said motion; and the clerk also undertook to preserve another motion and the points filed in support thereof and certain affidavits. These were embodied in the record. Appellee moved to strike these matters from the record, specifying the pages thereof. Arguments for and against this motion were filed and we took it with the case. Counsel for each party assumed that a bill of exceptions as to those matters was presented to the trial judge and that some memorandum and his signature is attached thereto, appellee insisting that the meaning of the memorandum is that the judge refused to sign the bill of exceptions, and appellant insisting that this is a bill of exceptions signed by the judge.

We have diligently searched this record and find no such memorandum or signature by the judge. So far as we can ascertain, counsel are discussing something that is not in this record. Certainly at the pages which appellee has moved to strike from the record no such memorandum .or signature appears. The papers copied into the record by the clerk, and which we are asked to strike from the record, do not have the form of a bill of exceptions. The clerk has no power to certify in a common-law record what written reasons were assigned for a motion nor what proof was heard upon the motion. This has been many times decided by courts of review in this State, recent cases being People v. Ellsworth, 261 Ill. 275, and People ex rel. Edgar v. Board of Review Cook Co., 263 Ill. 326. The papers copied into the record by the clerk upon pages 16 to 23 inclusive and on pages 35 to 39 inclusive are therefore stricken from the record.

The trial began on January 12/1914, and the hearing of proofs began on January 14th, On January 20th appellant entered a motion to require appellee to give security for costs, and to stay the suit until such security was furnished and until the costs of the Appellate Court were paid, and it filed certain points in writing and offered in evidence certain affidavits and the motion filed at the former term to strike the remanding order of this court from the files, etc., and the affidavits and papers then filed in support thereof; and thereby said motion and affidavit of said former term were incorporated in this bill of exceptions. They were proper for whatever bearing they had on said motion of January 20, 1914, but their presence at that point in the bill of exceptions does not furnish any ground for reviewing the action of the court at the previous term. The ground of the motion to stop the progress of the cause until appellee gave security for costs and paid the costs of this court at the former term was that a few days before the present trial began appellee conveyed his real estate to his son, that appellant’s representative did not learn thereof until three days before the motion was made, and that the day before the motion was made said representative learned from said son that he paid no money consideration for said deed, but said son refused to state what the consideration was, and referred him to appellee therefor, and appellee refused to make any statement of the matter; and said representative alleged that he was informed that appellee had no other property from which the costs could be collected, and that he believed that the deed was made for the purpose of preventing any collection of the costs of this case from appellee. The affiant also stated that the property so conveyed was the homestead of appellee, and was subject to a mortgage for $1,000, and that he believed it was worth $3,000. Appellant also offered, upon said motion, the execution against appellee for costs, amounting to $319.66, which issued from this court since the former hearing here, and showed that it reached the sheriff of Bock Island county on October 30, 1913. If appellant believed that there was any value in said property above the homestead and the mortgage, why did it not levy said execution upon said real estate and take proceedings eto have the homestead set off and the property sold under said execution? This deed was filed for record three days before the trial of this case began. The affiant says he is an agent of appellant, and did not know of the filing of this deed until January 17th, a week after the trial began. But there is nothing to show that the attorneys for appellant or the officers of appellant did not know of this deed at the time it was recorded, and if they did, then they should have made this application before this trial began. Appellant does not show that it could not have made this application before the trial began. Again, said affiant only surmises or guesses that the purpose was to prevent appellant from collecting its costs. If the court had deemed an application of this kind, in the middle of a long trial, sufficient, it would have been bound to enter into an inquiry as to what the purpose was in making the deed, and it might very well be that it was made to enable appellee to provide a way for raising funds to procure the services of attorneys for this third trial of the case, or to procure the attendance of his witness Pearson from South Dakota, and for other expenses of the trial. As appellant could have subjected said property to sale under its execution and did not, and as it has no judgment for the costs of the Circuit Court, but on the contrary the judgment for said costs' is against it, and as the granting of such a motion ten days after the trial began is not supported by any authority to which our attention is called, and would be a rule very demoralizing to the trial of causes, we approve the action of the trial court in exercising its discretion in refusing to suspend the trial at that "stage of the case.

Appellant asked certain questions of various members of the panel during the selection of- the jury, to which the court sustained objections, and it is argued that the questions were proper and that the court erred in not permitting them to be answered. None of those jurymen were accepted, or sat in the trial of the case. Appellant exhausted its peremptory challenges, but the abstract does not show that it thereafter desired to challenge any other juror and was refused or that an unfair juror was put upon it, and the abstract therefore does not show that if the questions were proper, appellant was harmed by the refusal to permit them to be answered. The rule laid down in Spies v. People, 122 Ill. 1, on pp. 257, 258, and in Graff v. People, 208 Ill. 312, and followed in various Appellate Court cases, is that unless it appears that an objectionable juror was put upon the defeated party after he had exhausted his peremptory challenges, rulings of the court in regard to jurors who were not accepted will not be considered. In Grand Lodge I. O. M. A. v. Wieting, 168 Ill. 408, this rule was applied to alleged errors of the trial court in refusing to permit appellant to put certain questions to certain veniremen, and as an unobjectionable jury was obtained, the Supreme Court declined to consider whether the trial court did or did not rule correctly. Appellant has embodied in the record the entire examination of jurors, covering about 135 pages, but it is not our duty to examine more of that record than has been abstracted to see if we cannot discover some error. Inman v. Miller, 234 Ill. 356; Phillips v. Benfield, 249 Ill. 139; Stout v. Taylor, 168 Ill. App. 410; Biggs v. Peoria & P. U. Ry. Co., 182 Ill. App. 613. The abstract does not show reversible error in that respect..

Many errors are assigned, but, as they are summarized in appellant’s brief, those not already considered are confined to rulings on the evidence and the instructions. The record is full of objections to questions put to the witnesses. Upon a careful examination we find that in very many cases where the court sustained an objection to a question put by appellant in the cross-examination where the ruling seems wrong or doubtful, it appears that before the cross-examination was finished the evidence sought was obtained and thereby a possible error was cured. There are instances where an objection was sustained to a question put by appellant to appellee whether he did not make a certain answer on a former trial, but before the cross-examination was finished the witness stated that he did make that answer at the former trial. Appellee was asked on cross-examination if he had looked over his former testimony and an objection was sustained to that question, but before the cross-examination was finished appellee answered that he had not read his former testimony but that he had talked it over with his attorney. The truth seems to be that appellant’s counsel was persistent, and when he had put what he conceived to be a proper cross-examination and an objection thereto was sustained, he did not rest upon the' supposed error of that ruling but went after the matter again and again and generally obtained a complete answer to his inquiry before the cross-examination was finished. Appellant read to the witness Pearson in the cross-examination, in one interrogatory, a large number of questions and answers, and then asked him if such questions were put to him and if he made such answers at the former trial. One such interrogatory also embraced the question whether, at the first trial, he had been asked certain questions and made certain answers. Objections were sustained to these questions. Appellant’s counsel stated to the trial judge that if the objection was that he was combining several questions and answers in one question, he would put them separately. The court indicated that he thought that form was objectionable, but that he was ruling on other grounds. The questions should have been separated, because very many of the supposed answers were entirely in harmony with what the witness had already testified to both in direct and cross-examination, and such answers contained no matter of impeachment or contradiction. Unquestionably if any witness has given an answer in a material matter at a former trial not in harmony with his testimony on "the present trial, the cross-examiner has a right to ask the witness if he did so state on the former trial. In fact there was substantially .nothing of importance in the matter supposed to have been testified to by him in the former trial but what had already been stated by him on his cross-examination at this trial. Pearson was a machinist who assisted a representative of appellant in repairing the overhead mechanical appliances of this drop hammer in August preceding this injury. The object of these omnibus cross-questions was to show that at the former trial he had testified that "when that repair was completed in August the parts were put back in their proper places, and were in order, and were tested by him and found to be in order. He had previously testified on the cross-examination at great length that these appliances were in proper order when the machine was reassembled after the repairs in August, and that they tested it then, and that it worked perfectly. Therefore these supposed omnibus questions contained substantially nothing to contradict the evidence of the witness. But more than all that, the thing sought to be established by Pearson’s direct examination was that the stopper bar was bent when the repairs were finished, and that the dog engaged the stopper bar only about three-quarters of an inch. Bruce, one of the representatives of appellant, and under whose direction said repairs were made in August, testified for appellant that the stopper bar was bent and crooked, and was left by him in that condition purposely, and that* he regarded that as the proper condition for it to be in; and either he or another witness for appellant testified that the dog only engaged the stopper bar about three-quarters of an inch, and that it ought not to engage it any more than that. Therefore the fact that the stopper bar was left bent and crooked and engaging the dog only three-quarters of an inch was proved by appellant, and therefore if there was anything in Pearson’s former examination tending to the same effect which would have contradicted anything he testified to on this trial, still appellant was not harmed by not obtaining it, because it claimed the truth was as Bruce testified, and the question then became, not whether the stopper bar was in fact crooked and bent and engaging the dog only three-quarters of an inch as appellee’s testimony tended to show, but whether that was a proper and safe condition as appellant claimed or was dangerous and calculated to permit the machine to repeat as appellee claimed. Appellee on cross-examination was asked similar questions, though they were not combined to the same extent in one interrogatory. 'The observations above made concerning Pearson’s cross-examination apply in part to that of appellee, and in addition, before the cross-examination was completed, appellee had answered most of the questions. When the whole record is considered, we do not find any reversible error in those rulings. Appellee was asked on direct examination where he was born, and answered “In Sweden.” It is earnestly insisted both in the original and in the reply brief that this was reversible error. Appellant1 proved by some of its foremen that they gave orders and directions to appellee in the Swedish language. The fact was that he had been in this country but a little over three years when he was injured and that his superiors thought it necessary to address him in that language to make him understand, and it is evident that at this trial it was difficult to make him understand some of the questions in English. The names of the jurors are not contained in the abstract nor does the abstract show that any man of Swedish nationality sat upon the, trial. We find no error in this respect.

In cross-examination of appellee, who was the first witness at the trial, appellant sought to put in evidence various models, diagrams and plans of the machine upon which appellee was working when he was injured, including parts thereof which were not in his sight when he was at work and with which he was obviously unfamiliar, and then to cross-examine appellee upon these models and diagrams. Appellant also proposed to have appellee withdrawn from the stand, and to call a witness for appellant and prove by him the correctness of these models, diagrams and plans, before proceeding with the cross-examination of appellee. Our attention is not called to any case where it has been announced as a proper rule of practice for a defendant to begin introducing his testimony before the completion of the examination of the first witness for the plaintiff, and undoubtedly such a rule of practice would be extremely confusing. Appellant had no such right. Appellee was not an expert and it was not proper for appellant to introduce its evidence at the very commencement of appellee’s case, and we approve the ruling. In due time appellant in its proper order was permitted to introduce these models and diagrams and had all it was entitled to in that respect. If appellee had been testifying as an expert as to the construction of this machine and as to the respect in which it was faulty, probably appellant might properly have cross-examined him with the aid of a model not yet in evidence".

In making its case appellant offered in evidence the testimony of appellee and other witnesses at the former trial from the bill of exceptions. It did not produce the stenographer who took the evidence and prepared the bill of exceptions to swear to its truthfulness, but showed that it was inconvenient for it to produce said stenographer. The bill of exceptions was not signed by the judge who tried the case, for he was then dead, and it was signed by another judge of that circuit. The bill of exceptions was not competent for this purpose, as held in Kankakee & S. R. Co. v. Horan, 131 Ill. 288, and Illinois Cent. R. Co. v. Ashline, 171 Ill. 313, and cases there cited. One obvious reason is because the witness had no part in making up the bill of exceptions and no opportunity to decide whether it was correct or incorrect before it was signed. The parties to the suit may have considered his evidence unimportant and may have paid no attention to its correctness, or they may have been willing to have some parts omitted or abbreviated. The rule, of course, is entirely different if any witness has testified to the correctness of- the report of the evidence of the witness as therein set out.

Complaint is made of the admission of testimony of what certain men said to appellee in the shop. These men were either assistant superintendent, machinist, or one of the foremen of the shop, and all of them appellee’s superiors and all of them representatives of appellant, and what they said to appellee was said by appellant and was therefore competent evidence. It is urged that it was error to permit appellee to prove the condition of the machine after he was hurt. When appellee was hurt he was immediately removed to a hospital. He had a few irons in his furnace, heated and ready to be put through the machine. Bruce, assistant superintendent, came immediately and ran the machine about fifteen minutes to work off the irons in the furnace. He testified the machine did not repeat during that time. The proof is positive and uncontradicted that the machine then remained idle for three days. Under these circumstances we think it not erroneous to prove the condition of the machine at the close of said three days.

The machine in question was known as a drop-hammer machine. There was an anvil in front of the operator and a hammer weighing perhaps eight hundred pounds which stood raised about two feet above the anvil. In the face of the hammer and in the face of the anvil, dies were inserted, according to the work to be done. These dies weighed about one hundred and fifty pounds. The operator inserted the dies and cleaned them when necessary. Some distance above the head of the operator was a frame work. Attached to the hammer was a rope which went to a mechanism some fifteen feet above the floor. Among the mechanisms at that distance from the floor was a stopper arm, which was connected with the shafts which operated the machinery in various parts of the plant. There were also two devices called stopper bars set horizontally. There was also a dog which engaged the front stopper bar, and while this mechanism was in that position the hammer was held suspended. Another mechanism connected with a pedal near the floor enabled the operator to remove ‘the dog and release the stopper bar and the hammer then fell. When the foot of the operator was not upon the pedal the hammer remained suspended above the anvil, if the mechanism was in proper condition. The operator of this particular machine faced west. There was a north and south aisle in the shop, directly back of his machine. To the right of the operator and á little further east was the furnace wherein his irons were heated by the helper. Immediately north of the furnace was an east and west aisle. The operator handled the heated irons with a pair of tongs and used both hands in doing so, the right being nearest to the irons. It was his duty to place the heated iron on the anvil, cause the hammer to drop twice upon it, and permit the hammer to be immediately raised, and he then with his tongs put the iron into a cart provided for that purpose. There were two places where the cart could stand. If the cart was north of the anvil and immediately west of his furnace, he drew the iron towards him and then to the right into the cart. If the cart stood in the aisle immediately west of the anvil, he pushed the iron from him and dropped it into the cart. Appellee was hurt on October 11, 1906. This mechanism, fifteen feet above the floor, had been out of repair in the previous August and portions thereof had been taken down by machinists and repaired in some other part of the shop and returned some days later, and appellee again set to work upon the machine. Appellee contends that these appliances were not then properly repaired but were reassembled when they were in an improper condition and unsafe, and that this was negligence, and also that the machine had repeated a few days before he was hurt. Appellant contends that it was not negligent in this respect; that if the machine afterwards became out of repair, it was the duty of appellee to know that fact and to report it, and that he did not do so; that appellee was negligent in not ascertaining if the appliances were out of repair; and negligent in pushing the iron over the anvil into the cart, when it was an absolutely safe way for him to have his cart north of the anvil and pull the iron out from under the hammer and deposit it in the cart to his right; that appellee had been expressly ordered not to push the irons through and have his cart behind the anvil, and that he disobeyed these orders and was thereby hurt; and that he assumed the risk of working with the machine as it was and also the risk arising from his disobedience of orders. There was proof that when the appliances high above the floor were reassembled after the repairs in August, the stopper bar was bent when it should have been straight; that the dog was worn and the ends of the stopper bar were rounded instead of square, thus making it'easier for the dog to slip off; and also that the dog engaged the stopper bar only three-quarters of an inch when it should have engaged it from an inch and one-quarter to an inch and one-half, and that these conditions would tend to permit the hammer to fall when the pedal was not pressed. There was proof that when an operator started to again work with the machine three days after appellee was hurt, the hammer repeated again and again, and it was found that the stopper bar was still more bent and the ends thereof still more worn, so that the dog would not hold up the hammer. All these matters were contradicted by evidence introduced by appellant. There was evidence that it was the general duty of each operator upon the various drop hammers in that shop to be responsible for his own machine, and to ascertain and report whenever it was out of repair. We are satisfied from all the evidence that though that was true as to the hammer and anvil and conditions where the operator stood, it was not true as to the mechanism fifteen feet above the floor and here involved. Underneath this mechanism and the platform there were timbers, and beneath these was a metal pan to catch oil which might drip from those bearings and the dust. It was the duty of appellee to go up to this place twice a day and pour some oil through three or four oil holes in the bearings. He had no other duty to perform above that drip pan. From where he stood when operating the machine he could not see this mechanism at all if he tried to look. He was not a machinist in the ordinary sense. He was really an unskilled workman. It does not appear that he had any knowledge of the exact condition of the appliances involving the stopper arm, the stopper bars, the dog and a certain spiral spring and certain rubber bands, or their connection with the shaft. His only duty above the drip pan was to go there twice a day and put oil in the oil holes. We are of opinion that he had no duty of inspection of those appliances, had no means of knowing whether they were or were not in order, except by the fact of the hammer repeating, while appellant owed him the duty of inspection of these appliances and owed him the duty to exercise reasonable care to furnish him a reasonably safe place in which to work, and therefore that there is no evidence in the case from which the jury could be permitted to find that he assumed the risk that these appliances were in good repair. The assistant superintendent or head machinist and various foremen in that shop testified that they forbid appellee to place his cart back of his anvil and to push the irons through the anvil into the cart and to put his hand under the hammer, but directed him to put the cart at the right of the anvil and to pull out the irons towards himself and deposit them in the cart to his right. Appellee when hurt had the cart back of the anvil and was pushing the irons through the anvil with his tongs. Neither he nor any other witness could tell exactly how his hand came to be under the hammer when it repeated. Appellee denied these orders and directions, except as to two instances. He testified that on one occasion one of the forémen told him to move his cart from the rear of his anvil to the side because the foreman wanted to use that aisle at that time for a certain purpose connected with certain beams, and that he accordingly did so move his cart until the foreman was through using the aisle, and then he put it back behind the anvil again. Appellee testified that it was sometimes necessary for him to clean the die on the face of the anvil and that for this purpose he wns supplied with certain appliances, including a brush and a hose, and that on a certain occasion the hose was out of order and he was obliged to use the brush alone to clean the die, and that brought his hand under the hammer, and that a foreman, who came along, asked him why he did it that way and appellee told him the hose was out of order, and the foreman then told him, that when he had occasion to put his hand upon the die in that way he should first put a certain wooden block upon the anvil, which would protect his hand if the hammer fell. While some of the witnesses for appellant testified that it was improper to push the irons through the anvil, other witnesses for appellant plainly showed that it was not unsafe to do so, especially with the shorter irons, and that it was common practice in that shop. Appellee testified that when he was taken from the position of helper and made an operator of a drop-hammer machine, ten months or a year before he was injured, he expressed to the foreman doubt of his ability to. do the work and that his foreman told him to do as the other operators did. The drop-hammer operator under whom appellee worked as a helper before he was put upon this drop hammer testified for appellant that while appellee worked as his helper, the witness was in the habit of pushing’ “Dutch Uncle” shanks through the machine and dropping them into a cart back of it instead of pulling them towards himself, whenever it was more convenient to do it that way, and that that was a safe and proper method. It is plain from an examination of all the testimony offered by appellant that while some of its foremen declared that method of removing the iron from the die to be improper, yet that was a very common practice in that shop with its seven or eight or nine drop hammers, when working upon “Dutch Uncle” shanks and other short irons, prior to the injury to appellee, and that the foreman saw the business so conducted, and never claimed to have tried to stop the practice or to give any other or different orders, except the contrary orders which they claimed they occasionally gave to appellee. Witnesses for appellant testified that the iron could be pushed through the- anvil without putting the hand of the operator upon the place where the hammer would fall. When appellee was hurt he was working upon “Dutch Uncle” shanks, short small irons which some witnesses for appellant said it was proper to shove through the machine. Appellee testified that he did this work in this way because he could work more rapidly to shove the iron from him and to let it fall into the cart than to pull it towards him and then push it to the right, and that he was paid so much for each one hundred irons that he put through his machine. A witness for appellant gave testimony indicating his suspicion that appellee’s foot may have touchéd the pedal and thus released the hammer at this time, but appellee positively testified that he did not touch the pedal, and the fact that the" machine constantly* repeated when operation was resumed upon it after three days tends to indicate that it did repeat without the operation of the pedal when appellee was hurt. There therefore was evidence tending to show that the overhead appliances were left in improper condition when reassembled in August, and that they were in an improper condition when appellee was hurt, and that appellee was injured because thereof, and that appellant had not properly performed its duty of inspection, and that appellee was in the exercise of due care, and these were questions of fact for a jury. There have been three trials. The result of the first we do not know. The second and third verdicts were for the plaintiff.- We conclude that a verdict either way upon these questions of fact should not now be disturbed by this court. Plaintiff lost three-fourths of the palm of his right hand and all the fingers thereof except the index finger. The judgment for $5,763.61 is not excessive.

Appellant criticises several of the instructions given at the request of appellee, but we conclude such criticisms are not well founded. Appellant requested forty-six instructions. The questions of law involved in the case were few and simple, and we regard a request for so many instructions as an abuse and as casting upon the trial judge an unnecessary burden. •This multiplicity of instructions was created by stating the legal propositions supposed to be applicable to the case in many different ways and stating two or more legal propositions in many different combinations, calculated to puzzle the trial judge. The court gave twenty-eight instructions requested by appellant and refused eighteen. No. 1, refused, assumes that appellant had given appellee positive and express instructions as to the manner of doing his work, whereas the evidence made that a disputed question. The other provisions of said instruction are embodied in instructions given for appellant. No. 2, refused, is practically embodied in the given instructions. No. 3, refused, is to the effect that if appellee was doing his work in an unnecessary way and was injured in direct consequence of so doing it, and if defendant did not know that he was so doing the work and could not have so known by the exercise of reasonable care, then appellee could not recover. There was no proof upon which to base this instruction. Not only had the assistant superintendent or head machinist and several foremen seen appellee doing this work in the way he was doing it when he was hurt, and so testified, but one of them testified that he knew that appellee sometimes did the work in that way and saw him so doing it on the Saturday before the Wednesday on which he was hurt. Knowledge by the foreman was knowledge by appellant, and as such knowledge was clearly established and not denied, this instruction was properly refused. No. 4, refused, put upon appellee an assumption of risk much greater than the evidence would justify. Instructions Nos. 18, 25 and 26, given at appellant’s request, stated the law on that subject sufficiently, as shown by what we have heretofore said of the evidence bearing upon the assumption of risk. No. 5, refused, ignored appellant’s duty of inspection after the overhead appliances were repaired in August. Instruction No. 22, given, was sufficient on that subject. Two of the propositions embraced in No. 6, refused, were embodied in given instructions No. 4 and 14. The remaining proposition was that the jury-should find for defendant if they were unable to decide from the evidence the nature of the defect in the machine. The declaration is improperly abstracted, but an examination of the record shows that one count thereof contained the general charge that defendant negligently permitted the machine to become and remain out of repair and in a dangerous condition and thereby plaintiff was injured. Under that charge it was not necessary for the jury to determine the exact nature of the defect in order to find for plaintiff, and that part of the instruction was calculated to mislead the jury. No. 7, refused, was covered by given instructions Nos. 4, 5, 14 and others. No. 8, refused, was covered by given instructions Nos. 6, 16, 17, 18, 19, 20, 21, 23, 24 and others. We are of opinion that the evidence does not show such a duty in appellee to inspect the overhead appliances controlling the action of the hammer as appellant has assumed in refused instructions Nos. 9, 10 and 11, and that given instructions Nos. 18, 25 and 26 and others stated all that appellant was entitled to on that subject. There is no evidence that appellee had any such knowledge of the defects of said overhead appliances as to justify refused instruction No. 12. Nos. 13, 14 and 17, refused, were to the general effect that if appellee disobeyed an order of his superior and was injured in consequence thereof, he could not recover. There was proof of several such orders at different times by different foremen and these orders were not always identical. The instructions do not designate which order was meant. 'They covered those given long before the injury as well as the more recent. There were a number of drop-hammer machines operating in that shop, either seven, eight or nine. Witnesses introduced by appellant gave evidence tefiding to show a custom or habit or practice in that shop that operators of these machines pushed the irons through the machine just as appellee was doing when he was hurt, and especially that they did so when working on short pieces of irons, as these “Dutch Uncle” shanks were. With an assistant superintendent or head machinist and several foremen in this shop all the time, the evidence warranted the jury in finding that these violations of this order were habitual when working on short irons, and were well known to appellant through its foremen and superior officers and were permitted to continue. Perhaps this practice was not stopped by appellant because under the proof each man could accomplish more work by pushing the short irons through the machine. Only half as. many movements were required by the operator to push the iron through as to draw it back and cast it to the right. We held in Coburn v. Moline, E. M. & W. Ry. Co., 149 Ill. App. 132; Kenny v. Marquette Cement Mfg. Co., 149 Ill. App. 173; and Bertelsen v. Rock Island Plow Co., 164 Ill. App. 459, that abrogation of a rule may be shown by proof of its habitual violation with the knowledge of the master who established it, and that such knowledge will be presumed if the violation continues so long that the master might reasonably know it. The Kenny case, supra, was afterwards affirmed in 243 111. 396, where other eases are cited. This principle would apply to the supposed orders given appellee here, especially in view of the fact that the proof shows that he was directed to do this work as the operators of other drop-hammer machines did theirs. This instruction ignored points which must be considered in determining whether a failure to obey the order referred to in said instructions necessarily defeated appellee in this suit. No. 15, refused, ignored the effect of the proof that if the overhead appliances were in proper condition and the appellee’s foot was not upon the pedal, it was safe to put one’s hand upon the plate. It also ignored the rule laid down in United States Wind Engine & Pump Co. v. Butcher, 223 Ill. 638, and Clark v. Chicago, R. I. & P. Ry. Co., 231 Ill. 548. No. 16 was properly refused because there was no proof that the failure of appellant to repair was due to the negligence of any one who could be found by the jury to be a fellow-servant of appellee. No. 18, refused, was covered by several given instructions, requiring due care of plaintiff as a prerequisite to his recovery, and especially by given instructions Nos. 21, 24 and 26. Our reference here to “given instructions” are to those given at the request of appellant.

We find no reversible error in the other matters of which complaint is made. The judgment is therefore affirmed.

Affirmed.


text:
    Minnie E. Parks, Appellee, v. I. M. Western, Administrator, Appellant.
    Gen. No. 6,046.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Minnie E. Parks filed a claim against the estate of her deceased brother, Merreles E. Covey, in the Probate Court, on a judgment note payable to her order," and purporting to have been signed by the deceased and his mother. The administrator filed an affidavit denying the execution of the instrument. The claim was allowed in full in the Probate Court and in the Circuit Court on appeal, and the administrator appeals therefrom.
    Abstract of the Decision.
    1. Appeal and erbor, § 790

      —when affidavit denying execution of instrument part of record. Since an affidavit denying the execution of a note is in effect a pleading, it need not be preserved by-bill of exceptions.
    2. Bills and notes, § 480*—when judgment on note based on conflicting evidence sustained. A judgment in favor of the plaintiff in an action on a note will not be disturbed on appeal when resting on conflicting evidence as to the execution by the maker, his acknowledgment of its existence during his lifetime, and also whether the payee ever had the amount of money to lend the maker which was represented by the note.
    3. Appeal and ebbob, § 806*—when bill of exceptions must contain rejected exhibits. Whether the rejection of the plaintiff’s tax schedule in an action on a note was erroneous, when introduced to show that he did not have the amount of the note to lend the maker, will not be considered on appeal where the schedule is not in the bill of exceptions.
    4. Tbial, § 232*—when unexplained presence of document in jury room not prejudicial. The presence of blank tax schedules among the documents returned by a jury from the jury room,
      held not to constitute reversible error, where they evidently fell from a sealed book properly taken to the jury room.

      The evidence was conflicting as to whether the deceased executed the instrument, whether he acknowledged its existence during his lifetime, and also whether the claimant ever had the amount of the note to lend her brother, as she claimed to have done.
    Ellis & Western, for appellant; Edgar L. Masters, of counsel.
    Hazlehurst & Carbury and Raymond & Newhall, 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. Justice Dibell

delivered the opinion of the court.

5. Bills and notes, § 462 —when instruction as to liability of maker not erroneous. An instruction in an action on a note, to the effect that if the jury believed from the evidence that it was executed by the maker, delivered to the payee and had not been paid, that they should find for the plaintiff in such amount, if any, as from the evidence they found to be due, held not erroneous.

6. Trial, § 34*—when presence on bench of judge formerly of counsel not prejudicial. The fact that a judge of a Circuit Court, who was formerly of counsel for the plaintiff, came into the court room during the trial, went upon the bench and spoke to the presiding judge, held not prejudicial to the defendant where neither the length of such conversation nor the subject thereof appeared.


text:
    Illinois Northern Utilities Company, Appellant, v. City of Oregon, Appellee.
    Gen. No. 6,060.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    By various conveyances the Illinois Northern Utilities Company acquired 107/110, the city of Oregon 2/110 and James Barden’s estate 1/110 of a dam across the Bock Biver at the city of Oregon. In all of the deeds were numerous covenants and agreements for the repair and maintenance of the dam at a designated height and for dividing the expense thereof among the owners. The conveyances further provided that if any of the owners failed to repair damages within ten days after notice from any other owner to do so, that any one owner might make the necessary repairs and charge to each owner his proportion of the expense.
    In 1913 about one hundred feet of the dam went out, and repairs not being made, the city of Oregon notified the Illinois Northern Utilities Company to make them, and on default, the city let a contract therefor, when the company filed a bill to enjoin the work.
    After a hearing of the cause the bill was dismissed for want of equity, from which the complainant appeals.
    The appellant contended that the dam was exceedingly old, weak and full of holes, and that it could not be successfully repaired; that when the break was closed that much greater pressure would be put on other parts of the structure and that it would go out at some other point; that as the repairs would be useless it would be inequitable to put nearly all of the cost upon the complainant, and that if the matter be allowed to stand until financial conditions improved,it would build a new dam. There was evidence that an executive officer of the complainant company declared to officers of the city that the dam would not be rebuilt but that the company would let it be destroyed.
    There was conflicting evidence given by expert witnesses, as to whether the dam could be successfully repaired. The city showed that it had previously made similar repairs which were successful.
    Henry S. Dixon and George C. Dixon, for appellant.
    Bert S. Duzan and W. J. Emerson, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

Injunction, § 62 —when co-owner of dam restrained from making repairs. An injunction to restrain one joint owner of a dam from making repairs at the expense of his co-owners, held properly denied, where the dam was acquired by several persons by conveyances permitting any one of them, on notice to the others, to make repairs and to charge the others with their proportion of the expense, especially when the evidence did not show but that the repairs would place the structure in a safe, serviceable condition.


author: Mr. Justice Niehaus

text:
    Albert Haentze et al., Appellees, v. Rose Swain Brown et al., Appellants.
    Gen. No. 5,798.
    (Not to be reported in full.)
    Appeal from the Circuit Court of DuPage county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Bill in chancery filed by Albert Haentze and others against Bose Swain Brown and others, for an accounting and to foreclose a mechanic’s lien for labor and materials furnished in the construction of a dwelling house for the defendants under a written contract requiring its completion by a certain day, “weather and other conditions permitting.” A decree for seven hundred dollars was entered for the complainants and the defendants appeal.
    Before the hearing, the complainants were permitted to amend their bill of complaint by including items which by mistake or inadvertence were omitted from, the original bill.

      The defendants claimed that the building was not completed by the complainants; that it was not constructed according to the plans and specifications as required by the contract; that the work was done in an unskilful and unworkmanlike manner, and that defective materials were used; that the defendants were entitled to certain credits; and that they were also entitled to liquidated damages under the terms of the contract, for the failure of the complainants to complete the house within the time specified by the contract.
    The evidence tended to show that the building was built in substantial compliance with the contract and specifications, although there were some defects and deficiencies in material and workmanship which were not of such substantial character as to affect the general character of the work, and that important changes and additions to the plans were made at the request of the defendants; that some delay was caused by weather conditions and by the making of such alterations and additions; that the defendants took possession of the house after the date fixed for its completion; that they thereafter urged the complainants to finish it, and that the latter then expended money and furnished materials to do so, and that the defendants accepted the benefit thereof; and that they afterwards practically agreed with the complainants as to the balance due them, and also made a payment on the account.
    Philip S. Brown, for appellants; Alfred Barstow, of counsel.
    S. L. Rathje, for appellees.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Mechanics’ liens, § 191 —when items omitted from bill of complaint may bo brought in by amendment. A bill of complaint filed by a contractor for an accounting and to foreclose a mechanic’s lien for the construction of and for materials furnished for a building, may be amended, without a showing to the court either at the time of amendment or at the hearing, so as to include items omitted from the bill.

2. Building 'and construction contracts,, § 25*—when contract- or may recover on substantial performance. A contractor may recover for the construction of a building where he has substantially performed the contract, although there may be some defects in workmanship and materials, and deviations from the strict letter of the specifications in details of construction.

3. Building and construction contracts, § 85*—when failure to comply with specifications ground for recoupment. Damages sustained by the failure of a contractor to construct a building in strict accordance with the plans and specifications, or from the use of defective materials, may be recouped by a property owner in an action by the former to recover the balance due him.

4. Building and construction contracts, § 49*—-when contract- or’s liability for liquidated damages deemed waived. A property owner’s right to recover liquidated damages for a contractor’s failure to complete a building within the stipulated time, he'ld waived, under a contract providing that the structure should be ready for occupancy by a certain day, “weather and other conditions permitting,” where the delay was caused by bad weather, and changes and additions made at the request of the owner; and the latter took possession of the building after the expiration of the time fixed for completion, and thereafter the contractor, at the owner’s request, furnished money and materials for its completion, whereupon the parties met and substantially agreed on the balance due the contractor.

Carnes, P. J., took no part in this decision.


text:
    The People of the State of Illinois, Defendant in Error, v. John Romani, Plaintiff in Error.
    Gen. No. 5,917.
    (Not to he reported in full.)
    Error to the County Court of Bureau county; the Hon. Geobge Bedfobd, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Information filed on behalf of the People of the State of Illinois against John Romani, for selling intoxicating liquors in less, quantities than one gallon, and for maintaining a public nuisance, in violation of sections 2 and 7 of the Dramshop Act. (J. & A. fífí 4601, 4607.) The defendant was convicted and appeals therefrom.
    The information charged that the defendant maintained a public nuisance, and “on Lot number Sixteen in Block number One in Smith’s Subdivision of part of the South half of Section Thirty-six, Township Sixteen North, Range Ten, East of the Fourth Principal Meridian, did keep a certain room, the said room then and there being a place of public resort.”
    The evidence was conflicting as to whether the beer sold by the defendant was intoxicating, or was “temperance” or “near-beer”. At the trial the defendant was interrogated as to his marriage to a woman whom he held out as his wife, and whom he claimed was the keeper of the place where the alleged liquor was sold, and he testified that they were married at a certain, time and that he obtained a marriage license in a designated county. In rebuttal the clerk of that county testified that the records thereof did not show that a marriage license was ever issued to the defendant. But on a motion for a new trial, which was overruled, the affidavit of such clerk was presented showing that he was mistaken in his testimony, and that the records of his office did show the issuance of a marriage license for the defendant to wed such woman.
    Abstract of the Decision.
    1. Intoxicating liquors, g 122

      —when place where liquor nuisance maintained sufficiently described in information. The place where a public nuisance is maintained in violation of section 7 of the Dramshop Act (J. & A. 1f 4607) is described with sufficient certainty in an information charging that the defendant, "on Lot number Sixteen in Block number One in Smith’s Subdivision of part of the South half of Section Thirty-six, Township Sixteen North, Range Ten, East of the Fourth Principal Meridian, did keep a certain room, the said room then and there being a place of public resort.”
    2. Intoxicating liquors, g 226*—when intoxicating character of beer sufficiently established. A conviction for selling intoxicating liquors in less quantities than one gallon, in violation of section '2 of the Dramshop Act (J. & A. 1f 4601), sustained, where the evidence was conflicting as to whether beer sold was intoxicating or merely “temperance” or “near-beer."
    3. New trial, g 63*—when granted for mistake of witness for opposite party. A motion for a new trial should have been granted a person convicted of selling intoxicating liquors in less quantities than one gallon, in violation of section 2 of the Dramshop Act (J. & A. If 4601), on the affidavit of a county clerk showing that he was mistaken in testifying,—in rebuttal to the testimony of the defendant as to the time and place of his marriage to the woman whom he held out as his wife,—that the records of his office did not show the issuance of a license for their marriage.

      The court declined to instruct the jury, at the defendant’s request, as to the necessity of sufficient proof that the beer sold by him was intoxicating, and not “root” or other beer of nonintoxicating character.
    Hall, & Lawson, for plaintiff in error; Walter A. Panneck, of counsel.
    C. N. Hollerich, for defendant in error.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court,

4. Intoxicating liquors, § 159 —when requested instruction as to intoxicating character of Seer should have 6een given. In a prosecution for the sale of intoxicating liquors in less quantities than one gallon, in violation of section 2 of the Dramshop Act (J. & A. If 4601), an instruction requested by the defendant as to the necessity of sufficient proof that beer sold was intoxicating, and not root or other nonintoxicating beer, should have been given.


text:
    Carl Swanson et al., Appellants, v. John F. Rose et al., Appellees.
    Gen. No. 5,983.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action on the ease brought by Carl Swanson and others against John F. Rose, coroner of Rock Island county, and August H. Arp, a physician, to recover for pain and mental anguish caused by the performance by the defendants of an alleged wrongful autopsy on the body of the plaintiffs’ brother.
    On a demurrer being sustained to the plaintiffs’ declaration, an amended declaration was filed, which also was held defective on demurrer, and the action was thereupon dismissed.
    Two months later the plaintiffs filed a motion to set aside the order of dismissal and to reinstate the action and permit the filing of a second amended declaration. From an order overruling such motion, the plaintiffs appeal.

      Abstract of the Decision.
    1. Pleading, § 453

      —when sufficiency of pleading waived by pleading over. By pleading over after a demurrer is sustained to a declaration, the plaintiff waives his right to insist on the sufficiency thereof.
    2. Pleading, § 222*—when election to abide by pleading presumed. A formal election to abide by a1 declaration need not be shown, since it will be presumed, where the plaintiff takes no steps from which its abandonment can be inferred.
    3. Appeal and error, § 876*—when decision on demurrer reviewable. Whether a demurrer was properly sustained to a declaration and a suit dismissed will not be reviewed on appeal where the pleading is not set out in the abstract.
    4. Appeal and error, § 876*—when denial of leave to file amended declaration reviewable. It will be presumed that a motion for leave to file a second amended declaration was properly denied, when made nearly three months after the dismissal of a cause, where the showing on the motion is not preserved in the bill of exceptions.
    5. Appeal and error, § 800*—when motion reviewable. Any motion in an action at law must be embodied in a bill of exceptions, in order to preserve it for review as a matter of record.
    Harry M. McCaskrin and Ben A. Stewart, for appellants.
    Searle & Marshall, for appellees.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    T. D. Murdock et al., Plaintiffs in Error, v. Calgary Colonization Company, Defendant in Error.
    Gen. No. 5,985.
    1. Frauds, statute of, § 83

      —when lex loci contractus governs. Since the Statute of Frauds affects the validity and obligation of a contract, an action on an agreement made and to he performed in another State or country is governed by the lex loci contractus.

    2. Frauds, statute of, § 83*—when contract to find purchaser for land governed by lex loci contractus. An oral contract made and performed in the Province of Alberta, Canada, to procure a purchaser for real estate, situate therein, is not enforceable in the courts of Illinois, when void under the Statute of Frauds of that Province.
    3. Frauds, statute of, § 83*—when ■ recovery permissible on quantum meruit for services rendered under void contract. There can be no recovery in Illinois on the quantum meruit for services rendered in the Province of Alberta, Canada, in procuring a purchaser for land located therein, where the Statute of Frauds of the Province precludes a recovery on an express oral agreement to pay for such services.
    Error to the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding.
    Heard in -this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    E. P. Field and Safford & Graham, for plaintiffs in error.
    Brown & Soule, for defendant in error.

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

   Mr. Justice Niehaus

delivered the opinion of the conrt.

This is an action of assumpsit, brought by the plaintiffs in error against the defendant in error (a corporation of the Province of Alberta, Canada) to recover a balance due on account of commissions claimed for services rendered for the defendant in error, in the sale of land situated in the Province of Alberta, Canada. The plaintiffs in error first filed the common counts. To this declaration the defendant filed a plea of the general issue, and also a special plea, alleging that the contract for the commissions was oral, and therefore in conflict with the Statute of Frauds of the Province of Alberta, Canada. The plaintiffs in error demurred to the special plea, and the demurrer was overruled. The plaintiffs in error thereupon procured leave to file an amended declaration, consisting of the common counts, and a special quantum meruit count.

The defendant in error moved to strike the amended declaration from the files, which motion was denied. Thereupon, the defendant in error filed a demurrer to each count of the amended declaration, and the court sustained the demurrer as to the first count and overruled it as to the second, or quantum meruit count. At the following January term, 1913, the defendant in error filed two pleas to the quantum meruit count, the first being the general issue, and the second being a plea of the Statute of Frauds of the Province of Alberta, Canada, which plea sets up the statute to be as follows:

“No action shall be brought whereby to charge any person either by commission or otherwise for services rendered in connection-with the sale .of any land, tenements or hereditaments or any interest therein unless the contract upon which recovery is sought in such action or some note or memorandum thereof is in writing signed by the party sought to be charged or by his agent therein lawfully authorized in writing.”

To this second plea the palintiffs in error filed a demurrer, which the court overruled. The defendant in error then withdrew the plea of the general issue, and the plaintiffs in error elected to stand by their demurrer. Judgment was thereupon rendered against them in bar, on the plea of the Statute of Frauds, and for costs of suit.

The vital question for the consideration of this court is, whether or not the court below erred in overruling the demurrer to the plea of the Statute of Frauds, and rendering a judgment thereon barring plaintiffs’ claim. Plaintiffs in error claim a right to recover four hundred and eighty dollars, the second instalment due them on án oral contract, whereby the defendant in error agreed to pay them nine hundred and sixty dollars in two equal payments, for services rendered in procuring a purchaser of a section of land in Alberta, Canada, and also interest on deferred payments.

The plea of the Statute of Frauds relied on by the defendant in error alleges that the work done and the services rendered by plaintiffs in error, as well as the contract for payments therefor, related to the sale of land situated in the Province of Alberta, Canada; and that the services were rendered and the contract for the payment for such services was made in said Province; and that neither the contract, nor the payment for the services rendered, nor any note or memorandum thereof was in writing signed by the defendant in error, or by any authorized agent of the defendant in error, as required by the said .statute. It is apparent that under the Statute of Frauds set out in the plea, no person could be charged for the services rendered in making sale of lands situated in the Province of Alberta, unless the contract for the payment for such services, or some note or memorandum thereof, was made in writing, and signed by the party sought to be charged, or by a duly authorized agent.

It is contended by the plaintiffs in error that the Statute of Frauds in question affects merely the remedy, and that, therefore, the lex fori applies to this action, and not the lex loci contractus. This view has been upheld in England, in the case of Leroux v. Brown, 12 C. B. 801, and in this country the courts in some of the States have accepted the authority of that decision. Judge Storey, in his work on the Conflict of Laws, takes the same view of this question. But we think the clear weight of authority is to the effect that Statutes of Frauds affect the obligation and the validity of contracts, and that hence the lex loci contractus applies and controls. The rule stated in Sunderland on Statutory Construction, section 471, is that “a Statute of Frauds embracing a preexisting parol contract, not before required to be in writing, would affect its validity. ’ ’

It is stated in Edwards v. Kearzey, 96 U. S. 595, that “the laws which subsist at the time and place of making a contract, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, discharge and enforcement;” that “the obligation of a contract includes everything within its obligatory scope;” and “among these elements nothing is more important than the means of enforcement.”

It is also held, in the case of Scudder v. Union Nat. Bank of Chicago, 91 U. S. 406, that in an action upon the parol acceptance of a bill of exchange, to be performed in the State of Missouri, the Statute of Frauds of that State would control, as it affected the formality necessary to create a legal obligation. And in the case of Pickering v. Fisk, 6 Vt. 102, the rule as to the requisites of a valid contract is stated to be as follows: That as to “ the mode of authentication, the forms and ceremonies required, and, in general, as to everything which is necessary to perfect or consummate the contract, the lex loci contractus governs.” In the case of Anderson v. May, 10 Heisk. 84, the Supreme Court of Tennessee held, in a suit upon a lease for lands in Arkansas, that the Statute of Frauds of the latter State should be allowed to control the contract.

But whatever may be the rule in other States, it is clearly the settled law in this State that the subject-matter of a Statute of Frauds comes within the lex, loci contractus, and therefore does not merely pertain to the remedy, but affects the legal obligation, and the validity of contracts (Miller v. Wilson, 146 Ill. 523); and that the laws of the State in which the contract is made, in effect, form a part of the contract (Burr v. Beckler, 264 Ill. 230).

The plea of the Statute of Frauds in this cáse avers that the contract in question was entered into, to be performed, and was in fact performed, in Alberta, Canada. The interpretation, therefore, of the contract, with reference to a legal obligation arising therefrom, must be made to the same effect as if the case were being adjudicated in Alberta, Canada, and in accordance with the laws in force there. It is perfectly evident that under the laws of Alberta, Canada, the plea of the Statute. of Frauds would constitute a good defense. And if it is a good defense there, it is also a good defense here. Evans v. Anderson, 78 Ill. 558; 2 Kent Com. 458-459. It is contended however that the Statute of Frauds is not a good defense, because under the quantum meruit count the plaintiff does not seek a recovery under an express contract but seeks to recover on an implied obligation which arises from performance of services, which have been accepted. This position would be a correct one, if the statute had reference to a contract to be performed, or an executory contract. The Statute of Frauds in question, is directed expressly against a recovery for services performed or on an unexecuted contract, and the terms of the statute directly affect the subject-matter of the suit. Where the subject-matter of a claim comes within the scope of the Statute of Frauds, either directly or indirectly, it cannot be enforced. McGinnis v. Fernandes, 126 Ill. 228. No implied obligation could arise here, until the services were rendered; and at the moment the services were rendered, the matter of payment therefor, which is sought to be enforced, came within the terms of the statute. A recovery on an implied promise to pay cannot be had if a recovery on an express promise to pay is prohibited by law. “Where the law makes an express oral contract for services invalid, it will not create, by implication, a liability for such services.” Selvage v. Talbott, 175 Ind. 648.

It is evident that the statute in question was designed to reach and bar exactly the kind of claim for which the plaintiffs in error seek a recovery in this action. The language of the Supreme Court of the State of Washington in the case of Keith v. Smith, 46 Wash. 131, seems, therefore, to be directly in point in this connection: “From its very nature a claim for commission could not be made until earned, and to hold that performance would take an action of this character out of the operation of the statute would nullify the statute.”

We are of opinion that the court did not err in overruling the demurrer to the plea of the Statute of Frauds, and that the judgment rendered, barring the claim in question, was proper. The judgment should be affirmed.

Affirmed.