text:
    Hotel Sherman Company, Appellant, v. Railway Terminal & Warehouse Company, Appellee.
    Gen. No. 23,418.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1535

      —when instruction on preponderance of evidence not reversibly erroneous. In an action against a warehouse company to recover damages for negligence in the storage of potatoes, an instruction that plaintiff was required to prove by a preponderance of the evidence the issues essential to the maintenance of its action, and, if it had not done so, the verdict should be for defendant, was not reversibly erroneous because not pointing out the essential allegations, and because in other instructions given on behalf of the defendant the issues were incorrectly stated, where counsel failed to point out where other instructions given by defendant incorrectly stated the issues.

      Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action on the case by the Hotel Sherman Company, plaintiff, against the Railway Terminal & Warehouse Company, defendant, to recover damages on the ground that defendant had been negligent in the storage of potatoes owned by plaintiff. From a judgment finding defendant not guilty, plaintiff appeals.
    Felsenthal & Wilson, for appellant; Maurice L. Heims,, of counsel.
    Tenney, Harding & Sherman, for appellee.

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

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

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Appeal and ebeor, § 1241*—when plaintiff cannot complain of erroneous instruction on preponderance of evidence. A plaintiff cannot complain of an instruction submitted by the defendant that plaintiff was required to establish by.a preponderance of evidence the negligence of defendant as imposing a greater burden than the law requires, where the jury are told by an instruction submitted by plaintiff that it was required to establish its case by a preponderance of the evidence.

3. Warehousemen, § 29*—when instruction on care required of as to goods not reversibly erroneous. In an action against a warehouse company for damages for negligence in the storage of potatoes, an instruction submitted by defendant that defendant was required to exercise that degree of care which ordinarily prudent warehousemen were accustomed to exercise in regard to similar goods, in like circumstances, was not reversibly erroneous because the statute required such warehousemen to exercise the same degree of care as the owner of similar goods would exercise under like circumstances, where three instructions submitted by plaintiff correctly informed the jury as to the law on the same question.

4. Warehousemen, § 29*—when instruction in action for negligence of warehouseman not reversibly erroneous because invading province of jury. In an action against a warehouse company to recover for negligence in the storage of potatoes, resulting in their spoiling, an instruction that if the loss to the potatoes was solely caused by the disease called dry-rot, plaintiff could not recover, and if the jury found from the evidence that the damage was caused both by the disease and by the negligence of the defendant, then plaintiff could not recover unless it proved the amount of damages caused by the negligence, was not reversibly erroneous as invading the province of the jury on the question whether defendant’s negligence caused the decay of the potatoes by reason of dry-rot, where in other instructions the jury were told that defendant would be liable for any damages caused by its negligence, and the evidence showed that the disease of dry-rot was a field disease..

5. Instructions, § 107*—right to submit based solely on party's theory of case. A party is entitled to submit instructions covering solely its theory of the case. f

6. Warehousemen, § 29*—when instruction not stating time when notice given warehouseman of condition of stored potatoes is immaterial. The failure, in an action against a warehouseman for negligence in storing potatoes, to state any time when notice was given to defendant of the conditions complained of in an instruction that if plaintiff knew of the storage conditions and that the continuation of such conditions would injure the potatoes then no recovery could be had, was immaterial where there was no dispute in the evidence as to when defendant acquired such notice.

7. Wabehousemen, § 29*—when instruction in action against warehouseman for negligence not reversibly erroneous. In an action against a warehouseman for negligence in, caring for stored potatoes, an instruction that if plaintiff knew of the storage conditions and that the continuation thereof would injure the potatoes then no recovery could be had, was not reversibly erroneous because taking from consideration of the jury the question whether defendant promised to remedy the conditions complained of where the jury found by its special verdict that plaintiff was not negligent.

8. Bailment, § 27*—when bailee presumed to be negligent. As a general rule, where goods are delivered in good condition and afterwards returned in a damaged condition, the presumption is that the bailee is guilty of negligence.

9. Bailment, § 27*—when bailee not presumed to> be negligent. Where goods bailed will deteriorate or perish from inherent defects, or natural causes, and they are delivered in good condition, but are returned in a damaged condition, there is no presumption that the bailee is guilty of negligence.

10. Wabehousemen—when instruction on no presumption of negligence from loss not erroneous. In an action against a warehouseman to recover damages for negligence in caring for stored potatoes, an instruction that negligence will not be presumed from loss while the goods are in the hands of the bailee was not erroneous.

11. Appeal and ebbob, § 1535 —when instruction on preponderance of evidence not reversibly erroneous. In an action against a warehouseman for damages for negligence in caring for stored potatoes, an instruction requiring plaintiff to prove the damages caused by defendant’s negligence by a fair preponderance of evidence was not reversibly erroneous where the jury were correctly instructed in other instructions that plaintiff was required to prove its case only by a preponderance of the evidence.

12. Warehousemen, § 29*—when instruction on contributory negligence of person storing potatoes with warehouseman after notice of condition not reversibly erroneous. In an action against a warehouseman for damages for negligence in caring for stored potatoes, an instruction that if the jury found from the evidence that plaintiff, after it learned that the potatoes were decaying, took no steps to protect itself from further loss, the defendant would not be liable for any damages accruing after such notice, was not reversibly erroneous, because assuming that it was possible for plaintiff to protect itself from further loss by taking some step after notice, although the potatoes might have been spoiled at the time, and that further loss could not have been prevented, no matter how diligent plaintiff was, where the jury rendered a special finding that plaintiff could not have avoided the loss by the exercise of ordinary care.

13. Warehousemen—when instruction on liability of for injury to stored potatoes not erroneous. In an action against a warehouseman for negligence in caring for stored potatoes, an instruction that the defendant was not liable for damages caused by dry-rot “or any other cause," unless such damages could be avoided by the exercise of ordinary care and diligence by the defendant, was not erroneous in that the use of the words "ori any other cause” would include defendant’s negligence, and plaintiff was entitled to recover for any damages caused by defendant’s negligence, since the jury were expressly told that defendant was not liable for any damages to the potatoes unless such damages were caused by the negligence of "defendant.

14. Warehousemen, § 27*—when copy of letter and memorandum, relating to storage by third person properly admitted m action by purchaser for negligence in storage. In an action against a warehouseman to recover damages for negligence in the storage of potatoes bought by plaintiff from another person who had stored them originally with defendant, it was not error to admit a copy of,a letter and memorandum written by defendant to such third person in reference to potatoes stored by such third person in defendant’s storehouse on the ground that the documents were not written to plaintiff and that plaintiff was in no way connected with them and because the potatoes were not referred to in the documents, where the letter purported to confirm a conversation between the representatives of defendant and such third person relating to the storage of potatoes, and it was shown to be a correct copy, and the memorándum referred to at least one of the cars of potatoes, and the objection was to exclude the entire document, and plaintiff, in its case in chief, had offered evidence of the quality of shipments of potatoes shipped from the same source, including the potatoes damaged.

15. Warehousemen, § 27 —when admission of evidence erf stock cards proper. In an action against a warehouseman to recover for negligence in the storage of potatoes, which were originally stored by a third person and sold, while in storage, to plaintiff, the admission in evidence of stock cards, on which memoranda were written showing that a great many of the cars received at the warehouse, billed to such third person from a certain place, were in bad condition when received, was proper, where witnesses had testified on behalf of plaintiff that all the potatoes shipped by such third person from such place (which included plaintiff’s potatoes) were in first-class condition.


source: Caselaw Access Project

author: Mb. Justice O’Connor

license: Public Domain

text:
    J. E. Houston, Appellee, v. C. G. Frank, Appellant.
    Gen. No. 23,558.
    (Not to he reported in full.)
    Abstract of the Decision.

      Brokers—what constitutes settlement between broker ana client. In an action by the purchaser of stock against a broker to recover the value of stock which plaintiff claimed defendant had agreed to dispose of after the first or second dividends became due, where it appeared that plaintiff had claimed that defendant had originally agreed when defendant had sold him stock, in place of bonds, which he preferred, that if plaintiff was dissatisfied with the stock defendant would give him bonds in lieu thereof or refund his money, and a written agreement was entered into whereby plaintiff exchanged nearly half of the stock for bonds, and which agreement stated that plaintiff was satisfied with the remaining stock and would hold it until all the preferred stock of the' corporation had been disposed of, and that defendant was not to be responsible for disposition of the stock, and plaintiff testified that he read and understood the agreement, and he made no explanation why he was only to keep the remaining stock for a lesser period of time, held that there was a settlement between the parties. ■

      Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action by J. E. Houston, plaintiff, against C. Gr. Frank, defendant, to recover the value of stock which plaintiff owned and held and claimed that defendant, a broker, who had sold the stock to him, had agreed to dispose of after the first or second dividend became due. From a judgment for plaintiff for $5,000, defendant appeals.
    Wilson & Mat, for appellant.
    No appearance for appellee.
   Mb. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Michael P. McMahon, Appellee, v. County of Cook, Appellant.
    Gen. No. 23,581.
    Officers, § 70

      —when de jure employee cannot recover for services. Where salary has, in good faith, b.een paid to a de facto employee under the civil service by a county during the time services were performed by a de jure employee, such salary cannot be afterwards recovered by the de jure employee from the county.
    Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomerot, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 3, 1918.
    Maclay Hoyne, for appellant; John E. Foster and Ota P. Lightfoot, of counsel.
    A. D. Gash, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Michael P. McMahon brought suit against the County of Cook to recover $945 salary as watchman or hospital guard from March 4, 1914, to December 4, 1914, and from February 14, 1915, to March 25, 1915. The case was tried before the court and jury; there was a directed verdict in favor of plaintiff for the amount of his claim and judgment entered. '

The record discloses that plaintiff took the civil service examination for the position of watchman, which was in the classified service of Cook county; that he passed such examination and on March 13, 1897, was certified and began his duties and continued such employment until March 4, 1914, when he was laid off; that he worked at the Dunning Institution until it was taken over by the State, July 1,1912; that he was afterwards transferred to the Cook County Hospital, and later to the Oak Forest Infirmary; that he was laid off March 4, 1914, without any charges being filed against him; that on December 4, 1914, he was again put to work and on February 15, 1915, he was again laid off -without any charges being filed against him. On March 26, 1915, it appears he was again called into the service. t

A number of points are urged by defendant as grounds for reversal. No brief has been filed by plaintiff. During the trial defendant offered evidence tending to show that the services which plaintiff had been performing were, during the periods for which he seeks to recover salary in this case, performed by another person, and the salary paid such person, and it was contended that as this payment was made in good faith plaintiff could not recover. The offer of this evidence was refused. The trial was had June 26,1917. Subsequently the Supreme Court in the case of People v. Schmidt, 281 Ill. 211, handed down an opinion holding that where salary has been paid in good faith to a de facto officer during the time he performed services, such salary could not afterwards be recovered again by the de jure officer, and that this rule applied to an employee who was not an officer. The court there said (217): “The question has never been passed upon by this court, where the salary has been paid, whether it could be recovered again from the city by the de jure officer. If the salary or compensation has been paid in good faith to a de facto employee during the time the position was in his possession, it cannot, on principle and by the weight of authority, be recovered again from the city, county, State or other governmental subdivision by the de jure officer.” (See also, People v. Burdett, 283 Ill. 124.)

Under the law as .announced in the Schmidt case, supra, it was error to .exclude the evidence offered, and the judgment of the Circuit Court of Cook county is reversed and the cause remanded.

Reversed md remanded.


text:
    R. A. Teach, Appellant, v. Allen Automobile Company, Appellee.
    Gen. No. 23,592.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Forfeitures, § 1

      —policy of law as to forfeitures. The law does not favor forfeitures in contracts.
    2. Principal and agent—when agency contract construed as providing that deposit insures balance due principal. An agency-contract for the sale of automobiles for a certain period, reciting that the agent had deposited a certain sum with the principal, which was not to be applied towards the purchase of cars, but was to be retained by the principal and returned to the agent upon cancellation or termination of the contract, provided a full settlement of all accounts was made, and giving the list price of automobiles but not the. net price, which was given in a subsequent letter, must, although the agent purchases only one car, be construed as simply insuring any balance that might be due the principal. ’

      Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action by R. A. Veach, plaintiff, against Allen Automobile Company, a corporation, defendant, to recover the sum of $150 deposited with defendant, .to be returned upon cancellation or termination of an agency contract for the sale of automobiles, and upon the making of a full settlement. From a judgment in favor of defendant, plaintiff appeals.
    George T. Crossland, for appellant.
    Frederic R. DeYoung, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Thomson

text:
    John O’Donnell and N. Carvell, copartners, Defendants in Error, v. O. P. Curran, Plaintiff in Error.
    Gen. No. 21,779.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1674

      —when error in striking affidavit of merits from files waived. Whatever right a defendant may have to question the ruling of the trial court that an affidavit, of merits he stricken from the files is waived by the filing of an amended affidavit of merits.

      Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action in debt by John O’Donnell and 3ST. Carvell, copartners, plaintiffs, against O. P. Curran, defendant, to recover the sum of $300 on a stay of execution bond. Prom a judgment for plaintiffs for $300 debt and for $142.50 damages and costs, and ordering that, upon payment of the damages, and costs, with interest thereon, the debt be discharged, defendant brings error.
    Beckman, Cottrell & Phillips, for plaintiff in error.
    No appearance for defendants in error.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

2. Appeal and eerob, § 801 —what must he preserved in hill of exceptions. The ruling of a trial court striking an amended affidavit of merits from the files cannot be reviewed unless the pleading and the ruling are preserved in a hill of exceptions.

3. Municipal Court oe Chicago, § 13*—non-necessity of formal written pleadings in action of fourth class. No formal written pleadings are required in an action of the fourth class in the Municipal Court of Chicago.

4. Municipal Court of Chicago, § 13*—when statement of claim is sufficient in action of fourth class. A statement of claim, in an action of the fourth class in the Municipal Court of Chicago, though technically defective, which advises the defendant of the plaintiff’s demand, as required by the Municipal Court Act, sec. 40 (J. & A. If- 3352), is sufficient when questioned for the first time in a court of review.


text:
    D. A. K. Steele, Appellee, v. Thomas E. Leyhan, Appellant.
    Gen. No. 23,361.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action by D. A. K. Steele, plaintiff, against Thomas E. Leyhan, defendant, to recover for medical services furnished by plaintiff to defendant’s wife. After the case was started, Mrs. Leyhan was added as a party defendant. From a judgment for $273 against both defendants, Thomas E. Leyhan alone appeals.
    Short, Davis & Bust, for appellant.

      Abstract of the Decision.
    1. Husband and wife, § 17

      —when person giving credit to wife has burden of showing liability of husband. Where husband and wife are living separate and apart, it devolves upon a physician giving credit to the wife for medical services to show that the wife was not at fault, or that the husband authorized or assented to the performance of the services.
    2. Husband and wife, § 18*—when evidence shows Knowledge by physician that wife is living apart from her husband. In an action by a physician for medical services furnished to the wife of defendant while she was living apart from her husband, where it appeared that plaintiff was called in to treat the wife by her mother and sister and that defendant was not consulted about a major operation, evidence held sufficient to show knowledge on the part of plaintiff that the wife was living apart from her husband.
    3. Husband and wife—what is effect of order for alimony pendente lite upon liability of husband for medical services. Where a husband and wife are living separate and apart, and there are separate maintenance proceedings pending in which there is an order for alimony pendente lite, and the husband is not in default on that order, he is not liable for medical services subsequently furnished during the pendency of the suit, and it is immaterial that the physician knows nothing about the litigation, since he is put on inquiry.
    4. Husband and wife, § 265*—who may not collaterally attack order as to alimony pendente lite in separate maintenance suit. The exercise by the trial court, in a separate maintenance suit, of its discretion in the awarding of alimony pendente lite cannot be collaterally drawn into question, especially by a stranger to the controversy, a physician, who contends in an action against the husband for medical services, that the amount of . alimony was so small that it was not intended to cover heavy medical expenses such as were incurred by the wife subsequent to the rendition of the order, since, if the wife is satisfied, no one else has the right to complain.
    Saltiel & Rossen, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Margaret Lawler, Defendant in Error, v. Samuel C. Herren, Plaintiff in Error.
    Gen. No. 23,384.
    1. Appeal and error, § 897

      —when transcript erf record is sufficient. A transcript attached to the record of a case is sufficient and is not open to the objection that the certificate attached to the transcript does not certify that it embraces all of the evidence, where at the close of the transcript is á certificate of the trial judge “that the foregoing is a correct statement of the facts appearing upon the trial of the case and all questions of law involved in said case and the decisions of the court upon all such questions of law,” and, at the close of the testimony, as it appears in the transcript, are the words, “which was all of the evidence received or offered on the trial of said cause.”
    2. Attachment, § 246*—when error in admission of evidence as to conveyance of real estate is immaterial. In an action of attachment it is immaterial whether there was error in the admission of evidence relating to a deed whereby defendant conveyed some real estate, where the affidavit for attachment set forth two grounds of attachment and alleged not only that defendant had fraudulently concealed and disposed of his property so as to hinder and delay his creditors, but also that he was, “about to fraudulently conceal, assign, and fraudulently dispose of his property and effects for the purpose of hindering his creditors.”
    3. Trial, § 85*—when admission of evidence after presentation of motion for directed verdict is not error. It lies within the sound discretion of the trial court, after the defendant in an attachment action has presented a motion to instruct the jury to find. the issues in his favor on the attachment issue, to permit trie plaintiff to resume the stand, for the purpose of giving further testimony as to representations which the defendant had made to her and on which her affidavit was based.
    4. Appeal and error—when error in permitting admission of evidence after presentation of motion for directed verdict is immaterial. It is immaterial whether or not the trial court erred in permitting the plaintiff in an attachment action, after a motion by defendant for a directed verdict, to resume the stand for the purpose of giving further testimony as to representations made by defendant and forming the basis of plaintiff’s affidavit, where there is already before the court sufficient evidence to warrant denial of the motion.
    5. Attachment, § 46*—what is sufficient ground for. A statement by a debtor that if the creditor waits he will be paid, but, if not, the debtor will convey all his property so that the creditor cannot collect any thing,. furnishes a sufficient cause for the issuance of an attachment on the ground that the debtor is “about to fraudulently conceal, assign, and fraudulently dispose of his property and effects for "the purpose of hindering his creditors.”
    6. Attachment—what is proof of intention to convey property in fraud of rights of creditors. The fact that a debtor has more - than enough cash to his credit in a bank to satisfy the claim of a particular creditor is not proof of his intention not to convey his real estate as he threatened to do.
    7. Instructions, § 19*—when bad because argumentative in form. In an action of attachment, based upon the fraud of defendant, an instruction that it was the duty of the plaintiff, if the false representations were made, upon discovery thereof, to have immediately taken action and disaffirmed the agreement between the parties within a reasonable time, and not to have permitted the defendant to go on after such discovery, if it was found that she did so permit him, and act in accordance with her investment, and that a person to whom fraudulent representations have been made must act promptly after the discovery of the falsity of the representations and not experiment and wait to see whether.a loss will be sustained before electing what to do, was bad in form, being argumentative.
    8. Instructions, § 118

      —when instruction is improper as inapplicable to evidence. In an action of attachment, based upon 'fraud, an instruction as to the necessity of the plaintiff acting promptly after discovery of the false representations and not sleeping on his rights was improper, as being inapplicable to the evidence, 11 where plaintiff commenced suit within two days after discovery of the fraud.
    Error to the Superior Court of Cook county; the Hon. Wiixiam E. Deveb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 3, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Coburn & Bentley, for plaintiff in error.
    David K. Tone and Henry M. Ashton, for defendant in error.

      See Hlinois 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 Thomson

delivered the opinion of the court.

This was an attachment suit brought by the defendant in error in which the jury found the issues in her favor, sustaining the attachment, and assessing her damages at the sum of $4,313.45, on which the trial court entered a judgment, as a result of which the defendant sued out this writ of error.

It is urged by the defendant in error that the judgment should be affirmed by reason of the fact that the certificate attached to the transcript of the record does not certify that it embraces all of the evidence. We believe tha/t the transcript contained in the record is sufficient. At its close there is a certificate of the trial judge in which he certifies “that the foregoing is a correct statement of the facts appearing upon the trial of the case and all questions of law involved in said case and the decisions of the court upon all such questions of law.” At the close of the testimony, as it appears in the transcript, are the words, “which was all of the evidence received or offered on the trial of said cause.”

The defendant contends that the judgment of the trial court should be reversed by reason of alleged error committed in overruling his motion to instruct the jury to find in his favor on the attachment issue and in this connection, by reason of further error in admitting certain evidence on behalf of the plaintiff over defendant’s objection. The court admitted some evidence with reference to a deed whereby the defendant had previously conveyed a piece of real estate. Whether or not this was error is immaterial and unimportant, in view of the fact that the affidavit for attachment set forth two grounds for the attachment and alleged not only that the defendant had fraudulently concealed and disposed of his property so as to hinder and delay his creditors, but also that he was “about to fraudulently conceal, assign, and fraudnlently dispose of Ms property and effects for the purpose of hindering Ms creditors. ’ ’ After the defendant had presented Ms motion to instruct the jury to find the issues in Ms favor on the attachment issue, the court permitted the plaintiff to resume the stand for the purpose of giving further testimony as to representations which the defendant had made to her on which she based her affidavit, and the defendant contends that this amounted to error. It was within the sound discretion of the trial judge as to whether or not he would permit the plaintiff to submit further evidence on this point, and the record does not disclose any abuse of this discretion. TMs question also becomes unimportant, however, in view of the fact that there was already in the record sufficient testimony to warrant the court in denying the defendant’s motion, for, when the plaintiff was first on the witness stand, she had testified that, in talking with the defendant ' on December 1, 1915, about a week before she instituted this suit, and when urging him to make some payment to her, he had said: “Now, if you will wait I will pay you every cent that I owe you, and, if you don’t, I will convey my property and I will .put everything out of my name, and you cannot collect a dollar off of me, and, if you will wait, I will give you tMs money.” Such a statement by a debtor furnishes sufficient cause for the issuing of an attachment on the ground alleged by the plaintiff in her affidavit. Dueber Watch Case Mfg. Co. v. Young, 155 Ill. 226; National Park Bank v. Whitmore, 104 N. Y. 297; Livermore v. Rhodes, 3 Rob. (N. Y.) 626; 19 Hun (N. Y.) 625; Hanks v. Andrews, 53 Ark. 327; Newman v. Kraim, 34 La. Ann. 910. The defendant urges that the fact that the record discloses that he had more than enough cash to Ms credit in the bank to satisfy Ms indebtedness to the plaintiff clearly demonstrates that he had no intention to convey or dispose of his-property, as alleged. On the contrary, the very fact that this was the case would warrant the jury in finding,-if they believed the plaintiff’s testimony as to her conversation with the defendant of December 1st, that the conveyance defendant was threatening to make was one by which he intended to so fraudulently conceal or otherwise dispose of his property as to hinder or delay his creditors. White v. Leszynsky, 14 Cal. 166.

The defendant further contends that the trial court erred in refusing to give the jury an instruction which he tendered, reading as follows:

“The court instructs the jury that it was the duty of the plaintiff in this case, if the jury find false representations were made, upon the discovery thereof, to have immediately taken action and disaffirmed the arrangement or agreement between her and the defendant within a reasonable time, and not to have permitted the defendant to go on after such discovery, if you find that she did so permit him, and act in accordance with her investment in the proposition. A person to whom fraudulent representations have been made cannot sleep upon or experiment upon their rights in the matter, after the discovery that such representations were false, but must act promptly and not experiment or wait until the matter is known to prove a loss or gain before electing what to do.”

The defendant’s contention is that, in view of the evidence, it was the duty of the court to give this instruction. In our opinion the court was correct in the ruling made as to this instruction. It is bad in form, being argumentative, and, furthermore, the. court would not have been warranted in giving it, if it was correct in form, by reason of the evidence which was before the jury. Plaintiff’s claim is made up of a number of items, one of which was an amount of money she stated she had advanced on defendant’s representation that he owned some land in Montana containing valuable onyx deposits and that he was forming or had formed a corporation, to which he bad conveyed this land, in consideration for which she was to receive stock in the corporation. The plaintiff testified that on December 1st she became aware of the fact that he never owned the land and had never conveyed it to the corporation. This suit was instituted two days later.

Finding no error in the record, the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Edward T. Page, Appellant, v. Walton D. Suender, Appellee.
    Gen. No. 23,129.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Howard Hates, Judge, presiding.
    Heard .in the Branch Appellate Court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action by Edward T. Page, plaintiff, against Walton D. Suender, defendant, to recover on a promissory note for $100 and interest. From a judgment for defendant, plaintiff appeals.
    Clarence A. Samuel, for appellant.
    No appearance for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.

Abstract of the Decision.

Bnxs and notes, § BO*—what constitutes promissory note based upon sufficient consideration. A paper signed by a student in a school for advertising, subscribing for and acknowledging the receipt of a scholarship in the school and promising to pay to a certain person, the president of the school, a certain sum according to certain payments, and specifying the character of the instruction, was a promissory note, based upon sufficient consideration.


text:
    Lyle D. Taylor, Appellant, v. Rosehill Cemetery Company, Appellee.
    Gen. No. 23,458.
    1. Pleading, § BO

      —what are proper allegations in declaration in case of joint and several liability. In a case of joint and several liability, the one in whose favor the liability exists may sue all who are thus liable or any one of the number, and, in case an action is brought against some one of those who are thus liable, the declaration may contain such allegations as would be proper in case the defendant were the only one liable.
    2. Corporations, § 258*—when directors may employ attorneys and, stenographer in suit by minority stockholders against majority stockholders and corporation. Where legal proceedings are instituted by minority interests in a corporation against the corporation itself and the majority interests, it is within the contemplated powers of the board of directors of the corporation to authorize the employment of counsel and any other employment incident to an adequate representation of the alleged interests of the majority stockholders in the litigation, including the employment of a stenographer to take down the court proceedings, and a recovery may be had for such services from the corporation, even though the majority interests are charged with fraud, unless it be shown that the one employed was in some way a party to the alleged fraud, or at least had notice of it.
    Appeal from the County Court of Cook' county; the Hon. David T. Smiley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 3, 1918.
    Foreman, Eobertson & Blumrosen, for appellant.
    Ashcraft & Ashcraft, for appellee; E. M. Ash-craft, of counsel.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This is a. suit brought by the appellant to recover for stenographic services alleged to have been rendered for the appellee in reporting the proceedings of a suit in which certain minority stockholders were the complainants and the majority stockholders and the corporation itself were the defendants. The trial court directed a verdict for the defendant and judgment was entered accordingly, from which the plaintiff has appealed. In the action in connection with which the services in question were rendered, the minority stockholders contended that the defendant majority stockholders were engaged with certain other individuals and corporations, also made parties defendant, in defrauding and looting the Eosehill Cemetery Company, and prayed the appointment of a receiver for the Cemetery Company. In connection with the defense of that suit, the board of directors, representing the majority stockholders who were defendants, authorized the officers, who had been duly and lawfully . elected to act for the corporation as such, to employ certain counsel, and the latter, representing the Cemetery Company and other defendants, including the directors charged in that proceeding with fraud, directed the plaintiff to attend the hearings in the capacity of a court reporter and take down the proceedings and make certain transcripts thereof. This was done, and it is not controverted that the reasonable value of the services rendered by the plaintiff was $611.25, and that no part of that sum has been paid to him.

It is contended by the defendant Cemetery Company thát the judgment of the trial court should be affirmed by reason of the fact that there is a variance between the allegations in the plaintiff’s declaration and the proof presented, in that the declaration' alleges liability on the part of the defendant only, whereas the proof discloses that, if there is any liability at all, it is a joint and several liability on the part of the defendant and a number of others, both corporations and individuals. This point is not well taken. In any case of joint and several liability, the one in whose favor the liability exists may sue all who are thus liable or any one of the number, and, in case suit is brought against some one of those who are thus liable, the declaration may contain such allegations as would be proper in case the defendant were the only one liable. The liability of each one of the group in such a case is distinct from that of the others, and in no way dependent upon the others, either as to allegations or as to proof.

Defendant contends further that the judgment should be affirihed by reason of the fact that the employment of the plaintiff was not a reasonable expenditure in that no evidence was taken in connection with the litigation reported by the plaintiff and that it was not necessary or in any way requested that the arguments of counsel on questions of law should be taken down and transcribed by the court reporter. This point also is not well taken. The issue involved very large interests, and it seems to us that it was not only proper but necessary to the proper serving of the best interests of their clients that counsel who had been engaged to defend the litigation in question should see that everything in connection with the proceedings in court should be properly preserved.

The main contention of the defendant in seeking to have the judgment of the trial court affirmed is that the board of managers of the defendant company had no authority to employ the plaintiff or to authorize counsel to do so, and, in this connection, the defendant urges that the board of managers or board of directors, in taking the action which resulted in the employment of the plaintiff, were acting not for the benefit of this defendant, .the corporation, but for their own benefit. It may be true that a board of directors, representing a majority of the stockholders, may authorize the employment of another by the corporation which will result in some benefit to those exercising or granting the authority and yet the corporation may be liable. When legal proceedings are instituted by minority interests in a corporation against the corporation itself and the majority interests, it is certainly within the contemplated powers of the duly elected board of directors of the corporation to authorize the employment of counsel and any other employment incident to an adequate Representation of the alleged interests of the majority stockholders of the corporation in the litigation; and, where one is so employed, and renders the services contracted for, the corporation is liable to the one rendering the services. Kanneberg v. Evangelical Creed Congregation, 146 Wis. 610, 131 N. W. 353; National Bank of Guthrie v. Earl, 2 Okla. 617, 39 Pac. 391. This is so even where the majority interests, through the board of directors, are charged, in the litigation involved, with fraud, unless it can be shown that the one employed, who is suing for the payment of his services, was in some way a party to the alleged fraud, or at least, had full knowledge of it. Germania Safety Vault & Trust Co.’s Assignee v. Hargis, 23 Ky. L. Rep. 874, 64 S. W. 516. If any other rule prevailed, one could never deal with the duly-elected representatives of a corporation except at his peril, and, however ignorant he might be of any fraud or wrong intentions and purpose in the minds of the representatives of the corporation, and however valuable might be the service he would render, one dealing with a corporation would always run the risk of minority stockholders subsequently establishing the fact that the employment in question was authorized in the furtherance of some fraudulent scheme by the representatives of the corporation, and that being established, the one rendering the services would be without remedy against the corporation employing him. Such a situation would, of course, be impossible, and, even where one’s services are contracted for in connection with a controversy in which fraud is charged, against those who authorized the employment in question, it cannot be said that it is incumbent upon the former to correctly judge of the merits of the controversy at his peril, but he is warranted in rendering his services at the instance of the corporation upon the authority of its legally constituted representatives, and, having rendered the services, is entitled to his compensation without regard to the question of whether or not the corporation is successful in connection with the controversy in question, and his right to recover is not limited by the character of the questions which may arise in connection with the controversy.

For these reasons the trial court erred in directing a verdict for the defendant. Inasmuch as there is no controversy over the services involved or their value, the judgment of the trial court will be reversed and judgment will be entered here in favor of the plaintiff for the amount of his claim, with interest at 5 per cent, from the date of the judgment of the trial court, amounting, in all, to $645.56.

Judgment reversed and judgment here.


author: Mr. Presiding Justice Barnes

text:
    Marshall Field & Company, Appellant, v. John E., Nyman, Appellee.
    Gen. No. 23,267.
    1. Municipal Coubt of Chicago, § 26

      —inapplicability of statute as to certification of stenographer’s report to records on appeal. Section 23 of the Municipal Court Act, subd. 6 (J. & A. ¶ 3335), which directs the original stenographer’s report to he certified to the Supreme Court or Appellate Court, as the case may be, “as the record to he considered upon the review of the judgment by writ of error,” does not apply to records on appeal.
    2. Appeal and bbbob, § 897*—what courts of review act upon. Courts of review act upon the transcript of the record and not upon the record itself, except that an original bill of exceptions may be incorporated in the transcript by agreement.
    3. Municipal Coubt of Chicago, § 26*—when stenographic report stricken from record and ordered returned to Municipal Court. Where a stenographic report of proceedings at a trial is incorporated without warrant of law in the transcript of record in an appeal case, it will be stricken from the files and the clerk of the Appellate Court directed to detach it from the transcript and return it to the Municipal Court, where it belongs.
    4. Appeal and ebboe, § 200*—ichen constitutional question not involved. A motion to strike from the files a stenographic report of the proceedings at a trial because it was incorporated without warrant of law in a transcript of record filed on an appeal from the Municipal Court of Chicago does not necessarily involve the validity of section 23 of the Municipal Court Act (J. & A. ¶ 3335), which directs the original report to be certified to the Supremp Court or Appellate Court, as the case may he, as the record to be considered upon the review of the judgment by writ of error, since such motion presents a question merely affecting proceedings in the Appellate Court, and cannot arise, until the case reaches it.
    5. Municipal Coubt of Chicago, § 26*—what is effect of striking stenographic report. Assignments of error based upon a stricken stenographic report are eliminated.
    6. Set-off and becoupment—when separate judgments on plaintiff’s claim and on set-off are proper. Where a set-off is interposed in an action there may be two judgments^ one on plaintiff’s claim and one on defendant’s claim of set-off, under section 55 of the Practice Act (J. & A. ¶ 8592).

      7. Municipal Court of Chicago, § 29*—presumption that statute authorizing two judgments on same demand where set-off interposed governs. Section 55 of the Practice Act (J. & A. 8592), authorizing two judgments on one demand, where a plea of set-off is interposed, in the absence of a contrary rule, is presumed to control in the Municipal Court of Chicago.
    8. Set-off and recoupment, § 2*—set-off as recognized method of defense. A set-off is a recognized method of defense.
    9. Municipal Court of Chicago, § 19

      —what does not constitute adjudication tarring judgment on set-off. In an action in the Municipal Court of Chicago in which the defense of set-off is interposed, the entry first of a judgment for plaintiff on his claim is not an adjudication barring the right of a second judgment on the set-off.
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Frank P. Leffingwell and Edward Meier, for appellant.
    Rosenthal, Hamill & Wormser, for appellee; Charles H. Hamill and Harry Markheim, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellee has renewed his motion on additional grounds to strike from the files the stenographic report of the proceedings at the trial because, among other reasons, it is incorporated without warrant of law in the transcript of record filed on this appeal. The case is one of the fourth class, and presumably the original report was so incorporated upon the supposed applicability of the sixth subdivision of section 23 of the Municipal Court Act (J. & A. ¶ 3335), which directs the original report to be certified to the Supreme Court or Appellate Court, as the case may be, “as the record to be considered upon the review of the judgment by writ of error.” Whatever force, if any, may be given to this provision when a writ of error is sued out, it does not purport to relate to records on appeal.

Section 100 of the Practice Act (J. & A. ¶ 8637) prescribes, as the basis of review on appeal, for the filing of authenticated copies of records of judgments appealed from. As said in Martin v. Todd, 211 Ill. 105, courts of review act upon the transcript of the record and not upon the record itself, except that an original bill of exceptions may be incorporated in the transcript by agreement. (Fees & Costs Act, p. 1356, Hurd’s Rev. St. 1916, J. & A. ¶ 5696.) There was no such agreement here, even if, as appellant contends, no distinction were to be made between a bill of 6 exceptions and a stenographic report. As, therefore, this case does not come within any exception to the statute requiring authenticated copies of records as the basis of review, and as said section 23 of the Municipal Court Act in no event relates to appeals, the original stenographic report will be stricken from the files, and the clerk of this court is directed, on request of appellant, to detach it from the transcript in this cause and return it to the clerk of the Municipal Court, where it belongs as a part of its record. (Martin v. Todd, supra.)

Appellee also argues that said provision is unconstitutional, citing various cases holding similar provisions of said section invalid on the ground that they prescribe a different practice for review of Municipal Court judgments from that of other courts of record. (Israelstam v. United States Casualty Co., 272 Ill. 161, and cases there cited.) This particular provision has not been expressly passed on by the Supreme Court, though seemingly within the purview of said authorities. However, the judgment appealed from does not necessarily involve the validity of such provision. The motion presents a question that merely affects proceedings in this court, and that could not arise until the case reached here. (Taylor v. Kirby, 31 Ill. App. 658.) As stated, it is whether this court is governed with respect to transcripts of records of judgments appealed from by section 23 of the Municipal Court' Act or section 100 of the Practice Act and the statutory exception thereto. Of that we think there can be no doubt.

As all the assignments of error, except one, are predicated on the stenographic report, the striking of the same eliminates them from consideration. That one assignment of error relates to the recital in the clerk’s record of two judgments. It is contended that the entry of the first in plaintiff’s favor was re$ judicata of a right to enter the second for defendant on his pleaded set-off.- In view of the authorization of two judgments on one demand, under section 55 of the Practice Act (J. & A. ¶ 8592), which, in the absence, of a contrary rule, is presumed to control in the Municipal Court (Wolfort v. David Lipsey Co., 189 Ill. App. 34), and as a set-off is a recognized method of defense (section 47, Practice Act, J. & A. ¶ 8584), we think the position, that the entry of the first judgment for plaintiff was an adjudication of the set-off, is untenable. (McKey v. Provus, 181 Ill. App. 364.)

The judgment will therefore be affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. James Dunbar, Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 23,225.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed April 16, 1918.
    Rehearing denied April 29, 1918. ,
    Statement of the Case.
    Petition by the People of the State of Illinois, on the relation of James Dunbar, petitioner, against the City of Chicago and others, respondents, to restore relator to the position of section foreman of the City of Chicago.
    The decision in this case is governed by the decision in People v. Coffin, 282 Ill. 599.
    Sinden, Hassell & Osuskt, for appellant.
    Samuel A. Ettelson, for appellees; Boy S. Gaskill, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    L. A. Ruda, Appellee, v. Martin L. Jennings, Appellant.
    Gen. No. 23,235.
    (Not to be reported in full.)
    Abstract of the Decision.
    New tbiaIí, § 50

      —when awarded in action of replevin. Where the title as well as the right to possession is an issue in an action of replevin, and the verdict is only as to the right of possession, the issue as to title is not determined and a new trial should he awarded.
    Appeal from the Municipal Court of Chicago; the Hon. John A. Richabdson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action in replevin by L. A. Ruda, plaintiff, against Martin L. Jennings, defendant. From a judgment for plaintiff, defendant appeals.
    Harold 0. Mules, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    A. B. Dean, Appellee, v. Belt Railway Company of Chicago and Chesapeake & Ohio Railway Company of Indiana, Appellants.
    Gen. No. 23,241.
    1. Cabbiebs, § Í14*—when flood is proximate cause of injury to tobacco. The proximate cause of the loss of tobacco in the hands of a terminal carrier was due to an act of God, a flood, where the flood was one that could not have reasonably been anticipated, it having covered the railroad yards, which had not happened in previous floods, and any efforts to avoid loss would have been unavailing after the disaster could have been foreseen, even though there was a delay by an intermediate carrier in transferring the car from the tracks of the initial carrier to the terminal carrier and by the terminal carrier in reaching the place where the accident occurred, owing to washouts.
    2. Cabbiebs, § 30*—what law governs liability of terminal carrier for loss of interstate shipment of goods. The liability of a terminal carrier for the negligent loss- of an interstate shipment of goods is governed by the federal rules.
    3. Cabbiebs, § 30*—what is effect of Carmack Amendment to Interstate Commerce Act. Since the passage of the Carmack Amendment to the Interstate Commerce Act the special regulations and policies of particular States upon the subject of, a carrier’s liability for loss or damage to interstate shipments, and the contracts of carriers with respect thereto, have been superseded.
    4. Cabbiebs, § 114

      —when terminal carrier excused from liability for loss of goods by flood. Where the uniform bill of lading for an interstate shipment of tobacco provides that “no carrier or party in possession of any of the property herein described shall be liable for any loss thereof, or damage hereto or delay caused by the act of God,” and the proximate cause of damage to the tobacco in the hands of the terminal carrier is an act of God, an unprecedented flood in the company’s yards, the carrier is excused from liability even though its own negligence or delay may have contributed to the loss or .damage as a remote cause thereof.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph P. Raeeebty, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of fact.
    Opinion filed April 16, 1918.

      C. Gr. Austin, Jr., Beverly W. Howe and Worth E. Caylor, for appellants.
    Darrow & Sissman, for appellee; T. C. Sparks, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellee brought this suit to recover damages for the loss of a shipment of tobacco, billed under a uniform bill of lading from Newmarket, Missouri, for delivery at Lexington,. Kentucky, charging that the loss ensued from the negligence of the defendants and each of them. There was a verdict of not guilty for the initial carrier, and a verdict assessing damages in the sum of $3,214.80 in tort against appellants, who were intervening carriers. The immediate cause of the loss was a flood.

For convenience we will refer to the two appellants as the Belt By. and the C. & 0. By., respectively. The statement of claim charges negligence in general terms. The specific negligence relied on as to the Belt By. was delay in transferring the car containing the tobacco to the 0. & 0. By., and, as to the latter, delay and failure to move the car from the region of the flood. The car was delivered by the initial carrier to the Belt By. about noon, March 21, 1913, and by the latter to the O. & 0. By. at 7:30 p. m. March 23rd. The car left on the latter company’s tracks about 5 hours later on the first regular train going south, and, meeting with some delay on account of washouts, reached Peru, Indiana, 100 miles distant, at 7:35 a. m. March 24th, where on that night the company’s railroad yards, tracks and offices became flooded to the depth of several feet from the overflow of the Wabash Biver, due to an extraordinary and continuous rain that began on the 23rd.

Whatever delay ensued on the road of the latter company prior to the time the car reached Peru was the result of washouts from the rains. Peru was a divisional point. It was customary to detach the engine and. leave the cars in the yards there until a freight train was made up for the east. While that was done shortly after the arrival of the car in question, conditions were such it could not be run out. A passenger train which "left Peru for the east that afternoon was obliged to return on account of floods and washouts. In the course of the night the waters rose rapidly and left the banks of the Wabash River, flooding the railroad yards, streets of Peru and surrounding country. Persons who had lived in Peru for over 30 years had never known the river to rise high enough before to cover the tracks in the railroad yard. The conditions and results were unprecedented and unexpected. Both passenger and freight traffic became paralyzed. No trains moved out of Peru until the 29th. When the water subsided sufficiently to move freight cars in the yard the car in question was one of the first to be moved. The tobacco was then so injured that the salvage was only about $180, leaving, after payment of freight charges, $32.10 in the hands of the C. & O. Ry., which it offered to pay to the plaintiff.

The evidence is overwhelming to the effect that such an event could not reasonably have been anticipated, and that any efforts to avoid loss would have been unavailing after such "disaster could, so far as the circumstances disclose, have been foreseen. Unquestionably the proximate cause of the loss was the flood, an act of Grod.

It being an interstate shipment, the question of liability is governed by the federal and not state rules, though the court below ruled to the contrary. Nearly all the points of this case are covered in our opinion in a similar case, Ohio Salt Co. v. Baltimore & O. Ry. Co., abstracted in 204 Ill. App. 376. There, as here, the plaintiff relied upon the rule applicable in this State to intrastate commerce, that where the negligence of the carrier is a contributing cause of the damage, it cannot escape responsibility, notwithstanding the act of God, and that delay may concur as such cause, citing Wald v. Pittsburg, C., C. & St. L. R. Co., 162 Ill. 545. But, as we there said, even if the facts justify holding the company negligent by reason of delay, still, it being an interstate shipment, the rule of liability laid down in the federal courts must govern, for since the passage of the Carmack Amendment to the Interstate Commerce Act, “the special regulations and policies of particular States upon the subject of a carrier’s liability for loss or damage to interstate shipments, and the contracts of carriers with respect thereto, have been superseded.” (Charleston & W. C. Ry. Co. v. Varnville Furniture Co., 237 U. S. 597; Adams Exp. Co. v. Croninger, 226 U. S. 491; Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400; Peoria & P. U. Ry. Co. v. Corning & Co., 266 Ill. 515.) As said in Cincinnati, N. O. & T. P. Ry. Co. v. Rankin, 241 U. S. 319, 326: “The shipment being interstate, rights and liabilities of the parties depend upon acts of Congress, the bill of lading and common-law rules as accepted and applied in federal tribunals.”

The uniform bill of lading under which the shipment here moved provided “no carrier or party in possession of any of the property herein described shall be liable for any loss thereof, or damage hereto or delay caused by the act of God.” The federal rule of liability where the carrier seeks to be excused for nondelivery of goods caused by the act of God as held in Memphis & C. R. Co. v. Reeves, 77 U. S. 176, may be stated as follows: Where the proximate cause of damage to goods in the hands of the carrier is an act of God the carrier is excused from liability, although his own negligence or delay may have contributed to the loss or damage as a remote cause thereof. (See St. Louis, I. M. & S. Ry. Co. y. Commercial Union Ins. Co.. 139 . U. S. 223; The Indrapura, 171 Fed. 929, and Empire State Cattle Co. v. Atchison, T. & S. F. R. Co., 135 Fed. 135.)

What was said in the last cited case, that “the direct and proximate cause of the loss and damage was the unprecedented and unexpected flood and attendant disaster that came wholly without anticipation on the part of the defendant company,” is applicable here, and on such facts the authorities cited govern.

The court, therefore, erred in disregarding the federal rule as to liability and in not directing a verdict for. appellants. Its judgment will be reversed with a finding of fact, and a judgment will be entered here against the Chesapeake & Ohio Railway Company of Indiana, for $32.10, without costs in this case.

Reversed with finding of fact and judgment against the Chesapeake & Ohio Railway Company of Indiana for $32.10.


text:
    Benjamin H. Breakstone, Appellee, v. Thomas M. Obsbaum and Mrs. Thomas M. Obsbaum, Appellants.
    Gen. No. 23,269.
    (Not to he reported in full.)
    Abstract of the Decision.
    Municipal Coubt of Chicago, § 13

      —when error to strike affidavit of defense from files and enter default, in an action by physician for services. In an action in the Municipal Court of Chicago by a physician to recover for professional services, where the sworn affidavit of defense states that the services were rendered in an unskilful manner, causing affiant to suffer great pain and making it necessary for her to be treated by other physicians for relief therefrom; that such services were not worth more than a certain sum, much less than the sum claimed in plaintiff’s statement and that, as advised, affiant would be subjected to a large expense to he cured of the results of the unskilful operation by plaintiff, it is error for the court to strike the affidavit of defense and enter a default and give plaintiff judgment for the amount claimed in his statement without hearing evidence and submitting the question of damages to the jury, as demanded.

      Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by Benjamin H. Breakstone, plaintiff, against Thomas M. Obsbaum and Mrs. Thomas M. Obsbaum, defendants, to recover for professional services. From a judgment for plaintiff for $445, entered by the court without the intervention of a jury, defendants appeal.
    Bernard J. Brown, for appellants.
    Saltiel & Rossen, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    North Side Sash & Door Company, Appellant, v. Ida Goldstein et al., Appellees.
    Gen. No. 23,281.
    (Not to be reported in full.)
    Abstract of the! Decision.
    1. Mechanics’ liens, § 136

      —What is extent of waiver of subcontractor’s lien under contract. The provision in a contract which waives a mechanic’s lien on the “premises” must be confined to the purpose manifestly intended by the parties and cannot be extended by construction to waive a subcontractor’s right to a lien on moneys owing from the owner to the contractor in excess of the subcontractor’s lien.

      Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here with finding of fact.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by North Side Sash & Door Company, a corporation, plaintiff, against Ida Goldstein et al., defendants, to enforce a subcontractor’s lien. From a judgment for defendants, plaintiff appeals.
    Samuel W. Newman, for appellant.
    Amberg & Amberg, for appellees.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Mechanics’ mens, § 59 —what is extent of lien given subcontractor. Section 21 of the Mechanics’ Liens Law of 1903 (J. & A. If 7159), giving a subcontractor a lien, is not limited to cases where the fund is claimed by some creditor, assignee, etc., but is intended to give a lien which is absolute, even as against the contractor’s creditors, assignee or estate.

3. Mechanics’ liens—extent of waiver of subcontractor’s lien as question for court. The question whether the provision in a contract waiving a subcontractor’s lien extends to moneys due the contractor under the original contract is one of construction for the court.


text:
    John A. Todd, by John C. Todd, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,296.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Action by John A. Todd, a minor, by John 0. Todd, his next friend, plaintiff, against Chicago Railways Company, defendant, to recover damages for personal injuries sustained while a passenger on defendant’s car. From a judgment for plaintiff, defendant appeals. .
    Thomas J. Symmes and Watsoh J. Ferry, for appellant; W. W. Gurley and J. R. Gutlliams, of counsel.

      Abstract of the Decisión.
    1. Carriers, § 484

      —when instruction on care required in conveying passengers is erroneous. In an action by*.a passenger to recover for personal injuries, it is reversible error to instruct, at plaintiff’s request, that common carriers of passengers are required to do all that human care, vigilance and foresight can reasonably do, consistent with the character and mode of conveyance adopted, and the “proper” prosecution of the business, to prevent accidents to passengers, as the limitation of the degree of care contained in the instruction does not include the “practical” operation of the road.
    2. Appeal and error, § 1644*—when giving of improper instruction on care required of carrier not cured ly another instruction. In an action by a passenger to recover for personal injuries, error in giving, at plaintiff’s requést, an instruction improperly defining the degree of care required of defendant is not cured by giving, at defendant’s request, an instruction which defines it correctly.
    Timothy J. Fell, for appellee; Hermann P. Haase, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    John Stelk, Individually and as Trustee, Appellant, v. Sophie Hoff et al., Appellees.
    Gen. No. 23,333.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed April 16, 1918.
    Rehearing denied April 29, 1918.
    Statement of the Case.
    Bill by John Stelk, individually and as trustee, complainant, against Sophie Hoff et at., defendants, to foreclose a trust deed to him from Sophie Hoff, executed June 14, 3915, to secure the sum of $554. Defendant, Emil M. Weber, filed a cross-bill, individually and as successor in trust to Charles Weber, trustee, to foreclose a trust deed to the same premises, executed by Peter Hoff and his wife, said Sophie, February 2, 1907, to secure a debt of $1,000 to a firm, of which said Webers were members. The acknowledgment of the last-mentioned trust deed was taken before Bertha Weber, another member of that firm. The issues presented raised as the main question whether the trust deed of February 2, 1907, was a mere.extension or renewal of a previous trust deed of November 2,1897, to the same trustee, executed by Friederike Wilkie to secure her note to her own order for $1,000 in three years, which was released in 1901. From a decree for defendants, complainant appeals.
    G. A. Buresh, for appellant.
    Roy L. Kranzow, for appellee Hoff.
    Matthew P. Brady, for appellee Weber.

      Abstract of the Decision.
    1. Mortgages, § 237

      —when change in evidence of debt or form of security does not cancel old debt. Change in the evidence of a debt or the form of security therefor does not cancel the old debt where the intention of the parties is to continue in force the original debt.
    2. Homestead, § 41*—when not acquired. As against an existing lien, rights of homestead cannot be acquired by a subsequent conveyance.
    3. Mortgages, § 124*—when lien of trust deed shown to be inferior to prior trust deed. On a bill to foreclose a trust deed, evidence held to show that the lien of such deed was inferior to that of a previously executed trust deed covering the same property.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mb. Presiding Justice Barnes

text:
    The People of the State of Illinois ex rel. James C. Bailey, Defendant in Error, v. City of Chicago et al., Plaintiffs in Error.
    Gen. No. 23,359.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Petition by the People of the State of Illinois, on the relation of James 0. Bailey, against City of Chicago and others, respondents, for a writ of mandamus to compel respondents to place relator’s name on the list of officers of the police department of the City of Chicago as a first-class detective sergeant of police." To reverse an order granting the writ, respondents prosecute this writ of error.
    Abstract of the Decision.
    1. Civil service, § 2

      —when act cannot be invoiced fo compel restoration to office. The Civil Service Act (J. & A. V 1799 et seq.) protects from removal only those who have been examined and approved by the civil service commission and cannot be invoked to compel the restoration of one who was reduced from the rank of first-class detective sergeant of police to that of patrolman before the act went into effect.
    2. Civil service, § 28*—when petition to compel restoration to higher rank demurrable on ground of laches. A demurrer should be sustained, on the ground of laches, to the petition for a writ of mandamus to compel the restoration of one to the rank of detective sergeant of police where the petitioner delayed 20 years and more in seeking reinstatement.
    Samuel A. Ettelson, for plaintiffs in error; Boy S. Gaskill, of counsel.
    A. D. Gash and Clinton S. Bailey, for defendant in error.

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

   Mb. Presiding Justice Barnes

delivered the opinion of the-court.


text:
    The People of the State of Illinois ex rel. Edward Strum, Defendant in Error, v. City of Chicago et al., Plaintiffs in Error.
    Gen. No. 23,360.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Crm, service, § 2

      —when act inapplicable to protect police officer. The Civil Service Act (J. & A. ¶ 1799 et seq.) does not apply to protect a police officer who was not examined and appointed or promoted to the office by the civil service commission.
    2. Civil service, § 28*—when petition of mandamus to compel reinstatement of police detective sergeant demurrable on ground of laches. A demurrer on the ground» of laches should be sustained to a petition for a writ of mandamus to compel reinstatement as a police (detective sergeant where the petition was not filed until 18 years and more after the petitioner’s demotion.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed April 16, 1918.
    Statement of the Case.
    Petition by the People of the State of Illinois, on the relation of Edward Strum, against City of Chicago and othérs, respondents, for a writ of mandamus to compel respondents to reinstate the relator in the position of first-class detective sergeant. To reverse an order granting the writ, respondents prosecute this writ of error.
    Samuel A. Ettelson, for plaintiffs in error; Bov S. Gaskill, of counsel.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Robert Susmarski and Donald McDonald, Plaintiffs in Error.
    Gen. No. 23,379.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Conspiracy, § 50

      —when evidence shows criminal. On a prosecution for criminal conspiracy, evidence held to support a verdict finding defendants guilty.
    2. Criminal law, § 570*—when refusal of instruction is harmless error. On a prosecution for criminal conspiracy, refusal to give an instruction requested by defendants is not ground for reversing a judgment against them where the subject-matter of such instruction is sufficiently covered by other instructions.
    3. Criminal law, § 532*—when admission of confession of an

      other defendant may not be complained of as reversible error. On a writ of error to reverse a judgment against defendants in a prosecution for criminal conspiracy, where the case was» tried according to their own theory that a confession by another defendant, made out of plaintiff in error’s presence, was admissible against the defendant making it, but should be disregarded as to plaintiff in error under proper instructions, which were given, the objection made to the admission of the confession being general and not relating to any particular part thereof, plaintiff in error will not be heard to object that the admission of the confession was reversible error.

      Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 16, 1918.
    Statement of the Case. .
    Indictment by the People of the State of Illinois against Robert Susmarski and Donald McDonald, defendants, on the charge of criminal conspiracy. -To reverse a judgment on a verdict finding them guilty, defendants prosecute this writ of error.
    David Stansbury and Stephen A. Mat,ato, for plaintiffs in error.
    Maglay Hoyne, for defendant in error; George C. Bliss, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

4. Criminal law, § 156a —when not error to admit confession of one defendant in prosecution for conspiracy. It is not error, in a prosecution against several defendants for criminal conspiracy, to admit in evidence a confession made by one of such defendants not i,i the presence of others, to the admission of which only a general objection is made by such others, where the confession is such that no part thereof can be excluded and leave in intelligible form so much of it as is unquestionably admissible against the defendant making it.


text:
    The People of the State of Illinois, Defendant in Error, v. Arthur W. Robertson et al., Plaintiffs in Error.
    Gen. No. 23,481.
    (Not to be reported in full.)
    Error "to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 16, 1918.
    Rehearing denied April 29, 1918.
    Statement of the Case.
    Indictment by the People of the State of Illinois against Arthur W. Robertson and others, defendants, charging a criminal conspiracy to procure dynamite with intent to use the saíne for unlawful injury to and the unlawful destruction of property. To reverse a judgment on a verdict finding them guilty, defendants prosecute this writ of error.
    Abstract of the Decision.
    1. Conspiracy, § 43

      —when indictment need not specify persons or property. Where the object of a conspiracy is general, it is not necessary that an indictment therefor specify the persons or property at which it is aimed'.
    2. Conspiracy, § 43*—when failure to specify in indictment persons or property at which intended injury is aimed is not ground for reversal. Where, in a prosecution under Rev. St. ch. 38, par. 54h (J. & A. jf 3640), for conspiracy to procure dynamite with intent to use it for unlawful injury to and- unlawful destruction of property, there is evidence that,' while the conspiracy was primarily directed against the property of a certain corporation, the plan necessarily involved injury to the property of others in the neighborhood, and that acts in pursuance thereof did injure, or would, if consummated, have injured, such other property, failure to specify in the indictment the particular person or property at which the intended injury was aimed is not ground for reversal.
    3. Conspiracy, § 35*—when indictment in language of statute is sufficient. An indictment for conspiracy to procure dynamite with intent 'to use it for unlawful injury to and destruction of property, in violation of Rev. St. ch. 38, par. 54h (J. & A. jf 3640), is sufficient where it follows the language of the statute, even though the person and property intended to be injured are not specified.
    4. Conspiracy, § 21*—merger of conspiracy to commit felony in felony. The doctriné that a conspiracy to commit a felony is merged in the felony, where the evidence shows that a felony was committed, is practically abrogated in Illinois.

      Maher & Caron and Charles P. R. Macaulay, for plaintiffs in error.
    Maclay Hoyne, Edward E. Wilson and James C. O’Brien, 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.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

5. Conspibacy, § 47 —what does not constitute variance between indictment and ■ proof. The fact that the indictment for a conspiracy to procure dynamite with the intent to use it for the unlawful injury of property does not specify' the person whose property was to be injured, while the evidence showed that the object of the conspiracy was the injury of the property of a certain corporation, does not constitute a variance where the evidence shows that the plan' pursued would naturally, and did, result in injury to the property of others in the neighborhood of the corporation’s property.

6. Conspiracy—what constitutes to procure dynamite to use for unlawful purposes. On an indictment for a conspiracy to “procure” dynamite to use for the unlawful injury of property, even though the evidence shows that one of the defendants took the initiative without the knowledge of the others and stole and hid the dynamite, still if they acted in concert under a plan to go and get it from the hiding place for the purpose of making the unlawful use, there was a conspiracy to “procure.”

7. Criminal law,- § 156a*—when refusal to admit entire confession of codefendant is not error. Where, on an indictment for conspiracy, the prosecution introduces in evidence confessions made by the defendants only so far as each confession affects the defendant making it, and, on cross-examination, defendants’ counsel ask for the entire statement, expressly stating to the court, however, that if the answer evokes anything implicating other defendants than the one making the confession they will move to strike the entire statement from the record, and- no purpose or effort to learn whether the rest of the statement will benefit the defendants is disclosed, a refusal to admit the entire statement is not error.

8. Criminal law, § 494 —when defendant may not complain of failure to read portion of instruction to jury. Where the trial court, after reading so much of one of defendant’s instructions as it had intended to give, by mistake handed the entire instruction to the jury without striking out the part which it did not intend to give, the defendant cannot complain, on a writ of error, that the latter part was not read to the jury.

9. Criminal law—when not error to include imprisonment in penitentiary in instruction as to different forms of punishment. On a criminal prosecution, it is not error to include imprisonment in the penitentiary in the instruction as to the different forms of punishment which may be prescribed in the verdict, even though defendant testified at one time that he was 24 years of age and at another that he was 25, where he subsequently repudiated these statements by saying that he did not know his age and admitted previously giving a written statement showing that he was more than 25.

10. Criminal law, § 297 —when not error to fail to instruct as to involuntary confession. On a criminal prosecution in which a confession is introduced in evidence, it is not error to fail to instruct as to the effect of an involuntary confession where there is nothing in the evidence tending to show that the confession was not voluntary, but defendant merely denies that it was made at alL


author: Mr. Justice McDonald

text:
    Isidor Binder, Appellee, v. Herman Altman, Appellant.
    Gen. No. 23,227.
    (Not to Tbe reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed April 16, 1918.
    Rehearing denied April 29, 19Í8.
    Statement of the Case.
    Action by Isidor Binder, plaintiff, against Herman Altman, defendant, to recover damages for a breach of a contract of employment, for conversion and to enforce an accord. The jury assessed plaintiff’s damages at $5,535.25, and the court required plaintiff to enter a remittitur for the amount thereof in excess of $3,500. From a judgment for plaintiff for the latter amount, defendant appeals.
    Moses, Rosenthal & Kennedy, for appellant; Hamilton Moses and Henry Jackson Darby, of counsel.
    John L. Davidson, for appellee.

      Abstract of the Decision.
    Accord and satisfaction, § 1

      —when action will not lie to enforce unexecuted accord. An action will not lie to enforce an unexecuted accord unless it contains an express provision that the promise itself shall be a satisfaction of the disputed claim.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    William Horn, Appellee, v. Gustav Berg et al. Gustav Berg, Appellant.
    Gen. No. 23,249.
    1. Automobiles and garages, § 3

      —when evidence supports verdict for plaintiff in action for injuries due to automobile. In an action to recover for personal injuries received by plaintiff by being struck by defendant’s automobile as he "was alighting from a street car, evidence held sufficient to support a verdict for plaintiff.
    2. Automobiles and garages, § 3*—when instruction on liability of operator passing street car stationary for purpose of discharging passengers is erroneous. In an action to recover for personal injuries received through plaintiff being struck by defendant’s automobile as he was alighting from a street car, where it appeared that the point at which the street car stopped was not' a usual stopping place, but one at which it was prohibited by city ordinance from stopping, and that when the car stopped, defendant’s automobile, which had been running beside the car, was then passing it, it is error to instruct that if the jury believe that defendant violated, in the manner charged, the ordinance prohibiting persons operating vehicles to permit the vehicle to pass or approach within 10 feet of a street car which has stopped to take on or discharge passengers as long as the car is stopped for that purpose, and that he was negligent in so doing, and that such violation was the proximate cause of the accident and plaintiff

      was In the exercise of ordinary care, etc., they should find defendant guilty.
    3. Automobiles and garages, § 3

      —when instruction on proper speed of automobiles is improper as not in conformity with declaration. In an action to recover for personal injuries received through being struck by an automobile, where the declaration does not allege that the car was being operated at any particular rate of speed or that it was being propelled at an unreasonable or improper rate, but merely contains a general allegation of negligence on defendant’s part in failing to look ahead and keep his car under control, it is improper to give an instruction based on the Motor Vehicle Act, Rev. St. ch. 121 (J. & A. 10001 et seg.), relating to the speed at which motor vehicles may be operated on public highways.
    4. Appeal and error, § 1084*—when assignment of cross errors by plaintiff against defendant found not guilty is erroneous. Where, in an action against a street railway company and the owner of a motor vehicle to recover for personal injuries received through being struck by one of defendant’s motor vehicles in alighting from the other defendant’s car, there is a judgment finding the street railway company not guilty and the motor vehicle owner guilty, from which judgment the motor vehicle owner appeals, the plaintiff cannot, upon such appeal, assign cross errors upon the judgment finding the street railway company not guilty.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed April 16, 1918.
    Walthbr & Lanaghen and Walter S. Hull, for appellant.
    Charles C. Spencer and Jesse Wilcox, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Appellee recovered a judgment for $1,500 and costs against appellant, for injuries sustained as a result of being struck by appellant’s automobile. This action was brought against both the appellant and the Chicago Railways Company, but at the close of plaintiff’s case the court directed a verdict for the latter, and entered judgment upon the verdict so returned. The cause then proceeded against the appellant alone, resulting in a verdict for the appellee, upon which the judgment herein complained of was entered.

The injury occurred in the vicinity of North avenue and Orchard street in the City of Chicago. North avenue runs east and west, and is partially occupied by the tracks of the Chicago Railways Company, the north track of which was used by westbound cars and the south track by eastbound cars. Between the north track and the north curb was a paved driveway about 11 feet wide. Orchard street runs north and south, and at its intersection with North avenue there is a jog of about 27 feet.

On the night of August 29, 1913, appellee was a passenger, riding on the front platform of a westbound North avenue car. As the car approached Orchard street appellee informed the motorman that he wished to get off at said street. The motorman then slackened the speed of his rapidly moving car, but it did not come to a stop until it had gone some distance beyond the intersection with Orchard street. Appellee alighted therefrom at a point about 60 feet west of Orchard street and was struck by appellant’s automobile, causing the injuries complained of. There is a conflict in the evidence as to whether at this time the car had come to a stop or was still moving. Appellee testified that.it had stopped, while several witnesses on behalf of the defendant testified that it was still in motion when appellee alighted. The speed of appellant’s automobile at and just prior to the time of the collision was testified to variously as being from 9 to 14 miles per hour.

The negligence charged against the Chicago Railways Company was alleged in the declaration to consist in the failure of its servants in charge of the said car to observe a custom to stop, when signaled, with the front end of the ear near and not beyond the nearest crossing of an intersecting street in the direction the car was going. The declaration also set forth and predicated negligence upon the violation of a city ordinance in effect at the time of the collision providing that:

“It shall be unlawful for any motorman, driver, conductor or other person having charge or custody of street cars in operation upon any street railway in the City of Chicago, in stopping a street car at an intersecting street for the purpose of receiving or discharging passengers, to stop or cause such car to be stopped at any other than the nearest crossing in the direction such car is going.”

The declaration averred that appellant (Berg) was guilty of negligence in violating a city ordinance in effect at the time of the occurrence, which provided that:

“It shall be unlawful for any person driving or having charge, possession or custody of any vehicle being driven or propelled or operated upon the streets of thn City of Chicago, upon overtaking any street car which is stopped for the purpose of discharging or taking on a passenger or passengers, to permit or cause said vehicle to pass or approach within ten (10) feet of said car as long as the said car is so stopped or remains standing for the purpose of discharging or taking on a passenger or passengers. ’

In an additional count it was charged that it was the duty of appellant, in driving his automobile, to look ahead and to keep said automobile under control so as to be able to stop the same in time to avoid injuring any passenger alighting from said street car; that after said car had passed the intersection of Orchard street, appellant improperly, carelessly and negligently failed to so look ahead and to keep said automobile under control, as a result of which the appellee was injured.

It is urged by appellant that the verdict is clearly and manifestly against the weight of the evidence. From a careful examination of the record, we are of the opinion that the verdict should not be disturbed for that reason.

Complaint is also made that the jury were improperly instructed, Instruction “E” was as follows:

“If you believe from the evidence that the defendant, Berg, violated the ordinance received in evidence, regulating the passing of street cars by other vehicles, in the manner charged in the declaration, and that he was negligent in so doing, and that such violation of said ordinance proximately caused, or contributed to cause the injury to plaintiff, then you are instructed that you should find the defendant Berg guilty, provided you further believe from the evidence that the plaintiff himself was in the exercise of ordinary care for his own safety at and before the time of the injury.”

It is clear from the evidence that appellee alighted from the street car not at its usual stopping place, but at a point prohibited by city ordinance, and that, when he did so, appellant’s automobile, which had been running alongside the car, was then in the act of passing it. Under the circumstances as shown by the record in this case, the ordinance requiring vehicles to stop 10 feet back of a street car which has stopped to discharge or take on passengers had no application. Therefore, in our opinion, this instruction was erroneous, and the giving of it on behalf of appellee constituted reversible error.

It is further contended that the court erred in giving an' instruction based upon the Illinois Motor Vehicle Act, ch. 121, Rev. St. of Illinois (J. & A. ¶ 10001 et seq.), relating to the speed at which motor vehicles may be operated on public highways. Appellant’s objection is predicated upon the fact that the declaration contained no allegation that his automobile was being operated at any particular rate of speed or that it was being propelled at an unreasonable or improper rate of speed.

We think there is much force in this contention. The general allegation of negligence on the part' of appellant in failing tp look ahead and keep his automobile under control is not broad enough to include a violation of the statute regulating the speed of motor vehicles on public highways. The mere fact that a vehicle is not under control does not necessarily imply that it is being operated at a speed in violation of this statute. The instruction complained of was therefore improper.

Appellee seeks by way of cross error to assail the action of the court in directing a verdict for the Chicago Railways Company at the close of appellee’s evidence, upon which judgment was entered. It appears from the record that appellee prayed but did not perfect an appeal from this judgment.

The judgment finding the Chicago Railways Company not guilty and the one finding appellant guilty were wholly independent of each other, although they were included in the same entry upon the record. The former judgment is not before us on this appeal. Wells v. Miller, 45 Ill. 382. This appeal brings up only the judgment against appellant, Berg, and the appellee cannot assign cross errors upon the judgment finding the Chicago Railways Company not guilty. Walker v. Montgomery, 236 Ill. 244.

For the reasons hereinabove assigned, the judgment will be reversed and the cause remanded.

Reversed and remanded.