author: Mr. Justice Dibell

text:
    Guy C. Arnell, Plaintiff in Error, v. Superior Mirror Company, Defendant in Error.
    Gen. No. 6,486.
    1. Statutes, § 196

      —how intent of legislature in enacting is ascertained. It is a general rule oí construction of statutes that the intent of the legislature is to be ascertained from the words it employs and the courts cannot arbitrarily substitute other words.
    2. Statutes, § 196*—what considered in determination of intent of legislature in enacting. The intent of the legislature in enacting a statute is to be gathered from the words used, the evil to be remedied and the object to he attained.
    3. Master and servant—what poisons master not required to guard against by providing suitable working clothing for employee. The legislature, in enacting section 2 of the Occupational Diseases Act (J. & A. ji 5434), providing that every employer in this State engaged in the carrying on of any process of manufacture or labor in which “sugar of lead, white lead, lead chromate, litharge, red lead, arsenate of lead, or paris green are employed, used or handled, or the manufacture of brass or the smelting of lead or zinc, which processes and employments are hereby declared to be especially dangerous to the health of the employees engaged in any process of manufacture or labor in which poisonous chemicals, minerals or other substances are used or handled by the employees therein in harmful quantities or under harmful conditions,” shall provide proper working clothing, etc., did not intend to include all poisonous substances, and consequently did not intend to cover the use of silver nitrate.
    4. Master and servant—what is not an occupational disease. Evidence held sufficient to show that silver nitrate poisoning is not an occupational disease and is not incident to the making of mirror glass.
    5. Master and servant—when artificial ventilation of factory not required. Section 11 of the Health and Safety Act (J. & A. IT 5396), relating to artificial ventilation of factories and workshops, has no application where the room in a factory where an employee works has 2,000 cubic feet of air space for each person employed in such room.
    6. Master and servant—when shown that statute relating to removal by ventilating or exhaust devices of poisonous gases and dust in factory not applicable. Evidence held sufficient to show that nitrate of silver did not and could not come into the air from the steam or from the. ammonia or from any dust in a room in defendant’s mirror-plate factory, and hence section 12 of the Health and Safety Act (J. & A. If 5337), relating to the removal by either ventilating or exhaust devices of all poisonous or noxious fumes or gases arising from any process, and all dust of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process within a factory, mill or workshop, was inapplicable.
    7. Witnesses, § 279*—when evidence on rebuttal inadmissible to impeach witness. Evidence in rebuttal that an employee working for another mirror-plate factory was suffering from silver nitrate poisoning when he quit that employment and that he had discussed the subject with a witness for defendant is inadmissible, in an action by an employee under the Occupational Diseases Act, secs. 1, 2 (J. & A. 1HI 5433, 5434) to recover damages for silver nitrate poisoning received in a mirror-plate factory, and is inadmissible to impeach the witness for defendant where the attention of the. latter was not drawn to any conversation with plaintiff’s witness.
    8. Evidence, § 87*—how foot that silver nitrate poisoning is incident to manufacture of mirrors may be proved. The fact that silver nitrate poisoning is incident to the manufacture of mirrors by certain processes can only be proved by general evidence on the subject and not by specific examples supposed to have occurred in other factories.
    9. Master and servant—when poisoning shown to be occupational disease. In order for silver nitrate poisoning to be peculiar to the -work or process carried on in the manufacture of mirrors in a factory, or for that disease to be incident to the work or process, so as to constitute the disease an occupational disease within section 1 of the Occupational Diseases Act (J. & A. If 5433), it must have happened1 before and must be such a disease as those familiar with the process would realize was liable to occur.
    10. Appeal and error, § 1241

      —when party cannot complain of error in instruction. A party cannot complain of an instruction given for the adverse party containing an improperly substituted word where he asks for and obtains an instruction on the same subject containing the same mistake.
    Error to the Circuit Court of Winnebago county; the Hon. James S. Baume, Judge, presiding,
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.

      Charles C. Spencer, Philip H. Treacy, J. E. G-oembel and Boy F. Hall, for plaintiff in error.
    B. K. Welsh, for defendant in error.

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

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

   Mr. Justice Dibell

delivered the opinion of the court. .

The Superior Mirror Company, defendant in error herein, hereinafter called the defendant, operated a small factory at Bockford, in which it manufactured mirror plates. Certain solutions were made and mixed and applied to glass. Silver nitrate was used in this mixture. Cuy C. Arnell, plaintiff in error, hereinafter called the plaintiff, was in the employ of the defendant in that factory and in charge of the silvering and polishing rooms and compounded the mixture used in the process. He became ill and left the employment of defendant, and after a long illness went to work elsewhere in another business. He claims that his illness resulted from silver nitrate poisoning, with which he claims he became infected while in the employ of defendant and because of its violation of certain statutes. He brought this action to recover damages therefor. He filed a declaration containing six counts. He dismissed the last three counts at the close of all the evidence, and they are not in this record. The first count charged a violation of sections 1 and 2 of the Occupational Diseases Act (J. & A. 5433, 5434). The second count charged a violation of section 11 of the Health and Safety Act (J. & A. j[ 5396). The third count charged a violation of section 12 of the last-named act (J. & A. 5397). Defendant pleaded not guilty. Upon a trial the court instructed the jury to find the defendant not guilty under the second count, and the first and third counts were submitted £o the jury and it returned a verdict of not guilty. Plaintiff made a motion for a new trial, which was denied, defendant had judgment in bar, and plaintiff prosecutes this writ of error.

The first part of section 2 of the Occupational Diseases Act (J. & A. ft 5434) is as follows:

“Every employer in this State engaged in the carrying on of any process of manufacture or labor in which sugar of lead, white lead, lead, chromate, litharge, red lead, arsenate of lead, or parís green are employed, used or handled, or the manufacture of brass or the smelting of lead or zinc, which processes and employments are hereby declared to be especially dangerous to the health of the employees engaged in any process of manufacture or labor in which poisonous chemicals, minerals or other substances are used or handled by the employees therein in harmful quantities or under harmful conditions, shall provide for,” etc.

The words following contain the requirements which it is alleged defendant did not fulfil. It will be observed that silver nitrate is not one of the substances against which the first part of this section is directed. It is not named in that part of the section not above quoted. Plaintiff claims that the proper construction of this section required the court to place, after the words “the health of the employees” and before the following words, “engaged in any process of manufacture,” a comma, where none appears in the statute, and follow that comma by these words, “and every employer of labor,” and thus make this section include not only the specific poisons named in the first part of the section, but any and every other poisonous substance used by employers of labor. By the statute it is the employees who ‘ ‘ are engaged. ’ ’ By the proposed insertion it is the employer of labor who is ‘ ‘ engaged. ’ ’ It is a general rule of construction of statutes that the intent of the legislature is to be ascertained from the words it employs, and the courts cannot arbitrarily introduce other words. True, it is the intent of the lawmaker which is the law, but that intent is to be gathered from the words used, the evil to be remedied, and the object to be attained. Sometimes additional words may be implied under the principle, “ ejusdem generis,” but that principle is not applicable here. If the legislature had intended to include all poisonous substances it would have used some such general language. The fact that the language used was almost entirely confined to lead poisoning and that no general terms were employed convinces us that silver nitrate poisoning was not intended to be included. There is a slight ambiguity in the part of the section above quoted, which will in our opinion be much more simply removed by inserting before the words, “poisonous chemicals,” the words “such” or “said.” It follows that the trial court, correctly held that this case did not come within said section 2.

Section 1 of said Act (J. & A. 5433), concerning occupational diseases covers any work or process “which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employees to the danger of illness or disease incident to such work or process, to which employees are not ordinarily exposed in other lines of employment,” and requires such employers to do certain things to prevent industrial or occupational diseases. There was much evidence on the question whether nitrate of silver poisoning is an occupational disease and whether it can be acquired from the use of silver nitrate in the solutions and mixtures employed by defendant in the process of making mirror glass. To fully describe those processes in language that would be understood by the ordinary reader would require much space and we think it unnecessary. It would also greatly extend this opinion to set out the testimony of each witness on that subject. We think it sufficient to say, that to put it mildly there appears to be a clear preponderance of the evidence that silver nitrate poisoning is not an occupational disease and is not incident to the making of mirror glass and cannot be obtained by conducting the processes and making the mixtures in the work plaintiff did for defendant. It follows that the jury were warranted in finding defendant not guilty under the first count.

Section 11 of the Health and Safety Act (J. & A. 5396), has no application where the room in a factory where an employee works has 2,000 cubic feet of air space for each person employed in such room. The evidence plainly shows that there was much more than that air space in the room in which plaintiff did this work for defendant. Plaintiff introduced no evidence tending to make a case under that section, and the •court properly directed a verdict for defendant as do that count.

The third count was under section 12 of the Health and Sáfety Act (J. & A. ]] 5397). The first sentence of that section refers to gas from sewers and the like. There was no proof of that kind in this case. The second sentence is as follows:

“All poisonous or noxious fumes or gases arising from any process, and all dust of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process, within such factory, mill or workshop, shall be removed, as far. as practicable, by either ventilating or exhaust devices.”

The count related to poisonous gases and dust resulting in the disease of silver nitrate poisoning of plaintiff. There were gases created in the processes carried on by plaintiff in defendant’s factory from the use of ammonia and from bringing the mixture to a very high degree of heat. But there was a very clear preponderance of evidence that the nitrate of silver did not and could not come into the air from the steam or from the ammonia or from any dust in the room, and the verdict of the jury on that count was therefore justified by the evidence. Certainly, we cannot say that the jury should have found the other way under this count. The court did not err in refusing to grant a new trial.

Complaint is made that the court restricted the examination of Freeman, a witness for plaintiff. He was called in rebuttal to show that he formerly worked for another company engaged in the manufacture of mirrors and that he was suffering from silver nitrate poisoning when he quit that employment, and that he had discussed that subject with Nelson, a witness who had been examined for defendant. The ruling of the court was proper. As evidence to impeach Nelson, it was incompetent because Nelson’s attention was not drawn to any conversation with Freeman. If it was intended to establish the case of plaintiff, it should have been introduced in chief and not by way of rebuttal. If Freeman had testified that the processes employed by this other company had produced silver nitrate poisoning in him, defendant must necessarily have been permitted to prove what those processes were which such other company employed, and whether the infection was silver nitrate poisoning or something else, and thus an immaterial issue would have been tried. We are of opinion that the contention of plaintiff that silver nitrate poisoning is incident to the manufacture of mirrors by the processes employed by defendant could only be proved by general evidence on that subject and not by specific examples supposed to have occurred in other factories. We approve the other rulings upon evidence of which complaint is made.

Objection is made to some instructions because they required the fumes and gases to be injurious to the health of plaintiff and others. Plaintiff contends that if he was so affected, he could recover, even if no one else had ever suffered from silver nitrate poisoning. The statute which we have called the Occupational Diseases Act contains the words “occupational diseases” in the title, and also in section 1, and it is evident that that term as used in that statute is defined in section 1 thereof as “any illness or disease peculiar to the work or process carried on, or which subjects the employees to the danger of illness or disease incident to such work or process, to which employees are not ordinarily exposed in other lines of employment.” In order for silver nitrate poisoning to he peculiar to the work or process carried on by defendant or for that disease to be incident to that work or process, it must have happened before and must be such a disease as those familiar with the process would realize was liable to occur. Therefore the instructions in question were properly modified. Moreover, plaintiff used the same expression in the plural in some of his instructions. The word “and” was used in an instruction for defendant where “or” should have been used. We do not think it could have misled the jury. But plaintiff asked and obtained an instruction containing the same mistake on the same subject, and therefore cannot complain.

We find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    M. Frank Curley, Appellee, v. City of Highwood, Appellant.
    Gen. No. 6,494.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Damages, § 192

      —when must he left to discretion of jury. There is no fixed rule for the determination of damages for physical discomfort and deprivation of enjoyment of a home, due to overflow from the manhole of a city sewer, but the amount must be left largely to the sound judgment and discretion of the jury.
    2. Municipal corporations, § 1115*—when landowner may recover damages for injury due to overflow from sewer. A landowner may recover damages in consequence of the construction of a sewer where noxious substances flow from a manhole, near his premises during heavy rains, render the air unwholesome and offensive, and annoy and injure him.
    3. Appeal and error, § 1308*—when presumed that all elements of injury, proved came within purview of declaration. It will be presumed, in an action by a landowner against a city to recover damages for injury due to overflow from a sewer, that all the elements of injury proved came within the purview of the declaration, where the declaration is not set. out in the abstract.

      Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.
    Heard -in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Rehearing denied May 14, 1918.
    Statement of the Case.
    Action by M. Frank Curley, plaintiff, against City of Highwood, defendant, to recover damages sustained due to overflow from a catch basin of defendant’s sewer. From a judgment against it for $700, defendant appeals.
    O. S. Gooch and George W. Field, for appellant.
    E. Y. Orvis, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

4. Instructions, § 135*—non-necessity of offering. A party plaintiff is not required to offer any instruction relating to the measure of damages.

5. Appeal and error, § 892*—when error in instruction will not be reviewed. Where the declaration, in an action by a property'owner against a city for damages for injury due to overflow from a sewer, is not included in the abstract, any error in an instruc- ' tion will not be reviewed, if reference to the declaration is neces-, sary.

6. Municipal corporations, § 1115*—when verdict for damage due to overflow of sewer not excessive. Á verdict for $700 for physical discomfort and loss of crops due to the overflow of a sewer in time .of heavy rains, held not excessive.

7. Appeal and error, § 810 —what must be part of bill of exceptions. Questions concerning affidavits, which are filed in connection with a motion for a new trial, cannot properly be passed upon where the affidavits are not a part of the bill of exceptions.

On Petition - for Rehearing.

Trial—when misconduct of plaintiff before hearing of testimony should be brought to attention of trial court. The misconduct of a party plaintiff, in an action by a landowner against a city for damages for injury, due to overflow from a sewer, before the hearing of any testimony and at the time the jury are viewing the premises should, where the defendant’s officers have knowledge of the fact at the time, be brought to the attention of the court by a motion to discharge the jury or in some other manner, and the defendant may not wait until an unfavorable verdict is returned and then complain.


text:
    Fred L. Stevens, Appellant, v. Erick Lagerquist, Appellee.
    Gen. No. 6,495.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 261

      —when fraud is defense to note in hands of innocent purchaser. Fraud and circumvention in obtaining the signature of the purchaser of goods to a note which is a part of an order for goods is a complete defense to a recovery on the note in the hands of an innocent purchaser, unless the maker is guilty of such negligence in executing the note and allowing it to go into circulation as would preclude him from setting up the defense.
    2. Bills and notes, § 460*—when question for jury whether note procured t>y fraud. Evidence held to present a question for the jury whether the signature to a note, which was a part of a contract for the purchase of goods, and was afterwards detached and sold to plaintiff, an innocent purchaser for value, was obtained by fraud, where it appeared that the signer was of foreign nativity, and could not read and write the English language readily and relied upon the statement of the seller’s agent that his signature to the paper in one of two places was to he the signature to the consignment contract, and the other to show that he was the owner of the store, and it afterwards developed that one of the signatures was to the note.

      Appeal from the Circuit Court of Winnebago county; the Hon. Jambs S. Baume, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Statement of the Case.
    Action by Fred L. Stevens, plaintiff, against Erick Lagerquist, defendant, to recover on a note for the principal sum of $94.50, alleged to have been made and delivered by defendant to another for merchandise and. afterwards assigned to plaintiff. From a judgment for defendant, plaintiff appeals.
    R. E. Beckington, for appellant.
    R. K. Welsh, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Bills and notes, § 441*—when procurement of note by fraud shown. Evidence held sufficient to sustain a finding that the signature of defendant to a note, which was a part of a contract for the purchase of goods, and afterwards detached and sold to plaintiff, an innocent purchaser for value, was obtained by fraud.


text:
    Michael Hayes and Thomas Katan, Appellees, v. Thomas Carey, Jr., Margaret A. Carey and B. E. Richardson, Defendants. James Cleary, Appellant.
    Gen. No. 6,500.
    1. Notice, § 37

      —right of judgment creditor to rely upon record of title to real estate. A judgment creditor has the right to rely upon the record of title as to real estate, and upon what the records disclose concerning any interest therein, and, unless he has actual notice to the contrary, may act concerning the interest disclosed by the records, although the actual interest of the party be different.
    2. Notice, § 4*—when judgment creditor put upon inquiry as to whether payments have been made on contract for purchase of land. Where a judgment creditor has notice from the record of a contract for the purchase of land that the vendor could forfeit at any time any interest acquired by the purchaser because of the failure to make the stipulated payments, he is put upon inquiry as to whether the payments have been made, and, if not made, as to the consequences that might ensue.
    3. Execution, § 169*—when sale of land bought under contract

      which has been forfeited will be set aside. Where, at the time of the levy of execution by a judgment creditor upon land of the judgment debtor bought under contract, the debtor has no interest in the land because of a forfeiture and surrender of the contract, á levy and sale under the execution would merely constitute a cloud upon the title of the "vendor, and the sale may be enjoined and the levy made canceled and annulled.
    4. Execution, § 1S1

      —when shown that contract for purchase of land was canceled before date of entry of judgment. On a bill by the owner of land to cancel and set aside a levy of execution on the land as the property of a purchaser under contract, and to enjoin a sale under the execution, evidence held sufficient to show that the contract was canceled and surrendered before the time of entry of the judgment and the levy of the execution.
    Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in this court at the November term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Edward D. Shurtleff and Ernest C. Luther, for appellant.
    McHenry & Dusher, for appellees; Charles B. Hazelhurst, of counsel.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case a bill in equity was filed in the Circuit Court of Kane county by Michael Hayes and Thomas Katan to quiet their title to 416 acres of land in the Town of Rutland, in said county. It is alleged in the bill that they are seized in fee simple and in possession of the land referred to, which is described in the bill, and that they acquired the title to the same by the virtue of a warranty deed from Thomas W. Kennedy, which deed is of record in the recorder’s office of said county; that on" May 25, 1912, they entered into an agreement with Thomas Carey; Jr. and Margaret A. Carey, his wife, to convey the premises in question in fee simple to the parties named upon the condition that they would pay the sum "of $7,491.70 on March 1, 1914; also, pay 5 per cent, interest semiannually, from March 1,1912, on the whole sum of the purchase money remaining due and unpaid from time to time, and would pay all taxes and assessments levied against said land subsequent to the year 1911. That said agreement to purchase by said parties was recorded in the recorder’s office of said county; that the parties purchasing said land, however, did not perform any of the agreements to pay the sums of money agreed upon to be paid by them, nor ■ any part thereof, but neglected and refused to perform the same; that the said agreement mentioned also provided that in case of the failure of said purchasers to make the "payments mentioned or any part thereof, or perform any of the covenants upon their part, that said contract-could, at the option of said owners of the land, be considered as forfeited and determined, and that said owners should then have the right to re-enter and take possession of said premises, and that the time of payment should be considered the essence of said contract; that the said parties purchasing met with the owners mentioned on February 26, 1914, and that said contract was thereupon by mutual consent abandoned, and that the owners then leased said premises .to said Thomas Carey, Jr., for one year from March 1, 1914, and that at the expiration of said lease, March 1, 1915, made another and different contract with said Thomas Carey, Jr., by which he agreed to manage the cultivation and proper tilling of said real estate for said owners; that inasmuch as said contract of purchase was recorded, and the said parties purchasing had made default and forfeited all equity and interest in said premises, the recorded contract constituted a cloud upon the title of said owners. The bill further alleges that on August 24, 1914, said Thomas Carey, Jr., made and delivered his promissory note for $2,495 to one James Cleary, which note was due and payable one year from the date thereof, with interest at 7 per cent, per annum, and was payable to the order of said James Cleary; that the said note was not paid at maturity and that said James Cleary thereupon obtained a judgment on said note in the Circuit Court of Kane county on February 16, 1916, for the sum of $2,666.67; that said James Cleary then caused an execution to be issued on said judgment, directed to the sheriff of Kane county, and that on February 16, 1916, said sheriff caused a levy to be made on said land by virtue of said execution, and that the certificate of such levy was recorded in the recorder’s office of said county, and that said sheriff pursuant to said levy was threatening to sell said property under and by virtue of said execution, and had the land advertised for sale at public auction, and that if the sheriff was permitted to proceed with said sale and file a certificate of purchase that it would gTeatly cloud and cast suspicion on the title of the owners of said premises. The bill prays that the contract for the sale of said premises and the certificate of levy, which are recorded, be declared null and void as a cloud upon the title of said owners, and be canceled and set aside, and that the sheriff be enjoined from making said sale under said levy and execution, and for general relief in the premises. The defendants in said bill, Thomas Carey, Jr. and Margaret A. Carey, waived service of process and entered their written appearance and afterwards were defaulted. The sheriff, B. E. Richardson, was also defaulted. The defendant, James Cleary, who is the appellant, filed an answer to which a replication was filed by the appellees. The cause, being at issue, was thereupon referred to the master in chancery to hear the evidence and report his conclusions of law and fact. The master made his report finding the facts as averred in the bill, and that the appellant, James Cleary, should be enjoined from enforcing his judgment and execution against said premises, and that said execution levy, and certificate of levy, as well as said contract of purchase, should be removed as a cloud upon the title. Exceptions were filed to the findings of the master, which were overruled by the court, and the decree entered substantially in conformity with such findings, from which decree an appeal is prosecuted by the appellant, James Cleary.

The evidence taken by the master and reported with his conclusions substantiates the material facts averred in the bill of complaint, namely, that the appellees, Michael Hayes and Thomas Katan, became the owners in fee simple of the real estate in question on March 1, 1912, and that on May 25, 1912, Thomas Carey, Jr. and Margaret A. Carey, his wife, made a contract with said appellees to purchase said farm for $51,167.40; and that by the terms of this contract Carey and his wife agreed to pay said purchase price in instalments, and to pay 5 per cent, interest on the unpaid purchase price semiannually, and to pay all taxes, assessments and impositions, also insurance on said premises; that by the terms of said contract the first instalment of $7,491.70 was due and payable March 1, 1914, and semiannual interest due was also payable at that time; that the contract provided that if Carey and his wife, failed to make the payments required by the contract that the appellees could at their option forfeit and determine the contract; that no payments of any kind had been made under said contract, but that on February 26, 1914, Carey and his wifé acknowledged to appellees that they were unable to carry out their part of the contract, and unable to make the payments required thereby, and the contract of purchase was thereupon surrendered to the appellees; that then the appellees leased said farm to Carey under a written lease, for one year commencing March 1,1914, and ending March 1, 1915; that at the expiration of this lease they made another arrangement with Carey by which he was employed on a salary to manage the farm in question for the appellees, and was so employed for appellees on said premises at the time of the recovery of the judgment and the levy of the execution referred to. It is insisted by the appellant that because the contract which was entered into by Carey and his wife, with the appellees, was recorded, and inasmuch as he had no notice of the fact that said contract had been forfeited on account of the failure to make the payment therein stipulated, and no notice of the surrender of the agreement by the Careys, that therefore the appellant, as an execution creditor, had the right to levy and make a sale of the premises as if said contract as recorded were still in force and effect. We cannot accede to this proposition. It is true that a purchaser for'value, or a judgment creditor, has a right to rely upon the record of the title, and upon what the records disclose concerning any interest in real estate, and that unless he has actual notice to the contrary may act concerning the interest disclosed by the records, although the actual interest of the party be different. Thorpe v. Helmer, 275 Ill. 90. In this case, however, the interest which Thomas Carey, Jr., had acquired in the premises by the contract was not different from that disclosed by the record; and from the record of the instrument as recorded the appellant had notice of the fact that Thomas Carey could forfeit any interest he might have acquired by the contract by failing to make the payments therein stipulated; and that unless he did make such payments, the appellees had the legal right to forfeit said contract at any time. He was therefore put upon inquiry as to whether such payments had been actually .made, and, if not made, as to the consequences that might ensue. Mallett v. Kaehler, 141 Ill. 70. It was not incumbent on the appellees, when the Careys failed to make their payments and surrendered their contract, to give appellant notice of the fact, and the appellees lost none of their rights of ownership or title, because no notice was given to appellant, of the forfeiture and surrender of said contract. At the time of the levy of the execution Carey had no interest in the premises which was subject to the levy of an execution, and a levy and sale under the execution would merely have had the effect of clouding the title of the appellees. It was proper to prevent this by injunction, and to cancel and annul the levy made. High on Injunctions, 155; Groves v. Webber, 72 Ill. 606; Bennett v. McFadden, 61 Ill. 334; Christie v. Hale, 46 Ill. 117.

It is argued by the appellant that the recorded Carey contract contains an indorsement to the effect that on March 5, 1915, $1,500 was received by appellees of Thomas Carey, Jr., to apply on interest, and that no explanation was made at the hearing of the case concerning the indorsement referred to, and that the court should have found from this circumstance alone that the Carey contract of purchase bad not been forfeited, nor surrendered as claimed by appellees. The master and the chancellor no doubt took into consideration the matter suggested, in connection with the other evidence in the case, and were satisfied from all the evidence, which appears to be practically conclusive, that the contract had been canceled and surrendered before the time of the entry of the judgment and the levy of the execution, and we would not be justified in disturbing the findings of fact of the chancellor on this point under these circumstances. We find no error in the decree, and it is therefore affirmed.

Affirmed.


text:
    Harry L. Peterson, Appellee, v. George W. Swartz et al., Appellants.
    Gen. No. 6,505.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 401

      —what is fundamental principle upon which estoppel hy former adjudication is allowed. Whether an adjudication relied upon as an estoppel goes to a single question or all the questions involved in a cause, the fundamental principle upon which it is allowed in either case is that justice and public policy alike demand that a matter whether consisting ¡bf one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction, shall be deemed finally and conclusively settled in any subsequent litigation between the same parties, where the same question or questions arise.

      Appeal from the Circuit Court of Whiteside county; the Hon. Fbank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Statement of the Case.
    Creditor’s bill by Harry L. Peterson, complainant, against George W. Swartz, Daniel Swartz and Ethel Swartz, defendants, praying for the discovery of property and assets of the judgment debtor, Daniel Swartz, -for the purpose of applying the same to the payment of complainant’s judgment. From a judgment requiring defendant George W. Swartz to pay the sum of $1,758.14 out of the amount due from him to defendant Daniel Swartz on a contract for the purchase of land, for the satisfaction of the judgment, defendants appeal.
    H. A. Brooks and J. W. Watts, for appellants.
    R. A. Kidder, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

2. Judgment, § 442 —when rule as to res adjudicata applies. When a second suit is about the same matter or cause of action, then all matters that could have been as well as all matters that actually were put in issue and determined in the former suit are presumed to have been put in issue, and the rule as to res adjudicata applies.

3. Judgment, § 444*—when rule as to res adjudicata does not apply. Where a second suit is about a different cause of action than the first, or in reference to a different matter, or relating to different property, then the rule of res adjudicata has no application except as to such matters as were actually in litigation and actually decided in the former proceedings relied upon as res adjudicata.

4. Judgment, § 441*—when rule as to res adjudicata does not apply to bar creditor’s bill. A judgment in a suit to set aside and remove out of the way of an execution an alleged fraudulent conveyance by a judgment debtor that the conveyance was not fraudulent is not res adjudicata so as to constitute a bar to a creditor’s bill for the discovery of property and assets of the judgment debtor, for the purpose of applying the same to the payment of complainant’s judgment, since the proceedings are different in character, the subject-matter of the suit is different and the property affected is different.


text:
    John Fischer et al., Appellees, v. Edward B. Haxtun et al., Appellants.
    Gen. No. 6,509.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Alteration of instruments, § 2

      —what does not constitute material alteration of note. The writing, after execution of a note, by the holder, the mother of the maker, underneath the note in the blank space below the signature of the maker of the words, “To be cancelled at my death,” and followed by the signature of the holder, constitutes a mere memorandum, and not a material alteration of the note.
    2. Witnesses, § 122*—when executor is competent to testify in suit against heir. An executor of an estate is competent to testify in a suit against an heir to enforce a personal liability to the estate under a note secured by a trust deed.
    Appeal from the Circuit Court of Henry county; the/Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Statement of the Case.
    Bill by John Fischer, trustee under a trust deed," and George M. Strong, executor of the will of Sarah A. Haxtun, the deceased holder of the note secured by the trust deed, complainants, against Edward B. Haxtun and Gertrude Haxtun, defendants, to enforce payment of the note by foreclosure of the trust deed. From a decree of foreclosure, defendants appeal.
    Thomas J. Welch and Nels F. Anderson, for appellants.
    James K. Blish, for appellees.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Depositions—when part of record in chancery case. Depositions, when regularly taken, filed and opened, are a part of the record in a chancery case.

4. Depositions, § 43 —when lack of opportunity to object to evidence in is harmless error. The fact that depositions are not formally offered as evidence before a master in chancery and that the adverse parties have no opportunity to object to the evidence in the depositions is immaterial, where the witnesses were competent and their evidence did not relate to anything materially affecting the ' controverted questions in the case.

5. Witnesses, § 106*—when husband and wife incompetent to testify in suit to foreclose trust deed by executor of holder of note. A husband and wife who sign a trust deed are incompetent witnesses in a suit by the trustee and by the executor of the estate of the deceased holder of a note secured by the trust deed to enforce payment of the note by foreclosure of the trust deed, under Hurd’s Rev. St. ch. 51, sec. 2 (J. & A. If 5519), providing that no party to any civil action, suit or proceeding shall be allowed to testify therein of his own motion, or in his own behalf, when any adverse party sues or defends as the executor of any deceased person.

6. Witnesses, § 106*—what is effect of conveyance of property by husband, to vñfe on incompetency to testify in suit to foreclose trust deed by executor of holder of note. The fact that, during pendency of proceedings for the enforcement by foreclosure of the liability of a husband and wife on a note secured by trust deed by the executor of the estate of the holder, the husband conveys the mortgaged property to his wife, does not remove the bar as to incompetency of both to testify under Hurd’s Rev. St. ch. 51 sec. 2 (J. & A. If 5519), providing that no party to any civil action, suit or proceeding shall be allowed to testify therein of his own motion, or in his own behalf, when the adverse party sues or defends as the executor of any deceased person.


author: Mb. Justice Niehaus

text:
    Alonzo D. McCurray, Appellee, v. Meadows Manufacturing Company, Appellant.
    Gen. No. 6,513.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 12

      —what evidence is sufficient to sustain general verdict for compensation for partial permanent disability. In proceedings for compensation under the Workmen’s Compensation Act of 1911 (J. & A. If 5449 et seq.), it is unnecessary that the evidence, to sustain a general verdict by the jury, should be so clear and complete in a case of partial permanent disability that the amount of compensation can be figured therefrom with mathematical accuracy. •

      Appeal from the Circuit Court of Livingston county; the Hon. Geobge W. Patton, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Proceedings by Alonzo D. McCurray, claimant, - against Meadows Manufacturing Company, respondent, to recover compensation for personal injuries under the Workmen’s Compensation Act of 1911 (J. & A. ¶ 5449 et seq.). Prom a judgment in claimant’s favor in the Circuit Court, after appeal by respondent from the finding* of the arbitrators to the Circuit Court, awarding $100 for medical services and compensation for temporary total disability of $6 per week for 52 weeks and $4.50 per week for 364 weeks for partial permanent disability, respondent appeals.
    J. A. Bloomingston, P. A. Obtman and L. M. Shelly, for appellant.
    Ei. A. Simmons, for appellee.

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

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

   Mb. Justice Niehaus

delivered the opinion of the court.

2. Workmen’s Compensation Aot, § 12 —when evidence that claimant has no education is admissible. On an appeal to the Circuit Court from the findings of the board of arbitrators and trial de novo before a jury, in proceedings for compensation under the Workmen’s Compensation Act, evidence that claimant has no education is admissible on the question of what limitations there are on claimant’s earning capacity after the accident and injury.

3. Evidence, § 410*—when physician may testify that later injury was caused by original injury. Where' there is no dispute as to the manner and cause of an injury, and no dispute that an injury has been sustained, it is competent for a physician to testify directly that a later malady was caused by the accident or original injury.

4. Appeal and error, § 1316*—when party cannot complain of any error in an instruction given for adverse party. A party cannot Complain of any error in an instruction given for the adverse party when it fails to set out its own instructions in the abstract, and it will be assumed that there may have been an instruction among those not set out which cured the error.

5. Workmen’s Compensation Act—when claimant not estopped to recover compensation by doctrine of election of remedies. Where an injured employee files a petition for the appointment of arbitrators under the Workmen’s Compensation Act, and later commences an action on the case in the Circuit Court, claiming that the employer is liable to him under section 3 of the Workmen’s Compensation Act (J. & A. j[ 5451), because of an intentional omission to comply with statutory safety regulations, but, before the conclusion of the trial, takes a nonsuit, he is not estopped by the doctrine of election of remedies from securing the reinstatement of the proceedings under the Workmen’s Compensation Act, they having been, in the meantime, dismissed with leave to reinstate, and prosecuting them to a final conclusion.


text:
    Frank Johnson et al., Appellants, v. George Whitham, Appellee.
    Gen. No. 6,514.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Equity, § 554

      —what is purpose of hill of review. A bill of review is properly filed to procure an examination and reversal of a decree after its enrollment, and is not a part of the original cause, but an independent proceeding, and is the only proper method by which the court rendering the decree can review it for error after the time for rehearing has expired.
    2. Equity, § 97*-—who must he made parties. It is a fundamental principle in equity concerning parties that aU persons in whose favor or against whom there might he a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and relief granted, that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall be made parties to the suit, and it is not ordinarily a matter of substantial importance whether they are joined as plaintiffs or as defendants.

      Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Rehearing denied May 14, 1918.
    Statement of the Case.
    Bill of review by Frank Johnson and others, members of the Cornell Improvement Association, complainants, against George Whitham, defendant, to review a chancery case in which defendant Whitham, as • complainant, filed a bill against the complainants and others, as defendants, to dissolve a partnership and to procure an accounting. From a judgment sustaining a demurrer to the bill of review, all the complainants except one appeal.
    F. A. Ortman and L. M. Shelly, for appellants.
    James T. Terry, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Appeal and error, § 1213*—what may not be assigned Tor error. A party cannot assign for error that which does not affect him but is prejudicial only to others who do not complain.

4. Appeal and ebrob—when error in reinstating stricken bill without notice may not be complained of. Any error of the trial court, in a suit in equity to dissolve a partnership and procure an accounting, in reinstating without notice to the defendants, the bill, which was stricken from the docket with leave to reinstate, cannot be raised on appeal where the question was not raised in the trial court, and no injustice resulted from the action of the court.

5. Equity, § 574a —when bill of review defective for lack of parties. A bill for review of a decree in a suit by one partner against other members of the partnership for a" dissolution of the partnership and for an accounting is fatally defective where only some of the defendants are made parties to the bill of review.


text:
    John Looney, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 6,520.
    (Not to he reported in full.)
    Appeal from the County Court of Rock Island county; the Hon. Benjamin S. Bell, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Rehearing denied May 14, 1918.
    Statement of the Case.
    Action by John Looney, plaintiff, against Chicago, Rock Island & Pacific Railway Company, defendant, to recover for injury to an interstate shipment of horses. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Carriers, § 248

      —when evidence of price paid for horses is incompetent. In an action against a terminal carrier to recover for damage to an interstate shipment of horses, evidence of what the shipper paid for the horses is incompetent.
    2. Evidence, § 430*—when proper foundation laid for introduction of expert evidence as to value of horses. A proper foundation for the admission of evidence of expert witnesses as to the market value of western horses, shipped from a particular reservation in a certain western state, is laid where the witnesses testify that they have knowledge of the market value at the point of destination of western horses of the character, quality and disposition of those owned by plaintiff, even though they do not show that they are acquainted with the market value of horses raised on the par. ticular reservation.
    Stafford, Schoede & Stafford, for appellant; M. L. Bell and A. B. Enoch, of counsel.
    J. T. and S. B. Kenworthy and J. Hays Britton, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Bichard Hansen, Appellant, v. Peter J.. Muldoon and Harry II. Quinn, Appellees.
    Gen. No. 6,522.
    (Not to be reported in full.)
    Abstract of the Hecision.
    1. Appeal and error, § 1165

      —when court will look into whole record. In determining, on appeal, the question whether a subcontractor is entitled to a lien, the court will look into the whole record presented.
    2. Mechanics’ liens, § 113*—what are rights of subcontractor as to lien on' funds due contractor completing work under new agreement with owner. Where a building contractor abandons the contract, but completes the building under an arrangement with the owner, the latter has the right to use any money that remains in his hands, which would have been due and payable to the contractor had he completed the contract, for the purpose of finishing the job, and a subcontractor under the original contract can only acquire a lien to reach, the balance that remains in the hands of the owner after paying what is necessary to expend in completing the job according to the contract.

      Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Rehearing denied May 14, 1918.
    Statement of the Case.
    Bill by Bichard Hansen, complainant, against Peter J. Muldoon, as Catholic Bishop of Bockford, and Harry M. Quinn, defendants, to establish a mechanic’s lien as subcontractor on a building owned by Peter Muldoon, as Catholic Bishop of Bockford, and constructed by said Quinn as contractor. Prom a decree dismissing the hill for want of equity, complainant appeals.
    Atwood, Pease & Loucks, for appellant.
    David B. Joslyn and Edward D. Shurtleff, for appellees.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Mechanics’ liens, § 113*—when subcontractor entitled to Tien after abandonment of contract. Where the original contractor abandons his contract and fails to carry it out, it is necessary to prove that the owner was indebted to the original contractor, under the contract, before a lien can be enforced against the owner for the benefit of a subcontractor.

4. Mechanics’ liens, § 196*—when not shown that owner indebted to contractor at time of service of notice of lien by subcontractor. On a bill by a subcontractor against the contractor and the owner to establish a mechanic’s lien ■ for work, labor and material furnished before abandonment of the contract by the contractor, evidence held insufficient to show that at the time of service of notice of a lien there was money due the contractor from the owner.

On Petition fob Reheabing.

Equity, § 479 —denial of relief not based upon pleadings. A subcontractor seeking to establish a mechanic’s lien, in a suit against the owner and contractor, cannot have relief upon grounds not stated in his pleadings.


text:
    J. Tremarico and Jasper Carle, Appellees, v. Illinois Northern Utilities Company, Appellant.
    Gen. No. 6,525.
    (Not to be reported in full.)
    Abstract of the Decision.
    Street railroads,- § 131

      —when evidence shows ringing of gong of street car before reaching crossing. In an action to recover damages for injury to plaintiff’s horse and wagon in a collision at a street intersection with one of defendant’s street cars, evidence held sufficient to show that the gong of the street car was rung more than 50 feet from the street crossing and was kept ringing until the car reached the crossing.
    Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with statement of facts.
    Opinion filed April 9, 1918.
    Statement of the Case.
    Action by J. Tremarico and Jasper Carle, plaintiffs, against Illinois Northern Utilities Company, a corporation, defendant, to recover damages for injury to plaintiff’s horse and wagon as the result of a collision with one of defendant’s street cars. From a judgment for plaintiffs for $110.14, defendant appeals.
    Cronkrite & Hunter and Robert B. Mitchell, for appellant.
    No appearance for appellees.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    William Mitchell et al., Appellees, v. Amanda Fahler, A. P. Wylie, Administrator, Connecticut Mutual Life Insurance Company of Hartford, Connecticut, Arthur Fahler, Oscar Fahler, Ollie Aitken, Clara Klinefelter, Sadie Foster, May Insley, Myrtle Hickok and A. P. Wylie, Administrator of the Estate of Amanda Fahler, Deceased, Appellants.
    Gen. No. 6,529.
    1. Fraudulent conveyances, § 49*-—when conveyance by husband to wife is not based upon sufficient consideration. If, at the time of a conveyance by a husband to his wife of the farm used as a home, he is in failing circumstances, and financially embarrassed, a consideration consisting of a. sum of money advanced 40 years before as a gift to the wife by her father and turned over to the husband as the result of the deduction of the amount from the purchase price of land sold to the husband by the father is insufficient.
    2. Fraudulent conveyances, § 89*—when voluntary conveyance to wife will be sustained. A voluntary conveyance to a wife by a husband will be sustained as against creditors, unless the circumstances attending the conveyance justly create a presumption of fraud, actual or constructive.
    S. Fraudulent conveyances, § 267*—when solvency of debtor at time of transfer shoum. On a creditors’ bill to subject land conveyed by the debtor to his wife to the payment of the husband’s debts, evidence held sufficient to show that the debtor was solvent at the time of the transfer.
    4. Fraudulent conveyances, § 242*—when presumed that debtor paid purchase price of land. On a creditors’ bill to subject land conveyed by a debtor to his wife to the payment of the husband’s debts, in determining the question of solvency at the time of transfer, it will be presumed that the debtor paid the purchase price of land bought by him, in the absence of any evidence to the contrary. ,
    5. Fraudulent conveyances, § 52

      —when conveyance by husband to wife not invalid as against creditors. If a conveyance by a husband to his wife of land is valid as against creditors at the time it is made, it does not become invalid at a later time because the debtor becomes insolvent and is so at the time of his death.

      Appeal from the Circuit Court of La Salle county; the Hon. Job A. Davis, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed April 9, 1918.
    Rehearing denied and opinion slightly modified May 14, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    George Gleim and H. M. Kelly, for appellants..
    B. D. Mills, for appellées.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

The appellees, William Mitchell, William Kreiser, Wilhelmina Short and Sophia Geft, .as creditors of the estate of John Fahler, deceased, filed a creditors’ bill in the Circuit Court of La Salle county against Amanda Fahler and A. P. Wylie, administrator of the estate of John Fahler, deceased, alleging that their respective claims against said estate had been allowed and were in judgment, and that the estate was insolvent; and that John Fabler, deceased, while indebted to the appellees in the total sum of $4,500, on March 6,1908, transferred a certain farm containing 80 acres to his wife, Amanda Fahler, by means of certain conveyances made to William Hickok and from Hickok to said Amanda Fahler, the wife of said deceased, for a pretended consideration of $10,000; and that these conveyances were made in fraud of rights of the creditors of said John Fahler, deceased, and made with the intention of hindering and delaying the creditors of said deceased from obtaining their just demands; that there was in fact no consideration paid for the transfer of said property to said wife; and that the said deceased was indebted to other persons, far in excess of the value of the property which he then retained for himself; and that at the time of said conveyances he was possessed of little or no unincumbered property; and that there were insufficient assets in his estate to pay the claim of appellees. To this bill Amanda Fahler filed her answer, admitting-the insolvency of John Fabler’s estate, and the allowance of appellees’ claims, and the making of the conveyances in question, but denying that the' transfer was made to hinder, delay or defraud appellees, or any other creditors, out of their just dues, and denying that John Fahler at the time of the conveyances in question was indebted in a sum in excess of the value of property and money which Fahler had retained for himself after the making of the .conveyances referred to; and denying that Fahler was financially embarrassed at that time; and averring that he was at that time solvent, and that he held sufficient property out of which any claim that he owed might have been made, and for a long time thereafter. Afterwards, on April 8, 19.16, Amanda Fahler died intestate, and her children and heirs were then made parties to the proceedings by supplemental' bill. All the parties to the proceeding having filed their answers, cause was referred to the master who took the evidence and made his report, finding that the transfer of the 80 acres of land to Amanda Fahler by means of the conveyances mentioned was fraudulent as to the rights of the appellees as creditors; that the transfer of the land was without any real or valid consideration; and that such transfer, together with the gifts made by Fahler after such transfer, was responsible for the insolvency of the deceased; and that the land should be subjected to the payment of the claims of the appellees. Exceptions were filed to the master’s report, but the exceptions were overruled by the court and a decree was entered in conformity with the findings of the master, setting aside the transfer of the property to the wife, and holding the conveyance by which such transfer was effected to be null and void, and that the property be subjected to the payment of appellees’ claims. From this decree an appeal is prosecuted.

It is insisted by the appellants that there was a real and valuable consideration as a legal basis for the transfer of the property in question from John Fahler to his wife, Amanda Fahler; that this consideration' was a gift of $1,000 made to John Fahler, deceased, for the wife by Asa Dowling, the wife’s father, who had deducted that amount for that purpose from the purchase price of a farm which John Fahler had purchased from him, and that this $1,000, which Fahler had received for the benefit of, together with the accumulations of interest and profits, to which the wife alleged she was entitled, for a period of 40 years, furnished a sufficient, substantial and valuable consideration for said transfer to her of the property mentioned. If, however, Fahler at the time of the conveyances in question was in failing circumstances, and financially embarrassed, the consideration claimed by the appellants to validate the transfer in question cannot be considered as available to sustain the legality of the conveyances, for the reasons stated in Dillman v. Nadelhoffer, 162 Ill. 625. But the vital question involved in this controversy is whether or .not there was any fraud in connection with it, either actual or constructive ; whether or not the transfer in question was made with a view to defeating, hindering or delaying the creditors of John Fahler im collecting their just demands or claims; and whether or not the transfer in question left Fahler without sufficient means or property with which to pay his debts. There is no evidence whatever to show actual fraud, but the evidence tends to show that Fahler made this transfer of property, which was the home of the family, to make a proper provision for his wife, as well as to satisfy the demands which she claimed to hold against him on the basis of the $1,000 gift mentioned. While these matters cannot be regarded as furnishing a legally sufficient consideration for the transfer of the property if the then-existing creditors were hindered or delayed in the collection of their judgments or Fabler was thereby financially embarrassed, yet, if sufficient property remained in his hands to satisfy the claims and demands of his creditors, then the transfer should not be held illegal or fraudulent. A conveyance from husband to wife will be legally upheld when there is no attempt to defraud creditors, and it is equitable and just that the title should be placed in the wife at the time of the conveyance, even though the husband after-wards becomes insolvent. Behrens v. Steidley, 198 Ill. 303. A voluntary conveyance to a wife may be sustained as against creditors, unless the circumstances attending the conveyance justly create a presumption of fraud, actual or constructive. Faloon v. McIntyre, 118 Ill. 292; Bittinger v. Kasten, 111 Ill. 260; Patrick v. Patrick, 77 Ill. 555.

In this case the proof is clear that at the time of the conveyance in. question John Fahler was not financially embarrassed; his credit was good; he was transacting business in the usual way, paying his debts and contracting new debts in the usual way; buying and selling goods, and trading in real and personal property after the conveyance practically in the same way as before, and there is no evidence that any of his creditors, who required payment of their claims, failed to collect them. His real estate holdings were large and quite valuable. He owned a farm called “Hill 80” in La Salle county, which the evidence shows had a market value of $175 per acre, though it was subsequently sold for $12,000. This farm has a mortgage on it of $7,000, but even on the basis of the sale price, the value of his equity in the farm was $5,000. He also owned a farm known as the “Minehart 80,” which the evidence shows had a market value at the time of the conveyance of $125 per acre, in which his equity amounted to at least $7,500. He also owned improved lots in the City of Ottawa, which the evidence shows were worth $6,500 above the mortgage incumbrance thereon. He owned property in Troy Grove, referred to as the barber shop property, which was reasonably worth at least $800. He also owned 13 acres in the northwest quarter of section 35, in La Salle county, which the evidence shows were reasonably worth $3,000. This property was subject to a mortgage of $2,000, leaving an equity of $1,000. He also owned 200 acres in McHenry county, which the evidence shows were worth $20,000, but which were subject to an incumbrance of $9,000, thus leaving an equity reasonably worth $11,000. The total value of the Fahler real estate holdings at the time of the conveyance in question, as disclosed by the evidence exclusive of the property conveyed, was over $31,000, and in addition thereto he owned personal property which was worth at least $3,400. The total- indebtedness shown, at that time, was slightly in excess of $17,000. It is apparent, therefore, that Fahler had an abundance of assets to meet all his liabilities after transferring the property in question to his wife. The proof of his solvency at.the time of the conveyance, therefore, is complete and conclusive. The appellees claim, however, that on the question of his financial solvency at the time of the transfer of the property to his wife, the court should take into consideration that afterwards Fahler sold the so-called “Hill 80”; and also subsequently mortgaged the “Minehart 80” for $5,000. There is nothing in the record to indicate that the subsequent sale of the “Hill 80” had any connection whatever with the transfer of the property to his wife; nor that the mortgage of the “Minehart 80” had any connection therewith; nor are these transactions in any way tainted with fraud, but the evidence tends to show that the transactions were made in the ordinary and usual course of his business as a real estate trader and business man. A written agreement was introduced in evidence entered into by Fahler, October 7, 1903, for the purchase of 160 acres of the McHenry county land, and it appears from the written agreement that as a part of the consideration for the purchase of this land Fahler assumed to pay a mortgage of $8,000, which became due March 1, 1907. Appellees argue that this mortgage should still be counted as forming a part of Fabler’s indebtedness at the time of the transfer in question because appellants offered no proof that that mortgage had been paid, as required by the terms of the agreement. There is no legal basis for the assumption that Fahler did not carry out his agreement of purchase, or that he failed to pay the consideration which he agreed to pay for the land at the time it was due, and at the time he had agreed to pay it. In the same agreement for the purchase of the McHenry land, in which he agreed to pay the mortgage referred to, he had also agreed to pay $3,700 on March 4,1904, as part of the consideration. There was no evidence offered of the payment of this amount; and, if appellees’ argument is sound, this $3,700 should also be counted as a part of an existing indebtedness of John Fahler at the time of the transfer in question. Wé know of no presumption of law to the effect that it must be assumed that a person does not keep his agreements, or does not meet his obligations. In the absence of any evidence to the contrary, we think the presumption would be that John Fahler did carry out his agreement to pay, and that he paid the purchase price of the land in question as he had stipulated to do. He became the owner of the land, and the reasonable assumption is that he did so by carrying out and fulfilling the conditions under which the ownership was to be given him.

Inasmuch as the evidence conclusively shows that at the time of the conveyance in question John Fahler was financially solvent, and that the conveyance was made for a proper purpose and without any intent to defraud anybody, it must be regarded "as valid; and, if it was valid at the time it was made, it did not become invalid because afterwards and in the years which followed Fabler finally became insolvent and was insolvent at the time of his death. The decree is therefore reversed and the cause remanded with instructions to dismiss the bill for want of equity.

Reversed and remanded with directions.


text:
    Harry E. Buchanan, Appellee, v. Scottish Union & National Insurance Company, Appellant.
    Gen. No. 6,490.
    1. Courts, § 67

      —how question of jurisdiction must be raised. The question of jurisdiction of a City Court must bp raised by plea.
    2. Venue, § 1*—what is transitory action. The action of assumpsit is a transitory action.
    3. Courts, § 111*—when City Court has jurisdiction of action of assumpsit. A City Court has jurisdiction of the transitory action of assumpsit.
    4. Witnesses, § 144*—when evidence of agent as to conversation with deceased agent of adverse party not incompetent. Under Hurd’s Rev. St. ch. 51, sec. 4 (J. & A. jf 5521), providing that a party to any action “who has contracted with an agent of the adverse party—the agent having since died—shall not be a competent witness as to any admission or conversation between himself and such agent,” the evidence of the agent of a former owner of insured property with a since-deceased agent of the insured relating to a mistake in description in the first policy issued, is not incompetent, and it is immaterial that the same person acts as agent in issuing the policy sued on and makes the same mistake in description.
    5. Insurance—what evidence as to mistakes in description proper. Evidence as to mistakes in description in earlier fire insurance policies carried into the policy sued on is admissible in an action on a fire policy.
    6. Insurance, § 329*—when insurer estopped to assert as defense mistake in description of property. A fire insurance company is estopped to assert, as a defense to an action on a fire insurance policy, a mistake in description of the property where the mistake made was solely that of its agent and was made at the time the building was erected and the first policy was issued to a former owner, and the same mistake was carried into subsequent policies, including the one belonging to the insured, and an adjustment of a small fire loss was made between the insured and the insurer without any complaint as to a defective description being made.
    7. Insurance, § 220*—when mistake in lot number in fire policy treated as surplusage. A mistake in the lot number in a fire insurance policy on a dwelling house will be treated as mere surplusage where there is no other dwelling house in the same block.
    8. Insurance, § 426*—when insurer liable to extent of face of fire policy for loss while premises vacant. An insured is entitled to recover the entire value of. his property lost by fire during vacancy of the premises where an unreleased clause in the policy protects him during vacancy if an attempt is being made to procure a tenant, and he is attempting to procure a tenant at the time of the loss, even though a rider ■ attached to the policy contains a provision for vacancy for a specified period, during which the loss occurs, under which the insurer is liable only to the extent of two-thirds of the face of the policy.
    9. Trial, § 168

      —when question for jury not presented. It is unnecessary to submit a question to the jury where the facts are undisputed.
    10. Appeal and error, § 1466*—when admission of incompetent evidence harmless error. The admission of incompetent evidence, in an action on a fire insurance policy, is harmless error where the trial judge directs a verdict and his action is justified by competent evidence.
    Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 16, 1918.
    Barger & Hicks and Robert C. Morse, for appellant.
    Sturtz & Ewan, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Appellee sued appellant in the City Court of Kewanee upon a policy of insurance issued by appellant upon a dwelling owned by appellee. The first count of the declaration set out the policy in full and a rider thereto. The second and third counts pleaded the same policy by reference to the first count, as did also the amended second count. Defendant pleaded the general issue with notice of special matter in defense. At the close of appellee’s evidence the court refused to instruct the jury to find for appellant. Appellant then declined to offer any testimony and the court thereupon, on motion of appellee, instructed the jury to find the verdict for appellee, assessing his damages at $1,485. Such a verdict was returned. Motions by appellant for a new trial and in arrest of judgment were denied, appellee had a judgment for the amount of the verdict, and this appeal followed.

Plaintiff lives in California. The appellant has a head office in the United States in Connecticut. The suit was brought in the City Court of Kewanee, and the return on the summons shows that it was served within the city. The building insured was outside of the City of Kewanee. Appellant claims that the City Court had no jurisdiction. Appellant did not question the jurisdiction of the court by plea. This seems a sufficient answer to its contention; but, further, this action of assumpsit is a transitory action. In Swanson v. Moline, R. I. & E. Traction Co., 204 Ill. App. 144, we held that city courts have jurisdiction of transitory actions, and we there cited several cases upon which we relied for that conclusion. We are still of the same opinion.

There was a misdescription in the policy. To show the circumstances under which that error in description came into the policy, appellee proved that the policy sued on was one of a series of policies issued by appellant upon this house, and that the same mistake had been in all. of them, and appellee was permitted to prove a conversation between Phillips, the local agent of appellant, and L. M. Buchanan when the first policy was issued, which was to Clara E. Buchanan, a former owner of the property. By leave of court appellant ascertained from the witness that Phillips was dead, and then objected that L. M. Buchanan was not competent to testify against appellant as to that conversation because of the provision in section 4 of chapter 51, Rev. St. (J. & A. 5521), concerning evidence and depositions, that a party to any action “who has contracted with an agent of the adverse party— the agent having since died—shall not be a competent witness as to any admission or conversation between himself and such agent unless,” etc. It is argued by appellant that this statute must be construed to exclude not only the evidence of the party but also the evidence of his agent to a conversation with the deceased agent of the adverse party. When this conversation with Phillips was had, L. M. Buchanan was not the agent of appellee, but was the agent of Clara E. Buchanan. Appellee had no interest in the property at that time. We are of opinion that appellee, by engaging the same agent when he afterwards became the owner of the property, did not deprive himself of the benefit of the testimony of that agent to a conversation had when the witness was the agent of a former" owner. So far as the conversations now in question are concerned, we conclude the statute cannot apply. We therefore conclude that the court did not err in permitting L. M. Buchanan to testify to the conversations with Phillips before and at the time the first policy was issued to Clara E. Buchanan, notwithstanding Phillips was dead at the time of the trial. Evidence as to mistakes in earlier policies, carried into the subsequent policy sued on, was treated as competent in Lumbermen’s Mut. Ins. Co. v. Bell, 166 Ill. 400, and in Insurance Co. of Pennsylvania v. O’Connell, 34 Ill. App. 357.

The policy was upon a dwelling house and described it as “situated on Lot 5, Block 7, of Blisk Place Addition to Wethersfield, a town adjoining Kewanee, Illinois. ’ ’ The house in fact is situated on Lot 7 of said block. Appellant contends that no recovery can be had on this policy in this action at law, but that appellee’s only remedy was to file a bill in equity to reform the description. The facts concerning said misdescription are as follows: The house was built by Clara E. Buchanan, when she owned the property. L. M. Buchanan was her agent and attended to the details of the building of the house. As agent for appellant, Phillips came to L. M. Buchanan, while he was inside the house, after the roof was on and windows were in but before the interior work was finished, and asked the latter to let him write the insurance on the house. L. M. Buchanan consented and they discussed and agreed upon the amount for which the policy should be issued. Phillips then asked L. M. Buchanan for a description of the lot, and the latter said he did not know it. Phillips then said that he would ascertain the description and put it in the policy, and he went away and wrote a policy upon the house in favor of Clara E. Buchanan, and inserted the description as it now reads in the present policy, and delivered the policy to L. M. Buchanan for the owner. Successive policies were thereafter annually written by appellant through Phillips, its agent, in favor of Clara E. Buchanan while she owned the property and in favor of appellee after he acquired the property, down to and including the policy here sued upon. Phillips wrote the same description in each of those policies. The mistake was entirely that of the agent, without any knowledge of any of the insured parties of this mistake in the description. While one of those former policies was in force there was a small fire loss. The insured claimed pay therefor and appellant adjusted the loss and paid it. Both parties then treated this description as covering this house. We regard it as settled law in Illinois that under such circumstances the insurance company is bound by the acts of its agent, and, if he made any mistake in the description in the policy, the insurance company is estopped to insist upon such a mistake as a defense to an action at law. "While appellee could have filed a bill to reform the description, he was not bound to do so. These principles are laid down in Atlantic Ins. Co. v. Wright, 22 Ill. 462; Commercial Ins. Co. v. Ives, 56 Ill. 402; Lumbermen’s Mut. Ins. Co. v. Bell, supra; Abrahamson v. Hartford Fire Ins. Co., 181 Ill. App. 254; German Ins. Co. v. Miller, 39 Ill. App. 633, and other eases. In the Bell case, supra, the application was made for “the estate of James Bell,” as owner. By mistake the policy was issued to “James Bell.” It was after-wards renewed in that name, and the suit was for a loss under the latter policy. James Bell was dead before each of these policies was issued, and it was argued that the policy sued on was void for that reason. It was held that where there was an erroneous description in the policy by accident, recovery could be had at law without going into equity to have the policy reformed. The case at bar is even stronger, because the mistake was exclusively that of the agent, who undertook to ascertain and insert the proper description of the property. We are cited to numerous cases in other jurisdictions holding to the same effect, but wé deem it unnecessary to consider them. There is another reason why it seems to us that this action at law can be maintained upon this policy. When the first policy was issued on this property, and ever after-wards until this fire, there was no other dwelling house on said Block 7. It was the dwelling house that was insured and not the real estate. We are of the opinion that the number of the lot can be treated as surplusage and then the policy describes the only dwelling house on said Block 7.

The policy sued on insured the property as “occupied and only while occupied as a dwelling house.” It also contained this clause: “permission to remain vacant while seeking or changing tenants.” Some time about the middle of November, 1916, after a conversation between L. M. Buchanan and Phillips, a rider was attached, which was as follows:

“Two-Thirds Vacancy Clause.

“Permission is hereby given that the premises herein described may remain vacant or unoccupied for a term of .until the 8th day of January, 1916, at noon.

“And in consideration of the increased hazard by reason of such vacancy, it is hereby understood and agreed that during such vacancy one-third of the amount of the insurance hereunder upon above named premises, shall be and remain suspended and of no effect, and in case of loss this company shall not be liable to pay or make good to the assured exceeding two-thirds of the amount insured on said premises, not exceeding two-thirds of the amount of loss or damage thereto.”

This property became vacant about that time. The fire occurred during said vacancy, during the night between December 8 and 9,1916. During that vacancy and up to the fire, L. M. Buchanan was seeking a tenant. The verdict is for the full face value of the property and interest. Appellant contends that under said rider only two-thirds of the face of the policy could be recovered. Appellee contends that he is relieved from the effect of the two-thirds vacancy clause by what was said between Phillips and L. M. Buchanan before and at the time when the rider was attached, and also after the fire. L. M. Buchanan was then the agent of appellee, and appellant contends that his testimony concerning said conversations with Phillips, then agent of appellant, and deceased at the time of the trial was incompetent under the statute above referred to. No one but L. M. Buchanan testified to those conversations. If we treat his testimony thereto as incompetent, then we have competent proof only of the fact that the rider was attached by Phillips about the middle of November, 1916, without any explanation of the reasons why he attached it. At the time of the fire appellee had two vacancy permits in force. The first was in the original policy and afforded him protection to the full amount of .the policy while he was seeking or changing tenants. He had paid a premium for that contract of protection, and had never released it. He had another vacancy permit which would have been available for only two-thirds of the loss, which he could rely upon if he concluded to sell the premises and leave them vacant until he could find a purchaser, or while he was painting the building or making repairs, or while he removed from California to occupy the house himself. That a tenant was being sought when the fire occurred was positively proved and was not disputed at the trial, nor is it questioned here. Because there was no conflict in the evidence on that subject, it Vas not necessary that the trial court should submit that question to the jury. Because the vacancy permit in the original policy gave appellee protection- to the full amount of the policy, which was also proved to be considerably less than the actual loss from the fire, while he was seeking a tenant, we deem it unnecessary to decide whether the evidence of the conversations with Phillips in November, 1916, was competent or incompetent. Treating it as incompetent, still appellee was entitled to recover the full amount of the policy. As the verdict was not the decision of the jury upon the evidence, but by the direction of the court, the admission of incompetent testimony, if any, did no harm, if the competent testimony justified the direction by the court. This is in harmony with what was decided in Heinsen v. Lamb, 117 Ill. 549, 557, and in Anthony v. Wheeler, 130 Ill. 128. The judgment gives appellee just the protection he paid for. To reduce it one-third, as asked by appellant, would be to deprive appellee of the protection he paid for.

The judgment is therefore affirmed.

Affirmed.


author: Per Curiam.

text:
    The People of the State of Illinois, Defendant in Error, v. Isaac Franklin, Plaintiff in Error.
    Gen. No. 6,491.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Indictment and information, § 17

      —necessity of verification. There is no legal foundation for the prosecution for a crime where the information is not sworn to.
    2. Criminal law, § 595*—When judgment reversed for lack of verification of information. Where the defendant in a criminal case moves to quash the information for lack of verification before his plea of not guilty and moves in arrest of judgment and each of these motions is denied, and he assigns such rulings for error, the question is properly raised in the lower court, and, if the State makes no answer to the contention that the whole proceeding is void, the judgment will be reversed.
    Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 25, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Isaac Franklin, defendant, for the unlawful sale of intoxicating liquor. From a judgment against him, defendant brings error.
    George W. Field, for plaintiff in error.
    James G. Welch, for defendant in error.

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

   Per Curiam.


text:
    The People of the State of Illinois, Defendant in Error, v. Louis Berger, Plaintiff in Error.
    Gen. No. 6,493.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Indictment and information—when verification to information insufficient. A verification to an information based on information and belief is insufficient.
    2. Criminal law, § 595

      —when judgment reversed for lacle of :proper verification of information. Where the defendant in a criminal case makes a motion to quash the information for lack of proper verification and later makes a motion in arrest of judgment, and these motions are denied, the question is raised in the court below, and where such rulings are assigned for error and the State does not answer the contention that the whole proceeding is void, the judgment will be reversed.
    Error to the Comity Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 25, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Louis Berger, defendant, for the illegal sale of intoxicating liquor. From a judgment against him, defendant brings error.
    S. H. Block and E. V. Orvis, for plaintiff in error.
    James Gr. Welch, for defendant in error.

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

   Per Curiam.


text:
    Fred J. Otte, Appellant, v. J. J. Warren, Appellee.
    Gen. No. 6,547.
    1. Tboveb and conversion, § 3*—what does not constitute conversion of money and notes by vendor selling land under contract. Where a contract is made for the sale of land, payment to be made partly in cash and the balance in six notes, and it is further agreed in the contract that upon payment of the first two notes and accrued interest the vendor will convey the premises by warranty deed and abstract provided vendor’s lien notes to be substituted for the other notes are given simultaneously, and that if the vendee refuses to pay any note or interest when due all payments shall be forfeited as liquidated damages, and if the vendor fails to deliver the warranty deed and abstract the vendor will return all payments, and the first two notes and two of the remaining notes are paid, and the vendee offers to pay the balance due and demands the deed, there is no conversion of the money.
    2. ■ Tboveb and conversion, § 30

      —what does not constitute demand for return of money and notes by contract purchaser of land. The demand of a deed by the purchaser of land under contract, after offer of the balance due, does not constitute a demand for the return of money paid and notes given in furtherance of the contract, which the purchaser claims should be turned back to him because of default by the vendor in not furnishing a deed, so as to constitute basis for an action for conversion of the money and notes.
    Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Ibwin, Judge, presiding.
    Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed April 25, 1918.
    Cavender & Kaiser and Robert G-. Earley, for appellant.
    Alschulbr, Putnam & Flannigen, for appellee.

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

   Per Curiam.

Otte, the plaintiff below and appellant here, entered into a written contract with Warren, the appellee, on December 12,1912, by which the appellee was to convey to him the north 24 acres of a certain tract of land in Texas. He paid $560 down and agreed to pay $1,120 more, evidenced by six notes numbered from one to six inclusive, the maturity of each note being stated in the contract. The second note was due December 12, 1913, and the last note on December 12, 1915. It was agreed in the contract that upon payment of notes one and two and interest accrued to the date of such payment, the first party was to convey to him by warranty deed the real estate described and deliver the same with an'abstract showing good merchantable title, free and clear of all incumbrance, providing the second party should simultaneously execute veildor’s lien notes in the usual Texas form, and these notes were to represent the notes described in the contract and remaining due. Such notes were to be payable at , such place or places as the first party might designate, and the first party might divide the notes into first and second lien notes. It was agreed that if appellant refused to pay any note or interest on one when due all payments should be forfeited to appellee as liquidated damages, and if appellee failed to deliver the warranty deed and abstract he agreed to return all payments made thereon. Appellant paid notes one, two, four and five, note five having been sued upon by an assignee of that note and paid after judgment:

On June 14, 1916, appellant addressed a letter to appellee at an address in Chicago demanding conveyance of said land, and notifying him upon his execution of the deed he stood ready to pay the balance with interest from the date of the contract, but that unless appellee made said conveyance within five days, appellant would institute legal proceedings against him. It is agreed that that notice was received by appellee on the third day after its date. Thereafter on July 17, 1916, appellant sued appellee in the Circuit Court of Kane county in an action on the case and filed a declaration, containing several counts,' wherein he charged appellee with a wilful and malicious conversion of the money and notes to his own use, and also containing a count in trover. Appellee demurred to the declaration. That demurrer was overruled. Appellee then pleaded not guilty and there was a jury trial. At the close of the evidence for the plaintiff, the court directed a verdict for the defendant. Such verdict was returned and a judgment was entered thereon, from which the plaintiff below appeals.

Appellee lawfully received the money and the notes and had a right to use the money. If appellant could waive his action of assumpsit and sue in case upon the alleged tort, which we do not decide, he did not demand a return of the money or the notes, but demanded the execution of a deed. He certainly could not maintain an action on the case for the conversion of money and notes, under the circumstances in evidence here, without having demanded them. His demand of a deed was only laying the foundation either for an action for specific performance by conveyance of the property, or for a suit in assumpsit on the contract for the return of the money. We are of opinion that the proofs did not establish an unlawful conversion of the money or notes, and therefore that this action cannot be maintained and that the court properly directed a verdict. This conclusion makes it unnecessary for us to consider error which is alleged to have occurred in the rulings of the court on the cross-examination of plaintiff.

The judgment is therefore affirmed.

Affirmed.


text:
    Alice Shank, Appellant, v. Modern Woodmen of America, Appellee.
    Gen. No. 6,575.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 175

      —what is proper form of for defendant. The form of a judgment for defendant and against plaintiff for costs, given in Town of Magnolia v. Kayes, 200 111. App. 122, approved.
    2. Appeal and error, § 288*—what is not final judgment. A judgment against plaintiff for costs after verdict for defendant is not a final judgment and is not appealable.
    3. Appeal, and error, § 1118*—when appeal dismissed. ■ Where an appeal is improperly taken from a judgment that is not final, it will be dismissed with leave to appellant to withdraw her record, abstracts and briefs and to appellee to withdraw its briefs.
    Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1918.
    Appeal dismissed.
    Opinion filed May 1, 1918.
    Statement of the Case.
    Action by Alice Shank, plaintiff, against Modern Woodmen of America, defendant. From a judgment in defendant’s favor for costs, plaintiff appeals.
    A. J. Clarity and B. B. Tiffany, for appellant.
    Truman Plante, E. D. Beynolds and George G. Perrin, for appellee.

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

   Per Curiam.