text:
    Advance Terra Cotta Company, Appellant, v. R. Watson Cross, Appellee.
    Gen. No. 22,833.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill of interpleader by the Advance Terra Cotta Company, complainant, against Henry B. Prosser and R. Watson Cross, rival claimants for certain shares of stock of complainant corporation, defendants. From a judgment that the stock belonged to defendant Cross, dismissing the bill for want of equity, and for costs amounting to $278.75 against complainant in favor of defendant Cross, complainant appeals.

      Abstract of the Decision.
    1. Interpleader, § 19

      —when costs properly assessed against complainant. On a bill of interpleader,, where the bill alleged that the defendant and another party were rival claimants for certain shares of stock of the complainant corporation, and it was held that the stock belonged to the defendant, and the hill was dismissed for want of equity and the costs assessed against complainant, held that, as the bill was not brought in good faith, the costs were properly assessed against the complainant.
    2. Interpleader, § 19*—when complainant acting collusively or in had faith is liable for costs. Costs on a hill of interpleader are as a general rule eventually taxed against the person who made the false claim and made the proceeding necessary, but where the complainant acts collusively or in had faith, the costs of the successful claimant may be taxed against him in both the trial and Appellate Courts.
    3. Interpleader, § 2*—when hill of does not lie in favor of corporation. Where a bill of interpleader filed by a corporation alleged that one of the defendants and a certain other party were rival claimants for certain shares of the stock of the company, and it appeared that the president and agent of complainant made an agreement with such defendant to the effect that upon the performance of certain services he would be given as consideration certain shares of stock, and such services were performed by such defendant and the stock was issued, and such stock was the property in controversy, and such president was the other rival claimant, held that such president had no rightful claim to the stock, and that whatever controversy there was, lay wholly between complainant and such defendant, and that therefore there was no occasion for a bill of interpleader.
    Buell & Abbey, for appellant.
    Edwin L. Waugh, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Anna E. Bastle, Administratrix, Defendant in Error, v. Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 22,837.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Workmen’s Compensation! Act, § 12

      —when motion in arrest of judgment in action for death is properly denied. In an action against. a railroad company for death caused by the sudden movement of a car of the defendant while the deceased was inspecting the contents of such car as an employee of the consignee, while such car was on one of the team tracks of the defendant, where the defendant filed a special plea setting up that its occupation and that of the deceased’s employer came within the occupation specified in section 3 of the Workmen’s Compensation Act [Cal. 111. St. Supp. 1916, If 5475(3)], and claimed that its motion in arrest should have been sustained, as the declaration failed to state a cause of action under such act, held that the motion was properly denied, as the declaration made no reference to the act, and plaintiff was not seeking to recover except in the common-law action of tort.

      Error to the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Anna E. Bastle, administratrix of the estate of John A. Bastle, deceased, against the Chicago, Bock Island & Pacific Bailway Company, defendant, to recover for the death of said John A. Bastle," alleged to be due to the sudden starting of a car on a team track from which deceased, as the agent of the consignee, was engaged in inspecting merchandise. From a judgment for plaintiff for $8,000, defendant brings error.
    M. L. Bell and A. B. Enoch, for plaintiff in error.
    James C. McShane, for defendant in error.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Workmen’s Compensation Act, § 3*—when employer is not under. In an action against a railroad company for death caused by the sudden movement of a car on a team track of the defendant while the.deceased was inspecting the contents of such car as an employee of the consignee, held that as the deceased’s employer was engaged in the egg brokerage business, and as neither such employer nor the deceased had anything to do with the unloading or hauling of any eggs at any time, and no action had ever been taken by the employer towards accepting or rejecting the Compensation Act, such employer did not come within the act.

3. Workmen’s Compensation Act, § 3 —when employer is not engaged in occupation, enterprise or husines's within statute. In an action against a railroad company for death caused by the sudden movement of a car on a team track of the defendant while the deceased was inspecting the contents of such car as an employee of the consignee, where it was contended that the case was within the Workmen’s Compensation Act of 1913, because the employer of the deceased was one of the kinds of employers enumerated in section 3 of the Act [Cal. 111. St. Supp. 1916, If 5475(3)], which, under the terms of the act, should be conclusively presumed to have elected to be under such act, and where it appeared that such employer was engaged in the egg brokerage business and had nothing to do with the unloading or hauling of any eggs at any time, held that the only occupation which it could possibly be claimed affected such employer was that described as “carriage by land and water and loading or unloading in connection therewith," and that any teaming which such employer hired to be done for it could not be its “occupation, enterprise or business” within the meaning of the statute.


text:
    William J. Jenson et al., trading as Regelin, Jenson & Company, Appellants, v. Olivia Nelson, Appellee.
    Gen. No. 22,840.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 36

      —when broker fails to procure proper customer. In an action by real estate brokers to recover commissions, where it appeared that defendant had by written contract given plaintiffs the exclusive agency of the premises for a period of three months at a certain sum, “or at such a less price as we may conclude to accept,” and a customer with an offer of a lesser sum was procured but plaintiffs were informed that such offer was not acceptable, and it also appeared that a contract for such lesser amount was drawn up and given to the husband of the defendant, but defendant did not understand until the contract was examined at her home that it was for the lesser price, and, upon inquiry as to why the contract was not signed, plaintiffs were informed that it should have been for a larger sum and that no contract- would be signed until defendant had closed up another deal upon another piece of property, held that plaintiffs had failed to procure a customer which the defendant was obliged to accept, and that under the terms of the contract she was not obliged to accept any customer except at the larger figure.

      Appeal from the County Court of Cook county; the Hon. R. J. Caenahan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by William J. Jenson, Max L. Wolff and Elbert 1ST. Manning, copartners, trading as Regelin, Jenson & Company, plaintiffs, against Olivia Nelson, defendant, to recover for a balance claimed to be due from defendant, including a sum for commissions for the sale of real estate. From a jrldgment for $132.89 in favor of defendant on her set-off, plaintiffs appeal.
    Adler, Lederer & Beck, for appellants.
    Daniel M. Healy, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Brokers, § 84 —when admission of testimony as to another deal is not prejudicial error. In an action by real estate brokers to recover commissions, where it appeared that defendant had by written contract given plaintiffs the exclusive agency of the premises for a period of three months at a certain sum, "or at such a less price as we may conclude to accept,” and a customer with an offer of a lesser sum was procured but plaintiffs were informed that such offer was not acceptable, and a contract for such amount was drawn up and given to the husband of the defendant, but defendant did not understand until the contract was examined at her home that it was for the lesser price, and, upon inquiry as to why the contract was not signed, plaintiffs were informed that it should have been for a larger sum, and that no contract would be signed until defendant had closed another deal upon another piece of property, held that testimony as to the other deal was not parol evidence tending to change the written contract and that the admission of such evidence was not prejudicial error.


text:
    John Schultz for use of R. J. Whitlock, Appellee, v. Home Insurance Company of New York, Appellant.
    Gen. No. 22,844.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 86

      —what is nature of contract of fire insurance. A contract for fire insurance is a contract of indemnity, and the insured is not entitled to compensation when he has suffered no loss or damage.
    2. Insurance—when owner is not entitled to compensation for loss of building during course of construction. In an action by the owner of a building to recover on a fire insurance policy issued upon a building in course of construction, where the owner took out insurance with defendant, and the contractor also insured the building in his own name but with another company, and a fire occurred before the completion of the building, and the appraisers for the company who had insured the building for the contractor appraised the damage, and paid the amount to the contractor, and at the same time plaintiff assigned his policy to the party for whose use the suit in question was brought, he being the agent of the company who insured the building in favor of the contractor, and the contractor repaired the damage caused by the fire and used therefor nearly all of the money received under his policy, and, upon completion of the building, the full contract price was paid to the contractor, and the owner suffered no loss through the fire and made no claim under his policy, held that the insured was not entitled to compensation, as he had suffered no loss or damage.

      Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by John Schultz for the use of R. J. Whit-lock, plaintiff, against the Home Insurance Company of New York, defendant, to recover on a policy of fire insurance issued to said Schultz on a building being constructed for him, and assigned by said Schultz to said R. J. Whitlock, an agent of another insurance company which settled for the loss under a policy in favor of the contractor with the latter. From a judgment for plaintiff for $798.50, defendant appeals.
    Adams, Follansbee, Hawley & Shorey, for appellant; Clyde E. Shorey and Fred Barth, of counsel.
    Brothers & Fairfield, for appellee; Frank M. Fairfield, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Albert Fritz, Appellant, v. Chicago Railways Company, Appellee.
    Gen. No. 22,849.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Albert Fritz, plaintiff, against the Chicago Railways Company, defendant, to recover damages for injuries sustained in a collision between an automobile in which he was riding and one of defendant’s street cars. From a judgment for $300 in Ms favor, plaintiff appeals.
    Litzinger, McGurn & Reid, for appellant.
    Frank L. Kriete, for appellee; J. R. Guilliams and Joseph D. Ryan, of counsel.

      Abstract of the Decision.
    1. Appeal and error, § 892

      —when record not reviewed because of insufficiency of abstract. Where the abstract of the record in a case failed to show that the hill of exceptions contained any motion for a new trial and the exhibits introduced by the defendant were merely described by numbers without giving any information as to their character, and such abstract gave what was designated as “an abstract of testimony,” but failed to show how such testimony appeared in the record, and only one of ten instructions given for the plaintiff was shown, and the only reference to defendant’s instructions were the words “twenty-three "instructions given on behalf of the defendant pertaining to the question of liability,” and such abstract also failed to show any certificate by the trial judge that the purported bill of exceptions was certified to by the judge, held that the pleadings before the Appellate Court did not justify a review of the record.
    2. Appeal and error, § 842*—Who may certify to bill of exceptions. A bill of exceptions must be certified to by the trial judge and the clerk of the court is without authority to give such certificate.
    3. Appeal and error, § 892*—■what is effect of failure to file proper abstract. The abstract of the record is the pleading of the party seeking to have such record reviewed, and it is the duty of such parties to prepare and file a complete abstract of the record in accordance with the rules, and such abstract as the reviewing court can safely rely upon, and, on a failure to comply with such rules, the reviewing court is not called upon to review the record.
    4. Damages, § 242*—when verdict for plaintiff not disturbed on ground of inadequacy of damages. Where the preponderance of the evidence is in favor of the defendant, a verdict for the plaintiff will not be set aside simply upon the ground of the inadequacy of damages.
    5. Appeal and error, § 1040*—when assumed that assignments of error were inadvertently included in plaintiff’s assignments. In a case where the plaintiff appealed, and in several assignments of error assigned as error the refusal of the trial court to find the defendant not guilty, held that as assignments of error are in the nature of a declaration, and plaintiff was asserting that the trial court should have instructed the jury to bring in a verdict of not guilty, it was to be assumed that such assignments were inadvertently included in plaintiff’s assignments.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    T. K. Cleveland, trading as Inter-State Produce Company, Appellee, v. M. H. Eichengreen, Appellant.
    Gen. No. 22,853.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Garnishment—when garnishee is not entitled to retain funds. In an- action to recover money which the defendant had retained pending the decision of an attachment action against the plaintiff, in which the defendant was garnished, where the attachment was quashed and an order was entered discharging the garnishee, and although a certified copy of such order was served on the defendant, and the money demanded, he refused to turn it over, and, after such refusal, a writ of error was sued out in the attachment action, but it did not appear that the defendant was ever made a party to the supersedeas or that he ever received formal notice thereof, or that the writ was filed in the Municipal Court clerk’s office, and defendant claimed that as the suit in question was begun after the said writ of error was sued out, the writ might be pleaded in abatement, held that, after the defendant had been discharged as garnishee and demand had been made upon him to return the money, he had no right to retain the funds in the expectation that the defeated party in the original case might sue out a writ of error.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by T. K. Cleveland, trading as Inter-State Produce Company, plaintiff, against M. H. Eichengreen, defendant, to recover the amount of funds retained by defendant after the quashing of an attachment by a third person of funds owed plaintiff by defendant. From a judgment for plaintiff for $911.60, defendant appeals.
    This controversy arose out of the attachment action, a decision in which was reached in Lepman & Heggie v. Inter-State Produce Co., ante, p. 270.
    Frank Schoenfeld, for appellant.
    Harford & Lightfoot, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Garnishment—when garnishee is not entitled to retain money pending writ of error. A garnishee in an attachment action has no right after the attachment has been quashed, and an order discharging him as garnishee has been entered, to retain the money during the pendency of a writ of error where no supersedeas was allowed, and he was not a party to the writ of error, and no notice of its issuance had been served upon him, and the writ was never filed with the clerk of the court to which such writ issued.

3. Appeal and error, § 710 —what is effect of supersedeas. A supersedeas suspends the efficacy of a judgment, but does not, like reversal, annul the judgment.


text:
    John A. Donahue, trading as John A. Donahue & Company, Appellant, v. Wheeling Mold & Foundry Company, Appellee.
    Gen. No. 22,856.
    (Not to he reported in full,)
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goo'dnow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by John A. Donahue, trading as John A. Donahue & Company, plaintiff, against the Wheeling Mold & Foundry Company, defendant, to recover for breach of a contract for the sale of a road roller business. From a judgment for defendant for costs, plaintiff appeals.
    Abstract of the Decision.
    1. Appeal and error, § 1101*—what is effect of failure of appellee to file brief. In the absence of a brief by the appellee, the Appellate Court will, under its rules, accept as true the statement of the case as it appears in the brief of the appellant.
    2. Municipal Court of Chicaqo, § 10

      —what is form of action of the fourth class. In an action of the fourth class in the Municipal Court, the form of action is such as the evidence makes it.
    3. Municipal Court of Chicago, § 13a*—what does not constitute variance between statement of claim and evidence in action for breach of contract. In an action of the first class brought in the Municipal Court on a contract, where the plaintiff’s statement of claim alleged a contract for the sale of a certain business, and asserted that he had performed his part of the contract and that the defendant had breached the undertaking, and it appeared on the trial that the plaintiff had not performed his undertaking in certain particulars, and plaintiff undertook by evidence to explain such nonperformance, and the trial court held that such evidence constituted a variance between the statement of claim and the proof and decided against plaintiff’s claim, held that if nonperformance of some of the details of the undertaking was excusable or agreed upon between the parties, plaintiff was still entitled to recover whatever his damages might have been, and that the ruling against plaintiff on the ground of variance was error.
    Cameron & Matson, for appellant.
    Ninde, Potter & Rigby, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Nellie Carlin, Administratrix, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,860.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trial, § 56

      —when essential that rulings on evidence be free from error. Where a case is exceedingly close on the facts, it is necessary that the rulings on evidence should be virtually free from error.
    2. Instructions, § 7*—when correctness of essential. It is necessary that instructions be free from error where a case is exceedingly close on the facts.
    3. Street railroads, § 116*—when evidence inadmissible as constituting expression of opinion. In an action to recover for the death of a boy through his being struck by a street car of the defendant, where, against objection, a witness was permitted to testify that the motorman, immediately after the accident, stated that “he was too nervous to stop the car so quick,” held that such statement was merely an expression of opinion by the motorman as to a past event, and not part of the res gestee, and its introduction constituted prejudicial error.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Nellie Carlin, as administratrix of the estate of Philip Gurivitz, deceased, plaintiff, against the Chicago Railways Company, defendant, to recover for the death of said Philip Gurivitz due to his being struck by one of defendant’s street cars. From a judgment for plaintiff for $2,500, defendant appeals.
    Frank L. Kriete, for appellant; W. W. Gurley, J. R. Guilliams and Weymouth Kirkland, of counsel.
    A. H. Ranes and M. A. Zelensky, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

4. Street railroads, § 145 -—when instrueiion in action for death of child is erroneous. In an action to recover for the death of a boy six years old through his being struck by a street car of the defendant, the giving of an instruction which was, in effect, a peremptory instruction to find for the plaintiff, and which excluded the element of the use of care bn the part of the parents or next of kin of the deceased, held error.

5. Street railroads, § 140*—when instruction in action for death of child is erroneous as not conforming to evidence. In an action to recover for the death of a boy six years old through his being struck by a street car of the defendant, the giving of an instruction containing a supposition that “the mother was attending to her usual occupation in their home,” held error, in the absence of evidence on that point.

6. Street railroads, § 145*—when instruction in action for death of child as to negligence of parents is erroneous. In an action to recover for the death of a boy six years old through his being struck by a street car of the defendant, the giving of an instruction containing a supposition that "the mother was attending to her usual occupation in their home,” held open to the objection that it stated, as a matter of law, that if the father was not present at the time of the accident and the mother was attending to her usual occupation in her home, the parents were not negligent.

7. Instructions, § 63*—when erroneous because of assumption of facts. An instruction which assumes a fact as to which there is no evidence is erroneous.

8. Instructions, § 98*—when instruction on interest of witnesses in result is erroneous. In an action to recover for the death of a boy caused by his being struck by a street car, where the motorman was a very important witness and no witness having any interest in the result of the suit gave testimony, and instructions were given on behalf of plaintiff, which referred to the interest or lack of interest in the result of the case of witnesses testifying, held that such instructions were clearly directed at the employees of the defendant, who did testify, with the suggestion that they had an interest in the result of the suit, whereas as a matter of law they did not have such interest, and that the giving of such instructions was prejudicial error.

9. Appeal and error; § 1560*—when refusal of instruction is not reversible error. It is not reversible error to refuse an instruction which, although it might have been given as a matter of precaution, was unnecessary under the evidence and pleading.

10. Street railroads, § 91 —necessity of parents giving attention to children playing in street. It is not the law that, where families reside upon a street where there are street car tracks, no attention whatever need be given to children playing in the street.


author: Mr. Justice Dever

text:
    Charles A. Nowak, Appellant, v. Clarence H. Geist, Appellee.
    Gen. No. 22,707.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Partnership, § 52

      —when evidence sufficient to show existence of. On a bill for an accounting, where it was alleged that a copartnership existed between the parties for the purpose of securing, selling, financing and disposing of public utility franchises, evidence held sufficient to show that the parties, following the agreement in question, had transacted a partnership business as alleged.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas Taylor, Jr, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Charles A. Nowak, complainant, against Clarence H. Geist, defendant, for a partnership accounting. From a judgment in favor of complainant for $912.50, complainant appeals.
    Angus Roy Shannon and Chauncey M. Millar, for appellant.
    Walter L. Fisher and Stephen A. Day, for appellee.

      See Illinois Notes Digest, Vola, 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 Dever

delivered the opinion of the court.

2. Partnership, § 61*—when franchises deemed to be property of. On a bill for a partnership accounting, where one of the questions to be determined was whether certain franchises were included in the partnership agreement of the parties, or whether they were to be regarded as the individual property of the defendant, held that when consideration was given to the time, manner and circumstances under which such franchises were acquired, it might reasonably be held that the acquirement of them inured to the benefit of the partnership.

3. Partnership, § 337*—when evidence sufficient to show dissolution of. On a bill for a partnership accounting, where one of the main questions involved was whether or not the partners had agreed to dissolve as of a certain date and to permit the defendant to deal with a certain option contract free of the interest of the complainant, evidence held sufficient to show that the partnership was dissolved at the time in question.

4. Partnership, § 422*—when accounting not allowed beyond time of alleged dissolution. On k bill for a partnership accounting, where one of the principal questions involved was whether the accounting should have been excluded beyond a certain date, or in any event beyond the date at which the hill alleged that a dissolution took place, and where it appeared that the bill sought a partnership accounting solely, and was not predicated on any fraudulent or deceitful conduct on the part _of the defendant, held that although there was sufficient evidence to warrant a finding that such accounting should have been had as of the earlier date, it was clear that it should not have been extended beyond the date at which the bill alleged that a dissolution had taken place.

5. Partnership, § 61*—what not considered property of. Property acquired after the dissolution of a partnership hut before the affairs of the dissolved corporation have been wound up is not necessarily to be considered as partnership property, even though the partner acquiring it has continued to carry on the business of the dissolved firm without the consent of his late partners.

6. Partnership, § 410 —what is extent of liability of partner to copartners for property of in his possession. Where a bill merely seeks a partnership accounting as between partners, each partner is deemed to be a debtor to the others to the extent of the partnership property under his possession or control at the time of the dissolution of the partnership.


text:
    Martin Curran, Appellee, v. Wells Brothers Company, Appellant.
    Gen. No. 22,722.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1672

      —when question of insufficiency of pleadings is waived. In an action to recover damages for injuries sustained by an employee while in the employ of the defendant, where the defendant filed plea of the general issue and special plea setting up in defense that defendant had elected to pay compensation under the Workmen’s Compensation Act, to which the plaintiff filed replication that defendant had not furnished to plaintiff or posted the required notices under that act, held that defendant had waived its right to present on review the question whether it was the duty of the plaintiff to allege in his declaration facts which would take both plaintiff and defendant out of the operation of the Workmen’s Compensation Act, as the pleadings presented that issue and no objection was made by either party or a ruling made on the question by the court.

      Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Martin Curran, plaintiff, against Wells Brothers Company, a corporation, defendant, to recover damages for personal injuries sustained by a plank falling from a platform upon plaintiff while he was employed by defendant. From a judgment for plaintiff for $3,000, defendant appeals.
    Brundage, Landon & Holt, for appellant.
    Francis J. Woolley, 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 Dever

delivered the opinion of the court.

2. Workmen's Compensation Act, § 12*—when action is not brought under. Where an action was brought to recover damages for injuries sustained by an employee while in the employ of the defendant, to which the defendant filed plea of the general issue and special plea setting up in defense that defendant had elected to pay compensation under the Workmen’s Compensation Act, and the plaintiff filed replication that defendant had not furnished to plaintiff or posted the notice required by that act, held that such action was not brought under that act hut under the common-law right of plaintiff.

3. Workmen’s Compensation Act, § 2*—when evidence sufficient to show failure of employer to post notice of election to come under. Evidence held sufficient to warrant the finding that defendant had not posted the notice required by the Workmen’s Compensation Act of employers electing to pay compensation thereunder, in an action to recover damages for injuries sustained by an employee while in defendant’s employ.

4. Workmen’s Compensation Act, § 2 —when employee not bound by act. Under the Workmen's Compensation Act of 1911, sec. 1, suhsec. 3, ji “c” (J. & A. If 5449), providing that where an employer, elects to pay compensation under that act “every employee of such employer” shall also he hound by the act unless he shall within thirty days after his hiring file notice to the contrary with the secretary of the State Bureau of Labor Statistics, and containing the proviso “that before any such employee” shall he so hound the employer shall furnish to him or post a statement of the compensation provisions of the act, held that the words “such employee” used in the proviso related to and modified the words “every employee of such employer” used at the beginning of the paragraph, and by such proviso construed with the whole context of the paragraph the Legislature meant that an employee would not be bound by the act where the employer had not furnished a statement or posted notices as required by the proviso.

5. Statutes—when rule of reference to last antecedent not applied. While the words “aforesaid,” “said,” “their” and “such” in a statute will generally be referred to the last antecedent, such rule will not be strictly applied where such application would result in destroying or materially altering the intention of the Legislature as expressed in the whole context of the language under consideration.


text:
    Edward J. Petterson, by Louis F. Petterson, Appellee, v. Martha Gnatek, Appellant.
    Gen. No. 22,730.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 230

      —what constitutes a common way which landlord is under duty to repair. Where a three-story tenement building was provided with rear porches on each story communicating with each other by stairways, which were the only means of ingress and egress from the rear for the second and third stories, held that the first and second porches should be regarded as a common way which it was the duty of the owner of the building to keep in a reasonably safe condition for such persons as might have a legal right to use the same.
    2. Landlord and tenant, § 230*—when landlord liable for in

      juries due to nonrepair of common way. Where a three-story tenement building was provided with rear porches on each story conriecting with each other by stairways and used as a common way by the tenants of the second and third stories, held that the fact that part of the second-story porch upon which the accident to the plaintiff occurred by reason of the defective condition of such porch a few feet away from the stair opening was in the exclusive control and possession of the tenant of the second story would not relieve the owner of the building from liability because of such defective condition, in an action by an occupant of the third story to recover damages for injuries sustained by reason of such condition.

      Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Tbude, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by Edward J. Petterson, a minor, by Louis F. Petterson, Ms next friend, plaintiff, against Martha Gnatek, defendant, to recover damages for injuries sustained by a fall from the rear porch at the second floor of a building owned by defendant. From a judgment for plaintiff for four hundred dollars, defendant appeals.
    Max Krauss, for appellant.
    Jones & Kerner, for appellee.

      Sce 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 Dever

delivered the opinion of the court.

3. Landlord and tenant, § 258 —when evidence sufficient to show notice by landlord of defective condition of porch. Evidence held sufficient to warrant the finding that defendant had notice of the defective condition of a certain plank in a porch, by reason of which plaintiff was injured, or by the exercise of reasonable care could have had such notice, in an action against a landlord to recover damages for such injuries.


text:
    Stavros Petroyeanis, Appellant, v. A. B. Pirola et al., Appellees.
    Gen. No. 22,733.
    (Not to foe reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Stavros Petroyeanis, complainant, against A. B. Piróla and others, defendants, in the nature of a creditor’s bill to discover assets and apply same upon a certain judgment in favor of complainant against the A. B. Piróla Company, defendant, and Chicago Railways Company. From a decree dismissing the bill for want of equity, upon demurrer, complainant' appeals.

      The bill alleged that on May 2,1914, the complainant had recovered a judgment against the Chicago Railways Company and the A. B. Piróla Company for the sum of $5,000; that the Chicago Railways Company prosecuted an appeal from this judgment to this court; that while the appeal was pending, on April 10, 1915, the complainant and the Chicago Railways Company entered into an agreement, which was entitled 1 ‘ Covenant not to sue.” This agreement provided, in substance, that in consideration of the payment by the Chicago Railways Company to the complainant of the sum of $3,000, the complainant agreed to take no action, either in law or equity, or to prosecute any writ of execution to obtain satisfaction of said judgment from the Chicago Railways Company, in any form or manner whatsoever; and in this instrument the complainant agreed to be forever precluded “from asserting any right against the said Chicago Railways Company he may have heretofore had to prosecute and collect his said claim for personal injuries to the undersigned against it.” It was alleged in the bill that the $3,000 referred to was received by the complainant; that an execution was issued upon the judgment and a demand made by the sheriff upon the A. B. Piróla Company for the amount of the judgment; that the execution was returned “no part satisfied”; that there is still due the complainant on said judgment the sum of $2,000; and that the judgment was the result of an action brought by the complainant against the defendants because of an accident which resulted in injuries to him on January 11, 1912.
    Emery S. Walker and Clyde O. Hornbaker, for appellant; Israel Cowen, of counsel.
    Fred W. Mayer, for appellees; Ernest Severy, of counsel.

      Abstract of the Decision.
    1. Release, § 21*—what is effect of settlement of claim by one joint tort feasor. Where a claimant has a valid existing claim against several joint tort feasors, any one of such joint tort feasors may, by agreement with such claimant, purchase his peace without affecting the right of such claimant to bring an action against all of the others against whom such action may lie.
    2. Release, § 22*—what is theory upon which “covenants not to sue” contracts have been held valid. The theory upon which “covenants not to sue” contracts have been held, valid is that there is existing a claim, the assertion of which might cause annoyance or expense to one of several against whom such claim is made.
    3. Release, § 22

      —what does not constitute covenant not to sue. Where, pending an appeal from a judgment against two defendants in an action in tort, one of such defendants received from the plaintiff in such action, in consideration of a certain sum paid by such defendant, an agreement by the plaintiff to take no action in law or equity or prosecute any writ of execution on such judgment to obtain satisfaction thereof from such defendant, held that such agreement was not a “covenant not.to sue” but was a release and payment of the judgment as against both defendants, notwithstanding such was not the intention of the parties as expressed in such agreement.

      4. Contribution, § 1*—token right of does not exist. There can be no contribution between joint tort feasors.
    5. Release, § 21*—when release of one joint tort feasor inures to benefit of others. A release of liability of one joint tort feasor will inure to the benefit of the others, either before or after suit is brought and pending judgment or after judgment has been entered, where tortious conduct is made the basis of a claim or action.
    6. Cbeditobs’ suit, § 4%*—what bill against one of two judgment debtors should show. A creditor’s bill filed against one of two judgment debtors in an action in tort should show affirmatively why the judgment was not or is not enforceable against both debtors.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    August Franzke, Complainant, v. Chicago Stock Yards & Transit Company et al., Defendants. John S. Level, Cross-Complainant, v. Chicago Stock Yards & Transit Company et al., Defendants. Urban A. Lavery (Intervening Petitioner), Appellee, v. C. S. Bellamy (Defendant), Appellant.
    Gen. No. 22,737.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by August Franzke, complainant, against the Chicago Stock Yards & Transit Company and others, defendants, to foreclose a trust deed given to secure twenty-five notes of the face value of $25,000, in which John S. Level filed cross-bill setting up title and ownership of one of said notes, and in which, after decree in favor of cross complainant for $1,213.88, Urban A. Lavery filed intervening petition setting up title by assignment to $625 of the money in the hands of the master, which under said decree would otherwise be the money of cross complainant, to which petition C. S. Bellamy filed answer claiming by purchase from cross complainant all his right, title and interest in said decree. From a decree in favor of the petitioner, defendant Bellamy appeals.
    Chase R. Rankin, for appellant.
    Montgomery, Hart, Smith & Steere, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

1. Mortgages, § 578*—what constitutes assignment of interest in decree of foreclosure and not of debt. Where, pending a suit to foreclose a trust deed given to secure certain notes, the holder of one of the notes assigned his interest in the subject-matter of the suit, held that such was not an assignment of such holder’s note but of his interest in any decree which might be rendered in the suit and of his right and title to a chose in action.

2. Mortgages, § 578 —what are rights of assignees of interest of cross complainant in decree. Where, after a decree was entered in a foreclosure suit finding and adjudging a certain cross complainant was entitled to a certain sum under the trust deed sued on, the cross complainant assigned all his interest in the decree, held that the assignee took such interest subject to all the equities and rights then existing in prior assignees of the same fund.

3. Assignments, § 24*—what does not affect right and title of assignee under. The right and title of an assign'ee under an assignment of a chose in action being sued upon, which was valid as against subsequent assignees to the fund assigned, would not” be affected by the filing in court of a subsequent assignment.


text:
    Joseph T. Delfosse, Appellee, v. Anna N. Kendall, Appellant.
    Gen. No. 22,744.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Joseph T. Delfosse, plaintiff, against Anna N. Kendall, defendant, to recover on a promissory note for $1,575 signed by defendant, made payable to herself and by her indorsed. From a judgment for plaintiff for $1,737.49, on a directed verdict, defendant appeals.

      Abstract of the Decision.
    1. Bills and notes, § 371

      —when evidence of fraud properly excluded as not within defenses made in affidavits of merits. In an action on an assigned note to which the defendant filed an affidavit of merits that the note was without consideration and was transferred to plaintiff merely for collection and. to avoid a defense of fraud, and an amended affidavit of merits denying the execution, indorsement and delivery of the note, evidence that defendant signed the note by trickery and fraud by being led to believe it was a note for a less amount, held to be properly excluded as not within the defenses made in the affidavits of merits.
    2. Bills and notes, § 260*—what defense is not available against bona fide purchaser before maturity. A defense to a note sued on by an assignee that it had been transferred in violation of an agreement made when it was signed that it would not be assigned, held to be unavailable in an action on the note brought by one who procured it for a valuable consideration before maturity and without notice of such defense.
    3. Bills and notes, § 371*—when affidavit of merits is insufficient to warrant admission of evidence of fraud in procuring signature. An averment in an affidavit of merits that the defendant had not executed or indorsed the note sued on, held insufficient to warrant the admission of evidence that defendant had signed and indorsed the note as the result of fraudulent conduct on the part of the party procuring its execution.
    4. Appeal and errob, § 1361*—what does not constitute abuse of discretion warranting reversal. Refusal of the court to permit the defendant during the course of trial to file an additional affidavit of merits, held under the circumstances not such abuse of judicial discretion as to warrant reversal.
    5. New trial, § 102*—when affidavit as to discovery of new facts filed on motion to vacate judgment is insufficient. An affidavit of defendant’s counsel, filed on motion to vacate a judgment, that he had discovered new facts which if introduced on another trial would contradict certain statements of plaintiff, held to be insufficient to show why such facts were not introduced at the trial or before judgment, or to materially aid in determining plaintiff’s right to recover. 4

      Samuel B. Hill and William Scott Stewart, for appellant.
    George L. Schein, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Wolfe Adolphus, Appellee, v. Anna N. Kendall, Appellant.
    Gen. No. 22,746.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 447

      —when evidence sufficient to show alteration in date of notes. Evidence held insufficient to warrant finding that the notes sued on had been altered in their date.
    Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Wolfe Adolphus, plaintiff, against Anna N. Kendall, defendant, to recover on two promissory notes for $1,000 and $500, respectively, signed by defendant, made payable to her order and indorsed by her. From a judgment for plaintiff for $1,600, on a directed verdict, defendant appeals.
    Samuel B. Hill and William Scott Stewart, for appellant.
    George L. Schein, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Biles and notes, § 420*—when exclusion of evidence that plaintiff had received payment for his indorsement is erroneous. Refusal of the court to allow defendant in an action on an indorsed note by the indorser to show that plaintiff had received money for his indorsement and that he should not- be permitted to recover more than he had paid, held not to be error.

3. Bills and notes, § 258 —when defense of maker of lack of consideration and use in violation of agreement is unavailable against indorser. A defense by the maker of a note sued on by an indorser thereon that the note was without consideration and was used by the party procuring its execution in violation of an agreement with defendant, held not to be available to defendant in such action where plaintiff indorsed the note after defendant had executed and indorsed it and there was no evidence tending to show plaintiff had knowledge of such agreement.


text:
    Peter J. Verhoeven for use of Clarence Verhoeven, Assignee, Appellee, v. J. Otto Ingebrutsen and Anna Ingebrutsen, Appellants.
    Glen. No. 22,751.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Peter J. Verhoeven, for use of Clarence Verhoeven, assignee, complainant, against J. Otto Ingebrutsen and Anna Ingebrutsen, defendants, to enforce a subcontractor’s lien under the Mechanics’ Lien Act. From a decree for the complainant for the sum of $485, defendants appeal.
    John B. Fruechtl, for appellants.
    Cooney & Verhoeven, for appellee.

      Abstract of the Decision.
    1. Appeal and ebrob, § 410*—when objection as to defect of parties is too late. Where a petition by a subcontractor to establish a lien under the Mechanics’ Liens Act and the summons issued thereon made the original contractor a defendant with the owner of the building on which the lien was sought to be established, but no service was had on the original contractor and the suit proceeded to decree against the owner alone, a complaint that the original contractor should have been made a party to the proceeding, held to be too late when first made on appeal.
    2. Mechanics’ liens—when owner charged with notice of right of subcontractors to enforce payment of contracts out of building. The owner of a building is bound by law with notice of the existence under the Mechanics’ Liens Law of the fact that subcontractors would, within the specified legal time, have the right to enforce payment of their contracts with the original contractor from such owner out of such building.
    3. Mechanics’ liens, § 196*—when need not be shown that owner owed original contractor. It is not necessary, in a suit to enforce a subcontractor’s lien under the Mechanics’ Liens Act, to show that the owner owed the original contractor at the time the subcontractor served a lien notice on the owner.
    4. Mechanics’ liens, § 196*—when evidence sufficient to show petition to enforce is filed in apt time. Evidence held to show that a petition to enforce a subcontractor’s lien under the Mechanics’ Liens Act was filed in apt time after completion of the work.
    5. Mechanics’ liens, § 196

      —when evidence is sufficient to show that owners did not make premature payment. Evidence held sufficient to show that the owners of a building did not pay the sum due under their contract before the work required by it was in fact completed; in a suit to enforce a subcontractor’s lien under the Mechanics’ Liens Act.
    6. Mechanics’ liens, § 19 6t—when evidence is sufficient to show waiver by owners of time of completion of .work. Evidence held sufficient to show that the owners of a building waived their right to insist on a provision of their contract with. original contractor for completion of the work by a certain date specified therein, in a suit by a subcontractor to establish his lien under the Mechanics’ Liens Act.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    William E. Dee Company, Appellant, v. Jacob J. Hubbard, Appellee.
    Gen. No. 22,754.
    (Not to be reported in full.)
    Abstract of the Decision.
    Principal and agent, § 183

      —when evidence is sufficient to show ratification of contract by principal. Evidence held sufficient to show that defendant authorized or ratified the contract sued on for the construction by plaintiff of a dynamometer which was made by a third person with plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by William E. Dee Company, a corporation, plaintiff, against Jacob J. Hubbard, defendant, to recover $424 for the construction of a dynamometer. From a judgment for defendant, plaintiff appeals.
    John M. Quinlan, for appellant.
    Frank L. Childs and Beryl Howard Childs, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Harry B. Lusch, Appellant, v. Charles J. Rittenhouse and Walter Rittenhouse, Executors, Appellees.
    Gen. No. 22,757.
    (Not to be reported in full.)
    Abstract of the Decision.

      Injunction—when contract by surety on bond relating to appeal includes review by writ of error. Where the surety upon an injunction bond agreed by a certain contract upon consideration of the filing of suggestion of damages on dissolution of the injunction instead of commencing an action on the injunction bond that he •would abide by "the final determination of said suggestion of damages by said Superior Court, or upon' final determination of any appeal that may be taken from any award that may be rendered * * * by said Superior Court,” held that the word “appeal” as so used embraced a writ of error by means of which a final determination of the suggestion of damages or award was reached.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Harry B. Lusch, plaintiff, against Charles J. Rittenhouse and Walter Rittenhouse, executors of the estate of Moses F. Rittenhouse, deceased, defendants, to recover upon a certain contract by letter signed by the decedent. From a judgment for defendants, plaintiff appeals.
    Frederick W. Snider, for appellant.
    Bulkley, More & Tallmadge, for appellees.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Anton Reinick, Appellee, v. Frank Smetana, Appellant.
    Gen. No. 22,772.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1411

      —when finding of jury not disturbed. The finding of a jury will not be disturbed upon controverted questions where there is a direct and sharp conflict in the evidence.
    2. Instructions, § 7*—when accuracy in is necessary. Where the evidence is sharply conflicting, it is obligatory on the court to accurately .instruct the jury as to the law applicable to the case.
    3. Automobiles and garages, § 3*—when modification of instruction is improper. In an action to recover damages for injuries sustained by being struck by defendant’s automobile while driven by another, an instruction that plaintiff in order to recover must show not only that the car belonged to defendant but that it was driven by another for defendant and on defendant’s business, held to be proper as offered and improperly modified by the court by adding after the word “business” the words “or by and with the consent of” defendant.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Anton Reinick, plaintiff, against Frank Smetana, defendant, to recover damages for injuries sustained by being struck by defendant’s automobile. From a judgment for plaintiff for $1,000, defendant appeals.
    Sabath, Stafford & Sabath, for appellant; Charles B. Stafford, of counsel.
    C. J. Waring, 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 Dever

delivered the opinion of the court.

4. Automobiles and garages, § 3*—when instruction on liability of owner for injury by third person driving car is improperly modified. In an action to recover damages for injuries sustained by being struck by an automobile, an instruction that if the jury believed from the evidence that the defendant consented to and permitted a certain other party to take the automobile, and that in taking it such party was doing it for his own purposes and his own use and that the accident happened and plaintiff was injured while the said automobile was so being driven by such party, then the jury should find the defendant not guilty, held proper as offered and improperly modified by the court by striking out the word “not” before the word “guilty.”

5. Automobiles and garages, § 2 —when owner of automobile driven by another is liable for injuries to a person. The owner of an automobile operated by another is only liable for injuries to a person where it is shown by a preponderance of the evidence that the person operating such automobile is in some degree acting for such owner or that he is operating such vehicle in and about the owner’s business.


author: Mr. Justice Holdom

text:
    A. Delbert Dewey, Appellee, v. J. C. K. Lindhout, Individually and as Trustee, Appellant.
    Gen. No. 22,738.
    (Not to he reported in full.)
    Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles,. Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by A. Delbert Dewey, complainant, against J. C. K. Lindhout, individually and as trustee, defendant, for injunction to restrain defendant from disposing of a certain fund. From a decree ordering defendant to pay $182.03 costs of suit and permanently restraining turn from disposing of said fund, defendant appeals.
    Abstract of the Decision.
    1. Trusts, § 201

      —when evidence insufficient to warrant finding that trustee was wrongfully in possession of certain money. Evidence held not to warrant a finding that defendant was wrongfully in possession of certain money received by him, as counsel for complainant’s wife in a certain suit for divorce brought by her against complainant, pursuant to an agreement in the nature of an alimony agreement entered into between complainant and his wife, whereby he agreed that all debts of himself and herself should be paid under the supervision of defendant out of a certain fund to be paid in consideration of complainant delivering a deed and bill of sale of his property.
    2. Trusts, § 201*—when evidence sufficient to show absence of fraud by trustee. Evidence held sufficient to show that defendant acted without any fraud or improper acts in his dealings with complainant and with diligence, discretion and fidelity to his client, complainant’s wife, in receiving and disposing of a certain fund under a certain agreement between complainant and his wife in the nature of an alimony agreement.
    3. Trusts, § 153*—when deposit of funds in bank lies within discretion of trustee. Where an attorney, who had represented a wife in a divorce suit, received money as a trustee, pursuant to an alimony agreement, whereby the husband agreed that all debts of both should be paid under the supervision of the attorney out of a fund created by the payment of a certain sum in consideration of the husband delivering a deed and bill of sale of his property, held that authority of the trustee to deposit the money in a bank might be inferred from his relationship to the parties and the fund, and that such depositing of the money was a matter resting in his discretion.
    Francis X. Busch, for appellant.
    George A. Brinkman, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Michelangelo Pacella, Appellant, v. Bennett Medical College, Appellee.
    Gen. No. 22,752.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Colleges and universities, § 9

      —when evidence sufficient to show that student had not passed required examinations. Evidence held sufficient to sustain respondent’s answer to a petition for mandamus to compel respondent to issue to petitioner a duly executed graduation diploma as a doctor in medicine, setting up that petitioner had not passed the required satisfactory examination in all branches.
    2. Colleges and universities, § 9*—who must be judge of qualifications of medical students. A medical school must be the judge of the qualifications of its students to- be granted the degree of doctor of medicine.

      Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Petition of mandamus by the People of the State of Illinois on the relation of Michelangelo Pacella, petitioner, against the Bennett Medical College, a corporation, respondent, to compel respondent to issue to petitioner, a diploma of graduation as a doctor in medicine, duly executed by defendant’s officers. From a decree dismissing the petition, petitioner appeals.
    Michelangelo Pacella, for appellant.
    No appearance 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 Holdom

delivered the opinion of the court.

3. Colleges and universities, § 9*—when courts will not pass upon attainments of students. Courts are not supposed to be learned in medical science and are not qualified to pass an opinion as to the attainments of a student in medical science.

4. Colleges and universities, § 9 -—what is not evidence that student is entitled to genuine diploma. The presenting to a medical student at the time of graduation of a blank diploma not filled out with his name or a degree or title, held not to be evidence that such student was entitled to a genuine diploma.


text:
    Isidor Cohn and Herman Cohn, trading as Cohn Brothers Cigar Company, Appellees, v. S. Bernstein and A. Swidler, Appellants.
    Gen. No. 22,762.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago-; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by Isidor Cohn and Herman Cohn, trading as Cohn Brothers Cigar Company, plaintiffs, against S. Bernstein and A. Swidler, defendants, upon a written guaranty to the extent of five hundred dollars of credit of Charles Piantry. From a judgment for plaintiffs for five hundred dollars, defendants appeal.
    Smith, Fake, Levinson & Hoffman, for appellants; Eugene R. Cohn, of counsel.
    Blum, Wolfsohn & Blum, for appellees.

      Abstract of the Decision.
    1. Guaranty—when evidence sufficient to show execution of contract as sureties. Evidence held sufficient to warrant the finding that defendants executed the contract of guaranty sued on as sureties.
    2. Appeal and error, § 269

      —what are final appealable orders. Where after entry of judgment against defendants they filed motion to set aside the judgment and grant a new trial, which was denied, held that defendants had the right to two appeals, one from the original judgment and one from the denial of the motion, as the orders for both entry of judgment and denial of the motion were final appealable orders.
    3. Appeal and error, § 19*—when review on appeal confined to original judgment. Where, after a motion for new trial and in arrest of judgment against defendants was denied and judgment was entered against them, and thereafter a motion to set aside the judgment and grant a new trial was also denied and thereupon defendants prayed and were allowed an appeal and filed an appeal bond, which recited that the appeal was prosecuted from the original judgment entered, held that review on such appeal would be confined to the original judgment and would not embrace the final order denying the motion to set aside the judgment and grant a new trial.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Sarah L. Mead, Appellee, v. George H. Mead. Chicago & Northwestern Railway Company, Impleaded, Appellant.
    Gen. No. 22,765.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. George A. Kersteu, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Sarah L. Mead, complainant, against George H. Mead, defendant, for divorce for drunkenness. The Chicago & Northwestern Railway Company impleaded by petition filed by complainant subsequent to decree for divorce, claiming that the railway company was indebted to defendant in the sum of $7,000, and that complainant was entitled to be paid permanent alimony and solicitor’s fees out of that fund. From a decree rendered on said petition setting aside certain assignments by defendant of a certain judgment for $4,600.84 recovered by him against said company as fraudulent and void assignments, and ordering the company to pay complainant $2,500, theretofore allowed her by former decree as alimony and solicitor’s fees, within ten days, the Chicago & Northwestern Railway Company appeals.
    Irving Herriott, for appellant; William G. Wheeler, of counsel.
    B. M. Shaffner, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Divorce, § 22 —what is essential to jurisdiction of court to enter decree of alimony. Without personal service upon or appearance hy the defendant in a suit for divorce brought by the wife, the court is without jurisdiction to enter a decree for alimony, even though the defendant has property within the court’s jurisdiction.

2. Judgment, § 6*—when decree in personam cannot be entered. Without personal service upon or appearance by a party, no money decree in personam against him can be entered.

3. Costs, § 1*—when judgment for cannot be entered. A judgment for costs cannot be entered against a party not personally served or appearing.

4. Divorce—when right to alimony ceases. Upon death of a husband his wife’s right to alimony ceases.

5. Divorce—when order allowing alimony is void as being without jurisdiction. An order allowing alimony rendered after the husband’s death is void and without jurisdiction, as the right depends upon the existence of a valid marital relation.

6. Divorce—when order relating to alimony is void as bging without jurisdiction. Where an order was entered subsequent to a decree for divorce without personal service upon or appearance by the divorced husband relative to alimony and its allowance and collection out of a certain judgment recovered' by him, such order field to be void as having been entered without jurisdiction.

7. Divorce—when decree upon petition for allowance of alimony is void as being entered without jurisdiction. Where a decree was entered upon a petition for allowance of alimony and solicitor’s fees and for payment of same out of a certain judgment recovered by the husband, defendant in the divorce suit, finding that certain assignments of said judgment were n»ll and void, and without personal service upon or appearance hy the assignees, such decree held to be void as being entered without jurisdiction.

8. Judgment, § 576*—when of foreign court entitled to full faith . and credit. Where a party intervened in a suit brought in another State by the assignee of a certain judgment to enforce same and also brought an independent suit in such other State against such assignee seeking to have the assignment declared invalid, decree entered in such foreign suits held entitled, under the United States Constitution, art. IV, sec. 1, to full faith and credit in a suit brought by such party in this State to set aside said assignment.

9. Interpleader—who may not be required to interplead. A party resident in one State cannot be required to interplead in a suit instituted in another State.

10. Appeal and ebbor—when decree in which whole circuit bench is unanimous should be reversed,. Even if the whole circuit bench is unanimous in the entry of a decree which they are without jurisdiction to enter, it should be as readily reversed as if such error had been committed by but one member of the court.


text:
    William J. Jackson, Receiver, Appellee, v. M. Piowaty & Sons, Appellant.
    Gen. No. 22,773.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers—what does not constitute notice to carrier that person receiving goods is agent for shipper. The fact that a party receiving certain goods shipped by a carrier is in the commission and brokerage business is not in itself notice to the carrier that such party was agent for the shipper.

      Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by William J. Jackson, receiver of the Chicago & Eastern Illinois Railroad Company, plaintiff, against M. Piowaty & Sons, a corporation, defendant, to recover balance claimed to be due for freight and other charges on certain tomatoes delivered on reconsignment to defendant. From a judgment for plaintiff for $158.07, defendant appeals.
    Sabath, Stafford & Sabath, for appellant; Charles B. Stafford, of counsel.
    C. B. Cardy, for appellee; H. T. Dick, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Carriers—when agent receiving goods for shipper is relieved from liability for freight charges. Before a party receiving a shipment of goods as agent for the shipper can be relieved from liability for payment of the freight charges on the goods, in an action to recover such charges, it must affirmatively appear that the carrier had actual notice of such agency.

3. Carriers, § 33a*—what is implied notice as to tariff rates. The fact that tariff rates fixed by the Interstate Commerce Commission are on file at Washington is implied notice to all persons interested in such rates.

4. Carriers, § 29 —validity of provisions of Interstate Commerce Act as to liability for freight charges. The Interstate Commerce Act, providing that “the owner or consignee shall pay the freight and all other lawful charges,” is constitutional.

5. Carriers—when consignee is impliedly liable for charges. A consignee receiving goods shipped is impliedly liable for the shipment charges.


text:
    Abraham Schwartz, Appellee, v. Hartman Furniture & Carpet Company, Appellant.
    Gen. No. 22,776.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed without remanding.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Proceedings by Abraham Schwartz, claimant, against the Hartman Furniture & Carpet Company, respondent, for compensation under the Workmen’s Compensation Act. From a judgment for claimant, respondent appeals.

      Abstract of tlie Decision.
    Workmen’s Compensation Act, § 12

      —necessity of making claim within prescribed period. The making of a claim within the six months’ period as required by the Workmen’s Compensation Act is mandatory and cannot be dispensed with, and no right of action exists without proof of such claim within the time limited by the act.
    Willis G. Shockey, Wiley W. Mills and Henrietta Krighel, for appellant.
    No appearance for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the


author: Me. Justice Holdom

text:
    Leopold Mioduszewski, Appellee, v. Stefan Spoganitz, Appellant.
    Gen. No. 22,779.
    (Not to be reported in full.)
    Appeal from,the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in this court at the October term, 1916.
    Appeal dismissed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Leopold Mioduszewski, plaintiff, against Stefan Spoganitz, defendant. From a judgment for plaintiff, defendant appeals.
    Maximilian J. St. George and B. F. Bartel, for appellant.
    Ferguson & Goodnow, for appellee.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1105*—when motion to dismiss appeal is properly allowed. Motion to dismiss appeal for failure to have appeal bond and bill of exceptions approved within the time limited by the order allowing such appeal, held to be properly allowed.
    2. Municipal Court of Chicago, § 25*—when bond and hill of exceptions are not filed in proper time. Where a judgment of the Municipal Court was entered June 27, 1916, and appeal was prayed and allowed upon filing appeal bond to be approved by a judge of the court within thirty days from the date of the judgment, and bill of exceptions within sixty days, and the time for filing the bond was extended July 22, 1916, ten days, and a bond was filed and approved August 5, 1916, and on August 25, 1916, was ordered stricken from the files, which order was vacated August 29, 1916, and order entered to file a new bond nunc pro tune as of August 25,1916, and a new bond was filed and approved August 30, 1916, and bill of exceptions September 27, 1916, held that neither the bond nor the bill of exceptions was filed within the time in which the court had jurisdiction to approve the same.
    3. Municipal Coubt of Chicago, § 25

      —when has no jurisdiction to approve appeal bond. The Municipal Court of Chicago has no jurisdiction to approve an appeal bond after the lapse of thirty days from the entry of the judgment.
    4. Municipal Court of Chicago, § 25*—who should approve appeal hond. Under the Municipal Court Act an appeal bond should be approved by the judge, and an order of approval by the court is not required.

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

   Me. Justice Holdom

delivered the opinion of the court.


text:
    Edward J. Haley, Appellant, v. Chicago City Bank, Appellee.
    Gen. No. 22,783.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 440

      —when evidence is sufficient to show receipt of consideration for checks. Evidence held sufficient to show that plaintiff received the consideration for which certain checks were given by him.
    2. Bills and notes, § 120*—who may question indorsement on checks. Where certain checks payable to one party were indorsed by such party with the name of another party, held, in an action by the drawer of the checks to recover thereon against the bank paying same, that no one but such other party or her personal representatives would have any legal right to question the indorsement of her name on the checks.
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Edward J. Haley, surviving partner of Haley & Company, plaintiff, against the Chicago City Bank, defendant, to recover on two checks for $2,500 and $1,000, respectively, given for two notes for $2,600 and $1,100, respectively. From a judgment of nil capiat and costs, plaintiff appeals.
    Cyrus Heren, D. Avery Kimbark and I. T. Greenacre, for appellant.
    Miller, Starr, Brown, Packard & Peckham, for appellee; John J. Peckham and Edward O. Brown, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Marie Mahalek, Appellee, v. Merchants Reserve Life Insurance Company, Appellant.
    Gen. No. 22,788.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 436

      —what is sufficient notice of insured’s death obviating necessity of formal proofs. Where notice of an insured’s death was given to the president of the insurer company who replied “all right, they would go and see him,” held that this afforded the insurer all opportunity necessary for it to verify the death and ascertain the cause thereof, notwithstanding no formal proofs of death contemplated by the policy were made.
    2. Insurance, § 456*—when formal proofs of death are waived. Where the insurer in a life insurance policy refused to pay upon the ground that the insured’s answers to questions touching his health in his application for the policy were false, held that formal proofs of death contemplated by the policy were waived.
    3. Insurance, § "452*—when notice of loss is waived. Where the defense to an action to recover on a life insurance policy is placed on other grounds than the death of the insured, notice of loss is waived.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Marie Mahalek, plaintiff, against the Merchants Reserve Life Insurance Company, defendant, to recover on a life insurance policy. From a judgment for plaintiff for $1,161.39, defendant appeals.
    Gideon S. Thompson, for appellant.
    Hart E. Baker, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Insurance, § 659*—when evidence is sufficient to show truth of statements in application. Evidence in an action on a life insurance policy, held to warrant finding that the insured's statements in his application for life insurance as to his health were true and not false.

5. Insurance, § 663 —what is not evidence of Knowledge of falsity of statements by insured in application. A coroner’s finding on autopsy that an insured’s death was due to organic heart disease, held not to he evidence tending to prove that the insured consciously departed from .the truth when he represented in his application for life insurance that he did not suffer from heart disease1, in an action to recover on a life insurance policy.


text:
    Robert E. Cantwell, Appellee, v. General Accident, Fire & Life Assurance Corporation, Appellant.
    Gen. No. 22,791.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Eobert E. Cantwell, plaintiff, against the General Accident, Fire & Life Assurance Corporation, defendant, to recover on a policy insuring an automobile against accident. From a judgment for plaintiff for $177.31, defendant appeals.
    John A. Bloomingston, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    Insurance, § 659

      —when evidence is sufficient tó show that automobile did not collide with stationary object. Evidence held sufficient to show that plaintiff’s automobile was not, as alleged, at the time in question in collision with any post or any other stationary object, in an action to recover for damages to the automobile alleged to have been sustained by such collision.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Grossfeld & Roe Company, Appellee, v. William Junker Company, Appellant.
    Gen. No. 22,796.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by Grossfeld & Roe Company, plaintiff, against William Junker Company, defendant, to recover upon a contract for the purchase by defendant of two hundred barrels of sugar, estimated at eighty thousand pounds, at the price of $5.65 per hundred pounds. From a judgment for plaintiff for $240, defendant appeals.
    William R. Brand, for appellant.
    Blum, Wolfsohn & Blum, for appellee.

      Abstract of the Decision.
    1. Evidence, § 154*—what constitutes admission, of existence of contract. Testimony of a corporation defendant’s president identifying his letter to plaintiff referring to “our contract of February 8, 1915” and annulling “our contract with you,” held to he an admission of the contract, in an action to recover thereunder in which defendant’s affidavit of merits denied the making of the contract.
    2. Municipal Coubt of Chicago, § 13*—what defenses defendant filing affidavit of merits is confined to. 1 A defendant in the Municipal Court is confined by the rules of that court to the defenses made in his affidavit of merits.
    3. Sales, § 376*—what is measure of damages for breach of com-■tract for purchase of goods. In an action to recover for breach of a contract for the purchase of certain goods, the difference between the contract price and the market price on resale after such breach, held to he the measure of damages.
    4. Municipal Coubt of Chicago, § 13

      —when affidavit of defense is insufficient. An affidavit of defense filed in an action in the Municipal Court, stating merely that the defendant did not know plaintiff to he a corporation, held not to he sufficient to put plaintiff to proof of its incorporation.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Arthur A. Stiles, Appellee, v. Board of Trustees of Police Pension Fund of West Chicago Park Commissioners, Appellant.
    Gen. No. 22,799.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal corporations, § 143

      —when member of police force of parle commissioners is entitled to pension. Rev. St. eh. 105, sec. 339 (J. & A. If 8286), providing that any person after having served twenty years or more on the regularly constituted police force of-the board of park commissioners of certain towns, or whose combined years of service should aggregate twenty years or more, shall be paid a yearly pension “after his service on such police force shall have ceased,” construed to mean where the service shall legitimately cease voluntarily or by stress of physical troubles, and not by expulsion or malconduct.
    McSurely, P. J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Rehearing denied May 1, 1917.
    Statement of the Case.
    Petition of mandamus by Arthur A. 'Stiles, petitioner, against the Board of Trustees of the Police Pension Fund of the West Chicago Park Commissioners, re-" spondent, to compel respondent to grant petitioner a pension as captain of police. From a judgment for petitioner, respondent appeals.
    Jacob C. Le Bosky and William Levine, for appellant.
    A. G. Dicus, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Harry H. Talcott et al., Appellees, v. American Board of Commissioners for Foreign Missions and Congregational Home Missionary Society, Appellants.
    Gen. No. 22,802.
    (Not to fee reported in full.)
    Abstract of the Decision.
    1. Tbosts, § 25

      —when irrevocable trust is not created. A document directing a certain party to hold certain notes in trust for the use of the signer of the document during the signer’s life and on her death, “when money becomes due and is paid," to dispose of such money to specified donees and to make the bequests "in the name of a friend," held not to create an irrevocable trust.

      Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Harry H. Talcott, James S. Barstow, personally and as trustee for Fayette C. Barstow, Fanny B. Perkins and Dorothy B. Pettibone, complainants, against the American Board of Commissioners for Foreign Missions and the Congregational Home Missionary Society, defendants, to ascertain, settle and decree the rights of the several parties in and to a fund of $5,400 represented by a certain note secured by trust deed conveying certain real estate. From a decree, upon demurrer overruled to a part and answer to the remainder of the bill, finding defendants had no interest in said fund and directing that it be transferred to complainant James S. Barstow as trustee, defendants appeal. .
    David Fales and John R. Montgomery, for appellants.
    Cassoday, Butler, Lamb & Foster, for appellees; Herbert Pope, 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 topi© and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

2. Wills, § 64*—when document is void as constituting insufficient testamentary disposition. A document directing a certain party to hold certain notes in trust for the use of the signer of the document during the signer’s life and on her death, “when money becomes due and is paid,” to dispose of such money to specified donees and to make the bequests “in the name of a friend,” held void as a testamentary disposition and as not fulfilling the legal requirements of a will.

3. WiLts, § 374*—when note secured by trust deed becomes part of estate and passes by will. Where a document directed a certain party to hold certain notes in trust for the use of the signer of the document during the signer’s life and on her death, “when money becomes due and is paid," to dispose of such money to specified donees and to make the bequests “in the name of a friend,” and such signer did not die until after the notes had been paid and the money invested in other property in the form of a note secured by trust deed on certain real estate, held that the latter note became a part of the signer’s estate on her death and passed under the residuary clause of her will, notwithstanding the provisions of the document.

4. Trusts, § 12*—when document cannot be treated as a declaration of trust. What is clearly intended as a voluntary assignment or gift but is imperfect as such cannot be treated as a declaration of trust.

5. Trusts, § 28 —when document creating trust is void for remoteness. Where a document provided that a certain party named therein should hold certain notes in trust for the use of the signer of the document during the signer’s life and on her death, “when money becomes due and is paid,” should dispose of such money to specified donees, held that if the words “when money becomes due and is paid” were of controlling importance as designating a time when the trust fund should be paid to the beneficiaries, the document would be void for remoteness.


text:
    D. T. Cahill, Appellee, v. J. J. Cahill, Appellant.
    Gen. No. 22,811.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 450*—when evidence is sufficient to show demand of payment upon indorser. Evidence held sufficient to warrant finding that demand of payment of the note sued on was made upon defendant as indorser thereon, in an action to recover on said note.
    2. Bills and notes, § 272

      —when demand of payment upon indorser is necessary. Demand of payment of a note upon an indorser is necessary under the Negotiable Instruments Act.
    3. Bills and notes, § 287*—when protest is unnecessary. No protest is necessary under the Negotiable Instruments Act of an inland bill.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by D. T. Cahill, plaintiff, against J. J. Cahill, defendant, to recover on a promissory note for $750 indorsed by defendant. From a judgment for plaintiff for $581, defendant appeals.
    Otto G. Ryden, for appellant.
    George M. Weichelt, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Charles W. Watkins, Appellee, v. Peoples Gas Regulator Company, Appellant.
    Gen. No. 22,815.
    (Not to be reported in full.)
    Abstract of the Decision.

      Contracts—when contract construed to require party to turn over rental business. A contract whereby defendant agreed to pay plaintiff fifty per cent, of the "gross income of all rental business that might be - turned over by plaintiff and accepted by defendant, construed to require plaintiff to turn over to defendant rental business and not to require plaintiff to collect rentals.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Charles W. Watkins, plaintiff, against The Peoples G-as Regulator Company, defendant, to recover under a certain contract whereby defendant agreed to pay plaintiff fifty per cent, of the gross income on all rental business that might be turned over and accepted by defendant and which was secured by plaintiff or his agents, one-half of a collection of $86.10 made by defendant on such business. From a judgment for plaintiff for $43.05, defendant appeals.
    Thomas Lindskog, for appellant.
    Robert J. Bieg, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Jennie Kleiman, Appellant, v. Chicago & Northwestern Railway Company, Appellee.
    Gen. No. 22,822.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and bbbob, § 1411

      —when -finding of jury will not be disturbed. The finding of the jury upon a controverted question of fact will not be disturbed unless it can be said to be manifestly contrary to the greater weight of the evidence, or unless there are such errors in the rulings of the court upon the admission or exclusion of evidence or upon instructions which injuriously affected the cause of a party.
    2. Evidence, § 439*—when answer of medical witness to hypothetical question is incompetent. Where the answer of a medical witness to a hypothetical question was based in part, as testified to by him, upon his own knowledge of the plaintiff’s case and his personal opinion, held that such answer was incompetent and properly excluded.

      Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Jennie Kleiman, plaintiff, against the Chicago & Northwestern Railway Company, defendant, to recover damages for personal injuries sustained by plaintiff being struck by the sudden lowering of the gates at defendant’s railroad tracks while plaintiff was crossing in her automobile. From a judgment for plaintiff for five hundred dollars, plaintiff appeals.
    Israel Cowen, for appellant.
    Irving Herriott and Ira C. Belden, for appellee; William G. Wheeler, of counsel.

      See Illinois Notes Digest, Veis. 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 Holdom

delivered the opinion of the

3. Damages, § 191*—when question whether ailments of woman are proximately attributable to accident is for jury. In an action to recover damages for personal injuries sustained by plaintiff being struck on the head by the gates being lowered at defendant’s railroad crossing while she was passing, where plaintiff was shown to have suffered two miscarriages some time after the accident, held that it was within the province of the jury to determine wheth- „ er the serious ailments suffered by plaintiff were proximately attributable to such accident or not.

4. Damages, § 188*—when evidence is sufficient to show that ailments of woman were not causally connected with accident. Evidence held sufficient to sustain the finding that plaintiff’s ailments suffered by her some time after the accident by which she sustained injuries to her head, as the result of being struck by railroad crossing gates, were not causally connected with such accident, in an action against a railroad company to recover damages for such injuries.

5. Damages, § 242 —when judgment not disturbed on account of inadequacy of. A judgment will not be disturbed on review for mere inadequacy of damages awarded unless it is apparent that the verdict was the result of passion or prejudice m the jury or of errors of law by the court.


text:
    Christian C. H. Becker, Appellee, v. Benjamin F. J. Odell, Appellant.
    Gen. No. 22,832.
    (Not to be reported in full.)
    Abstract of the Decision.
    Mortgages, § 503

      —when evidence is insufficient to show agreement to extend loan hy authorized person. On a hill to foreclose a mortgage, evidence held to fail tó show any agreement to extend the loan on which suit was brought by any one acting with authority from the owner.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Christian C. H. Becker, complainant, against Benjamin F. J. Odell, defendant, for foreclosure. From a decree for complainant, defendant appeals.
    Benjamin F. J. Odell, for appellant; Melville R. Adams, of counsel.
    Rathje & Wesemann, for appellee; Guy Van Schaick, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.