author: Mr. Justice Gridley

text:
    Samuel Marks et al., trading as H. Marks’ Sons, Defendants in Error, v. Ike Williams et al., trading as J. Williams’ Sons, Plaintiffs in Error.
    Gen. No. 19,039.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed on remittitur.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Action by Samnel Marks and Jacob H. Marks, trading as H. Marks ’ Sons, against Ike Williams and Ruby Williams, trading as J. Williams’ Sons, to recover damages for the alleged wrongful conversion by the defendants of sixteen tons of scrap iron of the value of $10.25 per ton. 'To reverse a judgment in favor of plaintiffs for $164, defendants bring error.
    Henry Roth, for plaintiffs in error.
    Louis H. Marks, for defendants in error.
    Abstract of the Decision.
    Tboveb and convebsion, § 39

      —when amount of recovery not sustained 6y the evidence. In an action for the conversion of a certain quantity of scrap iron, a judgment in favor of plaintiffs held not sustained by the evidence as to the amount of scrap iron converted, and the judgment was affirmed on condition of remittitur.

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

   Mr. Justice Gridley

delivered the opinion of the court.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Ungar, Defendant in Error, v. E. F. Snydacker, Plaintiff in Error.
    Gen. No. 19,104.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Action by Joseph Ungar against E. F. Snydacker to recover a balance claimed to be dne to plaintiff from defendant for work in making alterations on defendant’s house. The plaintiff’s claim was for labor performed for twenty and one-half days at four dollars per day, and for certain materials purchased for defendant at his request. From a judgment in favor of plaintiff for eighty-two dollars, defendant brings error.
    Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    Louis Brandes, for defendant in error.
    Abstract of the Decision.
    Master and servant, § 84

      —when judgment for wages sustained by the evidence. In an action for a balance alleged to be due for work and certain materials furnished by plaintiff, in making alterations for defendant’s house, the defense being that there was a verbal agreement that plaintiff was to furnish all materials and that seven hundred and fifty dollars was to he the maximum sum to be paid by defendant for the necessary labor and materials, held that a verdict for plaintiff on conflicting evidence was not manifestly against the weight of the evidence.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Thomas E. Thompson, Plaintiff in Error, v. Simon E. Marks, Defendant in Error.
    Gen. No. 19,107.
    1. Damages, § 191

      —when question of natural consequence of wrongful act is for jury. In an action on the case against a firm engaged in the manufacture and sale of clothing for damages claimed to have resulted from false and fraudulent representations made by defendant to plaintiff and his copartner, that certain clothing was union made and that union labels attached thereto were genuine, the declaration alleged and was supported by proof upon the trial that the representations were made to induce plaintiff and his copartner to purchase the clothing, well knowing that they intended to resell the same to a third party and that the labels were counterfeit; that plaintiff relying upon the representations purchased and resold the same and was thereafter indicted for uttering and circulating a counterfeit label, whereby he suffered pain in body and mind, his credit and business injured, and he was obliged to spend $200 in supporting himself while imprisoned and in obtaining his release. Held that a direction of a verdict for defendant on the ground that the damages sought to be recovered were speculative and too remote was error; that the question whether the indictment was the natural consequence of defendant’s wrongful act was for the jury.
    2. Appeal and ebrob, § 438

      —when variance cannot he urged. It cannot be urged that the trial court properly instructed the jury to find a verdict for defendant because of a variance between the declaration and plaintiff’s case as made by certain written offers, where the alleged variance was not pointed out or objected to on the trial and there was an agreement between counsel to waive technical objections.
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 23, 1914.
    Statement by the Court. By this writ of error Thomas E. Thompson, plaintiff below, seeks to reverse a judgment against him for costs, rendered by the Circuit Court of Cook county on December 16, 1909. The judgment followed upon the verdict of a jury, directed by the court, finding the defendant, Simon L. Marks, not guilty.
    On June 4, 1901, said Thompson commenced an action in case against Harry M. Marks and Simon L. Marks, claiming damages in the sum of $25,000. Plaintiff’s amended declaration, filed January 2, 1902, consisted of two counts. It is alleged in the first count, in substance, that on June 5, 1900, plaintiff and one Bruce Clover were copartners as retail dealers in clothing in the city of Quincy, Illinois; that on said day they agreed to purchase of the defendants certain clothing for $20 for the purpose of making resale of the same to a customer of theirs, named Fred A. Eberhardt; that defendants, as an inducement for said purchase, falsely and fraudulently represented to plaintiff and his said copartner that said clothing was made by members of the “Journeymen Tailors Union of America” (hereinafter referred to as the Union) and was “union-made,” and that certain labels attached to said clothing were genuine labels of the Union and were lawfully upon said clothing; that plaintiff and his said copartner, because of and relying upon said representations, did then and there purchase said clothing of the defendants and paid the defendants therefor the said sum of $20; that at the time of said transaction the defendants well knew that plaintiff and his copartner purchased said clothing for resale in their business; that in truth and in fact the said clothing was not made by members of said Union but was made by nonunion laborers; that said Union had then adopted and was using a certain label for the purpose of designating and distinguishing clothing as having been made, produced and prepared by members of said Union, and had theretofore caused copies of said label to be filed with the Secretary of State of Illinois, in accordance with the statute in such case made and provided; that defendants in so selling said clothing did attach to the same, and did utter, counterfeits or imitations of said label of said Union, and did represent to said plaintiff that said label so attached was the genuine label of said Union, well knowing that the same was in fact a counterfeit or imitation thereof, and that said clothing was in fact not made, produced or prepared by said Union or any member thereof; that thereafter the plaintiff and his said copartner, in the course of their said business as retail merchants of clothing, and “believing said labels to be the genuine labels of said Union,” did sell said clothing so purchased as aforesaid to said Eberhardt, and did thereby utter and circulate said counterfeit or imitation of said label apparently contrary to the statute in such case made and provided, whereby plaintiff to all appearances incurred the penalties by statute in such case made and provided; that thereafter, because thereof, the grand jurors, chosen, selected and sworn in and for the county of Adams, State of Illinois (the same being the county where said city of Quincy is located and where said plaintiff and his copartner so sold and disposed of said clothing, on which said counterfeit labels were so attached), at the September term in the year 1900, did return an indictment against the plaintiff and his said copartner wherein and whereby they were charged with unlawfully, wilfully and knowingly selling goods, wares and merchandise, to which there was then and there attached and affixed an imitation of a certain genuiue label of said Union, which said genuine label had been theretofore adopted and was being used by said Union; that afterwards, to wit, on the same date, at, etc., there was issued out of said court upon said indictment, directed to the sheriff of said Adams county, a writ of capias for the apprehension of said plaintiff and his copartner, which was delivered to said sheriff; that afterwards said sheriff arrested the plaintiff, by virtue of said writ, and detained plaintiff in his custody for the period of one day, and that afterwards, on May 20, 1901, the State’s Attorney for gaid Adamg county entered a nolle pros., and thereupon plaintiff was discharged. The said first count alleges in conclusion, in substance, that by means df the premises the plaintiff, while he was so imprisoned and indicted, “not only suffered great pain of body and mind, but was also greatly exposed in his credit and circumstances, and was hindered and prevented from performing and transacting his necessary duties and business” and was obliged to expend the sum of $200 in supporting himself while so imprisoned and in obtaining his release from said imprisonment, and that by means of the premises he has been greatly injured, etc.
    The allegations of the second count, prior to the conclusion thereof, are substantially the same as in the first count, except that no mention is made of plaintiff’s indictment, arrest or imprisonment, or the entering of a nolle pros, on said indictment by said State’s Attorney of Adams county. The second count concludes, in substance, that by means of the committing of said grievances by said defendants the plaintiff “has been and is greatly injured in his good name, fame and credit, and brought into public scandal, infamy and disgrace, with and amongst all his neighbors and other good and worthy citizens,” insomuch that many of them, to whom the innocence and integrity of plaintiff in the premises were unknown, have, on account of the committing of said grievances by the defendants, suspected and believed, and still do suspect and believe, that plaintiff is a person guilty of dishonest and fraudulent practices, and to have acted dishonestly in his said business as aforesaid; and that many of said neighbors and citizens have from thence hitherto “wholly refused and still do refuse to deal or have any transaction, acquaintance or discourse with plaintiff in his said business, or otherwise, as they were before used and accustomed to have, and otherwise would have had”; and that, by means of the premises, “members of labor and trade unions,” in said city of Quincy, who respectively before the times of the committing of said grievances had been and were customers of and used to deal with plaintiff in his business, to the great profit and advantage of plaintiff, “have from thence hitherto wholly neglected and refused, and still do neglect and refuse, to continue as such customers, or to deal with the plaintiff”; and that by means of the premises plaintiff has been greatly injured, etc.
    On May 19,1906, the death of one of the defendants, Harry M. Marks, was suggested. On the same day the demurrer of the defendant, Simon L. Marks, to said amended declaration was overruled and defendant was given ten days to plead. The plaintiff was also given leave to file an “additional count” to his declaration instanter, which additional count was filed, and to which defendant was given ten days to plead. Within the ten days the defendant filed a plea of the general issue to the entire declaration.
    The allegations of said “additional count,” except the conclusion,' are substantially the same as those contained in the first count of said amended declaration. The count, however, contains the additional allegation that on June 5, 1900, the said Harry M. Marks and Simon L. Marks were engaged in the city of Chicago in the manufacture and sale at wholesale of clothing, under the firm name of H. M. Marks & Go., and in the conclusion of this count plaintiff claimed injuries substantially as claimed in both of the two counts of said amended declaration.
    It appears from the bill of exceptions, signed and sealed by the trial judge, that the cause came on for trial on December 15,1909, before a jury, at which time the attorneys for both parties were present, and that after one witness on behalf of the plaintiff had answered a few questions, the trial judge and said attorneys retired “into chambers where argument was had beyond the hearing of the jury—the jury being in the meantime excused until the following morning.” It is stated by counsel for the plaintiff in his printed brief and argument here filed that at this time “the court took the position that the damages sought were speculative and too remote and that the case should not go to the jury.” It is apparent from the bill of exceptions that after the court had reached this conclusion, someone suggested that plaintiff’s rights might be preserved and a record made up for a reviewing court by the presentation by plaintiff of written offers as to what plaintiff would prove by his witnesses and a ruling of the court thereon, and that this course of procedure was agreed to by the court and by the attorneys for both parties. The bill of exceptions discloses that on the morning of December 16,1909, in the presence of the court and jury, the attorney for plaintiff presented two written offers as to what he offered to prove by the plaintiff and by a witness named Carlquist; that said two offers were read; that the court “rejected” each and both of said offers to which rulings plaintiff excepted; that the attorney for defendant stated that he was willing that plaintiff should make the offers, but that to both of them and every part thereof he desired to object as being “incompetent, irrelevant and immaterial, not within the issue of the case, and not tending to prove the issues in the case, * * * and for the further reason that they are offered for the purpose of tending to prove an issue for the recovery of damages which are speculative and remote, and which said plaintiff is not entitled to recover under the issues in this case”; that thereupon the attorney for plaintiff suggested that, to save any possible question in the Appellate Court, the attorney for the defendant ought to say that the form of the testimony is not objected to; that thereupon the attorney for defendant stated that he was not objecting to the testimony, as contained in said two offers, as to form or as to it not being the best evidence; that thereupon the trial judge stated that when the bill of exceptions is written up “it may contain a recital that both counsel co-operated with the court in an endeavor to have this case decided on its merits, in an expeditious manner, and that no technical objections will be made by either side in a court of review, except such as effect the actual merits of the case, and that all questions relating to secondary evidence, or other technical objections to the form of evidence, are waived”; that to this statement of the court the attorneys for both plaintiff and defendant assented; that thereupon the court rejected all offers of evidence made by plaintiff “on the ground that they do not tend to establish a cause of action,” to which ruling plaintiff excepted; that thereupon the Court (addressing the jury) said: “'Since adjournment of yesterday, upon discussion of this ease among counsel with the court, the court decided as a matter of law that the plaintiff has no case, no cause of action against the defendant, and therefore instructs the jury to find a verdict in favor of the defendant”; and that thereupon the jury returned a verdict finding the defendant not guilty, and plaintiff’s motion for a new trial was overruled and plaintiff excepted, and the court entered judgment on the verdict and plaintiff excepted.
    William B. Ward and John J. Sonsteby, for plaintiff in error.
    Mayer, Meyer, Austrian & Platt, for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.

In the year 1891 the General Assembly of this State passed an act entitled “An Act to protect associations, unions of workingmen and persons in their labels, trade-marks and forms of advertising. ’ ’ That act was amended in some particulars in 1895,. and as amended was in force in the year 1900. Sections 1 and 2 of said act as amended (J. & A. ¶¶ 11391, 11392) are in part as follows:

“1. Whenever any person or any association or union of workingmen has heretofore adopted or used, or shall hereafter adopt or use any label, trade-mark, * * * or form of advertisement for the purpose of designating, making known or distinguishing any goods, * * * or other product of labor as having been made, manufactured, * * * or put on sale by such person or association or union of workingmen, or by a member or members of such association or union, it shall be unlawful to counterfeit or imitate such label, trade-mark, * * * or form of advertisement, or to use, sell, offer for sale, or in any way utter or circulate any counterfeit or imitation of any such labels, trade-mark, * * * or form of advertisement.

2. Whoever counterfeits or imitates any such label, trade-mark, * * * or form of advertisement, or sells, offers for sale or in any way utters or circulates any counterfeit or imitation of any such label, trademark, * * * or form of advertisement, or knowingly uses any such counterfeit or imitation, or knowingly sells or disposes of * * * any goods * * * or other product of labor to which any such counterfeit or imitation is attached or affixed, * * * shall be punished by a fine of not less than one hundred (100) dollars, nor more than two hundred (200) dollars, or by imprisonment for not less than three (3) months nor more than one (1) year, or by both such fine and imprisonment.”

It appears from the testimony offered by the plaintiff (presented by agreement in the form of written offers as above mentioned in the foregoing statement) that prior to the year 1900 the “Journeymen Tailors’ Union of America,” a voluntary unincorporated association of thousands of experienced workmen in the United States and Canada, employed in making to order clothing for men, had adopted and registered a trade-mark or label, since which adoption and registration the members of the Union sewed said label into clothing made by members, and in said year said label became generally known and had a reputation in Illinois and elsewhere as evidencing dependable and sanitary clothing; that said Union permitted, by contract, the use of said label by certain manufacturers of clothing, but that the firm of H. M. Marks & Co., manufacturers of clothing in Chicago and of which firm the defendant, Simon L. Marks, was a member, did not in said year have such a contract with said Union and was not entitled to use said label, and did not then or at any other time employ members of said Union; that plaintiff was in the retail clothing business at Quincy, Illinois, and in said year one Eberhardt ordered a coat from plaintiff to be made to measure, demanding that the same should be made by some member of said Union and that to such coat the label of said Union should be attached; that prior to this time the defendant had represented to plaintiff that he conducted a union shop, employed members of said Union and was authorized to use and did use said label furnished him by said Union; that plaintiff ordered said coat from the defendant informing the latter of the said demands by said Eberhardt and that shortly thereafter defendant delivered said coat to plaintiff, said coat bearing what purported to be the genuine label of said Union; that plaintiff sold said coat with said label attached to said Eberhardt, believing that said label was a genuine label, and said Eberhardt accepted said coat from plaintiff, paying the latter a price for the same in excess of the amount paid by plaintiff to defendant therefor; that shortly thereafter certain members of said Union, at Quincy, Illinois, pronounced said label a counterfeit, and said label was in fact not a genuine label of said Union, but was a counterfeit thereof; that at this time the city of Quincy had a population of about 36,000, and in said city there were then about forty local unions of various international trades unions, affiliated with the American Federation of Labor, with a membership of over 2,000 members; that information regarding the use or misuse or counterfeiting of union labels was conveyed to the members of the various unions and their friends and families; that said city was then known as a strong union town and a major portion of the skilled workmen in said city were members of the various trades unions of their respective trades; that plaintiff then had a large number of customers among said skilled workmen; that shortly after the delivery of said coat by plaintiff to said Eberhardt and the discovery that said label on said coat was a counterfeit, plaintiff was indicted by the grand jury of Adams county, Illinois, being the same county in which said city of Quincy is located, said indictment being founded upon section 2 of the statute above referred to; that plaintiff was taken into custody by the sheriff, employed counsel, and that in the following year a nolle pros, was entered by the State’s Attorney of said county; that beginning with the time of the delivery of said coat and the discovery that said label was a counterfeit, the business of plaintiff began to fall off, and large numbers of customers that had theretofore traded with plaintiff ceased to do so, by reason of the use of said counterfeit label so furnished by defendant to plaintiff, and plaintiff’s business gradually decreased until it ceased to be profitable, and plaintiff was compelled to and did close out his business and was unable to pay his creditors in full; that plaintiff sought employment but was unable to make a living for himself and family; that shortly thereafter his health began to fail and for five years he was in ill health; and that during said time he came to Chicago and consulted various physicians, submitted to a surgical operation for stomach disorder, was treated for nervous prostration, and was finally restored to health.

The plaintiff claimed substantially in his declaration, and maintained at the trial, that on account of the foregoing facts he had been greatly injured and damaged in that (1) while so indicted and imprisoned he suffered great pain of body and mind, was greatly exposed in his credit and circumstances, and was prevented from transacting his business; and in that (2) he suffered in his good name, fame and credit and was brought into public scandal, infamy and disgrace amongst his neighbors and fellow-citizens; and in that (3) he suffered a loss of customers and. of profits in his business as a retail clothing merchant, failed, and was forced to retire from that business. At the trial the defendant contended, in substance, that said testimony did not tend to prove the issues as made by the pleadings, that the damages shown, if any, were speculative and too remote, and that plaintiff was not entitled to recover any sum as damages. The trial court agreed with this contention and ruled that the evidence offered by plaintiff “does not tend to establish a cause of action” and that “as a matter of law the plaintiff has no case,” and instructed the jury to return a verdict finding the defendant not guilty, which they did, and judgment was entered upon the verdict. Counsel for plaintiff here contend that the court erred in so instructing the jury and in entering the judgment.

While we think that the alleged loss of customers and of profits in plaintiff’s business was not shown or offered to be shown by plaintiff with sufficient certainty and definiteness (13 Cyc. 37, 49; Landis v. Wolf, 206 Ill. 392, 399; Chapman v. Kirby, 49 Ill. 211, 219; Mugge v. Erkman, 161 Ill. App. 180, 184), nevertheless we are of the opinion that the trial court erred in instructing the jury to find the defendant not guilty. The testimony disclosed that shortly after the delivery of the coat by defendant to plaintiff and its delivery in turn to Eberhardt by plaintiff, said coat bearing the counterfeit label which plaintiff believed to be genuine, it was. discovered that said label was a counterfeit and plaintiff was indicted by the grand jurors of Adams county, arrested, taken into the custody of the sheriff, and in the following year a nolle pros, was entered. Prior to the time plaintiff ordered the coat of the defendant, the latter had falsely represented that he employed members of said Union in his shop and was entitled to use the genuine label of said Union, and when defendant delivered the coat to plaintiff, bearing the counterfeit label, he not only deceived plaintiff bpt also committed an act declared unlawful by the statute, for which act he might suffer a fine or imprisonment or both. The defendant knew that plaintiff had purchased said coat of him for the purpose of making a resale of the same to a third party. Plaintiff resold the coat to Eberhardt and was indicted and taken into custody, charged with selling an article of merchandise bearing a counterfeit label. By this indictment, arrest, etc., plaintiff was injured. Was this the natural consequence of the wrongful act of the defendant 1 We think that under the testimony presented by plaintiff this was a question for the jury to pass upon. In Chapman v. Kirby, 49 Ill. 211, 218, it is said “Appellants having committed the wrong, must be held liable for all losses that flow from it. And if the loss on these various articles was the necessary and proximate result of the act,—and of that the jury must judge from the evidence,—they must be held liable.” In 21 Encyc. of Law (2nd Ed.) page 509, it is said: “And the question whether from the act or omission complained of the likelihood of injurious consequences should reasonably have been foreseen is also for the jury.” See also Galveston, H. & S. A. Ry. Co. v. Stovall, 3 Tex. App. Civ. Cas. 307, 309; Seckinger v. Philibert Mfg. Co., 129 Mo. 590, 603; 13 Cyc. 27; Swain v. Schieffelin, 134 N. Y. 471; Seith v. Commonwealth Electric Co., 241 Ill. 252, 260; Ford v. Hine Bros. Co., 237 Ill. 463. And we think that, had the case been submitted to the jury and the jury had found that plaintiff’s indictment, arrest, etc., was the consequence of defendant’s wrongful act, there was sufficient evidence of damage to plaintiff to warrant a verdict in his favor for such an amount as would fairly compensate him for the injury so sustained.

Counsel for defendant here urge that the jury were properly instructed to find a verdict for the defendant, because there is a variance between the declaration and plaintiff’s case as made in said written offers. In view of the fact that this alleged variance was not pointed ont or objected to in the trial court, and in view of the agreement between counsel as to technical objections, etc., as above outlined in the statement of the case, the contention is without merit in this court.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Emil A. Oettinger, Defendant in Error, v. J. Levit, Plaintiff in Error.
    Gen. No. 19,118.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Motion by J. Levit to vacate a judgment by confession entered against him in favor of Emil' A. Oettinger. The judgment was for one hundred and thirty-five dollars for commissions for procuring a loan, and twenty-five dollars attorney’s fees. To reverse an order denying the motion, Levit brings error.
    Alexander Wolf and Edward A. Hochbaum, for plaintiff in error; Ode L. Rankin, of counsel.
    Frank L. DeLay, for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 56 -—when affidavits to vacate judgment by confession show prima facie defense. Affidavits on motion to vacate a judgment by confession under a warrant of attorney contained in an application to a real estate broker for a loan, held to show prima facie sufficient cause for opening the judgment where they contained averments that the broker had no license, that the defendant’s signature to the warrant of attorney was obtained by fraudulent representations, and that the loan applied for was never made nor a tender thereof made to the defendant in proper time.

2. Judgment, § 66 —ground for vacating judgment by confession. Where it appears by affidavit that a note, upon which a judgment by confession was entered, was executed in the belief that some other document, not a judgment note, was actually being signed, leave to plead should be allowed upon due application.

3. Judgment, § 78 —when duty of court to grant motion to open judgment by confession. On motion to set aside a judgment by confession where the affidavits in support of the motion show prima facie a good defense, it is the duty of the court to permit an issue to be formed and the debtor to present his defense, leaving the judgment to stand in the meantime as security.

4. Judgment, § 81 —when improper to consider counter-evidence on motion to open a judgment by confession. On motion to open a judgment entered by confession, it is improper for the court to consider, over objection, counter-affidavits controverting the defense to the judgment on the merits. The rule applies where the motion is supported by evidence heard in open court instead of by affidavit.

5. Judgment, § 88 —effect of order denying motion to vacate judgment by confession after hearing on merits. On motion made in the Municipal Court in a fourth class case to vacate a judgment by confession, counter-evidence to the case made by the defendant was heard by the court without objection and the hearing was treated by both parties as if a formal order had been entered opening up the judgment and a full hearing on the merits was actually had. Held that the fact that the trial court failed to enter an order opening the judgment and at the conclusion of the hearing denied the motion to vacate the judgment did not warrant a reversal of the order denying the motion and a remanding of the cause for a trial on the merits, and the order was affirmed.

6. Bkokebs, § 2 —when license issued to broker in his trade¡ name sufficient. A license issued to a real estate broker in a trade name under which the broker did business, held not to defeat his right to commissions, it appearing That he paid for the license, that no one but himself did business under it, and that issuance in his individual name was thereafter refused.

7. Brokers, § 52 —when principal liable for commissions for procuring loan. A party employing real estate agents to procure a loan is liable for commissions where he refuses to take the loan and to sign the necessary papers therefor after the agent has made arrangements with third parties for the loan.


text:
    Amanda Jones, Appellee, v. Anton Jones, Appellant.
    Gen No. 19,129.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Bill filed by Amanda Jones against Anton Jones for separate maintenance, alleging that complainant was compelled to leave the defendant because of Ms inhuman treatment, habitual drunkenness and adultery, and praying for the custody of a child, alimony and solicitor’s fees. Defendant filed an answer denying the material averment of the bill and further denying that she was a proper person to have the care and custody of the child, and also filed a cross-bill alleging, inter alia, that complainant wilfully deserted him without just cause and praying for an absolute divorce and the custody of said child. The chancellor found the issues for complainant and entered a decree for separate maintenance, giving her the care and custody of the child, and requiring defendant to pay for her support and the support of said child ten dollars per week, and also a sum of fifty dollars for solicitor’,s fees. To reverse the decree, defendant appeals.

      Burns & Traub, for appellant.
    George W. Rugby, for appellee.
    Abstract of the Decision.
    1. Husband and wife, § 267

      —when finding of chancellor in separate maintenance proceeding will not be disturbed. A finding of a chancellor in a suit for separate maintenance, where the witnesses have been orally examined in open court, will not be disturbed on appeal unless the evidence clearly preponderates against it.
    2. Appeal and ebkob, § 1466

      —when admission in evidence of affidavit of doctor not reversible error. On bill for separate maintenance, admission in evidence of an affidavit of a doctor, over objection of counsel for defendant, held not reversible error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Ferdinand C. Niemeyer, Defendant in Error, v. Gust Berg and Joseph Brabec, Plaintiffs in Error.
    Gen. No. 19,185.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Action in tort by Ferdinand C. Niemeyer against Gust Berg and Joseph Brabec in the Municipal Court of Chicago. Plaintiff’s statement of claim alleged that the defendants pretended to assign to plaintiff a certain lease then existing between the defendants as lessor and lessee of certain premises; that the lessor, Berg, represented that it would be necessary for plaintiff to deposit one hundred and fifty dollars as security for the payment of the last two months’ rent under said lease before he would accept plaintiff as assignee, knowing at the time that the defendant Brabec had previously assigned said lease to another party, and that by reason of the false and fraudulent representations plaintiff paid Brabec and that said lease had never been assigned to plaintiff. The court found 6 4 the defendant guilty in the manner and form as charged in the plaintiff’s statement of claim” and assessed plaintiff’s damages 4 4at the sum of one hundred and fifty dollars in tort,” and the court adjudged that plaintiff have judgment on the finding, it not appearing that at any time the cause was dismissed as to either one of the defendants. To reverse the judgment, defendants bring error.
    Winston, Payne, Strawn & Shaw, for plaintiffs in error; John C. Slade, of counsel.
    William Reeda, for defendant in error; Park Phipps, of counsel.
    Abstract of the Decision.
    1. Munichpad Court of Chicago, § 13a

      —when proof limited to claim as made. In an action of the fourth class in the Municipal court a party is limited in his evidence to his claim as made, or as amended.
    2. Fraud, § 115

      —when judgment for plaintiff not sustained 6y proof of fraudulent representations. In an action of the fourth class in the Municipal Court, where the gist of plaintiff’s claim was that because of false and fraudulent representations plaintiff was induced to part with a certain sum for which he never received any consideration, by reason of which he was damaged, held that a judgment for plaintiff could not be sustained for the reason that there was no sufficient proof of the alleged false and fraudulent representations.

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

   Mr. Justice Gridley

delivered the opinion of the court.

3. Judgment, § 187 —when judgment against “the defendant” in action against two defendants cannot he sustained. In an action of tort against two defendants, tried by the court without a jury, where the finding of the court as recorded is against “the defendant,” without naming him, a judgment on such finding cannot be sustained, since it is uncertain which one of the defendants was found guilty and against which one the judgment was rendered.


text:
    Howard N. Wagg, Plaintiff in Error, v. Hobert A. Stacy, Defendant in Error.
    Gen. No. 19,215.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBut, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Action by Howard N. Wagg against Hobert A. Stacy and Mrs. Hobert A. Stacy, Ms wife, to recover an amount claimed to be due on two promissory notes, a copy of one of which notes is as follows:
    “$300. Chicago, June 8, 1896.
    On or before Oct. 15, 1896, after date we promise to pay to the order of Howard N. Wagg three hundred dollars, at CMcago. Value received with interest at seven per cent, per annum.
    C. P. STACY,
    HOBEBT A. STACY,
    FBANCES H. STACY.”
    The other note was of the same date, for the same amount and similarly signed. On the back of each note appeared the following: “August 21, 1902. Beceived on the within note twenty-five dollars ($25).” The defense of Mrs. Stacy was that she was not a comaker of either of the notes and the suit was dismissed as to her. The defense of Hobert A. Stacy was that the cause of action was barred by the statute of limitations. The trial court found the issues against the plaintiff and entered judgment against him for costs. To reverse the judgment, plaintiff brings error.
    Charles G. Bose, for plaintiff in error.
    Sims, Welch & Godman, for defendant in error; Elwood G. Godman, of counsel.
    Abstract of the Decision.
    Limitation of actions, § 90

      —when part payment on note by comalcer does not toll the statute of limitations. In an action against one of the makers on a promisory note where the statute of limitations was interposed as a defense under section 16, ch. 83, Hurd’s R. S„ J. & A. f 7211, and plaintiff contended that a sum paid on the notes by a comaker with the defendant was subsequently acquiesced in and ratified by the defendant and that the statute started to run anew from that date, held that a judgment for defendant was not contrary to the evidence or to the law.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Joseph Studer, Appellee, v. Chicago, Lake Shore & South Bend Railway Company, Appellant.
    Gen. No. 18,982.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 23, 1914.
    Rehearing denied May 7, 1914.
    Statement of the Case.
    Action by Joseph Studer against Chicago, Lake Shore & South Bend Bailway Company to recover for injuries sustained at a certain street crossing in Indiana Harbor, Indiana, resulting from being struck by defendant’s electric cars while plaintiff was attempting to drive across defendant’s tracks. From a judgment in favor of plaintiff for $15,000, defendant appeals.
    F. J. Lewis Meyer and M. C. Zacharias, for appellant; Samuel K. Markman, of counsel.
    George D. Wellington and Rockhold & Busch, for appellee; Francis X. Busch, of counsel.
    Abstract of the Decision.
    1. Railroads, § 733

      —when recovery for injuries resulting from collision at crossing sustained hy the evidence. In an action against a railway company for injuries sustained by plaintiff in a collision while attempting to drive across defendant’s tracks at a street intersection, a verdict for plaintiff held sustained by the evidence.
    2. Railroads, § 772

      —when refusal of requested instructions proper. In an action against a railroad company for injuries resulting from a collision while plaintiff was attempting to drive across the tracks of defendant at a street intersection a requested instruction which was argumentative and stated, without qualification, that a man is presumed to have seen whatever was within the range of his vision and to have heard whatever was in the range of his hearing, held properly refused.
    3. Appeal and error, § 1265

      —when law of another State presumed the same as in this State. Where there is no evidence in the bill of exceptions to show that the law of another State applicable to certain instructions is different than the law in this State, it will be presumed that it is the same as the law of this State.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Anna Selinski, Appellee, v. John E. Holland, Appellant.
    Gen. No. 18,988.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 23, 1914.
    Rehearing denied May 7, 1914.
    Statement of the Case.
    Action by Anna Selinski against John E. Holland to recover damages for. personal injuries alleged to have been received by plaintiff in a collision with defendant’s automobile at or near the intersection of Washington boulevard and Kedzie avenue in Chicago. The jury returned a verdict finding defendant guilty and assessing plaintiff’s damages at six hundred dollars. From a judgment entered upon the verdict, defendant appeals.
    John A. Bloomingston, for appellant.
    Vincent G. Gallagher and Ernest Messner, for appellee.
    Abstract of the Decision.
    1. Automobiles and garages, § 3

      —when finding as to con-tributary negligence of pedestrian not sustained by the evidence. In an action for injuries received by plaintiff in a collision with defendant’s automobile at a street intersection, held that a finding of the jury that plaintiff was not guilty of contributory negligence was contrary to the manifest weight of the evidence, and that the trial court erred in not granting defendant a new trial.
    2. Appeal and error, § 1810

      —when Appellate Court will not reverse with a finding of facts. Appellate Court will not reverse a judgment with a finding of facts where it is not clear to the court that there can he no recovery in the case which it would permit to stand, and it could not say a recovery would he merely a perversion of justice.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    William L. O’Connell et al., Defendants in Error, v. Catherine S. Fay et al., Plaintiffs in Error.
    Gen. No. 19,146.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed April 23, 1914.
    Rehearing denied May 7, 1914.
    Statement of the Case.
    Bill of interpleader by John B. Thompson, county treasurer of Cook county, making Nicholas Streit, Frederick H. Streit, Adam Streit, Adam J. Kasper, Catherine S. Fay, Thomas Fay, John Esten Cooke, H. Brent Cooke, John Esten Cooke, Jr., Elizabeth B. Cooke,' Pauline M. Cooke, H.' Brent Cooke, Jr., Sallie W". Cooke, Lydia W. Cooke Wickliffe and City of Chicago parties to the proceeding to determine the ownership of a certain fund in the hands of the county treasurer. The fund in question arose out of a condemnation proceeding instituted by the South Park Commissioners to condemn two lots in a certain part of Chicago, in which the jury awarded a verdict fixing the value of the lots at $3,226.25, and the value of the improvements on the lots at $2,690. The Park Commissioners paid the total award into the hands of the county treasurer of Cook county, and upon a dispute arising as to the ownership of the fund the bill was filed. Subsequently, William L. O’Connell became successor of John B. Thompson to the office of county treasurer. Nicholas Streit and Frederick H. Streit were defaulted for failure to file answers. The court found and decreed the equities as to the sum of $2,690 to be with Adam J. Kasper at the time of the condemnation suit as owner of the buildings and improvements, that Catherine S. Fay was entitled to receive out of the sum of $3,226.25 the value of certain life estates, and that the Cookes were each entitled to receive one-sixth of the remainder of the sum of $3,226.-25 after deducting the interest of said Catherine S. Fay. Catherine S. Fay and the Cookes appeal to reverse that part of the decree awarding $2,690 to defendant Kaspar.
    Charles S. Harmon and Enoch J. Price, for plaintiffs in error.
    Adler & Lederer, for defendants in error.
    Abstract of the Decision.
    1. Fixtures, § 19

      —when tenant cannot claim trade fixtures as against owner of the land. Trade fixtures become annexed to the real estate and the tenant may remove them during his term, but if he fails to do so he cannot claim them against the owner of the land.
    2. Fixtures, § 13

      —when assignment Toy tenant of trade fixtures does not vest assignee ^oith title. On interpleader to determine the ownership of different claimants to „a fund awarded in a condemnation proceeding, where one of the defendants claimed he was entitled to the sum awarded for the building and improvements by being owner of such improvements as trade fixtures under a chattel mortgage and a bill of sale from a tenant of the premises, held that a decree awarding him such sum could not be sustained, it appearing that the chattel mortgage was given by the tenant after he had abandoned the premises.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Baker

text:
    F. P. Smith, trading as F. P. Smith Wire & Iron Works, Defendant in Error, v. Bankers Engineering Company, Plaintiff in Error.
    Gen. No. 19,035.
    1. Payment, § 5

      —when taking of check is conditional payment. The taking of a post-dated check of a third party for an existing debt, held prima facie a conditional payment, and payment of the indebtedness only when paid.
    2. Payment, § 38

      —when defendant on review cannot complain of plaintiff’s possession of check. On writ of error to review a judgment allowing recovery upon an indebtedness for which a check was given, held that defendant could not complain that plaintiff was permitted to retain possession of the check, where at the trial counsel for plaintiff put the check in evidence, and a copy thereof, with the consent of defendant, was substituted for the original in the bill of exceptions.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Pollock, Sullivan & Livingston, for plaintiff in error.
    Breding & Gesas, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

The defendant corporation was indebted to the plaintiff, F. P. Smith, October 23, 1910, in the sum of $547.-20, for goods sold and delivered. On that day the defendant procured from one Fairbanks a check for $301.-50 dated November 23, 1910, and payable to the order of plaintiff. Fairbanks refused to pay the check, claiming that he had discovered an error in his account with the defendant. January 30, 1911, the defendant paid plaintiff the remainder of the sum due him after deducting the amount of the Fairbanks’ check. In an action for goods sold and delivered, plaintiff recovered a judgment for $301.50, to reverse which the defendant prosecutes this writ of error.

We think that the case is within the rule that the taking of a note or post-dated check of a third party for an existing debt is treated prima, facie as a conditional payment and is payment of such indebtedness only when paid. Heartt v. Rhodes, 66 Ill. 356.

The contention that the plaintiff cannot insist that the check was not in payment of the amount due him from defendant because plaintiff still has the check in his possession is without merit. At the trial counsel for plaintiff put the check in evidence. This placed the check under the control of the court and it was the right of the defendant to have the original check made a part of the bill of exceptions. We find in the bill of exceptions a copy of the check, but this could have been substituted for the original only by consent of the defendant. Defendant did not ask that the check be impounded, and we think that in view of his consent that a copy be substituted for the original in the bill of exceptions, he cannot be heard to complain that the plaintiff was permitted to retain possession of the check.

We think that the plaintiff was entitled to recover and the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois for use of Cook County ex rel., A. C. Wegner, Plaintiff in Error, v. Hartford Life Insurance Company, Defendant in Error. Same, Plaintiff in Error, v. Harry B. Johnston, Defendant in Error. Same, Plaintiff in Error, v. Union Mutual Life Insurance Company, Defendant in Error. Same, Plaintiff in Error, v. Illinois Life Insurance Company, Defendant in Error. Same, Plaintiff in Error, v. P. J. Kane, Defendant in Error.
    Gen. Nos. 19,062, 19,063.
    Gen. Nos. 19,064-19,066.
    Gen. No. 19,067.
    Gen. No. 19,068.
    Gen. No. 19,069.
    Insurance, § 17

      —who may prosecute action for penalty imposed for discrimination between insurants. Under the statute (J. & A. ¶¶ 6491 et seq.) prohibiting life insurance companies from discriminating between insurants and providing a penalty for a violation to be recovered in the name of the People by the State’s Attorney, held that no other person than the State’s Attorney may prosecute the action and that an informer of a violation of the statute has no authority to bring or control the suit.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in this court at the March term, 1913.
    Judgments affirmed.
    Opinion filed May 4, 1914.

      Frank H. Culver, for plaintiff in error.
    Gann, Peaks & Townley, for defendants in error Hartford Life Insurance Company and Harry B. Johnston.
    Wheelock, Shattuck & Newey, for defendant in error Union Mutual Life Insurance Company.
    Henry W. Price and Hugh T. Martin, for defendants in error Illinois Life Insurance Company and P. J. Kane.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff in error brought eight actions in the Municipal Court in the name of the People for his use on his relation as an informer, each against one of the defendants in error. The actions were brought under the statute relating to the granting of rebates by insurance companies, which provides that:

“No life insurance company * * * shall make or permit any distinction or discrimination between insurants of the same class and equal expectation of life, in its established rates * * * or promise the same to any person as an inducement to insure, or promise to give any advantage or valuable consideration not expressed or specified in the policy.
Any insurance company, which shall transact its business in this State in violation of the provisions of this act, shall, with the agent or agents so unlawfully transacting such business, jointly and severally, be subject to a penalty of not less than $500 or more than $1,000. to be sued for and recovered in the name of the People of the State of Illinois, by the State’s Attorney of the county in which the offense is committed. One-half of said penalty, when recovered, shall be paid into the treasury of the county and the other half to the informer of such violation * * * ” (J. & A. ¶¶ 6491, 6493.)

Each praecipe and statement of claim is signed by Frank H. Culver, “attorney for plaintiff.” Each defendant moved that the suit against such defendant be dismissed on the ground that the suit was not prosecuted by the State’s Attorney of the county in which the offense was committed, and on the further ground that Wegner, the informer, had no authority to bring suit either in the name of the People or on his own behalf. The motion was granted in each ease .and the suit dismissed at the cost of the plaintiff, and to review such judgment of dismissal these writs of error are prosecuted.

The language of the statute is plain and unambiguous. The penalty provided by the statute is, “to be sued for and recovered in the name of the People of the State of Illinois by the State’s Attorney of the county in which the offense is committed.” The language neither requires nor permits of construction, and we are of opinion that no other person than the State’s Attorney may bring and prosecute an action to recover the penalty prescribed by the section of the statute above quoted.

In the Railway Act of 1849, section 36 imposed a penalty of $50 for failure to provide a bell or whistle and to ring the bell or blow the whistle at crossings, to be paid by the railroad company, one-half thereof to go to the informer and one-half to the State; and section 42 provided that: “All penalties under this Act may be sued for by the district attorney and in the name of the People of the State of Illinois.” In Chicago & A. R. Co. v. Howard, 38 Ill. 414, it was said: “If the forty-second section had contained the only provision for bringing suit then it would have to be brought by the State’s Attorney, and in the name of the People. But under the 38th section a common informer may sue, * * * in his own name, as well as on behalf of the People.”

An action under the statute above quoted is clearly not a qui tam action, for it is to be brought in the name of the People. The provision that one moiety shall be paid into the treasury of the county and the other to the informer only applies to the penalty when recovered, but does not give the informer the original power to sue it. Lawrence, J. in Fleming v. Bailey, 5 East 313. The statute gives to the informer no authority to bring or control the suit. It only provides that one-half of the penalty when recovered shall be paid to him. His rights do not arise until a penalty has been recovered. Wheeler v. Goulding, 79 Mass. 539.

The actions were properly dismissed and the judgment in each case is affirmed.

Judgments affirmed.


text:
    City of Chicago, Defendant in Error, v. Victor Jacobs, Plaintiff in Error.
    Gen. No. 19,101.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Complaint filed by the City of Chicago in the Municipal Court charging Victor Jacobs with disorderly conduct in violation of section 2012 of the Municipal Code of Chicago. Defendant waived a trial by jury, was tried by the court, found guilty and a fine of two hundred dollars assessed against him. To reverse the judgment, defendant prosecutes error.
    B. W. Anderson, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

      Abstract of the Decision.
    Disorderly conduct, § 1

      —when evidence sufficient to sustain conviction. On complaint filed in the Municipal Court charging defendant with disorderly conduct, a conviction held sutained by the evidence.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Anna Farrell, Defendant in Error, v. William J. Farrell et al., Plaintiffs in Error.
    Gen. No. 19,154.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Pbindeville, Judge, presiding.
    Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Action by Anna Farrell against William J. Farrell, Mrs. Mary Farrell, Miss Mary Farrell and Annie Gallagher in replevin to recover possession of certain furniture. The bailiff was unable to obtain possession of the goods, and thereafter the defendants entered their appearance and the court gave leave to plaintiff to file a statement of claim in trover. No such statement was filed, but the parties treated the action as one of trover. The jury found defendants guilty and assessed plaintiff’s damages at three hundred and fifty dollars. To reverse a judgment entered on the verdict, defendants prosecute error.
    Fred A. Rathje and Charles E. Loy, for plaintiffs in error.

      Litzinger, McGurn & Reid, for defendant in error; Leonard C. Reid, of counsel.
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 26

      —sufficiency of transcript. Statements in transcript of the record made by the clerk of the Municipal Court held conflicting and attention called thereto that greater care may be observed by the clerk of that court. The transcript states that “On the 2nd day of November, A. D. 1912, a certain affidavit for replevin was filed * * * in words and figures following, to wit.” Then follows an affidavit purporting to have been sworn to November 18, 1912, before one of plaintiff’s attorneys. The transcript then states that “On the 8th day of November, 1912, a certain replevin writ was issued out of the office of the clerk of said Court.” Then follows a replevin writ dated the 2nd day of November, 1912, on which a return of the bailiff is indorsed, stating that the writ was received November 2, read to one of the defendants November 4 and returned November 8, 1912.
    2. Trover and conversion, § 39

      —when evidence insufficient to sustain judgment against joint defendants. In an action of trover against several defendants to recover for certain furniture, held that a judgment against the defendants was erroneous as to one of the defendants and must be reversed as to all, there being no evidence to show that such defendant had possession of any of the furniture in question at the time the demand was made or at any other time, nor that she ever claimed to he entitled to possession of or to have any right in the property.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Fifth Avenue Library Society, Defendant in Error, v. J. A. Cavanaugh, Plaintiif in Error.
    Gen. No. 19,180.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Action by Fifth Avenue Library Society, a corporation, against Dr. J. A. Cavanaugh to recover an amount due on a written contract for the purchase of books. To reverse a judgment in favor of plaintiff, defendant brings error.
    Benjamin F. J. Odell, for plaintiff in error.
    Bell & Cross, for defendant in error.
    Abstract of the Decision.
    1. Assignments, § 30

      —who may sue when demand arising under a contract is assigned. Where a claim for a sum due on a written contract for the purchase of books has been assigned, an action may be maintained on such claim either by the original party or by the assignee.
    2. Depositions, § 40

      —when objections to answers must be made. Where an objection to an answer to an interrogatory in a deposition could have been obviated by issuing a new commission and re-examining the witnesses, such objection must be made by motion to suppress before the trial, and it is too late to object to the testimony at the trial.
    3. Sales, § 328

      —questions of fact. In an action to recover a sum due on a written contract for the purchase of books, the question whether the books delivered corresponded with the sample shown held to be a question of fact on which the finding of the court on the evidence was conclusive.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Howard S. Gemmill, Administrator, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    Gen. No. 19,231.
    1. Carriers, § 324

      —when railway mail cleric not a passenger. In an action against a railroad company for the wrongful death of a railway mail clerk, where the deceased was killed by being crushed between the mail car and a concrete abutment at the side of the track when he attempted to hoard the car while it was being switched at the depot grounds, held that there was no evidence to show that deceased was a passenger on defendant’s car and that a direction of a verdict for defendant was proper.
    2. Carriers, § 324

      —rule as to railway mail clerics becoming passengers. The rule as to a railway mail clerk becoming a passenger on a car, where his duty requires him to work, is the same as that applicable to a person who intends to become a passenger on a railway train.
    Error to the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement by the Court. This is an appeal by the plaintiff, the administrator of Claude S. Graham, from a judgment on a directed verdict for the defendant in an action for wrongfully causing the death of Graham, a railway mail clerk. His “run” was from Chicago to Dubuque over the road of the defendant, and he and the other mail clerks who worked with him in the same car ran six days and then laid off. Their car reached Chicago in the morning and went out at 2:30 the following morning, but the clerks began work in the car about 7:30 p. m. Their car was usually at that time on a track about fifty feet east of the baggage room, which was south of the south end of the passenger station, and while it was there the mail clerks usually got onto it. The car had neither end platforms nor end doors, but had two doors on each side. On each side of each door was a handle and under each door was an iron stirrup, and the clerks ordinarily got into the car by taking hold of the handles and putting a foot in the stirrup. The defendant usually about 10 p. m. moved the car from the place where it had been during the evening to a point north of the passenger station, from which it was switched back south of the station onto a track next to that on which it was first placed, where it remained until the train was made up to go out. There was evidence tending to show that it was the custom of the mail clerks to get on a car at any place where it was standing, but none to show that any clerk ever got onto a car while it was moving.
    On the day of the accident the deceased was at his home in Freeport and through missing a train did not reach Chicago until 10 p. m. Only one witness saw deceased from the time of his arrival in Chicago until after he was injured. Council, a mail clerk on the same car, hearing that he had been hurt, went to the baggage room and there found him. The witness who saw him was ITewins, a mail clerk, who testified that about ten o’clock the car was moving north and deceased threw his grip into the north or front door on the east side of the car; that the next thing the witness knew or heard of him was when he heard some one ask for Graham. This, as appears from the testimony of Council, was not until after Graham had been taken into the baggage room. There was a concrete abutment five feet high on the east side of the track on which the car was moving. The distance between the side of the car and the abutment was about six inches. Graham was severely injured and died from such injuries in August, 1909.
    The declaration consists of three counts. The first avers that through the negligence of the defendant the deceased was caught between the car and a certain obstruction standing close to the track and injured, etc. The second avers that he was injured through the negligence of the defendant in maintaining an obstruction near to the track. The third avers that deceased was injured through the negligence of the defendant in providing a step to the car which was unsafe because it was smooth and slippery.
    Earl J. Walker, for plaintiff in error.
    Calhoun, Lyford & Sheean, for defendant in error; John G. Drennan, of counsel.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

As to the third count it is sufficient to say that there is no evidence tending to show that the deceased stepped on the step.

While the evidence does not clearly show how the deceased came to be injured, we think that from it the jury might properly find that he was injured by being caught between the mail car and the abutment.

In order to recover it was necessary to prove facts from which the jury might properly find that the deceased was a passenger on defendant’s car when injured. The rule as to a railway mail clerk becoming a passenger on the car, where his duty requires him to work, is the same as that applicable to a person who intends to become a passenger on a railway train. The relation of carrier and passenger is contractual, and to make such contract the assent of both parties is necessary. If a person intending to become a passenger goes to the place provided for passengers to take a train, the company is bound to accept him as a passenger and its assent to the contract may be implied. But such assent cannot be implied and he does not become a passenger until he places himself in the care of the company as a passenger. If on his way to the station he should be injured in crossing the track of the defendant outside of the station grounds by a car of the defendant, it could not be held that the relation of carrier and passenger existed at the time of snch injury, for in such case the injury would occur before lie had placed himself in the care of the defendant as a passenger, and before the defendant had expressly or impliedly accepted or received him as such.

In this case, if the deceased had gone to the,car with the intention of going to work while it was standing at the place where mail clerks usually got onto it, or perhaps if he had gone to the car to get onto it at any place where he found it standing, the defendant would have been bound to receive and accept him and he would have been entitled to the rights of a passenger and the defendant charged with the duty to him of a carrier to a passenger. But the deceased attempted to get on the car while it was moving and after it had gone a considerable distance from the place where it stood from seven to ten o’clock every night and where the mail clerks usually got onto it. The law will not imply a contract by a railway company to assume the duty of a carrier to a passenger from such facts as are disclosed by the record in this case. Farley v. Cincinnati, H & D. R. Co., 47 C. C. A. 156, 108 Fed. 14; Illinois Cent. R. Co. v. O’Keefe, 168 Ill. 115; Chicago & E I. R. Co. v. Jennings, 190 Ill. 478.

It follows from what has been said that in our opinion there was no evidence from which the jury might properly find that deceased was a passenger on defendant’s car, and that therefore a verdict for the defendant was properly directed. This conclusion renders it unnecessary to consider the other grounds on which counsel for defendant in error insist that the court properly directed a verdict for the defendant.

The judgment is affirmed.

Affirmed.


text:
    Robert T. Walbank, Defendant in Error, v. Walden W. Shaw Livery Company, Plaintiff in Error.
    Gen. No. 19,248.
    1. Witnesses, § 48

      —when objection to competency insufficient. Where plaintiffs wife is competent to testify to certain facts, an objection by defendant that she was “absolutely incompetent” may be properly overruled.
    2. Witnesses, § 33

      —when wife competent to testify on account of the necessity of the case. Where a wife had the custody and control of an automobile of her husband when it was struck by another automobile, and no witness of the occurrence knew the wife by sight, or knew who was the owner of the automobile which was struck, in a suit by the husband for damages to his automobile caused by the collision held that the wife, from the necessity of the case under a rule of the common law, was competent to testify that she was driving the automobile which was struck.
    3. Witnesses, § 33

      —matters of which wife is incompetent to testify. In an action for damages to plaintiffs automobile caused by a collision with defendant’s automobile, where at the time of the accident plaintiffs automobile was in the custody of plaintiff’s wife alone, held that the wife was incompetent to testify to an interview with a claim agent of the defendant, in the presence of her husband and another.
    4. Witnesses, § 42

      —when wife incompetent to testify as agent of husband. A wife is not a competent witness for her husband under the provision of the statute that she may tstify for her husband in matters of business transactions conducted by her as agent of the husband, where her testimony does not relate to any business transaction had or conducted by her as agent for her husband.
    Error to the County Court of Cook county; the Hon. W. F. Slates, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    D'Ancona & Pflaum, for plaintiff in error.
    Felix J. Griffen and Cheney & Evans, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $154.50 recovered by plaintiff for damages to his automobile alleged to have been caused by a collision with an automobile of the defendant through the negligence of the servant of defendant, the driver thereof. The wife of the plaintiff was called as a witness by the plaintiff and asked if the plaintiff had an automobile. The defendant then objected to her testimony “as absolutely incompetent” because she was the wife of the plaintiff and therefore not competent to testify for or against him. This was the only objection made to the testimony of the witness. The court overruled the objection, the defendant excepted and the witness testified that her husband had an automobile ; that she went to the Bailway Exchange Building in the car on an errand for her husband; that on her way home she was alone in the car and as she was driving it west in Jackson boulevard on the north side of the street a taxicab, also going west, ran by her on the south side of her car, struck the car she was driving, throwing the front wheels on the sidewalk. Later she testified to an interview with Mr. West, the claim agent of the defendant, in the presence of her husband and Mr. Hotchkiss, in which she testified Mr. West made certain statements and admissions.

The rule of the common law as to the admissibility of testimony was first changed by legislative enactment in this State in 1867. Before such change was made it was held in Parmelee v. McNulty, 19 Ill. 558; Davis v. Michigan Southern & N. I. R. Co., 22 Ill. 278; and in Illinois Cent. R. Co. v. Taylor, 24 Ill. 323, that the owner of a lost trunk could in an action against the carrier testify to the contents of such trunk, and that when in such case the husband could testify, the wife could also testify. In Illinois Cent. R. Co. v. Copeland, 24 Ill. 332, it was said that the rule could only be defended on the necessity of the case. In Parmelee v. McNulty, supra, it was said: “In cases of this- kind, the law permits a party to he a witness in his own canse, for the purpose of proving the contents of lost baggage, and even its value, when he cannot adduce other evidence of these facts. This is an exception to the general rule of law, and should not be extended beyond the necessity which gave rise to it.” We think that where a wife has the custody and control of an automobile of her husband, which is struck by another automobile, and no witness of the occurrence knew the wife by sight, or knew who was the owner of the automobile which was so struck, the wife, from the necessity of the case, under the rule of the common law stated in the cases cited, is a competent witness to testify that she was driving the automobile which was struck. As the witness was competent to testify to certain facts, the objection by defendant that "she was “absolutely incompetent” was properly overruled.

The wife was not a competent witness for her husband under the provision of the statute that she may testify for or against her husband “in all matters of business transactions where the transaction was had and conducted by her as the agent of her husband.” Her testimony did not relate to any business transaction had or conducted by her as the agent of her husband. If it be conceded that she went in the automobile to attend to a business transaction for him, this did not make her a competent witness to testify to what she saw or heard on the way to or from the place where such transaction was had, but only made her competent to testify to such transaction.

Her testimony as to the interview with West was incompetent. Her husband and Hotchkiss were present at the interview, but no objection was made to her testimony other than the objection that she was not competent to testify for or against her husband, and under this objection plaintiff in error cannot be heard to insist that part of her testimony was inadmissible.

Finding no error in the record the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Baker Mr. Justice Brown,

text:
    Continental and Commercial Trust & Savings Bank, Administrator, Appellant, v. A. M. Castle & Company, Appellee.
    Gen. No. 19,264.
    Master and servant, § 764

      —when direction of verdict in action for death of servant proper. In an action for the wrongful death of plaintiffs intestate caused by the negligent operation of a derrick, while deceased was employed as a helper and was assisting an employe who operated the derrick, held that a direction of a verdict for defendant was proper.
    Brown, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1913.
    Rehearing denied May 18, 1914.
    Vincent D. Wyman, Otto W. Jurgens and Charles E. Carpenter, for appellant.
    Miller, Gorham & Wales, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the plaintiff, administrator of the estate of Beinholt Eisermann, from a judgment on a directed verdict for the defendant in an action for wrongfully causing the death of the decedent. Defendant had a shop in which iron beams were cut. The beams were stored in a yard in which defendant had a derrick which was used to raise a beam which was to be taken into the shop and swing it into position where it could be pushed onto the rollers provided to carry the beam into the shop. Haak, an employe of defend-' ant, operated the derrick and Eisermann was his helper. On the day of the accident Haak was directed by the superintendent of the shop to bring into the shop from the yard an iron “I” beam 26 feet long, weighing 21% pounds to the foot. Haak and Eisermann went to the beam. Haak told Eisermann to put the clamps on the beam and he did so. By means of the clamps and a chain the beam was attached to the hook of the derrick and was raised by raising the hook by the use of compressed air. The orders of the superintendent were to fasten the clamps in the center of the beam. The custom was for the helper to put on the clamps as near to the center as he could without measuring and then to raise the beam a short distance and stop to see if the clamps were in their proper place. If the beam was nearly horizontal, one end not more than ten or fifteen pounds heavier than the other, the helper placed his hands on the light end and held it in a horizontal position as it was raised, but if one end was much heavier than the other, the beam was lowered and the clamps readjusted. On the day in question, Eisermann, as he had always done before, put on the clamps and fastened the beam to the hook of the derrick. Haak asked him if the beam was hooked right and Eisermann said it was. Haak then raised the beam two feet and saw that one end was heavier than the other, and stopped. He told Eisermann to put one hand on the light end. Eisermann did so and in answer to Haak’s question said that it was all right. The beam had to be raised five feet, so that Eisermann could keep his hand on the light end until it was raised to a proper height and then assist to push it onto the rollers. When the beam had been raised to about the desired height it started to slide in the hooks, the ring which held the hook in place slipped up, the hook opened and the beam fell to the ground. The beam had slipped through the hooks five to seven feet before it fell and Eisermann had followed it as it slid, keeping his hand on the light end of the beam. The beam fell on him and so injured him that he died from his injuries.

The only negligence alleged is the negligent operation of the derrick.

. The defendant offered no evidence. The testimony of the witnesses called by the plaintiff was that the derrick was operated in the usual manner. No negligent order is either averred or proved.

In the opinion of the majority of the court there is in the record no testimony from which, taken as true, and drawing from it the inferences most favorable to the plaintiff that can be reasonably drawn therefrom, the jury might properly find the defendant guilty of the negligence alleged in the declaration, and the court therefore properly directed a verdict for the defendant.

The judgment is affirmed.

Affirmed.

Mr. Justice Brown,

dissenting: I do not think the evidence justified an instructed verdict.


text:
    Andrew B. Adair, Appellant, v. William S. Timblin et al., Appellees.
    Gen. No. 19,311.
    1. Libel and slander, § 27

      —when publication constitutes a libel. A malicious publication expressed in printing or writing tending to injure the reputation of a person and expose him to public hatred, contempt or ridicule is a libel.
    2. Libel and slander, § 56

      —when publications concerning a member of a Union are but conditionally privileged and actionable per se. In an action for libel, a declaration in the first two counts alleged the defendants maliciously published a printed circular purporting to be a statement of an association of the members of a certain Union, of which plaintiff was a member, to the members of the Union, that plaintiff had “been conniving with the proprietors of the Drover’s Journal for the purpose of interfering with and controlling certain of our Union’s activities and defeating its will and beneficial aims, and also for the purpose of depriving certain members of said Union of their means of gaining a livelihood;” and a third count of the declaration alleged that defendants published a printed circular, signed by one of the defendants, as follows: “Self-serving Trade Unionism. The above caption applies particularly to A. B. Adair. * * * Andy Adair has been the nigger in the woodpile for fifteen years or more. * * * Adair’s Italian hand is seen. Had Adair not been Adair I now would be at work in the Drover’s Journal office.” Held, that the publications were not absolutely privileged, that if privileged they were only conditionally privileged, and that the publications were each per se actionable.
    3. Libel and slander, § 90

      —sufficiency of averments as to malice when publication is conditionally privileged. Where a publication alleged to be libelous is only conditionally privileged, it is not necessary to aver in the declaration the facts constituting malice, it is enough to allege that the writing was maliciously published; but it is not necessary to use the word “maliciously,” for the word “falsely” alone is sufficiently expressive of a malicious intent.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 4, 1914.
    Rehearing denied May 18, 1914.
    Earl C. Hales and Willard Moffett, for appellant; John J. Sonsteby, of counsel.
    William A. Jennings and Everett M. Swain, for appellees.

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

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action for libel the Circuit Court sustained a demurrer to the declaration, entered a judgment of nil capiat and the plaintiff appealed. The matters alleged to he libelous in the first two counts are contained in a printed circular purporting to be a statement of the Drovers’ Journal Chapel, an association of the members of Typographical Union 16, employed in the office of the Drovers’ Journal, to the members of said Union. The declaration averred that each member of said Union took an obligation that he would not wrong a member, or see him wronged if in his power to prevent, and each of said counts averred that the defendants in said circular wickedly and maliciously published of and concerning the plaintiff false, defamatory and libelous matters inter alia; that the plaintiff had “been conniving with the proprietors of the Drovers’ Journal for the purpose of interfering with and controlling certain of our Union’s activities and defeating its will and beneficial aims, and also for the purpose of depriving certain members of the Union of their means of gaining a livelihood.” The declaration also averred that the plaintiff was a member of said Union and for thirty years had been foreman of the Daily News composing room, where a large number of printers were employed who were.all members of said Union.

The matters alleged to be libelous in the third count are contained in a printed circular signed by one of the defendants and addressed to, “My fellow members of Chicago Typographical Union No. 16.” The count averred that the defendants, in said circular, wrongfully and maliciously published of and concerning the plaintiff a certain other false, malicious and defamatory libel containing inter alia the false, etc., matters following: “Self-serving Trade Unionism. The above caption applies particularly to A. B. Adair. * * * Andy Adair has been the nigger in the woodpile for fifteen years or more. * * * Adair’s Italian hand is seen. Had Adair not been Adair I now would be at work in the Drovers ’ Journal office. ’ ’

A malicious publication expressed in printing or writing tending to injure the reputation of a person and expose him to public hatred, contempt or ridicule is a libel. In view of the allegation in the declaration that the plaintiff was a member of Typographical Union 16 and foreman of a printing office in which many members of the Union were employed, the charge that he had been “conniving with the proprietors of the Drovers’ Journal for the purpose of defeating the will and beneficial aims of the Union and for the purpose of depriving certain members of the Union of the means of gaining a livelihood; ’ ’ the charge that the caption “Self-serving Unionism” applied particularly to the plaintiff; the charge that plaintiff had been for fifteen years “the nigger in the woodpile;” the charge that but for plaintiff the defendant whose name appears as the signer of the circular set forth in the third count, and who it is stated therein was a member of said Union, “would now be at work in the Drovers’ Journal office,” and each of said charges must have been intended by the publishers to injure the reputation of the plaintiff. Such charges were well calculated to injure the reputation of the plaintiff among the members of the Typographical Union of which he was a member, especially as the position he held as foreman of the Daily News printing office gave him power to benefit or injure members of the Union.

The publication alleged to be libelous is not of words absolutely privileged like words used in .a judicial or parliamentary proceeding, and if privileged at all are only conditionally privileged. That a communication is so privileged “means no more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff and throws on him the onus of proving malice in fact; but not of proving it by extrinsic evidence only; he has still the right to require that the alleged libel itself be submitted to the jury, that they may judge whether there is evidence of malice on the face of it.” Wright v. Woodgate, 2 Cromp., M. & R. 573. It is not necessary in such a case to aver, in the declaration, the facts constituting malice, it is enough to allege that the writing was maliciously published; but it is not necessary to use the word “maliciously,” for the word “falsely” alone has been held to be sufficiently expressive of a malicious intent. Williams’ Saunders, 242 b. n. 1; White v. Nicholls, 3 How. (U. S.) 266.

But each count of the declaration in this case charges the defendants with having wickedly and maliciously composed and published a false, malicious and defamatory libel concerning the plaintiff. That the matters alleged to be libelous were false and were published maliciously was admitted by the demurrer.

We think each of the publications charged is per se actionable. The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    In the matter of the Petition of George Checkesfield. On Appeal of George Checkesfield, Appellant, v. Ethel McKernan, Appellee.
    Gen. No. 19,333.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Petition by George Checkesfield in the County Court to be released from imprisonment after being arrested upon a ca. sa. issued on a judgment recovered against him by Ethel MeKernan in a suit for malicious prosecution. From an order denying his petition and remanding him to the custody of the sheriff, petitioner appeals.
    George Remus and James T. Devere, for appellant.
    Pomeroy & Martin, for appellee.

      Abstract of the Decision.
    Execution, § 294

      —when denial of petition for release from imprisonment under a ca. sa. proper. On appeal from an order denying a petition for release from imprisonment under a ca. sa. issued on a judgment recovered against the petitioner in a suit for malicious prosecution, held that malice was the gist of such action and that the petition was properly denied.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Michael Bittins, Appellee, v. Calumet & South Chicago Railway Company, Appellant.
    Gen. No. 19,353.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.
    Heard in this court at the March term, 1913.
    Reversed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Action by Michael Bittins against Calumet & South Chicago Railway Company to recover for personal injuries sustained by plaintiff while attempting to board one of defendant’s cars. From a judgment in favor of plaintiff, defendant appeals.
    Warner H. Robinson and William C. McHenry, for appellant; Leonard A. Busby, of counsel.
    R. J. Finn, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

Carriers, § 476 —when recovery for injuries sustained while aP tempting to hoard a street car not sustained hy the evidence. In an action against a street railway company for injuries alleged to have resulted from the negligence of the defendant in starting a car when plaintiff attempted to hoard it, a judgment for plaintiff held not sustained hy the evidence, it appearing that the plaintiff’s evidence was conflicting and unsatisfactory and a number of witnesses for the defendant testified that the car was in motion when plaintiff attempted to board the same.