text:
    Benjamin F. Felix v. William Scharnweber.
    Contract — Patent improvements. — Under the evidence the court and jury were justified in holding that the defendant, in manufacturing and selling the reels with the improvements, was acting under his contract with the plaintiff, and bound to pay him the royalty therein provided.
    Appeal from the Circuit Court of Cook county ; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed June 16, 1886.
    Messrs. Flower, Remy & Gregory, for appellant.
    Mr. H. F. Vallette, Mr. F. J. Griffens and Mr. Henry Decker, for appellee.
   Bailey, P. J.

This was an action of assumpsit, brought by William Scharnweber against Benjamin F. Felix, upon the following contract:

“ Memorandum of agreement between Benjamin F. Felix and William Scharnweber, both of tho city of Chicago, made this 12th day of February, 1878, witnesseth: That whereas, the said Benjamin F. Felix and Wm. Scharnweber are joint proprietors of a certain patent for an improved rope-reel, and it is mutually decided between them that the interests of both are best subserved by one of them, having exclusive control of the manufacture and sale of said reel, it is hereby agreed that the said Benj. F. Felix make such arrangements as may appear most desirable to him for their manufacture, and supervise and direct solely their sale.

“ On each and every rope-reel sold, the said William Scharnweber is to receive one dollar, to be paid to him on the last business day of each and every month.

“ The said William Scharnweber agrees not to manufacture any rope-reels whatever, or cause them to be manufactured, but can make sales and report the same to Ben]. F. Felix, or Felix, Marston & Blair, who will deliver and collect for the same.”

The rope-reel mentioned in the contract consisted of a combination of a frame or rack and a series of spools, each having-adjustable flanges, said rack being held in an inclined position by "means of a depending brace, hinged to the back of the frame at the upper end, and connected at the lower end by means of a tie brace. After the execution of the contract, the defendant manufactured and sold 335 of said reels, for which the plaintiff liad been paid and which are not in dispute. It then appearing that the reel was not giving satisfaction to purchasers, certain changes were made in the construction of the spools, after which the defendant manufactured and sold 2,164, for which he refuses to pay the plaintiff, claiming that the reel, as modified, constituted another and different rope-reel from the one contemplated by the contract.

It does not seem to be seriously questioned that the reel manufactured after the modification was adopted was identical in principle and construction with the one described in the specifications attached to the letters patent, except in the construction of the spool and the mode of its adjustment to the coils of rope. In the original reel the rollers of the spools were made of wood, and the flanges were provided on their inner surfaces with a series of sharp-pointed spurs, so adjusted as to engage the ends of the coils of rope, and the flanges were held in position against the ends of the coils by means of set-screws bearing against the axle. As modified, the inner faces of the flanges were made conical and provided with a series of circular ribs or corrugations concentric with the axles, so as to fit within the different sized openings in the coils of rope, and the rollers or axles were screw-threaded, the flanges also being provided with, corresponding screw-threaded openings in their centers, whereby they could be moved upon the axle and firmly fitted against the coil.

The jury at the trial found the issues for the plaintiff and assessed his damages at §2,255, and judgment was rendered on the verdict. From said judgment the plaintiff has remitted §91. The principal question in the case is, whether the 2,164 reels in controversy should be deemed to have been manufactured and sold under and in pursuance of the contract. The evidence tends to show that some time after the defects in the reel, as originally constructed, had been developed, the defendant told the plaintiff, who was the original inventor of the reel, that it would be necessary to make some improvements on it, and that thereupon the plaintiff, after suggesting various expedients, invented substantially the same modifications which were subsequently adopted, and suggested the same to the defendant. There was also evidence tending to show that the defendant, after adopting the improvements invented and suggested by the plaintiff, proceeded to manufacture said "machines" and to label and mark them as made under the original patent. Some expert testimony was given tending to show that the reel, after the improvements were adopted, was substantially identical in principle with what it was before.

We are of the opinion that, under all the evidence, the court and jury were justified in holding that the defendant, in manufacturing and selling the reels with the improvements, must be deemed to have been, and that he was in fact, still acting under his contract with the plaintiff, and bound to pay him the royalty therein provided. The improvements in the structure of the reels were adopted, not by way of abandoning and abrogating the contract, but for the purpose of enabling the defendant to manufacture and sell reels more successfully under it. Inoi* are we able to see that the rights and obligations of the plaintiff and defendant, growing out of the contract, were at all affected by the fact that a third party procured letters patent from the United States for the improved reel,'and assigned such letters patent to the defendant.

We think the jury were instructed as to the law with substantial accuracy, and we find no material error in any of the rulings of the court at the tidal. The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FIRST district.
    No. 66 — 2336.
    Chicago Dry Dock Co. v. Rice.
    Opinion filed June 9, 1886.
    This was assumpsit brought by Albert H. Bice against the Chicago Dry Dock Company, to recover a balance of §300 claimed by the plaintiff to be due him for services as foreman of the defendant’s dry dock. It is not disputed that the plaintiff was employed by the defendant for the term of one year, under a special contract, and that he served the defendant during the full period of his employment. The only substantial controversy is as to the amount of wages or salary fixed by the contract. The judge below, who tried the case, by agreement, without a jury, and who saw and heard the witziesses, reached the conclusion that the evidence as to the terms of the contract preponderated in favor of the plaintiff, and the court sees no ground for disturbing his finding.
    Attorneys, for appellant, Messrs. Schuyler & Kremer; for appellee, Mr. John C. Richberg.
   Opinion

Per Curiam.

Judge below, Joseph E. Gary.


text:
    No. 74 — 2344.
    Kirk et al. v. Wolff Mfg. Co.
    This was indebitatus assumpsit brought by appellee against appellazits, who were manufacturers of soap, to recover for work, labor and materials done and furnished by appellee in makizig of copper and other materials a new' kind of' apparatus for ap¡ eTlants, to be used in the manufacture of soap. The case turned wholly upon questions of fact, as to some of which the evidence was conflicting. Since there was no error of law in admitting or excluding evidence, or in giving or refusing instructions, the verdict of the jury can not be interfered with by this court.
    Affirmed.
    Attorneys, for appellant, Messrs. Flower, Remy &
      Gregory ; for appellee, Messrs. Dent & Black.
   Opinion

Per Curiam.

Judge below, Elliott Astthoky.

Opinion filed June 9, 1886.


author: McAllister, J.

text:
    No. 80 — 2350.
    Chicago, Milwaukee & St. Paul Railway Company v. Zieman.
    Opinion filed June 16, 1886.
    This was an action by appellee against the railway company, appellant, to recover for a personal injury to the former whereby he lost a leg, occasioned November 19, 1879, as it was alleged, by the negligence of the defendant’s servants in running an engine at an improper rate of speed, and without giving the proper signals, at a place where the tracks of the defendan; crossed May street, in the city of Chicago. Judgment for $2,500 for appellee. The judgment is reversed for error in appellee’s instruction, which is at variance with the rule that the doctrine of comparative negligence can not be invoked except where the injured party was in the exercise of ordinary care to avoid injury. The rule that where the evidence is conflicting, the verdict of the jury must be taken as the proper conclusion from the evidence is subject to the qualification that the jury were accurately instructed.
    Attorneys, for appellant, Mr. E. Walker; for appellee, Mr Arthur Schroeder and Mr. Frank J. Loesch.
   Opinion by

McAllister, J.

Judge below, Kiric Hawes.


author: Pee Curiam.

text:
    SECOND DISTRICT.
    No. 1421.
    Saunderson v. Town of La Salle.
    Opinion filed Dec. 4, 1885.
    Section 89 of Chap. 110, Rev. Statutes, provides that all appeals from inferior courts in cases relating to revenue shall be taken direct to the Supreme Court. This suit relates to revenue, and the appeal should have been taken1 to the Supreme Court: Wing v. People, 7 Bradwell, 224; 9 Bradwell, 520 and 550; 5 Bradwell, 558; 98 Ill. 343. It “is insisted by the appellant that the appellee has, by stipulation, consented to this court taking jurisdiction of this case. This court can not acquire jurisdiction by such consent: 4 Gil. 131; 71 Ill. 278 ; 91 Ill. 318. Motion to dismiss appeal allowed.
    Appeal dismissed. Leave to appellant to withdraw record, abstracts and briefs.
   Opinion

Pee Curiam.


author: Lacey, P. J.

text:
    No. 1417.
    Cable v. Ellis.
    For the facts in this case, as well as what has been heretofore decided, the court refers to the decision reported in 56 Ill. 531, 86 Ill. 525, and 96 Ill. 105. In the last named case the Supreme Court decided the issues in favor of appellee, and reversed the decree of this court affirming the decree of the court below, with directions to the eireuit court to “determine the paid-in interest of appellee, T. B. Ellis, in the store.” The decree was thereupon reversed and the cause remanded by this court to the court below under the mandate of the Supreme Court. The circuit court has attempted to adjust the rights of the parties in accordance with the mandate of the Supreme Court. The court can not go into the merits of the case, as it regards them as settled by the Supreme Court; nor does it, after a full examination of the case as now presented, see any error committed by the circuit court.
    Opinion filed Feb. 20, 1886.
    The decree is therefore affirmed.
    Attorneys, for appellant, Mr. C. M. Osborne and Messrs. H. W. Wells and C. Dunham; for appellee, Mr. Geo. W. Spahr.
   Opinion by

Lacey, P. J.


author: Baker, J.

text:
    No. 1395.
    Schaub v. Risser.
    Mary E. Schaub, appellant, brought suit against R. G. Risser, appellee, and one Charles E. Dashiell, on two promissory notes, signed with firm name of Risser & Dashiell, one for $400, dated July 25, 1881, and due in thirty days, with eight per cent, interest, and the other for $500, dated September 13, 1881, and due one day after date, with eight per cent, interest. Both notes were made payable to Upton Schaub, husband of appellee, and were by him assigned to her on the 25th of November, 1881. There was no service on Dashiell; an 1 Risser pleaded the general issue, and denied joint liability under oath. The issues were tried before the court without a jury, and the finding and judgment were for appellee. The effect of the plea in bar denying joint liability, verified by affidavit, was to cast the • burden of proof on appellant. Practice Act, section 35 ; Kennedy v. Hall, 68 Ill. 165. The main question in issue was whether Upton Schaub, at the time he loaned the money and took the notes, knew it was not to be used in the business of the firm of Risser & Dashiell, but was to be used for the individual benefit of Dashiell in making purchases of stocks of goods at Norway and at Cambridge. Upon this point there was a sharp conflict in the testimony, and it was for the trial court to decide as to the credibility of the several witnesses, and the weight of the evidence. The testimony of Kisser and Dashiell would seem to make it clear that appellee should not be held liable on these notes. On the other hand, that of appellant and her husband would seem to establish the contrary. Upon the whole case,- and with due regard to all the surrounding circumstances, the court is inclined to think the finding of the circuit court was right.
    Opinion filed February 20, 1886.
    Judgment affirmed.
    Attorneys, for appellant, Mr. O. G. Bartlett and Messrs. Kay & Euans ; for appellee, Mr. Tnos. P. Bonfield.
   Opinion by

Baker, J.

Judge below, O. T. Reeves.


author: Laoey, P. J.

text:
    No. 1414.
    Hoobler v. Kuhns.
    This was an action of assumpsit by the appellee against the appellant to recover a claim for the payment of one third of a decree rendered jointly in the circuit court against appellant, appellee and one Jacob Phillips. It appears that the appellee, appellant and Jacob Phillips were administrators of the estate of William 0. Iloobler, deceased. That in the final settlement of the estate the three administrators were short in their accounts, and that after final report, which was untrue, David H. Hoobler, one of the heirs, prosecuted his suit in chancery in the circuit court against the three administrators to recover such shortage, which resulted in his obtaining a decree against them for the sum of $979.45 and costs of suit, and that afterward each of the said administrators paid one third of said decree,, and one third of the costs. The appellee’s suit was based on the charge that during the time the administrators were settling the estate the appellant managed all the business, received and handled all the money, and made the reports to the court; that appellee signed the reports, believing them to' be true; that such reports proved to be false; that the appellant had collected the amount of the decree, which he retained and did not inventory, and had converted to his own use without the knowledge or consent of the appellee. The suit -resulted in a verdict and judgment for appellee against appellant for $365-.68. This appeal is taken to reverse the judgment, which it is claimed is manifestly against the weight of trie evidence-
    Upon an examination of the evidence the court affirms the judgment.
    Attorneys, for appellant, Messrs. McIlduff & Torrane; for appellee, Messrs. H. N. Ryan and Mr. A. E. Harding.
   Opinion by

Laoey, P. J.

Judge below, N. J.Pillsuury.

Opinion filed April 5, 1886.


text:
    No. 1337.
    Moline Paper Co. v. Union Printing Co.
    This was assumpsit by appellant, against appellee. A jury was waived, and the cause tried before the court; and the finding and judgment were for the latter. Daring the years 1880 and 1881, and the first half of 1882, the printing company purchased paper from the Moline Paper Company to the amount of between $5,000 and $6,000, and various payments were made thereon. Appellant claims that $306.02 is still due, while appellee insists the account has been settled, and paid in full. The difference between the parties is made up of items for paper, charged by the paper company, and not credited by the printing company. It is assigned, and relied on as an error, that the county court admitted improper testimony offered by appellant, and that the finding was against the weight of the evidence. An objection is urged to one of the statements made by the witness, W. J. Harold, that it does not state a fact, but is a mere illustration. This witness testified that the paper received at the printing office usually came by team, but that when only one or two bundles were sent, they came by street car ; that invoices were not received with the paper-sent by street car, but that the teamster always brought invoices with the paper delivered by team; that when the items were checked off they did not always show the same amount as that brought by the teamster ; that “ if there were two bundles sent by street car the invoices would call for thirty bundles, and there would only be twenty-eight in the load,” and that he knew as a matter of fact that such instances as this occurred during the time he was in the employment of the printing company whenever appellant sent paper by street car. The court is of opinion that the objection to this testimony is not well taken. On the 19th day of July, 1881, appellee wrote a letter to appe lant in which it was said : “Enclosed find our check, Ho. 236, for $54.70 which balances our account to date.” Morgan, the cashier, by whom the letter was written, testified that this remittance “ balanced our account, with the exception of that which we were buying on ninety days time. ” Mr. Everett Wheelock, secretary and treasurer of the paper company, was introduced as a witness in rebuttal, and testified among other things, that the paper was always sold on ninety days time to the printing company. Thereupon he was asked this question: “Did you examine the books to see what the Union Printing Co. owed you up to July 19, 1881? ” — but the question was objected to and the objection sustained by the court. The'appellant had introduced, as evidence in chief, its books of account so far as they showed items of account against appellee, i. e., charges for paper sold, but it had not introduced and did not during the trial offer to introduce, credits appearing upon its boobs for payments made. The evident drift of the question was, tó get before the court a comparison of accounts as shown by the debits and credits appearing in the account of appellee upon the books of appellant. This might readily and properly have been done by giving in evidence the credit side of the books. It was not error in the court to refuse to let the witness testify as to the result of a comparison made by him of the portion of the account that was in evidence with the other portion which w-as not in evidence, but easily in the power of the party introducing him, to produce. The court itself would then’have had before it the data for making such comparison, and determining the weight of the corroborating circumstance, if any, thus afforded. With reference to the claim that the finding of the court was against the weight of evidence, the only point at issue was as to the delivery of certain quantities of paper in addition to those shown by the invoices and admitted by appellee, and the burden of proof was upon appellant. The evidence was conflicting, and in any view in which it can be regarded not entirely satisfactory. The court does not feel that it would be warranted in disturbing the finding of the trial court.
    Opinion filed April 5, 1886.
    Judgment affirmed.
    Attorneys, for appellant, Mr. Eugene Levis ; for appellee, Messrs. Sweeney & Lewis.
   Opinion by

Baker, J.

Judge below, Lucien Adams.


text:
    No. 1343.
    Jamison v. Loftus.
    This' was a suit commenced by appellee against appellant before a justice of the peace, and after trial there, taken by appeal to the circuit court. The cause of action was a breach of contract, as is c1 aimed by appellee, on the part of appellant, to carry out an agreement made between them for the sale of forty-four hogs by the former to the latter*.
    Opinion filed April 5, 1886.
    The evidence fully sustains the verdict for appellee and the judgment is affirmed.
    Attorneys, for appellant, Messrs. Kirkpatrick & Alexander; for appellee, Messrs. Grier & Dryden,
   Opinion by

Lacey, P. J.

Judge below, J. J. Glenn,


text:
    No. 1444.
    Rock Island & Peoria Ry. Co. v. Reed.
    Opinion filed April 5, 1886.
    In this suit appellee recovered a judgment in the Stark Circuit Court against the appellant corporation for §160, the value of a horse of his, claimed to have been killed on the track of the railway by the engine and cars running thereon. The road is constructed through the farm of appellee, and his corn or stockfield was located on the west side of it, and the negligence imputed to appellant was-its failure to erect and maintain on the side of its road adjoining such field a fence suitable and sufficient to prevent stock from getting on the railroad. The jury were fully and fairly instructed, and the court is unable to say their verdict was wrong.
    Judgment affirmed.
    Attorneys, for appellant, Mr. T. E. Neilchrist ; for appellee, Mr. C. K. Ladd.
   Opinion by

Baker, J.

Judge below, F. M. Shaw.


text:
    No. 1439.
    C., B. & Q. R. R. Co. v. Blake.
    Opinion filed April 5, 1886.
    The appellee sued appellant to recover the value of three horses that were killed and one injured by the locomotive of the appellant striking them on the railroad track of the appellant on the farm of appellee, about the first day of March, 1881.' The occasion of the horses getting on the track was, as is charged, the failure of appellant to maintain a fence on each side of its- railroad track, as required by law. Verdict for appellee. After a careful examination of the evidence the court finds no valid objection to the verdict of the jury or the giving or refusing instructi >ns on the part of the court, and affirms the judgment..
    Attorneys, for appellant, Messrs. Richolson & Gentleman and Mr. O. F. Price ; for appellee, Messrs. Duncan & O’Connor.
   Opinion by

Lacey, P. J.

Judge below, Hiram G. Gilbert.


text:
    No. 1457.
    Goodwin v. Dawson.
    This ivas a suit by appellee against the appellant to recover the value of wages and of boarding the work hands of the appellant, in which suit the former recovered the sum of §200. The error assigned against the judgment by the appellant is that the verdict is manifestly against the weight of the evidence. The court has examined the evidence with care, and after giving the appellee the benefit of the verdict of the jury which the law allows him it is unable to say that the verdict should be disturbed, or that it was manifestly against the weight of the evidence.
    Opinion filed April 5, 1886.
    Judgment affirmed.
    Attorneys, for appellant, Messrs. Richardson Bros.; for appellee, Messrs. Lake & Potter.
   Opinion by

Lacey, P. J.

Judge below,

J. JN". Orb.


text:
    No. 1429.
    Johnson v. Cippery.
    This action was originally commenced in replevin by appellee against appellant, to recover the possession of 1,759 bushels of oats, possession of which was claimed by virtue of the statutory landlord’s lien, claimed by appellee to exist in his favor on the oats. ' The oats not being found, the appellee filed his count in trover. The appellee recovered a judgment against the appellant, in the court below, in the sum of $330, from which this appeal is taken. Appellee, in October, 1883, leased certain lands to one Henry Brown, the term commencing Oct. 1, 1883, and ending March 1, 1884, at an annual rent of $730, payable Aug. 1, 1883. In February, 1883, the time of payment was changed, making $365 due October 1st, and the balance due Jan. 1, 1884. On the 16th August, Brown informed appellee he had contracted his oat crop raised on the leased premises to one Moore, a dealer in grain. Appellee objected to the sale unless he gave him an 'order on the warehouseman for the znoney arising from the sale. On the following day appellee took out a distress warrant under Sec. 35, Chap. 80, B. S., and placed it in the hands of Baxter to serve, and on the same day Baxter served it by reading to Brown, but did not remove the oats. On the 30th August, 1883, appellant bought the oats of Brown under circumstances that would hold him to notice that appellee’s rent had not been paid, and that a lien existed in his favor, and for the 1,750 bnshels of oats paid the sum of $456.56. On the 10th September the appellee demanded of appellazzt the oats, but was refused. Brown abaudozzedthe premises about the 10th day of September, 1883; appellee took possession of the crops remaining on the premises, ozrly realizing therefrozn the sum of $339.29 leaving a balance of $400.71, his due for rent. The point is made by the appellant, and it is the only one, that the action of trover would not lie because the rent was not due at the time the landlord sold the oats and at the time the demand was mad® of the appellant, and that the appellee had no right to the possession of the oats, and hence trover would not lie, and cites for authority on the point, Wall v. Schofield, 76 Ill. 261, and claims that the recovery by appellee in that form of action was erroneous under the authority of that case. The court is of opinion the objections made to the appellee’s right of recovery are untenable, under the rule announced by the decision referred to. In that case it is held as the grounds of the decision that the landlord had no right to the immediate possession of the goods at the time of demand, and that such right of possession was essential to maintain the action of trover. In this case by the selling and removing of the oats by the tenant the right accrued to have immediate possession under distress warrant or otherwise of all the growing crops, including the oats sold to appellant, if any could be found; for the evidence shows that by the selling and removing of the oats the lien of the landlord was endangered. The landlord had his distress warrant issued, but could not get the oats in his possession after demand. The court sees no error in the fifth instruction unless it be that the hypothesis is not presented that by the selling and removing of the oats the landlord’s lien must be endangered in order to give appellee a right of possession, and consequently a right of action, and as to that, the evidence preserved shows that it was .endangered, and besides the bill of exception does not purport to contain all the evidence. Under these conditions the omission of that qualification could work no harm to appellant. The objections of the appellant to the appellee’s right of recovery are purely technical and do not go to the merits of the case. The form in which the action is brought is alone objected to.
    Opinion filed April 5, 1886.
    Perceiving no error in the record, the judgment of the court below is affirmed.
    Attorneys, for appellant, Mr. R. G. McEvoy and Mr. A. H. Frost; for appellee, Mr. Wm. Marshall and Mr. A. D. Early.
   Opinion by

Lacey, P. J.

Judge below, Wii. Brown.


author: Welch, J.

text:
    No. 1368.
    Chicago & Alton Railroad Company v. Glinny.
    This was an action brought by appellee against appellant to recover damages for overflowing Ills land with water and destroying his crops. Trial, and verdict for appellee for $999.99 — appellee remitting $99.99. Motion for new trial; motion overruled and judgment, from which this appeal is taken. Two things are required to reverse a judgment. First, that manifest error has intervened in the proceedings of the court below; and second, that such error has operated prejudicially to the party complaining of it. When either of these requisites is wanting the judgment may be aftirmed: Forney v. Thompson, 14 Bradwell, 393. “When the testimony is conflicting, though the correctness of the finding is doubtful, the verdict will be sustained.” Tucker v. Watte, 64 Ill. 416 ; Stampofski v. Hooper, 86 Ill. 321. Applying these rules to this case, whether there was an injury, the extent thereof, and the cause, were all questions of fact. The court is of opinion the evidence sufficiently sustains the verdict, There was some conflict in the evidence, but this conflict was settled by the jury in favor of appellee. It is further insisted in the brief for appellant, that the damages are excessive. When excessive damages are not assigned as a ground for a new trial in the court below, nor as error in this court, the appellant is not in condition to have that question reviewed : Emory v. Addis, 71 Ill. 273; Jones v. Jones, 71 Ill. 562.
    Opinion filed May 21, 1886.
    The judgment is affirmed.
    Attorneys, for appellant, Mr. Geo. S. House; for appellee, Messrs. Wing & Goodspeed and Mr. John Reynolds.
   Opinion by

Welch, J.

Judge below, C. Blanchaed.


text:
    No. 1382.
    C. & E. I. R. R. Co. v. Kamman.
    On the 17th day of March, 1883, Kamman cofnmenced liis' suit before Hecht, a justice of the peace, against the railroad company. After service of summons and before the return day of the writ, the corporation tendered Kamman $21.50 in full satisfaction of his claim, and it was refused. Before the trial of the cause the company deposited said sum with the justice, to keep its tender good. The result of the suit was a judgment in favor of Kamman for $55, and costs, taxed at $3.75. After the rendition of the judgment, but on the same day, the justice retained the amount of costs and paid $17.75, the residue of the amount deposited with him, to Kamman, and credited the judgment accordingly. On the 21st of April fob lowing an execution was issued for the collection of the amount remaining unpaid upon the judgment, and placed in the hands of the constable, Fina. The appellant thereupoi filed its bill of complaint against Kamman, Hecht and Fina, appellees herein, and temporarily enjoined the collection of said execution. Answers and replications were filed and proofs taken, and upon a final heaving of the cause the bill was dismissed at the cost of the complainant. There is no equity in the bill. The proofs are conclusive that Kamman did not accept the money in full satisfaction of his judgment, but only as a partial payment. Even if it is assumed that the justice of the peace was not authorized to pay the money, after deducting costs, to Kamman, as a payment on his judgment, yet Kamman can not be prejudiced thereby, and be held to have forfeited the residue of the amount recovered by him in his suit. The real and substantial question is, with what intent the money was received — whether in part or in full satisfaction of the judgment. The acceptance of a sum tendered, if not accepted in full of the entire demand, does not preclude the party from proceeding for more : Ryal v. Rich, 10 East, 47 ; Sleght v. Rinelander, 1 Johns. 198 ; Higgins v. Halligan, 46 Ill. 173; Jenks v. Burr, 56 Id. 450; Monroe v. Chaldeck, 78 Id. 429.
    Opinion filed May 21, 1886.
    There is no error in the record, and the judgment is affirmed.
    Attorneys, for appellant, Mr. Wm. Armstrong ; for appellee, Mr. S. R. Moore.
   Opinion by

Baker, J.

Judge below, Franklin Blades.


text:
    No. 1411.
    Dyer v. Miller.
    Opinion filed June 8, 1886.
    Under an alleged agreement to take a store in .one of two ways, either for six months at $50 per month, or for a year at $40 per month, and subsequent occupancy with payment of some rent, the question as to whether there had been an election as to which of the two ways it was held, was one of fact and not of law, and should have been left to the jury. For the error in withdrawing such question from the jury the judgment is reversed and remanded.
    Attorneys, for appellant, Mr. C. W. Brown; for appellee, Messrs. Wing & Goodsfeed.
   Opinion by

Welch, J.

Judge below, Geo. W. Stiff.


text:
    No. 1452.
    Off & Co. v. Givens.
    Opinion filed June 8, 1886.
    This was an application made by Charles J. Off & Co., at the February term, 1885, of the Knox Circuit Court, to amend and correct the record of a judgment of said court rendered at the October term, 1883, so that said record should show and record a judgment in their favor of $153.29 against D. F. Givens, instead of a judgment in their favor for that amount against W. D. Lo-max. Even if this court could properly review the action of the circuit court in the absence of a bill of exceptions incorporating the evidence, and pass upon the matter at issue from the record that is before it, the court would feel compelled to say that it does not appear definitely and with reasonable certainty that Givens was a party to the trial; that the j ury returned a verdict against him, and that as a matter of fact the judgment rendered by the court was against him. The court would not, upon that record, feel authorized to direct that he should be substituted in place of Lomax, as the party against whom the judgment was in fact entered.
    The order of the court overruling the motion to amend is affirmed. .
    Attorneys, for appellant, Mr. Frederick A. Willoughby; for appellee, Messrs. Williams, Lawrence & Bancroft.
   Opinion by

Baker, J.

Judge below, A. A. Smith.


author: Peb Curiam.

text:
    No. 1442.
    Parker v. Allen.
    The appellee sued the appellant in assumpsit on two promissory notes, one for $100 and one fur $650. Pleas of the general issue and plea that appellant did not execute the notes sworn to were interposed. The appellant was a married woman at the time the notes were given and her name was signed to them by her husband, whose authority to do this either express or implied, she denied. It does not appear from the evidence that her husband was in her employ carrying on her farm on her account, but on his own, hence no implied authority could be held to exist to sign the notes as a general agent. The evidence to show her actual authority to him to execute them is very weak. In the condition of the evidence the instructions for appellee were erroneous in the manner of submitting the question of implied authority. But the appellant expressed a willingness on the witness stand to pay the $100 note. Recovery should have been had on that note at all events, but it was had on both notes, which was error. As appellee has filed no brief, the judgment is reversed and cause remanded under rule 27 of this court.
    Opinion filed June 8, 1886.
    Attorney for appellant, Mr. H. Gunn.
   Opinion

Peb Curiam.

Judge below, F. H. Shaw.


text:
    No. 1430.
    C. & A. R. R. Co. v. Schweitzer.
    Opinion filed June 8, 1886.
    Two points are made on this appeal, to wit: a defective declaration and that the damages are excessive. The defect, claimed, in the declaration, is the omission to state the day on which the fire causing the injury to appellee occurre . There was no demurrer to the declaration. The general issue was pleaded. The proof shows the fire occurred on the 17th day of December, 1883. No objectiou was made to the admission of the evidence. No instructions were asked or given. Motion for a new trial did not assign as a reason therefor any defect in the declaration. No motion was made in arrest of judgment. It is now too late to raise that question in this court: Webb et al. v. Alton Marine and Fire Ins. Co., 5 Gil. 225 ; Vasey v. Board of Trustees, 59 Ill. 190; Ladd v. Pigot, North Eastern Reporter, Vol. 2, No. 5, 505 ; Barnes v. Brookman, 107 Ill. 317 ; 1st Chitty Pleadings, 14th Am. Ed. 673 ; Lake Shore and Michigan Southern R. R. Co. v. O’Connor, filed in the Supreme Court at Ottawa, Nov. 1885, reported in Legal News, Dec. 5, 1885. “The law having intrusted the trial of fact to a jury the verdict will not be disturbed unless it is manifestly against the wmight of the evidence, or unless necessary to prevent a plain perversion of justice.” Chicago and N. W. Ry. Co. v. Ryan, 70 Ill. 211; Chicago and Rock Island R. R. Co. v. Hutchins, 34 Ill 108 ; Chicago, Alton and St Louis R. R. Co. v. Stover, 63 Ill. 358 ; Howitt v. Estelle, 92 Ill. 218. Although the court might not have reached the same conclusion as that reached by the jury, and might have been better satisfied if the damages had been less, still their finding is sufficiently supported by the evidence as not to authorize the court in setting it aside.
    Judgment affirmed.
    Attorneys, for appellants, Messrs. House & -Fey; for appellee, Mr. C. W. Bbown.
   Opinion by

Welch, J.

Judge below, Geobge W.

Stipp.


text:
    No. 1459.
    McKinlay v. C., B. & Q. R. R. Co.
    This was a suit brought by the appellant against the appellee, for the recovery of damages for the killing of the stock belonging to the estate of B. M. HcKinlay, deceased, that escaped, and got on the track of the appellee, through a gate at a farm crossing. The averment in the declaration is that said gate, was negligently left open by the defendant; the general issue was interposed and the evidence all had reference to the issue thus made. There was a trial and verdict for the appellee, and judgment on the verdict, from which this appeal is taken.
    Opinion filed June 8, 1886.
    Perceiving no error, the court affirms the judgment.
    Attorneys, for appellant, Messrs. Stewart & Stewart; for appellee, Messrs. Sweeney & Walther.
   Opinion by

Welch, J.

Judge below, J. J. Glenn.


text:
    No. 1405.
    Aultman v. Harrison.
    This was an action brought by the appellant, an incorporated company, against the appellee, on a promissory note dated August 15, 1882, and payable to the appellant on the 1st day of January, 1884, as part of the purchase price of a traction engine sold by the appellant to the appellee — the consideration for the engine being §1,200 : five hundred dollars paid in cash, and two notes given, each for the sum of §350, one due on the 1st day of Movember, 1882, which was paid at maturity, the other note being the one in suit. Appellee filed two special pleas, alleging a warranty of the engine and a breach of the warranty, and damages by reason of the breach. Appellant filed replications denying the warranty as alleged by the appellee, and averring that it was one of the conditions of the warranty that if within five days from the date of the first use said engine should fail to fill said warranty, appellee should give the appellant, and also'the local agent, written notice, stating wherein it failed to fill the warranty, and was to allow the appellant a reasonable time in which to remedy said defects; and if the appellant failed to remedy said defects, then the appellee was to return the engine to the place from which he received it; and alleges that no notice of any defects as reqnired was given to the appellant, nor request made to the appellant to remedy any defects, and that no return of the engine to the place from which it was received was ever made. And for a further replication alleges that, asa part of said warranty, it was agreed that the continued use of the said engine should be evidence of the fulfillment of the said warranty; and further alleges that the appellee retained the engine for two years and used it, and then sold it. Appellee rejoins by alleging notice to the local agents, and that they waived written notice; and alleging further that appellant failed to make the said engine fill the warranty, and that he did not return the engine, for the reason the appellant requested him to retain and not return it, and concludes to the' country, etc. Appellant files a sur-rejoinder, denying, among other things, the waiver of written notice by Deyo Brothers, for the appellant, and also denies that appellant requested appellee to retain and not return said engine. Trial and verdict for defendant, on which judgment was entered for the defendant, from which judgment this appeal is taken. The judgment is reversed for modifications made by the ejurt below to certain of appellant’s instructions. The modifications were erroneous in that there was no evidence upon which to predic.it j them.
    Opinion filed June 8, 1886.
    Attorneys, for appellant, Mr. Miles Fuller ; for appellee, Messrs. Edwards & Evans.
   Opinion by

Welch, J.

Judge

below, F. M. Shaw.


text:
    No. 1446.
    Kelsey v. Snyder.
    The substance of the bill and amendment thereto in this case may be stated under two heads: 1st. That prior to the death of Ira F. Benson appellant claims to have been the equitable owner of an undivided one half interest in the Milk Maid ” lode, a silver mine situated in Ouster county, Colorado, the legal tit'e being in Benson in trust for her. 2d. That after the death of Benson, she, by means of false and fraudulent representations, was induced to execute an assignment to Fannie Snyder to a part of her claim against the estate of Benson to the extent of $2,000, and to direct his administrator to pay from dividends said $2,000, and to take from Fannie Snyder a deed to the one half interest in said mine as the consideration therefor, charging- that said assignment was fraudulently obtained and was without any consideration, that she was already the owner of the undivided half interest in the mine, and that Fannie Snyder had no interest in, or right to convey the same. She prays that she may be decreed to be the owner in fee simple of the one half interest in the mine, and that the agreement by he;' with Fannie Snyder assigning $2,000 of her claim may be de dared fraudulent and void. It is first insisted that the court erred in sustaining the demurrer to parts of the amended bill. There was no error in sustaining the demurrer. The parts of the bill to which the demurrer was sustained were not relevant or germane to the bill or to the amended bill. It is also insisted that the court erred in sustaining exceptions to some of the objections of the complainant as to conversations or transactions with Benson in his lifetime. The court find i that upon the introduction of Mrs. Kelsey’s evidence, defendants objected to such parts as referred to what passed between her and Benson, on the ground that Benson was dead and defendants objecting as heirs and administrators respectively. The objection was made in apt time and the evidence was incompetent under section 2, Chap. 51, R. S. Ill. While the court finds that some of the exceptions taken by the appellant to the evidence should have been sustained, still it is satisfied that there is in this record sufficient evidence against which no valid objection could be urged to sustain the decree in this case. The court also finds that appellant, after the sale by Fannie Snyder to the complainant of one half interest in this mine, made a contract with Horine Bros. & Co., for the sale to them of her half interest in this mine. It is dated September 18, 1880, and provides for the payment to her of $2,000, $500 cash and $1,500 out of the first yield of the mine. On this contract she received $500 ; the contract still remains uncollected and unsatisfied. She has by this contract made it impossible for her to place the other party in statu quo. The rule is inflexible that a party can not rescind a contract of sale and at the same time retain the consideration received. “He who seeks equity must do equity. ” Smith v. Battenhen, 109 111. 550. It is claimed that the proceeds of this sale are assets in the hands of the administrator. This sale did not place in the hands of the administrator one dollar. The administrator had nothing to do and could have nothing to do with the mine in Colorado He did not assume to have anything to do with it and no part of the $2,000 was derived from it. His appointment gave him power over the qsersonalty and the right to sell the real estate of Benson in this State for the payment of debts under the order of the county court. Finding no substantial error in this decree it is affirmed.
   Opinion by

Welch, J.

Opinion filed June 14, 1886.

Attorneys, for appellant, Mr. Granville M. Browning; for appellee, Mr. Charles A. Hill.

Judge below, C. Blanchard.


text:
    third district.
    No. 33.
    Decatur and Springfield R. R. Co. v. Ervin et al.
    Opinion filed Jan. 6, 1886.
    The defendants in error recovered of the plaintiff in error a sum found to be due for rebate upon certain shipments of grain. The record being brought here, the question is presented whether the contracts under which the defendant below agreed to make the rebate were valid and binding as between the parties thereto. The Supreme Court has settled the point involved adversely to the plaintiff in error : T. W. & W. R. R. Co. v. Elliott et al., 76 Ill. 67; The P. D. & E. Ry. Co. v. Cecil et al., 112 Ill. 180.
    The judgment is therefore affirmed.
    Attorneys, for appellant, Mr. James A. Eads; for appellee, Mr. C. C. Clark and Messrs. Nelson & Harnsserg.
   Opinion

Per Curiam.

Judge below, J. W.Wilktn.


author: Wall, P. J.

text:
    No. 10.
    Douglass et al. v. McCord et al.
    Opinion filed Jan. 6, 1886.
    This case was here at a former term — 12 Bradwell, 278. The bill as originally framed, was upon the theory that complain ints had a lien as subcontractors, and asitappeared there was but little due under the contract, it was held the decree in favor of complainants for the full amount of their bill could not stand. After the cause was remanded the circuit court granted leave to amend the bill so as to charge that the contract ivas made directly with the lot owners for the materials in question, in pursuance of a provision in the contract between the lot owners and the builder that the former should pay for the materials used in the construction of the house to the parties furnishing the same. Hpon the second hearing the issues were found for complainants and a decree was entered in the usual form for §393.77. The sole question for decision is whether there was sufficient evidence to warrant the decree.
    Affirmed.
    Attorneys, for appellants, Mr. S. R. Reed; for appellee. Mr. W. G. Cloyd and Messrs. Lodge & Huston.
   Opinion by

Wall, P. J.

Judge below, C. B. Smith.


author: Conger, J.

text:
    No. 67.
    Deere v. Cole et al.
    Opinion filed Jan. 6, 1886.
    This case was decided and is reported in 16 Brad well, 629. On rehearing, the court finds nothing to require it to change its conclusion heretofore announced.
    Attorneys, for appellant, Messrs. Gere & Beardsley; for appellee, Mr. J. M. Wright.
   Opinion by

Conger, J.

Judge below, J. H. Wilkin.


text:
    No. 79.
    Chicago, Burlington & Quincy R. R. Co. v. Jones.
    Opinion filed Feb. 25, 1886.
    It is not enough to create liability for stock killed hv a railroad train, to prove that the bell was not rung, nor the whistle sounded, but it must also appear by facts and circam stances proved, that the accident was caused by reason of such neglect. The court is of opinion the evidence wholly fails to sustain the verdict in this case for appellee.
    Reversed and remanded.
    Attorneys, for appellant, Messrs. Sweeney & Walker; for appellee, Mr. James Callans.
   Opinion by

Wall, P. J.

Judge below, G. W. Herdman.


text:
    No. 62.
    Miller et al. v. Johnsons.
    Opinion filed Feb. 25, 1886.
    This ivas an action of replevin for two horses, brought by appellants, claiming under hill of sale, and also assignment of a chattel mortgage from an execution defendant, against the constable who levied upon and took thorn. The levy was made after the mortgage debt had matured and the questions presented were upon the sufficiency, as against the judgment creditor, of the possession claimed to have been previously taken under .the bill of sale, and the good faith of the alleged purchase.
    The issue of property was found for the defendant who had judgment for his costs and a return of the property, and there being sufficient evidence to sustain such judgment, it is affirmed.
    Attorneys, for appellant, Mr. W. E. Hughes; for appellee, Messrs. Kerrick, Lucas & Spences.
   Opinion

Per Curiam.

Judge below, R. M. Benjamin.


text:
    No. 28.
    The Village of Fieldon v. Kraus et al.
    This was an action of debt to recover the penalty provided by the ordinance of the village of Fieldon, for selling liquors in violation of the provisions of said ordinance. The declaration contained five counts. A general and special demurrer was filed to the declaration. Each count of the declaration was then sustained by the court, and the plaintiff electing to stand by its declaration, judgment was rendered against the plaintiff, ti which it excepted and brings the record to this court for review. The court is of opinion that the first count is substantially good, and would require the defendant to answer.
    Opinion filed Feb. 25, 1886.
    Be-versed and remanded.
    Attorneys, for appellant, Messrs. Hamilton & Staton, and Mr. A. A. Goodrich; for appellee, Messrs. Brown & Kirby.
   Opinion

Pee Curiam.

Judge below, G. W. Heedman.


text:
    No. 18.
    Lyon v. Blakney et al.
    Opinion filed Feb. 25, 1886.
    It is only when this court is able to see that the decree of the court below is clearly against the weight of the evidence that it will reverse upon a mere controverted question of fact: Wiegleb v. Thomsen et al., 102 Ill. 156. The finding of the court below that the party making the assignment of the notes in question was mentally incapacitated so to do is affirmed.
    Attorneys, for appellant, Mr. C. M. Swallow and Mr. F. Bookwalter ; for appellees, Mr. W. R. Lawrence and Mr. J. B. Mann.
   Opinion by

Conger, J.

Judge'below, O. L. Davis.


text:
    No. 56.
    Mitchell, Lewis & Co. v. Upton Mfg. Co.
    This was an action of replevin by the appellant against the appellee. Declaration m the cejoit and detioiei. Pleas own cejoit, own detvnet. Property in defendant and a special plea denying the assignment of a promissory note in controversy. Trial by the court without a jury by consent; finding not guilty; writ of retorno hdbendo awarded with costs. The principal questions in the case were as to the authority of one Burgess to assign the note in the name of the appellee and as to the sufficiency of an assumed possession of the property in dispute by the agent of appellants. These issues of fact were found by the court for defendant below, and after reading the evidence the court is inclined to agree with this finding. It is objected that the finding of not guilty being responsive only to the pleas own cejoit and own detinet, did not justify the judgment awarding a writ of retorno and for costs. This purely technical objection should have been interposed at the time, when the error could have been corrected, and no doubt would have been. It is too late to mdee it now: Bowden v. Bowden, 75 Ill. 111; Utter v. Jaffray, 15 Bradwell, 236.
    Judgment affirmed.
   Opinion by

Wall, P. J.

Judge below, O. T. Reeves.

Opinion filed Feb. 25, 1886.

Attorneys, for appellant, Mr. J. T. Lillard ; for appellee, Messrs. Pollock & Barr.


text:
    No. 41.
    Fisher v. Phillips et al.
    Opinion filed Feb. 25, 1886.
    This was a proceeding by distress for rent. The defense was that the rent had been released, to which the plaintiffs replied that the supposed release was void for want of consideration. TJpon a trial by jury the issue was found for the plaintiffs, and there was judgment accordingly. The land had been rented by Albert T. Phillips, then owner, to the appellant. Phillips having died, the suit is prosecuted by the appellees, his widow and nephew, in whom the title now is. The alleged release was given, as claimed by the tenant, in part satisfaction of a • demand then asserted by him against the landlord, because of certain slanderous and defamatory words said to have been uttered and published by the latter concerning the former. The plaintiffs insisted, on the contrary, that it was in consideration, wholly, of an agreement by the tenant not to prosecute the landlord for an alleged criminal offense in failing to properly list his property for taxation, and that he would not cause him to be brought back from the State of Kansas, where he then was, to this State, for trial upon the supposed charge. The arrangement, whatever it was, and whatever induced it, was effected on behalf of Phillips, by his wife, through a third party. Phillips had left his home and gone to Kansas, evidently to get away from the troub’e, and as now suggested he was moved by a serious apprehension that he would be subjected to a criminal prosecution. While there he was taken sick and his wife paid the appellant one hundred dollars and agreed to release this rent,' for the sole consideration, as she avers, that there should be no prosecution. She soon after went to Kansas, and remained there with her husband till his death. The evidence was very conflicting, and it was for the jury to reconcile it if possible, and if not, to determine where the truth was. The law applicable, was given.very fairly and accurately by the instructions, and the verdict must stand, as this court'can not say it was manifestly against the preponderance of the evidence.
    Attorneys, for appellant, Messrs. Tipton & Beaver; for appellee, Mr. J. S. Ewing.
   Opinion by

Wall, P. J.

Judge below, O. T. Reeves.


text:
    No. 50.
    Kiles et al. v. Watkins.
    Opinion filed Feb. 25, 1886.
    This was an action brought by appellants against appellee Win. Watkins and his son, Elijah, on a promissory note for §1,000, executed by them to appellants. The defense of appellee was, that he signed the note as surety for his son with an express understanding between himself and appellants, that the loan to his son was to be only temporary, and that so soon as the money could be borrowed from other parties by his son, the note should be canceled and appellee released from liability as such surety. That his son in a short time afterward through the intervention of appellants ascertained that the money to take up the note could be obtained from one Taylor. That appellants’ cashier, Oliver, informed appellee that Taylor would furnish the money, if his son would execute a mortgage on certain property and he, appellee, would sign the new note as surety, and if he would do so, the new note should be used to satisfy and discharge the note held by appellants; that with this understanding he signed the second note, instructing his son to take it to appellants’ bank, and with it take up the original note. That this was not done, but the new note, instead of being applied to cancel and discharge the old note, was, without the knowledge or consent of appellee, applied by appellants upon the individual indebtedness of the son to them. These facts were denied by appellants and the testimony was conflicting, but the court is of opinion the jury were warranted, from all the evidence, in finding these issues for the appellee. During the trial it was sought to show by the evidence the fact that the son, Elijah, was insolvent, for the purpose, as claimed, of showing the interest appellee must necessarily have in the result and thereby affecting his credibility. The court refused to permit its introduction, and this is assigned for error. The holding of the court was right. To have allowed its introduction would have raised an immaterial issue.
    Affirmed.
    Attorneys, for appellant, Messrs. Ketcham & Gridley; for appellee, Mr. R. W. Mills.
   Opinion by

Conger, J.

Judge below, Lyman Lacey.


text:
    No. 44.
    Northwestern Ben. & Mut. Aid Asso. v. Hall.
    This was assumpsit upon a contract of life insurance. The defense was that the assured had falsely represented in his application that his health had been uniformly good for the preceding ten years; that he falsely represented his habits as to the use of alcoholic liquors in said application, and that he committed suicide. These questions of fact were submitted to the court without a jury and were solved against the insurer, and a judgment was rendered in favor of the plaintiff for the amount of the insurance, §2,000, and costs of suit, which judgment is affirmed by this court.
    Opinion filed Feb. 25, 1886.
    Attorneys, for appellant, Messrs. McNulta & Weldon; for appellee, Messrs. Tipton & Beaver.
   Opinion by

Wall, P. J.

Judge below, O. T. Reeves.


text:
    No. 76.
    Barrett et al. v. Waters et al.
    Appellants obtained an injunction on a bill to enjoin certain taxes. A motion to modify the injunction was made and overruled, whereupon appellees filed théir answer, and appellants dismissed their bill. A suggestion of damages was filed, evidence heard and twenty-five dollars allowed as solicitors’ fees, and a decree for that amount entered against appellants, from which they appeal, and ask a reversal upon the following grounds: First, because the bill was voluntarily dismissed by appellants. Everything had been done by the defendants in the bill that they could do to effect a dissolution, and when appellants dismissed their bill it was a confession that the injunction had been improperly issued. The notice governing them in such dismissal is not important. It is asserted in appellees’ brief that the record discloses that the decree dismissing the bill was not filed until after the suggestion of damages had been filed and acted upon by the court. The court has examined the i’ecord and finds it silent upon this point, and therefore indulges the presumption that such is the fact. It was the duty of the circuit court to know, when it passed upon the suggestion of damages, that it had been filed prior to the filing of the decree dismissing the bill, and this court, must presume, in the absence of all evidence to the contrary, that the court proceeded regularly and performed its duty according to the due course of law: Camp v. Small, 44 Ill. 37; Morton v. The People, 47 Ill. 468 ; Curyea v. Berry, 84 Ill. 600. The last objection is that the attorney who appeared for appellees and prepared their answer, was the master in chancery, and had originally granted the preliminary injunction, and was not therefore competent to appear as their counsel. The mastjr at the time of passing upon the question of ordering the writ to issue, was not interested in the contest. Afterward he could have nothing to do with it as master. His duty had been performed, and the court is referred to no authority which would prevent him from afterward appearing as counsel in the case, nor does the court think any can be found.
    Opinion filed Feb. 25, 1886.
    Decree affirmed.
    Attorneys, for appellant, Mr. J. S. Wolfe ; for appellee, T. J. Smith.
   Opinion by

Conger, J.

Judge below, C. B. Smith.


text:
    No. 72.
    Strawn et al. v. Taylor.
    Opinion filed Feb. 25, 1886.
    This was a bill in chancery to foreclose a mortgage executed by Preston A. Berry and wife to Taylor, to which bill plaintiff in error, James GL Strawn, was made a defendant, the Bill reciting that he claimed some interest in the mortgaged premises, as purchaser, mortgagor, judgment creditor or otherwise, but such interest was subject to said mortgage. All of said defendants were duly served with process and made default, and a decree was entered upon the 24th of June, 1884, for 81,136.25, amount of principal and interest due on the notes, and also for 850 attorney’s fee as a part of the costs. The objections to the decree are all frivolous, and not one of them even points in the direction of a meritorious defense.
    The decree is therefore affirmed.
    Attorneys, for plaintiffs in error, Mr. Oscar A. DeLeuw; for defendant in error, Messrs. Brown & Kirby.
   Opinion by

Conger, J.

Judge below, 0. Eplee.


text:
    No. 68.
    North British & Mercantile Ins. Co. v. Steiger.
    This was a suit upon an insurance policy. The case having been once before this court, a reference to the opinion there filed as found in 13 Brad well, page 482, will give the facts necessary to an understanding of the case. In the view the court takes, it will be unnecessary to notice but one of the large number of questions raised and elaborately discussed by counsel, and that arises upon the following clause in the policy sued upon1: “ If the assured shall have or shall hereafter make any other contract of insurance, whether valid or not. on the property insured, or any part thereof, without the consent of the company written hereon, * * * then and in every such case this jiolicy shall become void.” The policy was dated October 6, 1881, and permitted other concurrent insurance to the extent of $1,500. There was another policy issued by the German American Insurance Co. upon the same property, dated upon the same day, to the amount of $1,150. On the 13th day of March, 1882, appellee procured a policy in the Hamburg Magdeburg Fire Insurance Company upon the same property for the sum of §1,000. These three policies were all existing and uncanceled up to the destruction of the property insured, which occurred upon the 16th day of April, 1882. Procuring these policies in excess of the amount allowed was clearly a violation of the policy issued by appellant, and would render it void unless waived. As to the policy existing at the time, the court does not feel warranted in ignoring the finding of the jury, that there had been a waiver, but the court finds no evidence even tending to show that appellant or its agent ever knew of the existence of the policy issued in March, 1882, until after the destruction of the fire. No waiver being shown, the procuring of such policy was a violation of the conditions of the one sued upon. Counsel for appellee assumes in his argument the existence of the Hamburg Magdeburg policy at the date of the one sued upon, and as it may be possible that this record does not disclose the true state of facts concerning it, the cause is remanded.
    Opinion filed Feb. 25, 1886.
    Beversed and remanded.
    Attorneys, for appellant, Messrs. Palmer, Robinson & Shutt; for appellee, Messrs. Bradley & Bradley.
   Opinion by

Conger, J.

Judge below, J. A. Creighton.


author: Green, J.

text:
    FOURTH DISTRICT.
    No. 20.
    The People, etc., v. Joseph L. Miller et al.
    The error assigned is setting aside default against defendants below. The affidavits, read on behalf of defendants in error in support of the motion to set aside the default, are not preserved by a bill of exceptions, and not being a part of the record are not properly before the court for consideration. If, however, in deciding this case the court could with propriety and in accordance with its practice examine and consider the affidavits copied by the clerk of the circuit court in the transcript of the record and commented upon by counsel for plaintiff in error in his brief, the court would feel inclined to hold them sufficient to justify the action of the court below in sustaining said motion and in setting aside the default upon payment of costs.
    Opinion filed April 15, 1886.
    Affirmed.
    Attorneys, for plaintiff in error, Mr. D. W. Karraker ; for defendants in error, Mr. W. S. Day.
   Opinion by

Green, J.

Judge below, B, W. McCartney.


text:
    No. 5.
    Continental Fire Insurance Co. of New York v. Jesse H. Herd.
    Opinion filed April 15, 1886.
    The bill of exceptions does not purport to contain all the evidence introduced on the trial of the cause; the court is thus deprived of the necessary information to en-ab'e it to decide the case upon the errors assigned, and the judgment is affirmed.
    Attorneys, for appellant, Messrs. Moyer & Smith; for appellee, Mr. W. B. Flannigan and Mr. W. H. Williams.
   Opinion

Per Curiam.

Judge below, Daniel M. Browning.


author: Wilkin, J.

text:
    No. 19.
    Smart v. Coke.
    This was a trial of the rights of property originating before a justice of the peace and appealed to the Circuit Court of Williamson county by appellant, in which judgment was again rendered against her and she brings the case here. It is shown by the evidence, that on the 8th day of June, 1885, T. E. Cagle, constable, levied on “one tramway engine, one tramway lumber car, one heading and shingle mill and all the appurtenances belonging to said engine, car and mill,” as the property of William Smart on an execution in favor of appellee, David Coke. On the twelfth day of the same month appellant, who is the wife of William Smart, gave notice in writing that she claimed the property levied upon, and both trials were had under the statute providing for the trial of rights of property before justices of the peace. This judgment is reversed because the evidence does not support the verdict and because the instruction numbered thirteen, given on behalf of appellee, is erroneous. Both seem to ignore the fact that there was other property than the engine involved in the case. The evidence of appellant is positive as to her ownership of the lumber car and heading and shingle mill, and she is wholly uncontradicted. The judgment, however, is against her for all the property, and a complete indemnity to the constable to sell it for the debt of her husband: Sec. 103, Ch. 70, B. S. The verdict was therefore manifestly against the evidence, and should have been set aside for that reason.
    Opinion filed April 15, 1886.
    Attorneys, for appellant, Mr. Wm. A. Schwartz and Messrs. Clemens & Warder; for appellee, Mr. J. B. Calvert.
   Opinion by

Wilkin, J.

Judge below, Oliver A. Harker.


text:
    No. 33.
    Morrison v. Smart.
    Opinion filed April 15, 1886.
    On the 6 th day of May, 1872, at Greenfield, Ohio, appellant executed to appellee his promissory note for $286.36, due six months after date. At the February term, 1884, of the Circuit Court of Marion county, appellee brought his action to recover the amount then due on said note. Among other pleas filed, was a plea of set-off, setting up items of indebtedness against appellee, such as are usually contained in the consolidated common counts in assumpsit. To this plea appellee replied the five years’ Statute of Limitations, and on that issue the only question involved in this case arises. On the question of fact, the court below was" justified in finding against the plea of set-off. Robertson v. Dodge, 28 Ill. 161, does not hold that a court or jury is bound to believe a witness, however absurd or unreasonable his testimony. The law of the case is against appellant on his own theory. He relies on Sec. 17, chapter 83, R. S. (entitled Limitations), to save his case from the effect of the five years limitation. Appellee’s cause of action in this suit is the note executed on the 6th day of May, 1872. He is not seeking to recover on the original indebtedness. At the time this note was executed, the account pleaded by way of set-off was barred by the six years Statute of Limitations of the State of Ohio. It is not shown that by the provisions of the statute of Ohio, the account was kept alive by appellee’s holding the note of appellant executed to David and Robert Smart. Therefore appellee did not hold the cause of action here sued on before appellant’s set-off, or counter claim, was barred, and Sec. 17, by its express terms, does not prevent the running of the statute against the set-off.
    Affirmed.
    Attorneys, for appellant, Mr. H. C. Goodnow ; for appellee, Mr. T. E. Merritt.
   Opinion by

Wilkin, J.

Judge below, Wm. H. Snyder.


author: Pillsbury, P. J.

text:
    No. 8.
    St. L., A. & T. H. R. R. Co. v. Overturf.
    This action was brought by defendant in error against the railroad company, to recover the value of several hogs, alleged to have been killed by its engines. A recovery of $18 was had and the company sued out a writ of error to reverse the judgment. From the evidence it would appear that the plaintiff relied for a recovery upon statutory negligence — the failure to erect and maintain a fence, as provided by the law, upon its line of railroad. The evidence utterly fails to show that the hogs killed, got upon the .crack at a place where the company was required by the statute to fence against them. The plaintiff must negative the exceptions contained in the statute, where he relies upon the failure to fence as a ground of recovery.
    Opinion filed June 12, 1886.
    Judgment reversed.
    Attorneys, for appellant, Mr. F. M. Youngblood ; for appellees, Mr. J. A. Treece and Messrs. Boss & Layman.
   Opinion by

Pillsbury, P. J.

Judge below, David J. Baker.


text:
    No. 53.
    Lander v. Albright & Co.

    This case was tried in the court below on an appeal from a justice of the peace. It was tried before a jury, aud a verdict and judgment for plaintiff for §128.95. The claim was for lumber sold and delivered. There is no dispute as to the amount of lumber furnished, or the price to be paid; but it is insisted by appellant that he purchased it subject to inspection and 'acceptance by the Illinois Central Railroad Company, and that 12,175 feet of that which was furnished was rejected by said company. Appellees deny that the Illinois Central had anything to do with the lumber as between them and appellants, and also that there is any legal proof that the company did inspect and reject a portion of it as claimed by appellant. The only proof of this latter fact is a statement marked “B,” made by appellant, in regard to which he swears, “ I do not know by whom the lumber was inspected in Chicago. I only go by the reports sent back to me from Chicago, purporting to come from the I. C. R. R. Co.” To the introduction of this statement “B,” appellees objected, but the objection was overruled. This evidence was clearly incompetent. To hold otherwise is to permit the unsworn statement of an unknown party to be received in evidence. Three witnesses, who testify on behalf of appellees, swear that the lumber furnished by appellees to appellant was all good, firshclass lumber, and no witness contradicts them. The evidence shows that the lumber was accepted by appellant. Therefore, even if the I. 0. R. R. Co. was to inspect it, in the absence of competent proof that a part of that which was furnished was rejected, appellees would be entitled to recover for the whole amount furnished at the contract price, which is the recovery below. After the lumber was furnished, appellees called on appellant for payment, and he, after examining the account and deducting the 12,175 feet as being rejected by the railroad company, found that he owed a balance of 811-88, for which amount he drew a check in these words: “The City Bank of Carbondale: Pay to Messrs. Albright & Co. or order, 811-88 (to balance accounts to date) dollars.” Hugh Lauder. This check he sent to appellees by mail, and it was afterward returned to him by the bank indorsed Albright & Co., paid. This transaction, it is said, is prima facie evidence of a settlement. There is no proof whatever that appellees were represented by any one at the time the accounts were examined and the deduction of rejected lumber made. The mere fact that appellees accepted the check and a-eceived the money upon it, with a statement in parenthesis that it was “to balance accounts to date,” under the evidence in the case can scarcely be held prima facie evidence of a settlement; it clearly appears, however, that at the time of the acceptance of the check, and the payment thereof, appellees were ignorant of the claim, of appellant as to the inspection by the railroad company, or that any deduction had been made on that account; and this, with the other proof in the case, abundantly overcomes any prima■ facie proof of settlement. The rights of the parties, and the justice of the ease, turns upon the question of fact as to whether the sale was unconditional or whether it was subject to the condition contended for by appellants. The evidence is conflicting and irreconcilable. It was the province of the jury to determine which was entitled to the greater weight. Taking all the evidence together, in view of the fact that first-class lumber was furnished, the court is of opinion the verdict was right. No such error is found in the instructions complained of as would justify a reversal of the case.
    Opinion filed July 10, 1886.
    The judgment will be affirmed.
    Attorneys, for appellant, Mr. W. W. Barr ; for appellees, Mr. F. E. Albright.
   Opinion by

Wilkin, J.

Judge below, Oliver Harker.


text:
    No. 46.
    Sanders v. Robinson.
    Opinion filed Sept. 2, 1886.
    Petition for rehearing. The court finds no reason to change its conclusions upon a re-examination of this case. The original proceeding was against Charles Haward, adm’r of Henry A. Sanders, to compel him to inventory certain property alleged to belong to the estate of said Sanders ; pending which Haward died and defendant in error was appointed his administrator and by leave of court made defendant. Afterward a motion was made by defendant in error to abate or dismiss the proceeding against him,'on the ground that it abated by the death of Haward. The record shows that on the 18th of November, 1885, the case was heard by the court by consent of parties, a jury being waived. The recitals in the judgment show that the hearing was upon the evidence. The bill of exceptions does not contradict the record but simply states that the defendant in error “ did not waive his motion to dismiss, but insisted upon it both before and at the time.” There is nothing in the record to show that .the motion was disposed of by the court, and certainly it can not be said that the case was disposed of in any other way than upon a hearing. The bill of exceptions does not contain the evidence or any part of it, but states that “ the evidence showed ” certain facts and fails to show that there were no other facts proved. Without stating any of the evidence it concludes by saying “ this was all the evidence,” etc. The court below having disposed of the case upon a hearing of the evidence and neither the evidence nor all the facts found by the court appearing, it is impossible for this court to say that the judgment was erroneous, and for that reason it is affirmed.
    Attorneys, for appellant, Mr. M. Millard; for appellee, Mr. F. A. McConaughy.
   Opinion

Per Curiam.

Judge below, Amos Watts.


author: Mr. Justice Baker

text:
    C. H. Wayne, Appellant, v. E. W. Wagner et al., trading as E. W. Wagner & Company, Appellees.
    Gen. No. 20,163.
    1. Boards of trade and exchanges, § 29

      —liability of broker in purchasing grain for delivery. Where a customer through his commission firm made “short” sale of 20,000 bushels of corn for September delivery and directed the latter to buy on the board for delivery and the firm on September 30th bought for such customer and other customers for 73% cents per bushel, and on the next day, October 1st, purchased 20,000 bushels of corn for 70 cents per bushel for delivery on that day for another party, held that the customer was not entitled to recover from the firm the difference of 3% cents per bushel for the reason that the making of the latter purchase was not a transaction in which the firm was acting as agent for him.
    2. Boards of trade and exchanges, § 29*—when broker not liable for excessive price paid in purchasing grain for delivery. Where a person sold “short” a certain number of bushels of corn deliverable on a certain day, and on that day sent a telegram to his commission firm that he would not order the corn bought for delivery which was received by the firm until two minutes before the close of the market for the day, and the firm then bought the grain for delivery at from 46% to 45% cents and the market closed at 45% to 45% cents, held that the customer was not entitled to recover from the firm the difference between the price paid and the closing price for the reason that" he had given no order to buy and for the further reason that the firm could not be expected to buy at the closing price.
    3. Gaming, § 30

      —persons not liable in gambling transaction. Where a firm at the request of one of its patrons paid out money on his order, and to be charged to his account, to another for the purpose of placing the same on an election bet, the patron is not entitled to recover the sum from the firm on the theory that the transaction was illegal, it appearing that the firm -never aided or abetted him in making the bet and that the firm and the person to whom the money was paid were his agents.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Charles A. Butler, for appellant; Franklin Raber, of counsel.
    Chester Arthur Legg, for appellees.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

The defendants below, appellees here, are commission merchants on the Chicago Board of Trade under the firm name of E¡. W. Wagner & Company, and had a branch office at Bock Island. Plaintiff Wayne was a customer of Wagner & Company and transacted business with them through their Bock Island office. The claims sued on in this case grew out of three separate and independent transactions, each depending on its own circumstances, and they will therefore be considered separately. - .

I.

The Claim eor $700 on the Transactions of September 30 and October 1, 1912.

Wayne had sold “short” through Wagner & Company 20,000 bushels of corn for September delivery. This corn Wagner & Company must deliver September 30th or “default.” Wayne ordered Wagner & Company to buy on the Board 20,000 bushels of corn September 30th to deliver on his “short” sales. Other customers of Wagner & Company were short of corn and Wagner & Company bought before the close of “Change” September 30th, 70,000 bushels of cash corn at 73% cents, supposing that amount was all they required to fill their contracts. It turned out that they required 20,000 bushels more and Slaughter & Company offered to sell them that quantity for immediate delivery if they would sell to Slaughter & Company the same quantity at the same price, deliverable the following day. This offer was accepted and the purchase and sale made as proposed. Wagner & Company then, on September 30th, delivered the corn they had sold for September delivery for Wayne and advised him by telegraph the same day that they had bought for him 20,000 bushels of September corn at 73% cents and delivered the same. The result of the transactions in question was to leave Wagner & Company “short” 20,000 bushels of corn deliverable October 1st. The price of corn for immediate delivery declined to 70 cents per bushel on the morning of October 1st, and at that price Wagner & Company bought 20,000 bushels to deliver on their sale of the day before to Slaughter & Company.

The claim of Wayne is that he was entitled to $700, the difference between 73% cents, the price at which Wagner & Company sold the 20,000 bushels to Slaughter & Company, and 70 cents, the price at which they bought October 1st the corn to deliver on that sale.

We think the learned judge of the Municipal Court properly decided that Wayne was not entitled to recover the amount of such difference from Wagner & Company. When Wagner & Company bought the corn pursuant to his order at 73% cents and delivered the same on his “short” sale, they had done all that he ordered them to do. If in order to buy the 20,000 bushels of corn for him they sold a like amount deliverable the next day, that transaction was not one in which they acted as the agents of Wayne, but one in which they and they alone took a risk. If corn had advanced 3% cents, they would have been compelled, to avoid default, to buy the corn at that price, and as in that case the loss would have been theirs, we think that in the instant case the profit was theirs.

II.

The Claim eor $806.25 on Transactions oe December 31,1912.

December 31, 1912, Wayne was “short” 190,000 bushels, of corn deliverable that day.. He early in the day expressed to the manager of Wagner & Company’s Bock Island office the belief that it was not necessary for him to buy in his “short” corn. He conceived the idea that if he failed to deliver he had a right to settle at the closing price. Wagner telegraphed him, as the fact was, that the rules did not so provide; that the settlement would be made on the value of the corn as ascertained by a committee of the Board, to which would be added damages of five or ten per cent. Wayne telegraphed that he would not' order the com bought. This telegram was received at 1:13 p. m., two minutes before the close of the market for the day, and Wagner & Company proceeded to buy the corn at from 46% to 45% cents. The market closed at 1:15 p. m. at 45% to 45% cents.

Wagner’s claim is that he was entitled to the difference between 45% "cents, the closing price, and the price paid by Wagner & Company for the corn. Clearly, Wayne was not entitled to recover on the ground that he had given an order to buy at the closing price, first, because he gave -no such order; and second, because no one could tell in advance who would make the very last sale nor what the closing price would be. We think that when Wagner & Company began to buy the com only two minutes before the close of the market and bought 190,000 bushels, not en bloc, but from different brokers at different prices, they made diligent effort to buy at the closing price.

Wayne had no right, by refusing to give the order to buy, to compel Wagner & Company to default and pay the price and damages fixed by a committee of the Board. If he wished them to default on his sales, he should have given them positive orders to do so, and then he would have been liable to pay the price and damages fixed by a committee of the Board. In this case the minimum damages of five per cent, in case of default would have amounted to more than $4,000, and Wayne could not, by merely refusing to give orders to buy, compel the defendant to default and thereby become liable for such damages.

We think the court properly found for the defendants on this claim for damages, because they, at the time and under the circumstances stated, bought in the 190,000 bushels of corn they had sold “short” on the order of the plaintiff.

in.

The Plaintiff is Not Entitled to Recover of the Defendants the $300 Which They, on His Order, Paid to-Ledsworth to Bet on the Presidential Election of 1912.

November 4, 1912, the day before the election, McCormick, the manager of the Rock Island office of defendants, at plaintiff’s request telegraphed Ledsworth, the chief telegrapher of defendants at Chicago, inquiring whether he could place bets of 3 to 1 on Wilson in Chicago, and was informed that he could, and McCormick so reported to plaintiff. Plaintiff then directed McCormick to wire C. A. Johnson, general manager of defendants, to hand $300 to Ledsworth and charge same to his account. Johnson did so and plaintiff now claims that defendants should pay to him the amount handed to Ledsworth. Whether Ledsworth in fact, bet the money so handed to him does not appear,- nór is it, in our opinion, material to inquire. There is no pretense that he bet the money with defendants nor that they had anything to do with the transaction except to hand Wayne’s money over to Ledsworth, knowing that he had directed Ledsworth to.bet the same with some third person. Under our statute a “loser” may recover from a “winner” .money won in gambling, but the money in question was not “won” by the defendants. The defendants did not aid or abet the plaintiff to bet on the election. They only- paid his money on his order to Ledsworth, and we know of no case which holds that money' so paid can be recovered by the person ordering it paid -from the person paying it. In carrying out the orders of the plaintiff, McCormick and Ledsworth were not acting as agents of the defendants or in the course .of their duty as defendants’ employees, but as agents for and under the express directions of the plaintiff.

,We think the court properly held that the plaintiff was not entitled to recover the money so paid.

We think that on the entire case the judgment is right and it is affirmed.

'Affirmed.


text:
    John F. Devine, Administrator, Defendant in Error, v. W. G. Johnson, Receiver, Plaintiff in Error.
    Gen. No. 20,174.
    (Not to be reported in full.)
    Error to the Circuit Court of Coolt county; the Hon. John A. Dowdall, Judge, presiding. Heard in this court at the March term, '1914.
    Reversed with finding of fact.
    Opinion filed November 30, 1914.

      Statement of tie Case.
    Action by John F. Devine suing as administrator of the estate of John William Tullock, deceased, against W. 0. Johnson, receiver of the Chicago & Milwaukee Electric Railroad Company, for damages resulting from the death of the plaintiff’s intestate through being struck by defendant’s car. From a' judgment for Ten Thousand Dollars in favor of the administrator of the estate, defendant appeals.
    The tracks of the railroad company at Highland Park were laid on top of an embankment fifteen to twenty feet above the level of the street on which deceased approached the tracks.
    A regular car ran south at 7:40 p. m., which did not stop at the Morain Road station except to discharge passengers, or when there were persons on the platform who indicated a wish to take the car. The deceased, with three companions, approached the tracks, on the walk alongside of the Morain Road. That the car was in plain sight before the deceased reached the steps leading to the top of the embankment was proved by the testimony of his three companions, who were called as witnessess by the plaintiff. Marshall, the leader, testified that he saw the car when it was half a mile away, that its lights were lit, and after he saw it he walked up the stairs. Gilbert Halcrow testified that he saw the car when it was three hundred feet away, and John Halcrow testified that when he and deceased were below the stairs he said to deceased: “I wonder if we will catch that car,” and deceased answered: “Sure we will.” From the top of the stairs a walk led to the south end of the east platform, and from the center of that platform at a point about seventy-five feet north of the top of the stairs a walk led across the tracks to the west platform. The deceased and his companions attempted to cross the, tracks at an angle going northwesterly. The, other "three men crossed the west track safely, but the deceased in attempting to cross it a few feet south of the south end of the platform, was struck by the car and killed.
    Abstract of the Decision.
    1. Railroads, § 678*—when crossing track in front of approaching car constitutes contributory negligence. Where decedent was struck by an electric suburban car while attempting to cross the track in front of the car, which he knew to be coming and there was no obstruction to his view nor necessity for making the attempt, he was held not to have been in the exercise of ordinary care at the time of his death.
    2. Railroads, § 678*—effect of error of judgment in crossing tracks. Where a pedestrian in attempting to reach a car misjudges his ability to cross in front of such approaching suburban electric car and is run down, no one besides himself can be held responsible for his error of judgment, through which he loses his life.
    Bull & Johnson, for plaintiff in error.
    Daniel A. Levy, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.


text:
    Raymond C. Thayer, Appellee, v. Niobie G. Thayer, Appellant.
    Gen. No. 20,199.
    Divorce, § 168

      —how decree effects property rights. Where, in a divorce suit, the parties entered into an agreement, approved by the court in its decree, that the wife should have all the personal property and she should pay the husband fifteen hundred dollars for his interest in certain real estate, for which she gave her notes, secured by a trust deed on the property, the decree fixing their property rights was held binding in a suit to foreclose the trust deed, when she refused to pay certain of the unpaid notes and repudiated the notes and trust deed as arising out of an illegal transaction.
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    J. Marion Miller, for appellant.
    Theodore Johnson, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a decree of foreclosure of a trust deed in the nature of a mortgage given by her to secure a series of notes amounting to fifteen hundred dollars made, indorsed and delivered by her to the complainant October 22, 1910. May 26, 1903, the parties, then being husband and wife, purchased the mortgaged premises and the same was conveyed to defendant. The purchaser assumed a prior mortgage of three thousand five hundred dollars, paid two hundred dollars cash and for the remainder gave a series of notes secured by second mortgage. February 10, 1910, Mrs. Thayer filed her bill in the Circuit Court praying for a divorce on the ground of cruelty, and therein alleged that her husband had put into the said premises eight hundred dollars, but alleged that he had the use of a part of said premises and collected rent on the remainder, which use of the premises and rent collected more than set off any money put into said premises by him, and she prayed that she might be decreed to be the sole owner of said premises. The defendant answered the bill, denying the charge of cruelty and claiming an equal interest with complainant in said premises. When the cause was reached for hearing before Judge Tuthill, complainant’s solicitor told the judge that the parties had agreed that the complainant should -have all of the personal property and should pay defendant one thousand five hundred dollars for his interest in- said real estate. The decree in that case finds the defendant guilty of cruelty as charged in the Till- and -further finds that the defendant had contributed towards the purchase of said real estate one thousand five hundred dollars, and after disposing of the personal property decrees that complainant give to defendant thirty notes for fifty dollars each, payable monthly for thirty consecutive months, and a, trust deed conveying said real estate to secure said notes. By an amendment to the bill in this case complainant set up the facts above stated. Mrs. Thayer made the notes and trust deed she was directed by the ."decree to make and paid the first eleven notes as they fell due, but refused to pay the remainder and insists that, the notes and trust deed grew out of an illegal ^transaction and therefore cannot be enforced.

The agreement of the parties in the divorce suit related only to the interest that the defendant claimed in the real estate in question. . He claimed to have an equitable one-half interest therein and she claimed that although he had contributed eight hundred dollars towards its purchase he had" been repaid the money contributed. Both parties were represented by counsel, and when an agreement was reached it was stated to the court and was approved by the court in and by its decree in the divorce suit.

We think that the decree entered under such circumstances is binding on the- parties. 2 Bishop on Marriage and Divorce, sec. 702; Storey v. Storey, 125 Ill. 608; Buck v. Buck, 60 Ill. 241; Henderson v. Henderson, 37 Ore. 141.

The record is, in our opinion, free from error and the decree is affirmed.

Affirmed.


author: Mr, Justice Baker

text:
    Orthwein Matchette Company, Defendant in Error, v. Finley Barrell et al., trading as Finley Barrell & Company, Plaintiffs in Error.
    Gen. No. 20,282.
    (Not to fee reported in full.)
    Abstract of the Decision.
    Partnership, § 123

      —evidence sufficient to establish agreement with. In an action against a copartnership to.recover a sum alleged to be due under a contract whereby the defendants agreed to take care "of the business furnished" by a Board of Trade iñ a certain city with which plaintiff had a contract, "evidence held sufficient to warrant a finding by a jury that the defendants, through one of their members, assented to the contract with reference to the conditions of the arrangement made between plaintiff and said Board of Trade so that the defendants were bound thereby, it appearing that the member was present at the time the arrangement was orally made and that the plaintiff thereafter sent a memorandum of the agreement to him for his approval, and in answer thereto he wrote to plaintiff that to his mind it covered all the points of the agreement.

      Error to the Municipal Court of Chicago; the Hon. William N. Gemmiul, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Action by Orthwein Matchette Company, a corporation, against Finley Barrell, Eugene B. Pike and William E. White, copartners, trading as Finley Barrell & Company, to recover a sum alleged to be due the plaintiff under a written contract, relating to an arrangement whereby the defendants agreed to install1 a private wire from the office of plaintiff in Kansas City to.its office in Wichita, and the plaintiff agreed to send the defendants all the grain business' it received from the Wichita Board of Trade except that to be executed at Kansas City. To reverse a judgment entered on a verdict in favor of plaintiff, defendants prosecute a writ of error.
    Chester Arthur Legg, for plaintiffs in error. .
    James M. Sheean and Martin H. Foss, for defendant in error.

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

   delivered the opinion of the court.


text:
    Mary Sampson, Appellee, v. Sanfrid Harmstrom et al., Appellants.
    Gen. No. 20,299.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Exchange of property, § 10

      —when party not entitled to rescission. Where a woman, after making loans through a real estate and loan broker, entered into a contract with the broker for an exchange of real estate and gave her note secured by mortgage for the difference in the value of the properties and subsequently became in arrears in making payments, whereupon the broker required her to execute to him a quitclaim deed as an equitable mortgage, held there was no fiduciary relation existing between the parties at the time the contract was made or the deed was given nor any ground for rescinding the same in equity.

      Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed November 30, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Mary Sampson against Sanfrid Harmstrom and Albdrt Harmstrom to rescind a transaction between the complainant and defendant Sanfrid Harmstrom on the ground that a fiduciary relation existed between said parties and that complainant was induced to enter into the transaction through his false and fraudulent representations. From a decree granting the relief prayed, defendants appeal.
    James G. Skinner and C. H. Sippel, for appellants.
    Charles J. O’Connor, R. Harold O’Connor and Edward C. Kesler, for appellee.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

2. Brokers, § 6 —relation with person maJcing loan. Where a mortgage hanker or dealer in securities sells to a person a note secured by a mortgage, the buyer is an investor, and the relation growing out of the transaction is that of banker and customer or seller and buyer and not a fiduciary or trust relation."

3. Brokers, § 6*—when fiduciary relation created. When a person intrusts money to another to invest for him ánd the person who is intrusted with the money selects the security and makes the investment, a trust or fiduciary relation is created.

4. Brokers, § 6*—when fiduciary relation not created. The fact that a person buying a note from a loan broker paid for it with money which the broker had collected for him, and that the note and interest coupons were payable at his office and the interest was paid there and turned over to the buyer of the note, held not to create a trust or fiduciary relation between them.

5. Brokers, § 6*—when not a general agent. An owner by listing lots with a real estate agent for sale does not make the agent the owner’s general agent.