author: Mr. Justice Clark

text:
    In the Matter of the Voluntary Assignment of The Calumet State Bank. On Appeal of Melville C. Eames, Assignee, Appellant, v. Kate Becker, Appellee.
    Gen. No. 17,486.
    1. Assignment eob benefit of cbeditobs, § 136

      —requirements for filing claims arising subsequent to assignment. Where a claim arises out of the operation or management of the estate, the statutory requirements as to filing claims against an insolvent arising prior to the assignment for the benefit of creditors are not controlling.
    2. Assignment fob benefit of cbeditobs, § 145

      —when County Court cannot set aside prior order of distribution. County Court cannot set aside a previous order for distribution made without notice to a claimant against the estate of an insolvent unless the order was obtained by fraud.
    Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 3, 1914.
    Charles C. Arnold and Joseph P. Eames, for appellant.
    Alfred E. Barr, for appellee.

      See Illinois Notes Digest, Vols. 53 tp XV, same topic anti section number.

   Mr. Justice Clark

delivered the opinion of the court.

On December 5, 1902, an order was entered in the County Court in this ease ordering a distribution of seventeen per cent, of the amount of claims allowed, after payment of $3,000 to the attorney for the assignee, the order also permitting the assignee to retain $1,000 for his services. After compliance with the order about $150 was left in the hands of the assignee undistributed.

On December 17, 1902, an order was entered allowing Kate Becker to file her petition, and a petition was filed January 27, 1903. This petition set forth that the petitioner had been the occupant of an apartment in a building which was in possession of the assignee as part of the estate of the assignor, and suffered an accident caused by the railing of a porch giving away, for which petitioner claimed damages to the extent of $10,-000. To this petition an answer in the nature of a demurrer was filed by the assignee on January 27th.

On April 4, 1903, the assignee was ruled to file a report showing the condition of the estate, and it was ordered that the time for Kate Becker to file an amended petition be extended fifteen days. No amended petition, however, was filed.

On July 11, 1903, an order was entered denying without prejudice a motion of Kate Becker for leave to file a motion to vacate the order of December 5, 1902.

On July 15, 1904, the petitioner was given leave to make the assignee a party defendant to a suit in a proper court. No further order seems to have been entered in the case until April 1, 1909, when leave was given to Kate Becker to file her claim “against said estate.” On October 29th of the same year an order was entered on her motion, the court finding that there was due her $2,000 on a judgment, with interest at five per cent, from July 11, 1908, to October 27, 1909, and costs of the Circuit Court amounting to $10, the total amount allowed her being $2,139.15.

On November 30,1909, the assignee was ruled to file an account showing the condition of the estate, which was afterwards done.

On May 10, 1910, the appellee, Kate Becker, was given leave to file objections and exceptions to the petition filed by the assignee December 5, 1902, also to the report of the assignee filed April 9,1903, and to the report filed December 8, 1909, the last being made conformably to the order of November 30,1909.

On December 3,1910, an order was entered upon the objections and exceptions, the court finding that sufficient funds of the estate came into the hands of the assignee to pay all costs and expenses of administration, and all preferred claims allowed, as well as the claim of the petitioner, Kate Becker; that after notice to the assignee of the existence of the claim of Kate Beelcer-, and while sufficient estate funds were in his hands to pay all costs of administration and all preferred claims and the claim of Kate Becker as allowed, assignee procured the court to make the order of distribution of December 5, 1902, without notice to Kate Becker, and thereafter assignee made distribution of the funds of the estate in his hands, pursuant to said order, leaving the claim of Kate Becker unpaid; and it was ordered, adjudged and decreed that said order of distribution, in so far as it affected the rights of Kate Becker in the matter of payment of her claim as allowed, be vacated and set aside; that the exceptions taken by Kate Becker to assignee’s reports of April 9, 1903 and December 18, 1909, be sustained, and that the assignee pay to Kate Becker out of the -funds which had theretofore come into his hands, as assignee, the amount of her claim as allowed.

Exception was taken by the assignee to this order, and thereafter an appeal perfected to this court.

It has been held that the order was a final one and properly the subject of an appeal. Becker v. Eames, 257 Ill. 389.

The record discloses the fact that on the 20th of August, 1902, the assignee, appellant, Eames, received from the master in chancery a deed in a foreclosure' suit against the property, part of which was occupied by the appellee as tenant, under a certificate of sale which had been assigned by the Boyal Trust Company to Eames, assignee. It appears that the estate of the Calumet State Bank, the insolvent, had a five-sixths interest, and the Lemont State Bank a one-sixth interest in the property. During the period in which Fames so held it and was collecting rents, on July 21,1902, the appellee was injured by falling from the back porch of the building.

On the 23rd of October, 1902, the assignee, together with the receiver of the Lemont State Bank, petitioned the County Court for leave to sell the property, and it was ordered sold. The money was received by the assignee about November 21, 1902.

Mr. Errant, at one time attorney for appellee, testified that he was called into the matter in August, 1902, about a month after the accident; that he interviewed Mr. Arnold, one of the attorneys for the assignee, about the claim several times during the months of September, October and November of that year; that Arnold told him during one of these interviews in November that he did not think there was any liability ; that there was no money on hand to speak of at that time, but that this property was there; that the assignee was trying to sell it, and that as soon as it was sold there would be some money on hand and that he would then take up the question of settling; that the witness asked Arnold whether he should file a claim or petition, and that Arnold said that would not be.necessary as the witness would be kept posted with reference to things as they occurred and when it was necessary witness would be given plenty of notice, but as the property was still unsold and as there was no money on hand action was unnecessary, although he did not want anything done that would perhaps interfere with the sale of the property.

Joseph P. Eames, the son of Melville C. Eames, who was at that time associated with Mr. Arnold as attorney for the appellee, testified that he was present at all of the interviews between Errant and Arnold; that Arnold told Errant that he had heard something of the case through the witness and the assignee; that he did not see how there was any liability; that there was some conversation about the law of the case and the exact facts; that Mr. Arnold did not say to Mr, Errant, “We haven’t any money to speak of now. We are trying to dispose of the South Englewood property and as soon as we sell the property, we can take up the matter of settlement”; that Errant never asked Arnold or the witness whether he should file a claim, and that neither Arnold nor himself ever said that they did not want anything done that would interfere with the sale of the property by filing the claim; that the witness and Arnold interviewed the judge of the County -Court in his chambers between November 21 and December 4, 1902, stating that there was money on hand sufficient to declare a dividend; that it had just been received on the sale of the property; that Errant had called upon Arnold with reference to Mrs. Becker’s claim, and that neither the witness nor Arnold believed that there was any liability on the part of the assignee; that they were asked if a claim had been filed and said that none had been; that they were then informed by the judge that he saw no reason why dividends should not be declared without anything further being done; that the dividend declared in December, 1902, amounted to about $13,000, there having been three dividends prior thereto; that the assignee spoke to the witness about the claim soon after he heard of the existence of it at their home, and that witness informed the assignee of the visits of Errant to his office; that no notice was given to Errant nor to Mrs: Becker that the attorneys for the assignee would ask for an order of distribution; that the judge said that no notice was necessary.

Mr.- Arnold was also a witness for the assignee. He admitted having had interviews with Mr. Errant prior to December 5, 1902; denied that he had ever said that he wished to delay matters in order to consult with the assignee; affirmed that he at all times told Errant that the claim would not be considered as a claim against the estate; that he did not tell him that as soon as money was obtained from the sale of the building he would take up the question of settlement; that Errant never asked him if lie should file any claim in the matter, and that witness did not tell Errant that he would keep him posted, and that he need not file any claim; and that nothing was said by witness to Errant to induce the latter not to file a claim, or not to take such action with reference to it as seemed wise. He confirmed the testimony of Eames, his associate, with reference to the conversation with the judge in chambers as to the propriety of a further distribution of the assets of the estate, and as to what was said respecting the interviews had with Errant, the fact that no claim had been filed, etc. The witness further stated that no sort of suggestion was ever made to Errant that there was any thought of paying the claim or that there was any desire to prevent prosecution.

We agree with the appellee that the claim arose out of the operation or management of the estate, and that the statutory requirements as to filing claims against an insolvent arising prior to the assignment for the benefit of creditors are not controlling.

The order of October 29, 1909, dealt with the claim as though it were one that existed as against the assignor at the time of the assignment, and which should share in the dividends that might be declared to the creditors of the assignor. It was not in this order allowed as a claim against the assignee, to be paid by him as part of the expenses of administration. The order appealed from directs the assignee in terms to “pay out of the funds which have heretofore come into his hands as assignee to Kate Becker the amount of her claim as allowed.” The order in terms also vacates the order of distribution of December 5, 1902. This the court could not do without an abuse of power unless the order was obtained by fraud. The order appealed from does not find nor does the record disclose that any fraud was practiced upon the court. On the other hand, it appears that the attorneys representing the assignee disclosed to the judge of the court in chambers all of the facts with reference to the existence of the claim of the petitioner, and were told that it was not necessary that a notice be served upon the claimant or her attorney.

It is to be noted that the order was not entered until after the statute of limitations had taken away from the assignee the power of obtaining a recovery from creditors of the dividend paid in 1902, or so much as would satisfy the claim of Mrs. Becker. Becker v. Ernies, supra. It is true that prior to December 5, 1902, the assignee knew of the existence of the claim. It is also true that the existence of the claim had been made known to the judge who entered the order of distribution.

It follows that the order appealed from is erroneous. It will therefore be reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    In re Estate of Michael Fitzgerald, Deceased. On Appeal of Joanna A. O’Brien, Respondent, Appellant, v. Joanna A. O’Brien, Administratrix, Appellee (Lillian A. Regan, Petitioner, Appellee.)
    Gen. No. 18,897.
    (Not to he reported in full.).
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling- Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term.
    Reversed and remanded with directions.
    Opinion filed February 3, 1914.
    Rehearing denied February 24, 1914.
    Statement of the Case.
    Proceeding for the recovery of concealed assets under B. S. ch. 3, sec. 81, J. & A. ft 130, on petition of Lillian Beagan against Joanna A. O’Brien. From an order finding that Joanna A. O’Brien had a sum of money in her possession belonging to the estate of Michael Fitzgerald, deceased, and requiring that she pay same to the administratrix of the estate forthwith, she appeals.
    Abstract of the Decision.
    Gifts, § 29

      —acts constituting a gift inter vivos. Where a father and daughter on depositing money in a hank; entered into an agreement under the terms of which on the death of one, title was to vest in the survivor, and shortly before his death the former directed his daughter to withdraw the money from the bank, which she did, delivering it to him, and he thereupon returned it to her saying: “Here, take it and keep it,” it was held that an absolute gift of the money to the daughter was shown.
    Bradley, Harper & Eheim, for appellant; Thomas E. D. Bradley, of counsel.
    Foreman, Levin & Robertson, for appellee; Egbert Robertson, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Eliza E. Kendall, Appellee, v. Chicago Railways Company and Chicago & Oak Park Elevated Railroad Company, Appellants.
    Gen. No. 18,977.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 3, 1914.

      Abstract of the Decision.
    1. Evidence, § 398

      —expert testimony. Where the amount which plaintiff is entitled to recover depends to a large extent upon the testimony of medical experts, it is important that rules of evidence respecting such testimony be observed.
    2. Evidence, § 444

      —declarations of injured person to physician. A physician who made an examination of an injured person solely for the purpose of testifying as an expert at the trial, is not permitted to testify to statements made to him by the injured person, or in his presence during such examination, nor can he base an opinion upon such statements.
    3. Appeal and ereob, § 1466

      —admission of declarations as prejudicial error. Where defendant claimed in an action for personal injuries that the ailments complained of by plaintiff were due to other causes than the accident, error in admitting declarations of the person injured to a physician making an examination to form the basis of testimony at the trial and not for the purpose of treatment is not harmless.
    4. Caebiees, § 489

      —instructions as to liability for collision. In an action for personal injuries as the result of a collision between a street car upon which plaintiff was a passenger and an elevated railroad train, an instruction that the elevated railroad was liable if in violation of an ordinance it failed to maintain a flagman at the intersection, and such failure proximately contributed to the accident, is erroneous where negligence in failing to provide a flagman was not charged in any count of the declaration.

      Statement of the Case.
    Action by Eliza E. Kendall against Chicago Bail-ways Company and Chicago & Oak Park Elevated Bail-road Company for damages for personal injuries. From a judgment for plaintiff for five thousand dollars, defendants appeal.
    Joseph D. Byan and William H. Symmes, for appellant Chicago Bailways Co.; John B. Guilliams and Frank L. Kriete, of counsel.
    Addison L. Gardner and Carroll H. Jones, for appellant Oak Park Elevated Bailroad Co.
    Blaisdell & Banes, for appellee; Harry F. Brewer, of counsel.

      gee Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court,

5. Appeai, and error, § 1544 —when instruction as to liability for collision prejudicial error. An instruction that if defendant Elevated Railroad Company failed to maintain a flagman at the intersection of a street railroad, in violation of ordinance, and such failure contributed proximately to a collision with a street car, it would be liable, is prejudicial error where negligence in that respect was not charged in the declaration and the evidence tended to show that the proximate cause of the accident was an improper signal given by a policeman who, with an employe of the street railway company, acted as watchman, the regular watchman of the elevated company being absent at dinner.

6. Carriers, § 489 —when instruction as to care at intersections improperly refused. In an action for injuries to a passenger on a street car caused by a collision with an elevated railroad train at a grade crossing, an instruction that if the motorman in charge of the elevated train attempted to cross the intersection with the street railway in response to a signal from the signalman at the crossing, and in doing so exercised ordinary care up to the time of the collision, the elevated railroad was not liable, was improperly refused.

7. Evidence, § 87 —admissibility of evidence of subsequent accident. Evidence of another accident received by plaintiff subsequently to the accident for which suit was brought is inadmissible.

8. Damages, § 200 —when instruction improperly refused. Where evidence that plaintiff had sustained another accident subsequently to that for which suit was brought was improperly admitted, it is error to refuse an instruction that plaintiff was not entitled to recover any damages for such subsequent accident.


author: Mr. Presiding Justice Graves

text:
    Minerva Barnes, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 18,250.
    1. Judgment, § 298

      -—power to vacate after term. After the expiration of the term at which judgment is entered, the court in which it is entered is without jurisdiction to vacate it or set it aside hy an order entered in that case.
    2. Judgment, § 252

      —motion to correct after term. Error of fact in a judgment may he corrected hy the trial court after the judgment term on motion under Practice Act, sec. 89, J. & A. If 8626.
    3. Judgment, § 271

      —nature of motion to correct judgment. Although the motion substituted for the common law writ of error coram nohis under Practice Act, sec. 89, J. & A. If 8626, is entitled in the case in which the judgment sought to be corrected was entered, and is filed among the papers in that case, it is not in fact a step in the case, hut is, like a writ of error, a new suit in which original pleadings are filed, process issued and served, issues made up and final judgment entered.
    4. Judgment, § 268

      —time for motion to correct or vacate. A motion to correct or vacate a judgment under Practice Act, sec. 89, J. & A. jf 8626, may be made at any time within five years after the entry of the judgment sought to be corrected.
    5. Appeal and eeeor, § 292

      —finality of judgment on motion to correct or vacate. A judgment entered on a motion to correct or vacate a judgment under Practice Act, sec. 89, J. & A. If 8626, is a final judgment and subject to review by appeal or writ of error.
    6. Judgment, § 272

      —requisites of motion to correct or vacate. A motion to correct or vacate a judgment under Practice Act, sec. 89, J. & A. If 8626, must be in writing, and must show some meritorious right to be enforced, of benefit to the mover. The notice provided for constitutes the process, and its service gives jurisdiction of the parties. The errors assigned in the motion take the place of the declaration, and issues of fact or of law may be made up thereon.
    7. Judgment, § 298

      —power to vacate after term. Where a judgment of dismissal is entered on stipulation without the consent of the plaintiff, such judgment can be vacated only on motion pursuant to Practice Act, sec. 89, J. & A. If 8626, after the expiration of the judgment term.
    8. Appeal and error, § 1330

      —presumptions. Where a judgment of dismissal was vacated on motion after the expiration of the judgment term, jurisdiction below will be presumed, on appeal, to have been assumed under the provisions of Practice Act, sec. 89, J. & A. 1Í 8626.
    9. Judgment, § 298

      —sufficiency of motion to vacate. A motion, not in writing, to vacate a judgment of dismissal, made after the expiration of the judgment term, which assigns no errors, and of which no written notice was given, is insufficient to confer jurisdiction to vacate the judgment.
    10. Appeal and ekrob, § 329

      —appeal or error from void judgments. Appeal or error lies from an order vacating a judgment after the lapse of the judgment term, which order was void because of the insufficiency of the motion to confer jurisdiction under Practice Act, sec. 89, J. & A. jf 8626.
    11. Judgment, § 283

      —validity of order vacating judgment. An order vacating a judgment after the expiration of the judgment term is void where the motion therefor was insufficient to confer jurisdiction under the provisions of Practice Act, sec. 89, J. & A. T 8626.
    Error to the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed.
    Opinion filed February 4, 1914.
    John E. Kehoe and C. Lb Boy Brown, for plaintiff in error; Leonard A. Busby, of counsel.
    Mary E. Miller, for defendant in error.

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

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Defendant in error brought suit in the Superior Court for personal injuries. Issues were joined and the case stood at the foot of the docket. By stipulation entered into September 22, 1910, the case stood subject to call for trial on five days’ notice. On January 10, 1911, the following order was entered in the case: “On the stipulation of the parties to this suit filed, it is ordered that said cause be and is hereby dismissed without costs.” This order was entered at the instance of plaintiff in error, and without notice to defendant in error. On June 27, 1911, defendant in error made her oral motion to set aside the judgment of January 10, 1911, and to reinstate the cause, which motion was allowed November 18, 1911, and an order was entered by the terms of which the relief prayed for by the motion was granted. To reverse this order or judgment of November 18, 1911, this writ of error is prosecuted. A motion- of defendant in error to dismiss this writ of error has been taken with the case. The ground of this motion is that the order of November 18, 1911, was interlocutory and not subject to review by appeal or writ of error.

It will be observed that the motion to vacate the judgment of January 10, 1911, was not made during the term at which the judgment was entered.

After the expiration of the term at which a judgment is entered, the court in which it is entered is without jurisdiction to vacate it or set it aside by an order entered in that case. Baldwin v. McClelland, 152 Ill. 42; Humphreyville v. Culver, Page, Hoyne & Co., 73 Ill. 485; Coucher v. Patterson, 94 Ill. 525; Johnson v. Gillett, 52 Ill. 358; Green v. Union El. R. Co., 118 Ill. App. 1; Glaefke v. Western Electric Co., 145 Ill. App. 383; Black on Judgments, vol. 1, secs. 26, 27.

Errors of fact may be corrected by the trial court after the judgment term on the motion substituted by section 89 of the Practice Act (J. & A. 8626), for the common-law writ of error coram nobis. While that motion is entitled in the case in which the judgment sought to be corrected was entered, and is filed among the papers in that case, it is not in fact a step in that case, but is, like a writ of error, a new suit in which original pleadings are filed, process issued and served, issues made up and final judgment entered. Domitski v. American Linseed Co., 221 Ill. 161; Mitchell v. King, 187 Ill. 452. That motion may be made at any time within five years after the entry of the judgment sought to be corrected. Section 89, ch. 110, R. S. (J. & A. TJ8626.) A judgment entered in that proceeding is a final judgment and subject to review by appeal or writ of error. Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516.

That motion must be in writing. It should show some meritorious right to be enforced, of benefit to the mover. The notice provided by that section is the process. The service of such notice gives jurisdiction of the parties. The errors assigned in the motion take the place of a declaration, and issues may be made up on such assignments of error. The opposite party may demur and thereby form an issue of law or may deny the facts or plead matters in avoidance. Mitchell v. King, supra; Cramer v. Illinois Commercial Men’s Ass’n, supra. If he does nothing he should be ruled to plead, and if he fails to comply with the rule the court may then proceed to hear and determine the motion, or, more properly, the case, as on default.

The relief sought by the motion of June 27,1911, and that which the court attempted to give by the order of November 18, 1911, was such as could only be obtained by the motion provided by section 89 referred to. • We will not presume that the court attempted at a term subsequent to the term at which the judgment sought to be set aside was entered, to set it aside on a motion entered in that case, in view of the well-settled law that it had then no jurisdiction to enter such an order, but we must assume that in entering the order the court was attempting to exercise the jurisdiction which would have been acquired, if the recognized practice under section 89 had been pursued, and which could have been acquired in no other way.

In Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, the Supreme Court said:

“We will not presume that the court attempted to examine, revise or correct its action for an error of law at a subsequent term, in view of the long established rule that it would have no power to do so. (Pisa v. Rezek, 206 Ill. 344.) The motion was intended to allege errors of fact and unquestionably the action of the court was based on a finding that there were such errors. That being so, the law allowed an appeal from the order as in any other case of final judgment. Citing Mitchell v. King, 187 Ill. 452, and Domitski v. American Linseed Co., 221 Ill. 161.”

The motion on which the order or judgment here complained of was entered was not in writing. No issues were made up on errors of fact assigned on the motion. In fact, no errors were assigned on the motion. No notice of the filing of a motion in writing was given, “reasonable” or otherwise. Nor was the motion made at the term at which the judgment sought to be set aside was entered. The court was, therefore, even treating this motion as being made under section 89 of the Practice Act, without jurisdiction to enter the order, and the same is void. Appeals and writs of error lie to remove void judgments from the record. Elliott on Appellate Procedure, sec. 110; Leary v. Dyson, 98 Ind. 317; Bishop v. Moorman, 98 Ind. 1. The Appellate and Supreme Courts of this State are constantly entertaining appeals and writs of error where the mooted question is whether the judgment of the lower court is void or not and where such judgments are held to be void and are removed from the record by an order of reversal. An interlocutory order presupposes a final order to follow, predicated on or in some way connected with or influenced by it. No final order can be predicated on a void order. For the purpose of appeal or writ of error such an order cannot be regarded as interlocutory. Barry v. Briggs, 22 Mich. 201; Words and Phrases, vol. 4, p. 3715.

The order or judgment of November 18, 1911, although void, was subject to review on appeal or writ of error.

The motion of defendant in error to dismiss this writ of error is, therefore, denied, and the judgment of the Superior Court is reversed for the reason that by the motion as made the court did not acquire jurisdiction to set aside the judgment of January 10, 1911.

In view of the possibility that the Superior Court may yet be called upon to pass on the merits of a motion made under section 89 of the Practice Act, supported and resisted by facts not disclosed by this record, we refrain from discussing in this opinion the merits of the facts presented here.

Judgment reversed.


text:
    Lyman W. Rogers for use of Edward J. Ader, Appellee, v. Charles E. Rollins and Archibald O. Burdick, Appellants.
    Gen. No. 18,438.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. William F. Slates, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed February 4, 1914.
    Statement of the Case.
    Action by Lyman W. Bogers for the use of Edward J. Ader against Charles E. Bollins and Archibald O. Burdick to recover for money paid by an insurance company to defendants as its agents for the purpose of adjusting a loss of an automobile which was insured in the name of Bogers, the nominal plaintiff, as the owner thereof. The insurance was taken out by a “binding receipt” issued pending the delivery of the policy and the automobile was destroyed by fire before the policy was delivered. After the loss occurred, Bogers assigned his interest in the insurance money to Ader, to whom the defendants refused to pay over the money. From a judgment in favor of plaintiff for nine hundred dollars, defendants appeal.
    W. S. Johnson, for appellants.
    Frtedmah & Ader, for appellee; J. W. Merriam, of counsel.

      Abstract of the Decision.
    1. Assumpsit, action of, § 44

      —when assignee may maintain action for money had and received. Where the right to insurance money has been assigned pending adjustment of loss and the insurance company delivers money to its agents to adjust the loss, the assignee may recover from the agents in an action for money had and received.
    2. Assumpsit, action of, § 88

      —when evidence of assignment admissible. In an action for money had and received against agents of an insurance company for money received by them to pay a loss, evidence of an assignment of the benefits of the policy is admissible to show that the plaintiff, as assignee, is entitled in equity and good conscience to the money sent to the defendants.
    3. Assignments, § 31

      —name in which assignee may sue. Where an insurance company sends money to its agents to adjust a loss, an assignee of the insured’s interest in the money is the equitable and bona fide owner of it and may maintain an action for it in his own name under section 18 of the Practice Act, J. & A. jf 8555, or in the name of his assignor for his use.
    4. Insurance, § 54

      —when evidence shows unconditional authority of agents to pay loss. In an action against agents of an insur-. anee company to recover money sent to them to pay a loss, correspondence between the agents and the company held to show that they received the money to pay to plaintiff without a condition.
    5. Instruction, § 92

      —when instruction to disregard incompetent testimony proper. Instructions to disregard the testimony of a witness admitted without objection, held proper where the instruction amounted to a withdrawal from consideration of the jury of confessedly incompetent evidence.
    G. Appeal and error, § 1539

      —when giving of abstract instruction harmless. In an action against agents of -an insurance company to recover money received by them to pay a loss, the giving of an instruction stating an abstract proposition of law as applied to suits against an insurance company, held improper but harmless.
    7. Appeal and error, § 1256

      —when party cannot complain of favorable instructions. Giving of an instruction more favorable to appellant than it would have been with the elements complained of omitted is harmless.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


author: Mr. Justice Baume

text:
    Marie Casper by Mathew Casper, Appellee, v. Andrew Geck and Emil Geck, Appellants.
    Gen. No. 18,361.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 96

      —when contributory negligence of child no bar to recovery. Where the plaintiff is less than seven years of age, contributory negligence is no bar to a recovery.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Opinion filed February 4, 1914.
    Statement of the Case.
    Action by Marie Casper, a minor, by Mathew Casper her next friend, against Andrew Geek and Emil Geek to recover damages for personal injuries sustained by-plaintiff. It was alleged that the injury was caused by the negligence of the defendant in permitting iron doors or sidewalk lifts in the public sidewalk to remain open and unguarded in front of premises owned and controlled by the defendants, and that in consequence of such negligence such doors fell or closed down upon the leg of plaintiff causing permanent injuries. From a judgment in favor of plaintiff for four thousand dollars, defendants appeal.
    George E. Gorman, Thomas J. Peden and Roy C. Merrick, for appellants; Cooney & Verhoeven, of counsel.
    Chase R. Rankin, for appellee.

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

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

   Mr. Justice Baume

delivered the opinion of the court.

2. Negligence, § 45 —when evidence shows joint liability for attractive nuisance. In an action for personal injuries sustained by a minor by the falling of an open iron door maintained in a sidewhlk in front of premises occupied and controlled by the defendants, evidence held sufficient to show that the defendants were jointly in possession and control of the premises and that they were charged with knowledge that the open iron doors constituted an attractive nuisance.

3. Negligence, § 218 —when requested instruction properly refused for assuming facts. In an action against the owner of a building and a tenant to recover for personal injuries resulting from open sidewalk lifts in front of the premises, a requested instruction assuming that a portion of the building was in the exclusive possession of the tenant and that the owner delivered possession thereof to the tenant, held properly refused where the main controverted question of fact was whether the owner was in possession jointly with the tenant.

4. Negligence, § 250 —when giving of instruction as to effect of ordinance harmless. In an action to recover for personal injuries resulting from failure of defendant to close sidewalk lifts, the giving of an instruction for plaintiff as to the effect of an ordinance prohibiting such lifts to remain open except when in use, without informing the jury that the defendants would not be liable if the doors were being used at the time of the injury by third persons, held harmless.

5. Damages, § 123 —when recovery for injured leg not excessive. A verdict of four thousand dollars for injury to the leg and knee of a child five years of age held not excessive, it appearing that the injury is permanent, that the injured limb is smaller and shorter than the other, that the circulation and nerve supply are permanently exhausted, and that as a result there will be a deformity of the pelvic bones

6. Appeal and ebbob, § 1712 —when objection to admission in evidence of ordinance is deemed waived. Where no reason is assigned or argument advanced in support of an objection to the admission of an ordinance in evidence, the objection is waived.


text:
    Daniel W. Mellon, Appellee, v. Conrad Seipp Brewing Company, Appellant.
    Gen. No. 18,378.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appear and error, § 972

      —when exceptions to master’s report are not preserved in the record. Where objections to a master’s report do not appear in the abstract of the record itself, although the decree recites that the objections to the master’s report stood as exceptions thereto on the hearing before the chancellor, such exceptions are not preserved in the record.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanran, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed February 4, 1914.
    Statement of the Case.
    Bill filed by Daniel W. Mellon against Conrad Seipp Brewing Company for an accounting and for a cancellation of a certain assignment by complainant to defendant of a dramshop license and for a return of said license to complainant. The cause was referred to a master, the master’s report was approved by the chancellor, and a decree was entered in substantial conformity with the master’s findings and recommendations. To reverse the decree, defendant appeals.
    Wiestoe, Payee, Strawe & Shaw, for appellant; Arthur C; Marriott, of counsel.
    Chester Firebaugh and Heery W. Huttmaee, for appellee.

      See IUinois Notes Digest, Vols. XI to XV, same topic and section number.

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

   Mr. Justice Baume

delivered the opinion of the court.

2. Appeal and error, § 972 —when objections to master’s findings not presented for review. Where the only questions raised by appellant upon the record relate to the findings of a master, as embodied in the decree, upon the issues of fact involved, the absence of any objections and exceptions to such findings precludes a review of such questions on appeal.


text:
    Mary Powers, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,390.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed February 4, 1914.
    Rehearing denied February 28, 1914.
    Statement of the Case.
    Action hy Mary Powers against Chicago City Railway Company to recover damages for personal injuries sustained by plaintiff while boarding one of defendant’s cars alleged to have been caused by the negligence of defendant in suddenly starting the car so that plaintiff was thrown to the ground and injured. From a judgment in favor of plaintiff for $1,200, defendant appeals.
    John E. Kehoe and A. C. Wild, for appellant; Leonard A. Busby, of counsel.
    Robert F. Kolb, for appellee.

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

   Mr. Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 451 —when averment in declaration as to improper management of street car covers conduct of conductor. In an action against a street railway company for personal injuries, a count in a declaration containing an averment with reference to the alleged negligence and improper management of a car does not relate solely to the conduct of the motorman, but to the conduct of the conductor as well.

2. Evidence, § 410 —matters to which physician may testify. Where plaintiff testified that she suffered a miscarriage in consequence of her injuries, a physician called as a witness for plaintiff may properly be asked whether he made an examination for any conditions that might result from a miscarriage, the inquiry relating to a subject within the issues of the case.

3. Instructions, § 101 —when instruction as to credibility of witnesses is erroneous and the giving of same prejudicial error. In an action against a street railway company for personal injuries, an instruction for the plaintiff stating: “The jury are instructed that the fact that any witness in' the case is, or has been in the employ of either the plaintiff or defendant, as well as the relations which exist between any witness and either party to the suit, and any interest a witness may have in the result of the suit, so far as thersame may be shown by the evidence, may be considered by the jury in determining the weight which ought to be given to the testimony of such witness,, taking the same in connection with all the other evidence in the case, and the facts and circumstances proven,” held improper as applying solely to certain witnesses who testified on behalf of the plaintiff and as assuming that the mere fact that such witnesses were in the employ of defendant was a legitimate ground for discrediting their testimony, and held that the giving of such instruction was- prejudicial error.

4. Instructions, § 101 —when improper instruction as to credibility of witnesses is reversible error. Where a case is extremely close upon the facts, an instruction which improperly informs the jury as to the rule to be applied in weighing the testimony of witnesses who are the employes of one of the parties cannot be held to be merely harmless error.


text:
    The People of the State of Illinois, Defendant in Error, v. Mike Crilly, Plaintiff in Error.
    Gen. No. 19,254.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Criminal law, § 366

      —when rule as to motion in arrest of judgment not operative. The rule that a motion in arrest of judgment cannot he sustained for any matter not affecting the real merits of the offense charged in the indictment or information does not become operative in the absence of an indictment or information sufficiently charging the offense.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1914.
    Statement of the Case.
    Information filed in the Municipal Court by the People of the State of Illinois against Mike Crilly seeking to charge defendant with the statutory offense of riot under section 249 of the Criminal Code, J. & A. 3927. Upon a trial by a jury defendant was found guilty, and after motions for a new trial and in arrest of judgment were overruled he was sentenced to pay a fine of fifty dollars and to stand committed, etc. To reverse the judgment, defendant brings error.
    John D. Farrell, for plaintiff in error; H. A. Weld, of counsel.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley and Edward E. Wilson, of counsel.

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

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

   Mr. Justice Baume

delivered the opinion of the court.

2. Riot, § 3 —when information insufficiently charges offense. An information charging that the defendant “did then and there with other persons, actually do an unlawful act with force and violence against the person of Charles Roller,” contrary, etc., held insufficient to charge the statutory offense of riot under section 249 of the Criminal Code, J. & A. If 3927, since the language of the information neither describes the act which constitutes the offense nor designates the act by any term or form of expression whereby the nature or character of the act may be understood with reasonable certainty.

3. Indictment and information, § 41 —•when charging offense in language of statute insufficient. The rule that it is generally sufficient to state a statutory ofiense in the terms and language of the statute is subject to well recognized exceptions, one of which is where the statute does not sufficiently describe the act constituting the offense.


text:
    The People of the State of Illinois, Defendant in Error, v. Ed. Carbine, Plaintiff in Error. The People of the State of Illinois, Defendant in Error, v. G. H. Swappach, Plaintiff in Error.
    Gen. No. 19,255.
    (Not to he reported in full.)
    Gen. No. 19,256.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles- N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1914.
    Statement of the Case.
    These causes were consolidated for hearing with the case of People v. Crilly, ante, p. 160, and involve precisely the same questions. The decision rendered in that case held controlling.

      John D. Farrell, for plaintiffs in error; II. A. Weld, of counsel.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley and Edward E. Wilson, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.


author: Mr. Justice Duncan

text:
    The People of the State of Illinois, Defendant in Error, v. Samuel Roth, Plaintiff in Error.
    Gen. No. 19,591.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1914.
    Statement of the Case.
    Information filed by The People of the State of Illinois against Alexander Weiss (the name of Samuel Both being later substituted as defendant by agreement) charging that the defendant, as manager of a restaurant, unlawfully permitted one Agnieszka Mystak, a female, to work more than ten hours a day, and charging that defendant failed to keep an accurate time record showing the hours of employment of females, contrary to statute. Defendant waived a jury trial and the court found him guilty in the manner and form as charged. Judgment was entered requiring that defendant pay a fine of one hundred dollars and the costs of the suit and that he stand committed to the House of Correction until the fine and costs are paid. To reverse the judgment, defendant brings error.

      Abstract of the Decision.
    1. Indictment and information, § 29

      —sufficiency of informa;tion for violation of act limiting the hours of employment of fémales. In a prosecution for violation of sections 123 and 125, ch. 48, Hurd’s R. S. 1911, J. & A. 5290, 5293, it should be averred and proved that the defendant was the employer of the female employe, or it should be proved that he was an accessory before the fact under a proper information.
    2. Indictment and information, § 67

      —when name of person against whom offense toas committed should, he proved as laid. It is essential in all prosecutions that both the Christian and the surname of the party against whom the alleged offense was committed should be proved as laid in the indictment or information.
    3. Indictment and information, § 74

      —when variance as to name of party is fatal. Where an information charges that an alleged crime was committed against Agnieszka Mystak and the proof shows that the offense was committed against Agnes Myslak or Agnes Lyslak, held that there was a fatal variance.
    4. Criminal law, § 417

      —when question of variance need not he raised in trial court. It is immaterial that the question of variance was not raised on the trial where the name of the party against whom the offense was committed was not proved as laid in the information.
    5. Criminal law, § 372

      —when failure of judgment to specify offense of which defendant was found guilty not fatal. Where the court finds defendant guilty on an information which charges in one count two distinct offenses punishable with different penalties, failure of court to specify the offense of which defendant is found guilty and to make the judgment correctly describe the offense in its recitals, held mere informalities and not fatal within them-0 selves, the finding of the court being that the defendant is “guilty in manner and form as charged in the information,” and it clearly appearing from the judgment for what offense the court found.
    Moses, Rosenthal & Kennedy, for plaintiff in error; Walter Bachrach, of counsel.
    John P. Reed, for defendant in error; Charles J. Herman, of counsel.

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

   Mr. Justice Duncan

delivered the opinion of the court.


author: Mr. Presiding Justice Fitch

text:
    Agnes M. Rosseu, Appellee, v. Arthur G. Goodridge, Appellant.
    Gen. No. 18,750.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 230

      —duty of owner of apartment building to Tceep railing of stairway in repair. The owner of an apartment building is bound to keep the railing of a rear stairway in such repair as to permit a person lawfully using the stairway to lean against it for the purpose of protecting him from falling.
    2. Landlord and tenant, § 259

      —when question of contributory negligence is for jury. Whether a tenant in an apartment building is guilty of contributory negligence in leaning against the railing of a rear stairway to the building is a question for the jury.
    3. Landlord and tenant, § 260

      —when instruction not misleading as assuming facts. In an action by a tenant against the owner of an apartment building for personal injuries caused by a defective railing to a rear stairway, an instruction not directing a verdict given for plaintiff held not misleading under the facts shown by the evidence, though it assumed, as a fact, that the owner retained control of the stairway.

      Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 5, 1914.
    Rehearing denied February 16, 1914.
    Statement of the Case.
    Action by Agnes Rosseu against Arthur G. Good-ridge to recover damages for personal injuries sustained by plaintiff by falling from a stairway in the rear of an apartment building owned by the defendant and occupied in part by plaintiff under a lease from the defendant. From a judgment in favor of plaintiff for seven hundred and fifty dollars, defendant appeals.
    Benson Landon, for appellant.
    Lawrence A. Cohen, for appellee.

       bee Illinois Motes Digest, Vols. XI to XV, same topic and section number.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

4. Appeal and error, § 1595 —rule as to sufficiency of declaration after verdict. After verdict, the rule is that if a declaration contains terms sufficiently general to include by fair and reasonable intendment, any matter necessary to be proved and without proof of which the jury could not have given the verdict, the want of an express averment of such matter is cured by verdict.

5. Appeal and error, § 1611 —when declaration sufficient after verdict. Id an actioD by a tenant íd aD apartment building for iDjuries resultiDg from a defective railing to a rear stairway, the dedaratioD held sufficient after verdict thoagh it did Dot specifically allege that the defendaDt retaiaed coDtrol of the stairway, nor so allege that the plaintiff exercised due care at the time of the injury, or that defendant’s negligence was the proximate cause of the injury, the declaration alleging that the stairway was used by all the tenants of the building and containing other averments from which it could be reasonably inferred that plaintiff exercised due care at the time of the injury and that defendant’s negligence was the proximate cause of the injury.


text:
    Ann Burrall Goodykoontz, Administratrix, Defendant in Error, v. Thomas F. Kelly and John W. Eagleston, Plaintiffs in Error.
    Gen. No. 18,801.
    (Not to. he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 5, 1914.
    Rehearing denied February 16, 1914.
    Statement of the Case.
    Motion by defendants, Thomas F. Kelly and John W. Eagleston, to vacate a default judgment entered against them in favor of plaintiff, Charles H. Goodykoontz. Pending the motion the plaintiff died and his administratrix, Ann Burrall Goodykoontz, was made party plaintiff. To reverse an order denying defendants’ motion, defendants prosecute error.
    Abstract of the Decision.
    1. Judgment, § 248

      —effect of clerical error transposing names of parties in judgment order. Where an order of court shows that the defendants’ motion to vacate a judgment was stricken out on “defendants’ ” motion and that “plaintiff” excepted, held that the order may be corrected by the trial court where there was an erroneous transposition of the names of the parties resulting from a clerical error, and held that even though no correction was made by the trial court the Appellate Court would give the order the meaning evidently intended if the error was clearly apparent from an examination of the whole record.
    2. Appeal and error, § 824

      —when rule that exception must he shoivn hy hill of exceptions inapplicahle. The rule that an exception cannot be shown merely by a recital in an order, without a bill of exceptions, has no application where the bill of exceptions expressly states that an order was entered in which the exception was noted.
    3. Appeal and error, § 805

      —effect when hill of exceptions does not recite it contains all the evidence. The fact that a bill of exceptions does not recite that “this was all the evidence heard or offered” on a motion to vacate a judgment does not raise a presumption that other evidence or affidavits may have been presented which would render unnecessary any reading or consideration of affidavits in support of the motion.
    4. Appeal and error, § 785

      —hill of exceptions construed. Where a bill of exceptions states that the court declined to read or hear read the affidavits filed in support of defendants’ motion to vacate a judgment, or to hear any arguments on such motion, but does not state that the court refused to consider such affidavits upon the ground that the matters contained therein were incompetent, etc., no other conclusion can be drawn from the statement but that the court declined to hear any affidavits no matter what facts were set up therein.

      H. F. Dickinson and Walter S. Holden, for pAin-tiffs in error.
    Garnett & Garnett, for defendant in error; Cyrus L. Garnett, of counsel.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

5. Continuance, § 64 —jurisdiction as affected hy order of continuance to next term. Where a court enters an order continuing a motion to vacate a judgment to the next term of court, it thereby retains jurisdiction to act upon that motion or any similar motion at any time during the succeeding term, and the validity and effect of the order of continuance do not depend upon the form in which the motion to vacate was presented.

6. Judgment, § 133 —jurisdiction of court to entertain motion to vacate at next term. Where a motion to vacate a default judgment is filed by the defendants on the last day of the term and the court on defendants’ motion without notice to plaintiff enters an order for a continuance to the next term, and the court at such term struck defendants’ motion from the files because defendants did not file affidavits at the time the motion was filed as required by the rules of court, held that even if it be conceded that the court properly struck the motion from the files, the court retained jurisdiction of the cause by the entry of the order of continuance and had power during such succeeding term to entertain another motion filed in accordance with the rules of court, and that defendants had a right to hearing on their second motion where the affidavits showed upon their face a meritorious defense, and that refusal of court “to read or hear read” the affidavits was error.


text:
    Joseph Goodman, Appellee, v. Alexander Weinberger, Appellant.
    Gen. No. 18,822.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 5, 1914.
    Statement of the Case.
    Action by Joseph Goodman against Alexander Weiiiberger to recover damages caused by defendant trespassing on plaintiff’s leased property and tearing down sheds upon which plaintiff held a lease from the defendant. From a judgment in favor of plaintiff for two hundred and ninety-five dollars, defendant appeals.
    Abstract of the Decision.
    1. Landeobd and tenant, § 173

      —when evidence sufficient to sustain recovery by tenant for trespass of landlord. In an action by a tenant against his landlord for damages caused by the defendant trespassing on property leased and tearing down sheds, a verdict in favor of plaintiff held not contrary to the weight of the evidence.
    2. Evidence, § 476

      —weight of the evidence. The mere fact that more witnesses testified on one side than on the other does not, of itself, determine the weight of the evidence.
    3. Evidence, § 277

      —when photographs admissible. In an action by a tenant to recover damages caused by the landlord trespassing on premises and tearing down sheds, admission in evidence of certain photographs apparently for the purpose of proving the location of a barn in view of the defendant’s claim that the barn referred to in the lease was on an adjoining lot, held not error.
    4. Tbespass, § 62

      —when recovery not excessive. A verdict for two hundred and ninety-five dollars as damages sustained by tenant for trespass of landlord and removing sheds, held not excessive.
    Isaiah Campbell, for appellant.
    John C. Trainor, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Frank Orzolek, Appellee, v. S. C. Schenck, Agent, and S. C. Schenck, Appellant.
    Gen. No. 18,833.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 568

      —burden of proving relationship under special pleas. In an action for personal injuries alleged to have been caused by the negligent operation and management of coal cars in a coal yard owned and controlled by defendant, under a special plea denying ownership of the yard and plaintiff’s employment by defendant, the burden is on plaintiff to establish such facts.
    2. Master and servant, § 681

      -—sufficiency of evidence of ownership and operation. In an action for personal injuries plaintiff claimed that while in the employ of defendant in a coal yard owned and controlled by him he was injured through the negligence of the latter in the management of coal cars therein. Defendant in special pleas denied ownership of the yard and plaintiff’s employment by him. Beyond testimony that he was employed in defendant’s coal yard, plaintiff introduced no evidence on the subject, while defendant’s uncontradicted evidence showed that signs above the yard, pay rolls, and receipts for wages bore the name of another, defendant’s name appearing merely as agent. It was held that plaintiff failed to meet the burden imposed upon him by the special pleas and a verdict in his favor was against the manifest weight of evidence.

      Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 5, 1914.
    Rehearing denied. February 16, 1914.
    Statement of the Case.
    Action by Frank Orzolek against S. O. Schenck for personal injuries sustained by plaintiff as a result of the negligent management and operation of certain coal cars in a coal yard alleged to have been owned and controlled by defendant. From a judgment for plaintiff for two thousand dollars, defendant appeals.
    Adams, Candee, Steers & Hawley, for appellant; Shepard, McCormick & Thomason and Perry S. Patterson, of counsel.
    C. H. Johnson and Daniel Bblasco, for appellee.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Appeal and error, § 1013 —necessity that record show exception to refusal of peremptory instruction. Where the record fails to show an exception to the refusal of a peremptory instruction to find for defendant the latter cannot contend, on appeal, that the instruction should have been given on the theory that there was no evidence tending to sustain allegations of the declaration as to issues raised by special pleas.

4. New trial, § 51 —questions presented on motion for. Upon motion for new trial the question is not whether there was a total lack of evidence tending to prove the issues, but whether the verdict was contrary to the evidence upon those issues.

5. New trial, § 52 —verdicts against weight of evidence. Where the verdict is clearly and manifestly contrary to the weight of the evidence it is error to deny a motion for a new trial.

6. Removal oe causes, § 11 —time for filing petition. Where the summons in an action was served twenty-eight days before the first day of the term at which it was returnable and the declaration was filed nearly a year before such return day, a petition to remove the cause to the federal court filed on the seventeenth day of the term is not in apt time under the act of Congress requiring the petition to be filed in the State court “at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,” since, although the statutes providing for a continuance where the summons is not served and the declaration filed ten days before the first day of the term do not expressly provide that the defendant must appear and plead on the return day of the summons where the summons is so served and the declaration so filed, such is their clear intent and meaning.


author: Mr. Justice Gridley

text:
    F. E. Lewellyn, Plaintiff in Error, v. Pere Marquette Railroad Company, Defendant in Error.
    Gen. No. 18,728.
    1. Carriers, § 70

      —implied contract to carry safely and within reasonable time. A carrier accepting property for transportation impliedly agrees to carry it safely and deliver it at its destination within a reasonable time.
    2. Carriers, § 188

      —connecting carrier as agent. A connecting carrier accepting goods from the initial carrier becomes the agent of the latter in transporting same.
    3. Carriers, § 66

      —change of destination. A consignor is entitled to have directions changing the destination of goods carried out, although at the time such directions are given to the initial carrier the goods have passed into the possession of a connecting carrier.
    4. Carriers, § 188

      —consent to change of destination by initial carrier. Where after goods had passed into the hands of a connecting carrier the consignor changed the destination and a new bill of lading was issued by the initial carrier, such change was made with the mutual consent of the parties, and the initial carrier thereby agreed to transport the goods safely to the new destination within a reasonable time.
    5. Carriers, § 55

      —bills of lading. Where after the goods shipped had passed into the possession of a connecting carrier the consignor gave instructions changing the destination and surrendered the original hill of lading to the initial carrier, receiving in lieu thereof a new bill of lading giving the new destination, the act of the agent in issuing such new hill of lading was not without authority or consideration.
    6. Carriers, § 188

      —liability of initial carrier for delay by connecting carrier. Plaintiff shipped a carload of potatoes over defendants’ road to Sedalia, Missouri. After the car had passed into the possession of a connecting carrier, hut before its arrival at Sedalia, plaintiff gave instructions changing the destination to Houston, Texas, surrendering his original bill of lading and receiving from defendant in lieu thereof another bill giving the new destination. Defendant promptly notified the connecting carrier of the change in destination, hut through the negligence of the latter the car did not arrive in Houston until a month after its arrival at Sedalia, when the potatoes were found to he in bad condition. It was held that defendant was liable for the damages sustained by plaintiff as a result of the negligent delay on the part of the connecting carrier.
    7. Municipal Court of Chicago, § 31

      —disposition of cause on appeal. Where in a fourth class case tried in the Municipal Court, without a jury, upon a stipulation as to the facts the finding of the court was the result of a misconception by it of the law applicable to the admitted facts, the Appellate Court may, on reversing the judgment, enter the judgment which the court below should have entered.
    8. Appeal and error, § 50

      —necessity for findings on reversal without remand. Where the case was tried below on a stipulation of facts and the finding below is based upon a misconception of the .law applicable to the admitted facts, the Appellate Court in reversing the judgment below and entering final judgment need not recite in its final order the facts found.
    Error to the Municipal Court of Chicago; the Hon. Charles B. Jennings, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and judgment here.
    Opinion filed February 5, 1914.
    Statement by the Court. Upon the trial of a fourth class case, without a jury, in the Municipal Court of Chicago, the court found the issues against the plaintiff below and entered judgment on the finding in favor of the defendant. The case was submitted upon a stipulated statement of facts, which was all the evidence heard by the court, substantially as follows:
    On January 4,1911, at Scottville, Michigan, plaintiff delivered to the defendant, Pere Marquette Railroad Company (hereinafter referred to as the defendant company), a carload of potatoes, and received from it a bill of lading therefor, showing the name of the consigner as F. E. Lewellyn and the name of the consignee as F. E. Lewellyn, Sedaba, Missouri, and the car number 3154. At the time of the delivery of the potatoes to the defendant company they were in good condition and were accepted by it as being in such condition. The car arrived at Chicago over the rails of the defendant company on January 8th, when and where it delivered the car to the Illinois Central Railroad Company (hereinafter referred to as the I. C. Co.), the connecting carrier. The I. C. Co. accepted the car for shipment and delivered the car at Sedalia, Missouri, within a reasonable time, on January 11th, the potatoes then being in good condition. Prior to the arrival of the car at Sedalia, Missouri, and while the same was en route from Chicago and in the possession of the I. C. Co., plaintiff instructed the defendant company to “divert or reconsign” the shipment from Sedalia, Missouri, changing the destination of said shipment to “F. E. Lewellyn, Houston, Texas; notify Hencke & Pillott,” and on January 10th, plaintiff surrendered to the defendant company the original bill of lading, received by him on January 4th, and he received “in lieu thereof a new bill of lading, dated at Scottville, Michigan, January 10, 1911.”
    A copy of this bill of lading was attached to said stipulated statement of facts, marked “Exhibit A.” On its face is the heading “Pere Marquette Railroad Company. ’ ’ Underneath this heading it is stated, inter alia, that “this memorandum is an acknowledgment that a bill of lading has been issued and is not the original bill of lading, nor a copy or duplicate, covering the property named herein, and is intended solely for filing or record,” and that there has been “received, subject to the classifications and tariffs in effect on the date of the receipt by the carrier of the property described in the original bill of lading, at Scott-ville, January 10,1911, from F. E. Lewellyn, the property described below, in apparent good order, * * * consigned and destined as indicated below, which said Company agrees to carry to its usual place of delivery at said destination, if on its own road, otherwise to deliver to-another carrier on the route to said destination; * * * every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof) * * Below on the face of the paper it is stated, inter alia that “sacked potatoes ’ ’ have been ‘ ‘ consigned to order of F. E. Lewellyn; destination, Houston, Texas; notify Hencke & Pillott at Houston, Texas; route, via M. K. & T.; car Ho. 3154; allow inspection; car forwarded on from Sedalia, Missouri, and all back charges to follow car on to destination.” The paper is signed “R. Jacobus, agent” and “F. E. Lewellyn, shipper, per Compton,” and on the back thereof is printed certain “conditions,” in ten sections. Section 2 reads: “In issuing this bill of lading this Company agrees to transport only over its own line, and except as otherwise provided by law acts only as agent with respect to the portion of the route beyond its own line. Ho carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed.”
    It is further stated in said stipulated statement of facts, substantially, that the defendant company “promptly notified” the I. C. Co. of the “diversion order and change of destination,” but that the I. C. Co. did not move the car of potatoes from Sedalia until February 10th, which length of time is admitted “to be unreasonable and to constitute negligent delay;” that on February 10th the I. C. Co. delivered said car to the Missouri, Kansas & Texas Railway Company at Sedalia, and that railroad company transported said car to Houston, where it arrived on February 16th and where “it was found to be in very bad condition,” and because of which condition and said unreasonable delay in transportation it was rejected by Hencke and Pillott and subsequently disposed of by plaintiff “to the best possible advantage;” and that the amount of plaintiff’s loss “on account of said unreasonable and negligent delay in transportation is $163.82.”

      Harry S. Ditchburne, for plaintiff in error.
    Glenhoh, Cary, Walker & Howe, for defendant in error; Bills, Parker & Shields, of counsel.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

Under the stipulated facts of this case it appears that on January 4,1911, at Scottville, Michigan, the defendant company received from the plaintiff for shipment a carload of potatoes in good condition and issued and delivered to plaintiff a hill of lading showing that the potatoes were consigned to plaintiff, as consignee, at Sedalia, Missouri. By this act the defendant company impliedly agreed to carry the potatoes safely and deliver the same at said destination within a reasonable time. Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 164. It further appears that prior to the arrival of the potatoes at said destination, and while the same were en route from Chicago, Illinois, and in the possession of the connecting carrier, Illinois Central Railroad Company (which last named company was the agent of the defendant company in transporting the potatoes part of the way, viz., from Chicago to said destination Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 205), plaintiff instructed the defendant company to change the destination of the potatoes to Houston, Texas, plaintiff to remain the consignee and Hencke & Pillott to be notified. In our opinion plaintiff was entitled to have these instructions carried out. And we Bunk that the fact that, at the time said instructions as to the change of destination were given to the defendant company, the potatoes were not then in the actual possession of the defendant company but in the possession of the connecting carrier, I. C. Co., makes no difference. They had not yet arrived at Sedalia, Missouri, and were still in the possession of the agent of the defendant company.

It further appears from the stipulated statement of facts that one day prior to the arrival of the potatoes at Sedalia the plaintiff surrendered the original bill of lading to the defendant company and received “in lieu thereof,” at Scottville, Michigan, the new bill of lading above described. By this transaction a change in the destination of the potatoes was made by the parties by mutual consent, and by it the defendant company, as a common carrier, agreed to carry the potatoes safely to the new destination, Houston, Texas, within a reasonable time. Mahaffey v. Wisconsin Cent. Ry. Co., 147 Ill. App. 43, 47.

It is contended by counsel for the defendant company that the agent of the defendant company at Scott-ville, Michigan, was without authority to issue the new bill of lading and that there was no consideration for its issuance. Under the facts of this case and under the law we think these contentions are without merit. c It further appears from the stipulated statement of facts that “send defendant promptly notified” the I. O. Co. of the “diversion order and change of destination,” but that, because of the “unreasonable and negligent delay” of the I. C. Co. in not moving the potatoes from Sedalia, and in not delivering them to the M. K. & T. B. Co. to be transported to Houston, until February 10th (although they had arrived in Sedalia on January 11th), the potatoes did not arrive at Houston until February 16th; that when they did arrive they were in bad condition; that because of this condition and said delay they were rejected and that on account of said delay in transportation plaintiff lost the sum of $163.82.

Section 20 of the Interstate Commerce Act, as amended by the Act of January 29, 1906, commonly known as the Carmack Amendment (34 U. S. Stat. at Large, 595), provides in part as follows:

“That any common carrier, railroad or transportation company, receiving property for transportation from a point in one State to a point in another State, shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad or transportation company, to which such property may be delivered or over whose line or lines such property may pass; and no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”

We are of the opinion that, under the stipulated facts of this case, the finding of the court below is contrary to the law and the evidence, and that the court erred in entering judgment in favor of the defendant company. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186; Adams Express Co. v. Croninger, 226 U. S. 491; Fry v. Southern Pac. Co., 247 Ill. 564. We think the trial court should have found the issues in favor of the plaintiff and entered judgment against the defendant company in the sum of $163.82.

This case was one of the fourth class tried in the Municipal Court, without a jury, upon a stipulation as to the facts. The stipulation contained all the evidence offered or heard by the court, and by it the parties agreed, in addition to certain evidentiary facts, to certain ultimate or substantive facts upon which, in our opinion, the determination of the cause depended. The amount of plaintiff’s loss occasioned by unreasonable and negligent delay in the transportation of the potatoes was admitted to he $163.82. The finding of the court was a general finding of the issues against the plaintiff. We think that the finding was the result of a misconception by the trial court of the law applicable to the admitted facts. And we think that upon the admitted facts we are authorized, not only to reverse the judgment of the court below, but to here enter judgment in the sum of $163.82 in favor of the plaintiff and against the defendant company. Manistee Lumber Co. v. Union Nat. Bank of Chicago, 143 Ill. 490, 504; Osgood v. Skinner, 186 Ill. 491, 495; City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497, 506.

By section 120 of the Practice Act (J. & A. 8657), it is made the duty of this court, upon the final determination of any cause as the result wholly or in part of the finding of the facts different from the finding of the court below, to recite in its final order or judgment the facts as found. And it has been held that this rule is applicable where there is “a stipulation as to the evidentiary or probative facts in the case.” National Linseed Oil Co. v. Heath & Milligan Co., 191 Ill. 75, 78; Seeberger v. McCormick, 178 Ill. 404, 411. In this case we do not find the ultimate or substantive facts different from those contained in the stipulation of the parties, and we are not required to recite in our final order or judgment our conclusions of 1cm on the ultimate facts. American Trust & Savings Bank v. Lantry Contracting Co., 257 Ill. 271, 272; Nonotuck Silk Co. v. Adams Express Co., 256 Ill. 66, 68. In National Linseed Oil Co. v. Heath & Milligan Co., supra, it is said: “It is undoubtedly true that where the parties agree to the ultimate fact or facts in a case and submit it to a trial court for decision, the question before that court and on appeal to the Appellate Court, and finally to this court, presents only a question or questions of law; and in such case, if the Appellate Court reverses the judgment of the trial court and enters a final judgment, no recital of the facts found by it in its judgment is necessary upon appeal or writ of error to this court.” We conclude that in this case no recital of the ultimate facts as found by us need be incorporated in our judgment order.

The judgment of the Municipal Court is reversed and judgment is entered in this court in favor of P. E. Lewellyn and against the Pere Marquette Bailroad Company for the sum of $163.82.

Judgment reversed cmd judgment here.


text:
    Robert Smith, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 18,787.
    (Not to he reported in full.)
    Abstract of the Decision.
    Street railroads, 8 133

      —when liability for injury to pedestrian a question for jury. Where a pedestrian was struck by a westbound car at a street intersection after having crossed the eastbound tracks in safety, under evidence that the street was well lighted, that there were no wagons or vehicles in the street, and that a car approaching from the east could be seen for a distance of 352 feet, the questions of plaintiff’s contributory negligence and defendant’s negligence or wantonness were held to he for the jury.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tothill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinon filed February 5, 1914.
    Statement of the Case.
    Action by Robert Smith against Chicago Railways Company to recover for personal injuries sustained on being struck by one of defendant’s cars. From a verdict and judgment for defendant, plaintiff brings error.
    Elmer & Cohen, for plaintiff in error.
    Joseph D. Ryan and William H. Symmes, for defendant in error; John R. Guilliams and Frank L. Kriete, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice G-ridley

text:
    Frank N. Wood, Appellant v. Illinois Central Railroad Company, Appellee.
    Gen. No. 18,811.
    1. Carriers, § 447

      —when instruction to disregard count alleging different acts of negligence improper. Where a count in plaintiff’s declaration charged that as the train on which he was a passenger approached the station at which he desired to alight, such station was announced by the trainmen, and “said train was then and there stopped or the speed thereof so slackened that its moving was imperceptible,” it being dark, that the trainmen “negligently failed to direct, warn or assist plaintiff in alighting from said train,” and as a result he fell under the wheels and was injured, it was error to direct the jury to disregard such count entirely, although other allegations therein charging the negligent jolting of the train were not substantiated.
    2. Negligence, § 133

      —proof of one or more allegations of negligence as sustaining recovery. If any of several charges of negligence contained in the same count of a declaration are sufficiently pleaded to show a cause of action and are sustained by the evidence, a recovery may be had, although the other charges are not proved.
    3. Trial, § 213

      —instructions to disregard counts. Where some of the allegations of negligence in a count were sustained by the evidence, an instruction to “disregard entirely” such count is prejudicial, in that the jury might infer therefrom that all the allegations in such count, as well as the facts shown to sustain the same, were not to be considered by them.
    4. Instructions, § 14

      ;—undue repetition. The giving of a number of instructions concluding with a direction to return a verdict of “not guilty” and unduly emphasizing by frequent repetition certain principles of law, held prejudicial.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 5, 1914.
    Rehearing denied February 16, 1914.
    Harry S. Mecartney, for appellant.
    Calhoun, Lyford & Sheean, for appellee; John Gr. Drennan, of counsel

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

   Mr. Justice G-ridley

delivered the opinion of the court.

This is an action for damages for personal injuries sustained by Frank N. Wood, plaintiff below, on September 18, 1903, as he was alighting from a train of the Michigan Central Railroad Company, running upon the tracks of the defendant below, Illinois Central Railroad Company, at or near the station of the defendant in Chicago, known as “39th Street.” On a second trial of the case the jury, on July 10, 1912, returned a verdict finding the defendant not guilty, and on the same day the court, after denying plaintiff’s motions for a new trial and in arrest of judgment, entered judgment in favor of the defendant, from which judgment this appeal is taken.

The first trial of the case was had in October, 1909, and at the conclusion of plaintiff’s evidence the court instructed the jury to find the defendant not guilty and entered judgment in its favor. On appeal to this court, Branch B. thereof reversed the judgment and remanded the cause for a new trial. An exhaustive statement as to the details of the accident is contained in the opinion of Mr. Presiding Justice Baldwin (167 Ill. App. 644), to which we refer.

At the conclusion of the hearing of all the evidence on the second trial, which except in some particulars was practically the same as on the first trial, the attorneys for the defendant renewed their motion, made at the close of plaintiff’s evidence, that the jury be instructed to find the defendant not guilty but the court denied the motion. At the conclusion of the arguments to the jury, the attorneys for the defendant made four separate motions relative to the four counts of plaintiff’s declaration. The first three of these motions were, respectively, that the jury be instructed to disregard entirely the second, third and fourth counts of the declaration. These motions were severally denied. The last of these motions was to the same effect as to the first count. This motion was granted, and the court instructed the jury “to disregard entirely the first count of plaintiff’s declaration.”

It is here urged by counsel for plaintiff that the giving of this instruction was prejudicial error.

The first count, after stating that the defendant was a railroad corporation, and the owner of a railroad, including the right of way, tracks, platforms, stations or alighting places in Chicago, one of these stations or alighting places being at the intersection of said railroad with 39th street, and that the Michigan Central Railroad Company, under some lease or agreement with the defendant, was then and there running and operating certain trains of cars over defendant’s said railroad, alleged, in substance, that plaintiff was then and there a lawful passenger upon a certain train of said Michigan Central Railroad Company so being run and operated by it; that as such passenger he desired to alight at the 39th street stopping place, where he was informed by the operatives of said train a stop would be made for him and others to alight; that when said train neared said station the operatives called out “39th street” for passengers to alight and said train was then and there stopped or the speed thereof so slackened that its moving was imperceptible ; that another train of the defendant was then and there moving in the same direction on an adjacent track; that it was dark and in the nig’httime; that plaintiff naturally believed that his train had come to a standstill; that the operatives on said train, disregarding their duty in that behalf, negligently failed to direct, warn or assist plaintiff in alighting from said train; and so plaintiff, unwarned and unassisted, but with all due care on his part and believing that said train had stopped, started to alight from the train and stepped down to and upon the ground there; and then plaintiff for the first time discovered that said train, instead of being at a full stop, was still slowly moving, and said train was then and there so carelessly and negligently operated by the crew thereof that it jerked and jolted; that thereby the plaintiff was thrown to the ground there and dragged under said train and car and the wheels thereof, and was run over and thereby greatly and permanently injured.

In the former opinion of this court it was said (p. 649): “The declaration, in its first count, alleged negligence on the part of the defendant in that the operatives of the train did not direct, warn or assist appellant in alighting therefrom, and that while he was attempting to so alight, the train was negligently jerked and jolted so as to throw appellant to the ground.” It was also stated in said opinion that the second count charged that defendant “failed to provide a station properly lighted; ’ ’ the third count, that defendant “failed to construct and maintain a platform and lights at ‘said alighting place;’ ” and the fourth that said stopping place “was poorly and insufficiently lighted, and no platform maintained there.”

It thus appears that in the first count there were two charges of negligence alleged, viz., failure to direct, warn and assist plaintiff in alighting from the train, and that, while he was attempting to alight, the train was negligently jerked and jolted. It is conceded that on the second trial the evidence did not establish, that the train was jerked and jolted at that time. And that fact, as appears from said opinion of this court, page 650, was not established on the first trial. But this court substantially held, as we read said opinion, that the absence of that proof did not necessarily prevent a recovery on the other allegations contained in said count, and that it was for the jury to say whether or not, upon consideration of all the evidence and the surrounding circumstances, the defendant was negligent and plaintiff free from contributory negligence. And, under the facts as shown in the record now before us, notwithstanding that it does not appear that the train was jerked and jolted when plaintiff attempted to alight therefrom, we are of the opinion that the trial court erred in instructing the jury to disregard said first count. “The law is, that if either of several charges of negligence contained in the same count of a declaration is sufficiently pleaded to show a cause of action, and is sustained by the evidence, a recovery may be had, although the other charges are not proved.” East St. Louis Connecting Ry. Co. v. Shannon, 52 Ill. App. 420, 423; Weber Wagon Co. v. Kehl, 139 Ill. 644, 655; New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40, 47; Vance v. Monroe Drug Co., 149 Ill. App. 499, 506; City of Joliet v. Johnson, 177 Ill. 178; Burgess v. Mazetta Mfg. Co., 117 C. C. A. 70, 198 Fed. 855. Furthermore, we think that the use of the particular words in said instruction, viz., to “disregard entirely ” said first count was prejudicial to the plaintiff in that the jury might infer therefrom that all the allegations in said count as well as the facts shown to sustain the same were not to be considered by them.

It is also urged that the instructions given to the jury were, taken as a whole, prejudicial to the plaintiff. The court gave twenty-two instructions, of which six were offered by plaintiff and fifteen offered by defendant, and one given on the court’s own motion. After careful consideration of all the instructions, we have reached the conclusion that the giving of the same, as an entirety, constituted error prejudicial to the plaintiff. Of the fifteen instructions offered by the defendant and given, six concluded that a verdict of “not guilty” should be returned, and in the fifteen instructions certain principles of law favorable to the defendant were by many frequent repetitions unduly emphasized and brought too prominently to the attention of the jury. Meachem v. Henry Hahn & Co., 46 Ill. App. 144, 149; Nelson v. Chicago City Ry. Co., 163 Ill. App. 98, 102; Casey v. J. W. Reedy Elevator Mfg. Co., 166 Ill. App. 595, 606; Kravitz v. Chicago City Ry. Co., 174 Ill. App. 182, 186. And we also are of the opinion that the giving of instruction No. 13, offered by defendant, was prejudicial to the plaintiff.

For the reasons indicated the judgment of the Superior Court is reversed and the cause remanded for a new trial.

Reversed cmd remanded.


author: Mr. Justice S'cahlah

text:
    Max G. J. Hoffman, trading as The Aamax-Hoffman Cabinet Works, Defendant in Error, v. Zulu Manufacturing Company, Plaintiff in Error.
    Gen. No. 18,690.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 97

      —when refusal of purchaser to accept not justified. Plaintiff and defendant entered into a contract under which the former agreed to supply the latter with one thousand cabinets for match vending machines. It was understood .that the cabinets were to fit castings constituting the front of the machines to be supplied by defendant. After more than half of the cabinets had been delivered to, defendant the latter complained that they did not fit the castings. Plaintiff then took back all but twenty-five, making certain alterations which he claimed remedied the defects, but claimed that defendant refused to receive them, or any more cabinets under the contract. Held that the trial court’s finding that the difficulty in making the cabinets and the castings fit was due entirely to a lack of uniformity in the latter, was sustained by the evidence.

      Error to the Municipal Court of Chicago: the Hon. Ruirus F. Robinson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 5, 1914.
    Statement of the Case.
    Action by Max Gr. J. Hoffman, trading as The Aamax-Hoffman Cabinet Works, against Zulu Manufacturing Company, a corporation, for goods purchased by defendant and for additional costs incurred by reason of defendant’s refusal to accept a portion of such goods. From a judgment for plaintiff for $382.88, defendant brings error.
    George I. Haight, for plaintiff in error.
    Paul J. Huxmahh, for defendant in error.

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

   Mr. Justice S'cahlah

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Mary Bottigliero, Defendant in Error, v. Samuel Polakow, Plaintiff in Error.
    Gen. No. 18,727.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 5, 1914.
    Statement of the Case.
    Action by Mary Bottigliero against Samuel Polakow in the Municipal Court of Chicago to recover sums expended in redeeming from a sale, on foreclosure of a mechanic’s lien, of premises purchased by plaintiff from defendant, under an agreement on the part of the latter to indemnify against the lien. Prom a judgment for plaintiff for $377.88, defendant brings error.
    Max M. Grossman, for plaintiff in error.
    Thomas B. Lantry, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

Indemnity, §. 25 —amount recoverable. In an action by the purshaser of realty against the vendor to recover for the amount expended in redeeming from a sale of the premises on foreclosure of a mechanic’s lien, the vendor having given an agreement to indemnify, defendant contended that attorney’s fees paid by plaintiff in redeeming and the fee for filing the certificate of redemption were improperly included in the judgment because no written notice had been given to him of the filing of the mechanic’s lien suit. Held, the finding of the trial court that such notice had been given was not manifestly against the weight of evidence.