text:
    The People of the State of Illinois by Maclay Hoyne, State’s Attorney, ex rel. Lewis E. Larson, Appellant, v. Albert H. Miller, Appellee.
    Gen. No. 23,524. (Not to be reported in full.)
    Abstract of the Decision.
    Schools and school districts, § 48

      —who is eligible as secretary to school board. Under section 129 Of the Act of April 20, 1917, relating to school districts in cities of over 100,000 population, "and providing that the hoard shall appoint other than designated officers and employees pursuant to the provisions of the civil service laws, no one is eligible as secretary to the board who has not qualified under the civil service laws.

      Appeal from the Circuit Court of Cook county; the Hon. Chakt.es M. Walker, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed December 17, 1917.
    Statement of the Case.
    Petition in the nature of quo warranto by the People of the State of Illinois by Maclay Hoyne, State’s Attorney, on the relation of Lewis E. Larson, petitioner, against Albert H. Miller, respondent, to test the title of respondent to the office of secretary of the school board of the City of Chicago, as reorganized under the Act of April 20, 1917. From a judgment for respondent, plaintiff appeals.
    This case was consolidated for hearing with People ex rel. McMahon v. Davis, ante, p. 117, and the opinion in that case is controlling on the similar questions involved. See also People ex rel. Shannon v. Francis, post, p. 135, and People ex rel. Larson v. Coffin, post, p. 136.
    Maclay Hoyne, for appellant.
    Samiuel A. Ettelson and Chester E. Cleveland, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    The People of the State of Illinois by Maclay Hoyne, State’s Attorney, ex rel. Angus Roy Shannon, Appellant, v. Charles R. Francis, Appellee.
    Gen. No. 23,525. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Statement of the Case.
    Petition in the nature of quo warranto by the People of the State of Illinois, by Maclay Hoyne, State’s Attorney, on the relation of Angus Boy Shannon, petitioner, ag’ainst Charles B. Francis, respondent, to test the title of respondent to the office of attorney of the school board of the City of Chicago, under the Act of April 20, 1917, by an appointment by the new board. From a judgment in favor of respondent, petitioner appeals.
    This case, with others, was consolidated with People ex rel. McMahon v. Davis, ante, p. 117, the opinion in which is controlling on the similar points involved. See also People ex rel. Larson v. Miller, ante, p. 134, and People ex rel. Larson v. Coffin, post, p. 136.
    Maclay Hoyne, for appellant.
    Samuel A. Ettelson and Chester E. Cleveland, for appellee.

      Abstract of the Decision.
    Schools and school, districts, § 41

      —when appointment of attorney 6y new school .hoard is valid. The appointment of respondent as attorney by the newly constituted school board pf the City of Chicago, which was organized under the Act of April 20, 1917, was valid, and respondent was entitled to the office as against an appointee of the old board.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    The People of the State of Illinois by Maclay Hoyne, State’s Attorney, ex rel. Lewis E. Larson, Appellant, v. Percy B. Coffin, Appellee.
    Gen. No. 23,523. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Statement of the Case.
    Petition in the nature of quo warranto by the People of the State of Illinois by Maclay Hoyne, State’s Attorney, on the relation of Lewis E. Larson, petitioner, against Percy B. Coffin, respondent, to try the title of respondent to the office of business manager of the Board of Education of the City of Chicago under an appointment by the new school board organized under the Act of April 20, 1917. From a judgment in favor of respondent, petitioner appeals.
    The questions involved in this case were decided in the opinion in People ex rel. McMahon v. Danis, ante, p. 117, and People ex rel. Shannon v. Francis,

      ante, p. 135. See also People ex rel. Larson v. Miller, ante, p. 134.
    Maclay Hoyne, for appellant.
    Samuel A. Ettelson and Chester E. Cleveland, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Dever

text:
    Provident Life & Trust Company of Philadelphia et al., Defendants in Error, v. Wyndham Vyvyan Miln and Malcolm Miln, by Louise Kyle, Guardian, et al., Plaintiffs in Error.
    Gen. No. 22,988. (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Statement of the Case.
    Bill by the Provident Life & Trust Company of Philadelphia, a- corporation, J. Roberts Foulke, as trustee, and J. Barton Townsend, successor in trust, complainants, against Wyndham Vyvyan Miln and Malcolm Miln, by Louise Kyle, their guardian, and others, defendants, to. foreclose a trust deed on certain real estate. From a decree of foreclosure, defendants bring error.
    Wilson & May, for plaintiffs in error.
    Winston, Payne, Strawn & Shaw, for defendants in error; Charles L. Bartlett and Sherman C. Spitzer, of counsel.
    Abstract of the Decision.
    1. Trusts, § 180

      —when mortgagee may rely upon record of decree as to right of trustee to borrow money on security of realty. While a corporation mortgagee loaning money to a trustee of an estate is required to know the scope of her authority in so far as it relates to the borrowing of money on the security of the real estate held by her as trustee, yet where specific authority to borrow money in such a manner is given by a decree of court to which the mortgagee was not a party, it may rely upon the authority given the trustee as apparent from the decree.
    2. Trusts, § 171*—when court retains jurisdiction to enter orders or decree after appointment of trustee. Where a decree of a court having jurisdiction of the persons and subject-matter appointing a trustee confers upon such trustee the power to borrow money on the security of the real estate, and preserves to him the privilege of asking the advice of the court from time to time in the administration of the trust estate for that purpose, it retains jurisdiction .thereafter to enter any proper order or decree in the administration of the trust estate.
    3. Trusts, § 155*—when decree authorizing payment of money by trustee is not improvident. A decree authorizing a trustee of an estate to borrow money cannot be deemed improvident in that it provides means for the payment of indebtedness which the parents of the minor children, which children were remaindermen, had properly incurred in the support and education of the minors.

      4. Judgment, § 366*—when presumed that decree in another case was based upon sufficient facts. It will be presumed on appeal, in-a suit to foreclose a trust deed, that a decree in another case authorizing the trustee to borrow money on security of the real estate and to pay certain indebtedness was based upon sufficient facts.
    5. Judgment—when decree cannot be collaterally attacked. Where money is loaned by a corporation in good faith to a trustee and a trust deed taken to real estate as security in reliance on a decree of the court authorizing such acts on its face, the validity of such transaction cannot be collaterally attacked, especially in the absence of fraud in procuring the decree under which the trust deed is executed.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Emily Kleinschmidt, Defendant in Error, v. August Kleinschmidt, Plaintiff in Error.
    Gen. No. 23,103. (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 147

      -—when freehold interest is involved in divorce suit. Under Rev. St. ch. 37, sec. 25 (J. & A. f 2968), denying jurisdiction to the Appellate Courts in the State in matters involving a freehold, the Appellate Court has no jurisdiction of a writ of error from a decree in divorce proceedings dispossessing defendant of his interest in land held by the parties as tenants in common, as a freehold interest in real estate is involved.
    Error to the Circuit Court of Cook county; the Hon. Chakt.es M. Thomson, Judge, presiding. Transferred to Supreme Court.
    Heard in this court at the October term, 1917.
    Opinion filed December 17, 1917.
    Statement of the Case.
    Bill by Emily Kleinschmidt, complainant, against August Kleinschmidt, defendant, for divorce on the ground of habitual drunkenness. From a decree for complainant, defendant brings error.
    Nobthrup, Burnham, Fairbank & Klein, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Margaret A. Holler, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 23,383. (Not to be reported in full.)
    ..Abstract of the Decision.
    1. Carriers, § 476

      —when evidence shows injury to passenger while attempting to alight before car came to a stop. In an action by a street car passenger to recover for personal injuries, evidence held sufficient to sustain a finding that the car did not stop on the near side of an intersecting street, and that plaintiff sustained her injuries by attempting to alight from the street car before it had come to a full stop.
    2. Carriers, § 279*—what degree of care required for safety of passengers. A street car company is not an insurer of the absolute safety of passengers, and it is not the duty of the company to protect its passengers against the ’consequences of remote, unusual or unexpected conduct on their part which cannot be foreseen by the exercise of the highest degree of care consistent with the practical operation of the company’s business.

      Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Rehearing denied December 31, 1917.
    •Statement of the Case.
    Action by Margaret 'A. Holler, plaintiff, against Chicago City Bailway Company, defendant, to recover damages for personal injuries alleged to have been sustained as the result of the sudden starting of a car from which plaintiff was alighting. From a judgment for defendant, plaintiff brings error.
    James D. Power, for plaintiff in error.
    Busby, "Weber & Miller, John E. Kehoe and Arthur J. Donovan, for defendant in error; John B. G-uilliams, of counsel.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Instructions, § 14 —impropriety of emphasizing proposition in different instructions. Emphasis by frequent repetition, even of a particular properly given proposition in instructions, is objectionable.

4. Appeal and ebbor, § 1537*—when repetition and emphasizing of position of party in instructions is harmless error. It is not reversible error to repeat and emphasize in several instructions in a personal injury case the position of one of the parties in reference to a material issue where the verdict is correct.

5. Appeal and error, § 1466*—when error in admission of evidence is not ground for reversal. Error in the admission of evidence is not ground for reversal when the verdict is just and the only one that could have been rendered in the case.


text:
    The People of the State of Illinois ex rel. George J. Williams, Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 23,424. (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations—what is building from, which owner must remove ashes at own expense under ordinance. Under section 1000 of the Municipal Code of Chicago, providing that it shall be the duty of every person occupying, operating or controlling any building which is heated by steam or hot water, or in or about which combustibles are used or ashes produced, to remove collected ashes from the premises at his personal expense at such times and in such manner as shall be directed by the commissioner of public works, and excepting cases where vessels for ashes are required by section 995, dealing with buildings used for residential purposes and buildings containing less than 5 flats; an apartment building heated by steam containing 27 flats is a building from which the owner thereof is required to remove the ashes at his own expense.

      Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Rehearing denied December 31, 1917.
    Statement of the Case.
    Petition for a writ of mandamus by the People of the State of Illinois, on the relation of George J. Williams, petitioner, against the City of Chicago and others, respondents, to compel the removal of the ashes from his 27-apartment building free of charge. From a judgment dismissing the petition, petitioner appeals.
    Thomas S. McClelland, for appellant.
    Samuel A. Ettelson, for appellees; Ralph G. Cran-DALTi, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Municipal corporations-—what is duty of city as to removal of ashes from place of property owner. A city, in the absence of legislation assuming the responsibility, cannot be compelled to remove ashes from the place of a property owner, since the duty to make such removal rests primarily upon the owner or occupant.

3. Municipal corporations, § 83 —how ordinance should he construed. An ordinance should be construed so as to give all parts thereof effect, if possible.

4. Mandamus, § 6*—when will not lie to compel the removal of ashes from premises of property owner. Mandamus will not lie to compel the removal of ashes from the apartment premises of a property owner by a city where there is no ordinance assuming the liability, since such owner is not entitled of right to such service, and it is immaterial that an ordinance is discriminating and invalid in providing for the removal of ashes from a certain class of residences free of charge.


author: Mr. Justice McSurely

text:
    C. B. Aldrich and C. A. Chancellor, trading as Aldrich & Chancellor, Defendants in Error, v. O. R. Jeffers, Plaintiff in Error.
    Gen. No. 22,689. (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Statement of the Case.
    Action by C. B. Aldrich and 0. A. Chancellor, trading as Aldrich & Chancellor, plaintiffs, against O. R. Jeffers, defendant. - From a judgment for plaintiffs for $735.37, defendant brings error."
    Beckmah, Cottrell & Phillips, for plaintiff in error.

      Abstract of the Decision.
    1. Appeal and error, § 1306

      —when presumed that affidavit of defense was properly stricken from files. In the absence of a bill of exceptions, a motion to strike an affidavit of defense from the files and the decision of the court thereon do not become a part of the record, and it will be presumed that the action of. the court was correct in striking the affidavit from the files.
    2. Appeal and error, § 1744*—when judgment affirmed. Where the only question for review is the propriety of striking an affidavit of defense from the files and such question is not preserved by the bill of exceptions, the judgment of the lower court will be affirmed.
    J. J. Moser, for defendants in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Donald Ross, Plaintiff in Error, v. Fred Becklenberg and Charles Schleyer, Defendants in Error.
    Gen. No. 23,099. (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hón. Osoab E. Heard, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Statement of the Case.
    Action by Donald Ross, a city building inspector, plaintiff, against Fred Becklenberg, the owner of a building under process of construction, and Charles Schleyer, the contractor, defendants, to recover for personal injuries received by plaintiff in falling through an unfloored entrance to the building into the basement while on a tour of inspection. From a judgment for defendants upon a directed verdict, plaintiff brings error.
    Abstract of the Decision.
    1. Negligence, § 23

      —who is a licensee. A city building inspect- or who is inspecting a building is a mere licensee.
    2. Negligence, § 24*—what is duty of owner of building towards licensee. A city building inspector who is inspecting a building, being a mere licensee, the owner of the building owes him no duty except to refrain from wilfully injuring him, and consequently there is no liability for injuries to the inspector due to his falling through an unfloored entrance to a building into the basement.
    3. Negligence, § 24*—what care required of contractor to avoid injury to licensee. A mason contractor who has made the excavation for a building but has nothing to do with the construction of floors in the building owes no duty to avoid injury to a licensee, a city building inspector, than to avoid wilfully injuring him, and consequently is not liable for injuries received by the inspector in falling through an unfloored entrance way into the basement while on a tour of inspection.
    4. Negligence, § 93*—when city building inspector injured by falling through floor is guilty of contributory negligence. A city building inspector is guilty of contributory negligence as a matter of law where he enters a dark building, which is in. the process of construction, on a tour of inspection and is obliged to grope his way in the darkness into a passageway into which he had never before walked and which, from previous observation, he knew was devoid of flooring, as a consequence of which he falls through the unboarded floor into the basement and is injured.
    Bradley, Barper & Eheim, for plaintiff in error; Samuel A. Harper, of counsel.
    Edward H. Morris, for Fred Becklenberg.
    Frank M. Cox and R. J. Fellingham, for defendants in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Fred Schmidt et al., Appellants, v. Edward Schmidt, Individually and as Executor, Appellee.
    Gen. No. 23,371.
    1. Appeal and bbbob, § 178

      —when freehold is involved. In a partition suit a freehold is involved, and an appeal from .the trial court must he taken directly to the Supreme Court and not to the Appellate Court.
    2. Appeal and bbbob, § .1140*—when leave granted to withdraw record, abstract and briefs in suit improperly brought to Appellate Gomrt. Where an appeal in a partition suit, involving a freehold, is taken to the Supreme Court and an appeal bond given conditioned upon the affirmance of the judgment in the Supreme Court, but for some reason unknown the record, abstract and briefs are filed in the Appellate Court, which has no jurisdiction of a freehold, the cause will be stricken from the docket with leave to withdraw the record, abstract and briefs for the purpose of filing the same in the Supreme Court.
    Appeal from the Superior Court of Cook county; the Hon. Chables M. Foell, Judge, presiding. Cause stricken from docket.
    Heard in this court at the October term, 1917.
    Opinion filed December 17, 1917.
    Isidor Plotke, for appellants.
    F. J. Griffen, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Complainants filed a hill for partition of real estate and for construction of a will, to which answers were filed, and the chancellor duly entered a decree. From this decree the complainants prayed an appeal to the Supreme Court of Illinois, which was allowed, and subsequently an appeal bond was filed reciting the appeal to the Supreme Court and conditioning the obligation upon the affirmance of the judgment in the Supreme Court.

It has been held that in a partition suit a freehold is involved, and that the appeal should be taken directly to the Supreme Court and not to this court. In the instant case the appeal was taken to the proper Court, but for some reason which does not appear the record, abstract and briefs have been filed in this court and the cause docketed as an appeal. This is manifestly a mistake; there is no appeal to this court. We shall therefore order the cause stricken from the docket of this court, with leave to the complainants to withdraw the record, abstract and briefs from this court for the purpose of filing them in the Supreme Court or for such other disposition as they may see fit to make of them.

Cause stricken from docket.


text:
    Marciana Jassas, Appellant, v. Bankers Insurance Corporation, Appellee.
    Gen. No. 23,400.
    1. Insurance—when beneficiary is entitled to SO per cent, of accident policy upon death of insured. Under a benefit certificate providing for the payment of a specified sum to the beneficiary upon the death of the insured, payable to the extent of 10 per cent, should the death of the member occur within two years from the date of the certificate and increasing in amount 10 per cent, per year until after ten years when the full amount is payable, where an insured dies after a membership of more than two and less than three years, the beneficiary is entitled to 20 per cent, of the face of the policy.
    2. Insurance, § 408

      —what is an -accident. Death from a stroke of lightning is an accident within a benefit certificate.
    3. Words and phrases—accidents defined. Accidents are of two kinds, first, those that befall a person without any human agency, as the killing of a person by lightning, and second, those that are the result of human agency.

      4. Insotance—when causal connection must exist between accident caitsing death and occupation. Under a benefit certificate providing that if the death of a member is caused from accident or from accidental injury the benefit will be governed by the occupation, act or hazard in^which the member is engaged at the time of the injury, and the benefit will he scaled according to specified classes, there must be some causal connection between the accident and the occupation.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    A. Gr. Abbott, for appellant.
    Albert J. W. Appell, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Upon the death of her husband, plaintiff became the beneficiary in a benefit certificate issued to him by defendant, which admitted liability for $40, but plaintiff claimed $1,000.. She brought .suit for this sum, and, upon the admission in defendant’s affidavit of defense, took judgment for $40, which was paid, and prosecuted her suit for the claimed remainder. Upon trial by the court the defendant’s contention prevailed, and judgment was entered against plaintiff’s claim except as to the $40 aforesaid. She appeals, saying that under the facts and a proper construction of the provisions of the benefit certificate she is entitled to $1,000.

There is virtually no dispute as to the facts. Defendant is a fraternal beneficiary society of which plaintiff’s husband was a member. By the terms of the benefit certificate defendant agreed on the death of the insured to pay to his wife—

‘ ‘ One Thousand Dollars, payable as follows:
“First. Should the death of the member occur within two years from the date hereof, ten per cent of the above amount shall be due in full payment of the claim; if after two years, twenty per cent; after three years, thirty per cent; after four years, forty per cent; after five years fifty per cent; after six years, sixty per cent; after seven years, seventy per cent; after eight years, eighty per cent; after nine years, ninety per cent; and after ten years, the full amount will be paid.”

The insured died after a membership of over two years and less than three. Under the explicit provisions above quoted the beneficiary would be entitled to 20 per cent, of $1,000, which is $200. This seems clear beyond reasonable controversy. The provision evidently contemplates an increasing amount of liability commensurate with the length of time membership by the insured is continued; it might be said to constitute an inducement to continue membership, and is entirely reasonable and intelligible. To adopt the construction contended for by plaintiff, that is, a general undertaking to pay $1,000, would be contrary both to the purpose and explicit language of this provision.

The material part of the second provision of the certificate is as follows:

“If the death of the member is caused from accident or from accidental injury, the benefit to be paid will be governed by the occupation, act or hazard in which the member is engaged at the time of injury, and the above benefit will be scaled as follows: Occupation, Class AA, 0 per cent; A, ten per cent; B, twenty per cent; C, thirty per cent; D, forty per cent; E, fifty per cent; F, X and XX, eighty per cent, upon-the surrender and cancellation of this Certificate.”

It is not in dispute that plaintiff was killed by accident and that at the time he was a member in defendant’s society, classed as a laborer in class “X”; and defendant contends that these facts bring into operation this second clause, that is to say, the death of the member was caused by accident, and as he belonged to the occupation classed as “X,” the amount of $200 due under the first clause must be scaled down 80 per cent. Eedncing $200 by 80 per cent, would leave $40, the amount defendant admits to be due.

We do not see how it can be seriously controverted that death from a stroke of lightning is caused, in a legal sense, by accident; at least we are not referred to any reported decisions in which it has been held to the contrary. In Pixley v. Illinois Commercial Men’s Ass’n, 195 Ill. App. 135, it was said that a death which was the result of an accident “implies an external and violent agency as its cause.” An accident has been defined as something “happening by chance, or unexpectedly taking place” (Words and Phrases, vol. 1, p. 62), and “an event that takes place without one’s foresight or expectation” (Cyc. vol. 1, p. 227); and to call a stroke of lightning an “act of God” does not remove it from the scope and meaning of these definitions. In Morris v. Platt, 32 Conn. 75, the court designated as accidents those occurrences ‘ effected or influenced by the uncontrollable operations of nature,” and gave as an illustration injury from a flash of lightning. In Hutchcraft’s Ex’r v. Travelers’ Ins. Co. of Hartford, 87 Ky. 300, a suit to recover accident insurance, it was said that accidents were of two kinds: ‘ ‘ First, those that befall a person without any human agency, as the killing of a person by lightning; here the elemental properties of lightning and its flash are not caused or controlled by human agency; but the fact that the person was struck, by unintentionally placing himself within its range, is, as to him, accident. Second, those that are the result of human agency.” These definitions are applicable to the instant case, and we are of the opinion that the death of the insured by lightning was “death * * * from accident” within the meaning of these words as used in the benefit certificate.

It is conceded that at the time of the death of plaintiff’s husband he was a laborer, which occupation is designated in the certificate as “Class X.” Under such circumstances, and giving to the words in provision 2 of the benefit certificate their usual and ordinary meaning, the benefit to be paid should be sealed or reduced 80 per cent.

The real gist of the controversy is whether or not under the provisions of the policy the “death * * * from accident” must be connected with an accident growing out of the occupation of the member at the time; that is, some causal connection between the accident and the occupation. Many cases have been cited by counsel for plaintiff in which, in construing certain kinds of insurance policies, it has been held that such causal connection must appear. We are of the opinion, however, that we must be controlled on this point by what is said in the opinion of our Supreme Court in Gauger v. American Patriots, 263 Ill. 604; an opinion by the Appellate Court was also given in this case, 184 Ill. App. 490. In this ease plaintiff sought to recover upon a benefit certificate issued by a fraternal insurance society in which her husband was a member. By one of the sections of the certificate it was provided that if the member should die “while in the custody of any officer of the law” the certificate should be void. It was shown without controversy that he had died when in the bridewell for failure to pay a fine inflicted for disorderly conduct, but that his death was due to a disease incurred prior to his arrest and having no connection whatever with his imprisonment. It was there contended strenuously, as here, that a proper and reasonable construction of the language of the certificate would be that some causal connection must appear between the death and the custody of the member. The Supreme Court, however, held against this contention, saying that the provision was one the parties might lawfully insert in the contract, and that when death has occurred under conditions which avoid the certificate by the express language of the contract, there is nothing left for the courts to do except to enforce the contract as the parties had made it; citing Seitzinger v. Modern Woodmen of America, 204 Ill. 58; Zerulla v. Supreme Lodge, 223 Ill. 518; Kiesewetter v. Knights of Maccabees, 227 Ill. 48. If, under such circumstances, it has been held proper to avoid the contract entirely, it clearly would seem reasonable that the amount of compensation to be paid should be determined by the explicit and unambiguous language of the benefit certificate.

Under a proper construction, as we have above indicated, plaintiff was entitled under the contract to recover $40, and the judgment of the trial court in allowing no more was proper and is affirmed.

Affirmed.


text:
    Bessie M. Haley, Appellant, v. Richard F. Haley, Appellee.
    Gen. No. 23,423.
    Husband and wife, § 218

      —when wife is not living apart from her husband through her fault. Even though the conduct of a husband towards his wife is insufficient to warrant her leaving him, yet, if, within a few weeks after the separation, she makes repeated offers to the husband to return and resume marital relations and they are refused, she is not living apart from her husband through her fault so as not to be entitled to separate maintenance under Hurd’s Rev. St. ch.- 68, sec. 22 (J. & A. If 6159).
    Appeal from the Superior Court of Cook county; the Hon. Mastín M. Gkidley, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed December 17, 1917.
    Schuyler & Weineeld, for appellant.
    Day & Guenther, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal complainant seeks to have reversed a decree dismissing for want of equity her bill for separate maintenance, after hearing by the court on bill and answer.

The evidence tends to show that the parties were married on April 21,1915, and in October of the same year complainant left her husband and returned to her mother. During this time their married life was unhappy, although it is difficult to determine with certainty as to which one of the two was more in fault. According to her testimony the husband was guilty of a course of conduct indicating not only coldness and indifference towards his wife, but aversion. This was indicated in a number of small details which it is unnecessary to narrate. He denied in almost every particular the version given by the wife of their relations with each other. Before the marriage defendant lived in an apartment which was cared for by a housekeeper, who remained in the apartment after the marriage. We are of the opinion that it is sufficiently clear that an antagonism arose between this housekeeper and the complainant, who properly asserted her position as dominant over the housekeeping arrangements, which seems to have been disputed by the housekeeper. Whether or not the complainant was justified in everything she did or said with reference to the presence of the housekeeper is not important. The important fact, however, is that her husband seemed to side with the housekeeper and adopt an attitude of opposition to his wife. The situation became intolerable to her and, prompted by the suggestions of a neighbor, she returned to her mother. She took with her only a few clothes. The entire circumstances of this leaving indicate that she did not intend the separation should be permanent, but took this step in the hope that a temporary separation would cause a change in her husband’s antagonistic attitude towards her.

The trial court was evidently of the opinion that the complainant was not justified in leaving, hence was not within the class entitled to relief under the separate maintenance statute, namely, “married women, who, without their fault,” live apart from their husbands. Hurd’s Rev. St. ch. 68, sec. 22 (J. & A. ¶ 6159). We are of the opinion that the court was in error in disregarding what we hold to be the controlling circumstances shown by the evidence. It is clearly shown that within a few weeks after this separation the wife made repeated offers to return to her husband and resume marital relations, which were refused by him. This offer to return was made through telephone messages, by a telegram, by letters, and also by a return in person of the complainant to their apartment, where an interview was had with the husband. At this interview both by her actions and what was said, the complainant indicated her wish to return. On the other hand, defendant’s attitude clearly showed a disposition opposed to the resumption of their marital relations.

It is the law in this State that under such circumstances it is the duty of the husband to receive the wife and properly provide for her, and that should he refuse to perform this duty it cannot then be said that she is living apart from her husband through her fault. The language of the Supreme Court in Thomas v. Thomas, 152 Ill. 577, 579, is directly applicable: “Even though the original separation was without any fault of the husband, still if she afterwards, in good faith, offered to return and live with him, it was his duty to receive her back and there properly provide for her.” This rule was applied by a branch of the Appellate Court to facts exactly like those now before us, in Pratt v. Pratt, 197 Ill. App. 530. Applying this rule to the facts of this case it follows that the complainant was living apart from her husband without her fault and, under the statute, was entitled to a decree of separate maintenance.

The decree of the Superior Court is reversed and the cause is remanded with directions to fix the amount to be allowed for maintenance, and for further proceedings consistent with what we have herein said.

Reversed and remanded with directions.


author: Mr. Presiding Justice Barnes

text:
    William C. Niblack, Receiver of La Salle Street Trust & Savings Bank, Plaintiff in Error, v. L. Adler and Isadore Adler, Defendants in Error.
    Gen. No. 22,272.
    1. Bills and notes—when new note constitutes renewal of note. Whether a new note constitutes a renewal oí a former note depends upon the intention of the parties.
    2. Bills and notes, § 298

      —what constitutes payment of old note and not renewal. ’Where a new note is given to procure a new loan and is discounted by the payee, a bank, and a check drawn on the proceeds for the amount of a former note, there is a payment of such former note and not a renewal thereof.
    3. Municipal Coubt of Chicago, § 13*—when admission in statement of claim is not controlling. The fact that plaintiff makes an admission in his statement of claim that the note sued on is a renewal note is not controlling where such pleading is supplanted by an amended pleading not containing such averment, and the supplanted pleading is not offered in evidence.
    4. Set-off a.nd becoupment, § 9*—what does not constitute matter of in action on note against individual members of partnership. In an action by a bank on a new note against the members of a partnership as individuals, a claim by defendants for a balance due them out of funds they deposited with a clerk of the bankruptcy court for a composition settlement, the funds for which were furnished by the hank, upon receiving a note therefor, and which funds were deposited in the bank by the clerk, constitutes neither recoupment nor set-off as it did not grow out of the transaction sued on and the matter of set-off was one in which defendants were interested as copartners and not as individuals.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and judgment here with finding of fact.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Hiram T. Gilbert and Jacob Logan Fox, for plaintiff in error; Lewis, Fox & Adelsdorf, of counsel. "
    Herman Frank, Harry J. Lurie and Louis Grollman, for defendants in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This writ of error seeks the reversal of a judgment for costs rendered against the plaintiff below (plaintiff in error here) in an action on a promissory note of defendants for $3,000 dated June 1, 1914, and payable to the La Salle Street Trust & Savings Bank 90 days after date with 7 per cent, interest after maturity. . The trial was had without a jury. The note came into the hands of plaintiff as receiver of said bank.

The main issue of fact presented by the pleadings was whether said note was a renewal of a previous note given by defendants to said bank. The court’s general finding involved the conclusion that it was. Because we must reach a different conclusion, a discussion of other points raised in the briefs will be unnecessary.

The question arises on these undisputed facts. Defendants had a deposit account in said bank in their partnership name of L. Adler & Son. As such partners they were adjudicated bankrupts and later effected a composition with their creditors. To effect the composition the bank advanced to them $5,000, for which they, gave their note dated December 22, 1913. They also executed another note dated December 24, 1913, to the bank for $2,698.05, the full amount of their indebtedness to it at the time they filed their petition in bankruptcy. Bach note matured 90 days from its date. Before the maturity of the first note it was reduced by partial payments, and on April 1, 1914, defendants deposited two new notes at the bank maturing in 90 days, one for $3,000 and the other for $2,000, representing the unpaid balance of the original notes. The note for $2,000 was subsequently paid in cash. On June 4, 1914, the note sued on was discounted by the bank and its proceeds were credited to defendants’ bank account. At the same time they gave their check for $3,031, the amount then due on the note for $3,000 of April 1, 1914, which was charged to their said account leaving a credit balance of $719.92, and thereupon the latter note was stamped “paid” and surrendered to defendants.

Defendants contended that the note in question was a renewal of their original note for $2,698.05, and that the latter was void because given as a secret preference whereby the bank’s claim was to be paid in full without the knowledge of the other creditors to the composition agreement. If, however, the note sued on was not in fact a renewal of a prior, note the question whether the latter was void need not be considered.

It is conceded that whether the note in question could be deemed a renewal of a former note depends on the intention of the parties. While one of the defendants testified that it was a renewal yet, unless the facts and circumstances surrounding the transaction would so import, such testimony merely amounted to his conclusion.

In substance and legal effect there were two distinct transactions, one was the acceptance by the bank of the note sued on for discount and the crediting of defendants’ deposit account with the cash less discount constituting the consideration of the note, and the other was the paying of another note then due by defendant’s personal check on his said account. In other words, the old debt was extinguished and a new loan was made represented by the new note. Upon a similar state of facts in Merriman v. Social Mfg. Co., 12 R. I. 175, where new notes were discounted by a bank and the proceeds placed to the credit of the makers on the books of the bank on which they drew checks to pay prior notes given by the same makers, the court said: ‘‘ The new notes were given to create new credit, or, in other words, to procure in fact new loans, the proceeds of which were applied, by the checks drawn for that purpose, to the payment of the notes, which were surrendered.” The rule was reaffirmed in First Nat. Bank of Pawtucket v. Littlefield, 28 R. I. 411, and the principle recognized and applied in Bank of United States v. Daniel, 37 U. S. 32, and Letcher v. Bank of Commonwealth, 1 Dana (Ky.) 82. In the latter case a note was discounted at the bank and the proceeds applied in payment of a note .then due. Suit was brought on the original note and payment was pleaded. In sustaining the defense the court said: “The new notes executed to the bank are not notes for the original debt; but they are independent notes offered for sale in order to raise funds to pay off the old debts. The contracts are essentially distinct.”

These and other authorities support the view that the giving of the two notes, the original and the one in question, were distinct transactions supported by different considerations, and that the consideration of the note in question was founded in the credit given by the bank to defendants’ deposit account and that it is not infected with the fraud, if any, in the giving of the note on which the credit was first extended.

It is urged by defendants in error that plaintiff made a solemn admission in his amended statement of claim by averring therein that the note in question was a “renewal note.” While we recognize the force of an admission made in pleadings, yet the said pleading was supplanted by an amended pleading not containing such averment, and the supplanted pleading was not offered in evidence. However, such admission might well, in view of the real facts, be deemed as made under a misapprehension of their true significance.

Towards the close of the case defendants in error were permitted to file an additional affidavit of merits in which they set up that there was a balance due them out of the funds they deposited with the clerk of the bankruptcy court for the composition settlement, which the clerk had. deposited to his account in said bank. Such a claim constitutes neither recoupment nor a' set-off. It does not grow ont of the transactions sued on and obviously does not constitute a claim against the bank. Besides defendants were sued in this matter as individuals and the matter pleaded as a set-off is one in which they were interested as copartners.

In view of this conclusion the judgment of the court below will be reversed and a judgment entered here for $3,694.16, being the principal of the note with interest at the rate of 7 per cent, per annum after its maturity, namely, August 31, 1914.

Reversed and judgment here with finding of fact.

Finding of fact. We find that the defendants in error, as makers, and the La Salle Street Trust & Savings Bank, as payee, of the notes sued on and described in the statement of claim mutually intended that said note should be given and accepted to create new credit for defendants in error with said bank, and that in consideration of the execution and delivery of said note said bank extended credit to them to the amount thereof, less discount; and we find that said note was not given to renew a previous note given said bank by said defendants in error.


text:
    E. R. Stege Brewery, Appellant, v. Joseph O. Kostner, Appellee.
    Gen. No. 23,375. (Not to be reported in full.)
    Abstract of the Decision.
    1. Injunction, § l&l

      ^iohen amended till to enjoin prosecution of forcible detainer action is properly dismissed. Where a bill to enjoin the prosecution of a forcible detainer action was filed by a lessee claiming equitable estoppel as to extension of the lease against the subsequent lessee of a 99-year lease of the premises, made subject to the former lease, who, at the time of the acts claimed to estop him, had merely a contract for the purchase of the premises which, was never consummated and had no legal or equitable title to the premises, and no privity of contract or rel¿tionship between, them then existed, and complainant’s lessor never recognized any right in complainant to exercise complainant’s option of extension of complainant’s lease after the time for such exercise had expired, after which defendant secured such 99-year lease and also an assignment from the lessor of complainant’s lease, held, on demurrer to the amended hill setting tip such assignment in addition to the other facts stated, that the assignment did not change the legal significance of such facts and the bill was properly dismissed for want of equity.

      Appeal from the Circuit Court of Cook county; the Hon. Fbedebick A. Smith, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Bill by the E. R. Stege Brewery, k corporation, complainant, against Joseph 0. Kostner, defendant, to enjoin defendant from prosecuting a certain forcible detainer action. From an order sustaining a demurrer to the bill and dismissing the. bill for want of equity, complainant appeals.
    In a former opinion, 203 Ill. App. 416, an interlocutory injunction, entered on the bill, answer and affidavits, was reversed, after, which the bill was amended and general demurrer thereto sustained in the order now appealed from.
    Simeon Straus and Ira E. Straus, for appellant.
    Moses, Rosenthal & Kennedy, for appellee; Joseph W. Moses, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    William C. Niblack, Receiver of La Salle Street Trust & Savings Bank, Plaintiff in Error, v. David L. Frank, Defendant in Error.
    Gen. No. 22,546.
    1. Bills and notes, § 431

      —what is not evidence of delivery off note on condition explainable by parol testimony. "Where defendant, an insurance agent, and a depositor in plaintiff’s bank, gave his note to the bank, which discounted same and passed the amount to his credit, whereby his check thereon in payment of the insurance premium due his company on insurance taken out through him by a vice president of the bank was paid, evidence that such vice president had, under an agreement between him and another vice president of the bank and defendant at the time of thé execution of the note, orally agreed to pay same, would not constitute evidence of delivery of the note on such a condition as may be explained by parol testimony, and had no other import than to vary the provisions of defendant’s written promise to pay .it.
    2. Bills and notes, § 431*—when provision of Negotiable Instruments Act that delivery of note may be shown to be conditional is inapplicable. Section 16 of the Negotiable Instruments Act (J. & A. IT 7655), providing that the delivery of a note may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring property in the instrument, is. not applicable to a case where defendant gave his note to plaintiff’s bank, which discounted same and passed the amount to his credit.
    3. Novation, § 1

      —what does not constitute. There was no novation where defendant, an insurance agent, in order to secure a sufficient deposit account in plaintiff’s bank whereby his check in payment of an insurance premium on insurance taken out through him by a vice president of the bank might be paid, gave his promissory note to the bank, which discounted same and passed the proceeds to his account accordingly whereby such check was paid, under an agreement made at the time of the execution of the note between defendant and such vice president and another vice president of the bank that the former vice president taking out the insurance should pay the note.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and judgment here with finding of fact.
    Opinion filed December 21, 1917.
    Hiram T. Gilbert and Jacob Logan Fox, for plaintiff "in error; Lewis, Fox & Adelsdorf, of counsel.
    Mater, Meter, Austrian & Platt, for defendant in error; Abraham Meter, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The parties to this suit were respectively plaintiff and defendant below in an action brought on defendant’s promissory note for $3,000 dated July 5, 1911, payable to the order of the La Baile Street National Bank, and transferred to the La Salle Street Trust & Savings Bank, of which plaintiff became receiver. The case was tried without a jury and the writ of error brings up for review a judgment against plaintiff for costs.

Through the defendant Frank, an insurance agent, C. B. Mnnday, one of the vice presidents of said National Bank, took out a life insurance policy, the initial premium of which was $3,800. Frank had a deposit account in said National Bank and drew his check thereon in favor of the Insurance Company to pay said premium. While his credit balance at the time was only $800, he had reason to expect the check would be honored, but it was not, and thereupon he had an interview respecting the same with Munday and Wm. Lorimer, Jr., another vice president of the bank, the result of which was that the note in question was executed, discounted by the bank, and the proceeds thereof passed to Frank’s credit, whereby the check was then paid.

The defense rested on two grounds: (1) That defendant was discharged from an obligation to pay the note by an oral agreement entered into at the time of its execution and delivery between the bank, Munday and himself whereby Munday and not he was to pay the same; and (2) also that the transaction constituted a novation. '

We do not think the evidence can be said to support either defense. As to the first it may be said that while the evidence tends to disclose an obligation on the part of Munday to take up the note yet it is not sufficient to show a clear and positive agreement discharging defendant from any liability to the bank, even if parol evidence of said oral agreement received over plaintiff’s objection could be deemed admissible.

Admitting the unquestioned and familiar principle invoked by plaintiff in error that the terms of a written instrument cannot be varied by parol evidence, defendant in error_ citing various decisions, and section 16 of the Negotiable Instruments Act (J. & A. ¶ 7655) urges that the evidence objected to was competent to show a conditional delivery of the note, namely, that the note was not to be paid by him, a condition contrary to its express provisions.

We shall not undertake to review the dissimilar facts in the cited cases upon which evidence of a conditional delivery was upheld. It is sufficient to say that they are distinguishable from the instant case in the fact that in those cases the written instrument was not to take effect until the happening of a specified event, a condition precedent, and that here the note took effect immediately in consideration of the bank’s extension of its credit to defendant whereby his personal check to a third party was paid. It did not change the legal character of the transaction, the consideration of the note, or the purpose of giving it, or' defendant’s personal obligation to pay it, that Mun-day promised to take it up, or that the bank expected him to, or that Munday thereby became indebted to defendant. The note, according to its terms, was a binding obligation on defendant from which such circumstances did not discharge him. Evidence, therefore, that the bank would not look to him but to Munday for its payment did not - constitute evidence of delivery on such a condition as may be explained by parol testimony and had no other import than to vary the provisions of defendant’s written promise.

Nor do we deem section 16 of the Negotiable Instruments Act (J. & A. ¶ 7655) applicable to the instant state of facts. The provision therein relied on is “and in such case the delivery may be shown to have been conditional or for a special purpose only, and not for the" purpose of transferring the property in the instrument.” The latter clause cannot be disregarded. It cannot be said that there was no purpose to transfer the property in the note to the bank. The very purpose of it was to obtain credit from the bank for defendant’s immediate benefit in order that his check on the bank to a third party might be honored.' The legal phase of the transaction was not affected by the fact that the bank indirectly paid a debt of Monday’s, or that the bank knew it, or that his promise may have induced the bank to extend credit to defendant. In spite of these facts the note still remained"defendant’s obligation supported by the consideration of an immediate financial benefit to him. The facts, therefore, do not bring the case within the purview of said section, or the scope of the doctrine permitting evidence of conditional delivery. Hence the evidence violated the familiar rule against the introduction of parol testimony to vary the terms of a written instrument and at best did not tend to show conditional delivery, or at least such a condition as may be explained under the rule invoked by defendant.

Nor did the evidence furnish all the essential elements of a novation. As defined in Hayward v. Burke, 151 Ill. 129, they are: “First, a previous valid obligation; second, the agreement of all the parties to the new contract; third, the extinguishment of the old contract; and, fourth, the validity of the new one. ’ ’

If the transaction effected a novation then it involves admitting, to supply the first element, that the note in question was binding on Frank when delivered, and, to supply the second, that the alleged agreement that Munday and not Frank was to pay the note was a subsequent and independent contract after the note took effect. Either admission is fatal to defendant’s theory of novation.- The first is inconsistent with his claim that the note was never a binding obligation on Frank, or that it was delivered on a condition that was never performed; and the second is inconsistent with defendant’s own version of the facts which warrant the conclusion that the transaction constituted one entire contract. It is unnecessary to consider whether the other elements of a novation were present, if these were lacking.

But the evidence does not support an unqualified agreement by the creditor to look solely to the alleged substituted debtor. (Elwell v. Hicks, 180 Ill. App. 554.) At best it merely shows that Lorimer, Jr., the agent of the bank, expected that Munday would take up the note, and probably for that reason assented to its discount. But regardless of whether the bank could have enforced Munday’s promise, such a state of facts manifestly did not constitute a substitution of one debtor for another. (Walker v. Wood, 170 Ill. 463-467.) The evidence shows no express and, in our opinion; no implied assent by the bank to such a substitution. At best it shows that the bank looked to Munday as well as defendant to pay the note. Against the theory of implied assent is the fact that the note was carried on the bank’s records as Frank’s obligation and that it charged his account monthly with interest thereon. The contention that he did not know that fact has no bearing on the value of such evidence as disclosing the intent of the bank to recognize his obligation to pay the note and not to substitute Munday as the debtor.

We fail to find in the evidence proof of facts that discharged defendant from his liability on the note either on the theory of a conditional delivery or a novation. The judgment must therefore be reversed and a judgment entered here for the principal of the note with the legal rate of interest from February, 1912, amounting to $3,883.

Reversed and judgment here with finding of fact.

Finding of fact. We find that there was not a conditional delivery of the note in question by David L. Frank, defendant in error,-to the La Salle Street Trust & Savings Bank, and that said bank did not agree to substitute another debtor for defendant.


text:
    National Bank of the Republic, Appellee, v. Paul Gerhardt, Appellant.
    Gen. No. 22,637. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph P. Rait-ehtx, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by the National Bank of the Republic, plaintiff, against Paul Gerhardt, defendant, to recover against defendant as guarantor of a note given plaintiff as payee by the makers. From a judgment for plaintiff on a directed verdict, defendant appeals.
    One of the makers of this note had an account with the plaintiff bank, which had extended him credit of $16,000, evidenced by notes and indorsements of the same makers. The credit was increased $4,000 by their additional note guaranteed by defendant, which was renewed from time to time until the note in question was given. Prior to the last renewal of this note the bank called for further security, and one of the other makers gave his individual note for $18,000, secured by a trust deed on certain property. Four days later notes evidencing the indebtedness were renewed, one for $13,097.95 as a collateral note with the $18,000 note pledged as collateral thereto, and one for $4,000 as a plain note of hand mailing no reference to collateral and bearing defendant’s signature as guarantor. The amount of the former note was reduced by payments from sales of parts of the property released from the trust deed with plaintiff’s consent.
    Rot D. Keehn, for appellant.
    Newman, Poppenhusen & Stern, for appellee; Charles T. Farson, of counsel.

      Abstract of tlie Decision.
    Mortgages, § 79

      —when inference not raised that entire debt was covered by security. The mere fact that the amount of security covered by a trust deed given to secure an indebtedness exceeded the entire indebtedness did not of itself raise the inference that the entire debt, including a note on which defendant was guarantor, was covered by the security.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Eliza Ferguson, Appellee, v. State Bank of West Pullman, Appellant.
    Gen. No. 22,903. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Eliza Eerguson, -plaintiff, against State Bank of West Pullman, defendant, for conversion of a bond of $1,000 face value. From a judgment for plaintiff for $1,000, upon denial of defendant’s motion at the close of plaintiff’s evidence for a directed verdict, defendant appeals.
    Harry A. Biossat, for appellant.
    Mancha Bruggemeyer, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Bonds, § 23 —when hank is not innocent purchaser of bond without notice. Where a depositor in a bank purchased a certain negotiable bond with funds of her deposit account, the president of the bank acting as her representative in the transaction and the cashier of the bank as the fiscal agent of the bank" and a few days later the president negotiated a sale of the bond to the hank, the cashier again acting as the fiscal agent of the bank in the transaction, and the cashier failed to make inquiry as to the president’s authority to sell the bond to the hank, the bank was not an innocent purchaser without notice.


text:
    James G. Scovern, trading as J. G. Scovern & Company, Appellee, v. Sam Schevlen and Isadore Mackavich, trading as Schevlen Produce Company, Appellants.
    Gen. No. 22,911. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by James Gf. Scovern, trading as J. G-. Scovem & Company, plaintiff, against Sam Schevlen and Isadore Mackavich, trading as Schevlen Produce Company, defendants. From a judgment for plaintiff, defendants appeal.
    David Jacobson, for appellants; Alvin E. Stein, of counsel.
    Henry B. Spurlock, for appellee.

      Abstract of the Decision.
    1. Partnership, § 51

      —when admissions as to by one partner are admissible. Admissions of a copartnership made by one defendant out of the presence of the other are admissible as to the one making them, in an action against two defendants as co-partners.
    2. Partnership, § 32*—what does not affect rights of person dealing with. The fact that there was a corporation of the same name as that of a copartnership was immaterial where the party dealing with the business was ignorant of it and was induced to do business with those engaged in it holding themselves out as partners under that name.
    3. Partnership, § 48*—when representations as to existence of are admissible. Representations as to the copartnership of defendants sued as copartners made to others than plaintiff, of which he was ignorant, about the same time as the transactions involved with plaintiff and in similar transactions, was admissible where there was other evidence tending to establish an actual copartnership.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Edmund S. Graf, Appellee, v. Morris Perlman and Abe Telechansky, Appellants.
    Gen. No. 22,916. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, ,1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Judgment by confession in favor of Edmund S. Graf, plaintiff, against Morris Perlman and Abe Telechansky, defendants, upon two notes for $200 each and interest. From a judgment confirming same, defendants appeal.
    See Graf v. Perlman, post, p. 174, which was consolidated with the appeal in this case.
    By order of court defendant Perlman’s affidavit upon which the judgment by confession was vacated stood as an affidavit of merits in the cause and also as a defense to another judgment by confession entered the same day against Perlman on his note of a previous date for $100 and interest, payable to plaintiff Graf’s order, which latter judgment was also confirmed and appealed from, and appeal therein consolidated with this appeal.
    This affidavit set up that the. $100 note was given as security on a written contract for the purchase by defendants of certain real estate, which defendants failed to perform within the stipulated time, and they thereupon gave one of the two notes here sued on for an extension of the time to a certain date and later the other for a further extension to a certain other date subsequent to the filing of the affidavit.
    Joseph Rosenberg, for appellants; Benjamin Rosenberg, of counsel.

      Abstract of the Decision.
    1. Bills and notes, § 56

      —what does not constitute failure of consideration. Failure to perform a promise of extension of time for the purchase of certain real estate given as the consideration of a note by the prospective purchaser did not constitute a want or failure of consideration of the note.
    2. Appeal and error, § 367*-—when defense not raised by affidavit of merits will not be considered. Where the only defense set up in an affidavit of merits to an action on two notes was failure of consideration of the notes by reason of the payee’s failure to keep his promise to extend the time for the purchase by the makers of the notes of certain real estate under a written contract therefor, which promise was the consideration of the notes, held that the question whether the notes were in the nature of a penalty or liquidated damages for failure of defendants to keep their part of the contract was not raised by the affidavit and could not be considered.
    3. Bills and notes, § 50*—what is sufficient consideration for note. A promise or executory agreement is a sufficient consideration for a promissory note even though the maker o{ the note loses the benefit of the promise.
    Frederick B. Hovey, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Edmund S. Graf, Appellee, v. Morris Perlman, Appellant.
    Gen. No. 22,917. (Not to be reported in full.)
    Abstract of the Decision.
    Bills and notes, § 327

      —wliat is not defense in action on note. The failure of the payee of a note given as security for the maker’s performance of a real estate contract to keep his promise to extend the time for such performance does not present any defense to such note.

      Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle) Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Confession of judgment in favor of Edmund S. Graf, plaintiff, against Morris Perlman, defendant, upon a note for $100 and interest, given as additional security for the performance by defendant arid his partner, Abe Telechansky, of a real estate contract. From a judgment confirming same, defendant appeals.
    The facts appear in opinion in Graf v. Perlman, ante, p. 172, this appeal being consolidated with the appeal in that case. The only defense set up in affidavit of merits herein is the payee’s failure to keep his proipise of extension of time for performance by this defendant and his partner of the contract, which promise was the consideration of two other notes sued on in above case.
    Joseph Rosenberg, for appellant; Benjamin Rosenberg, of counsel.
    Frederick B. Hovey, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Stella Smith, Appellee, v. P. M. Swinehart, Appellant.
    Gen. No. 22,927. (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1301

      -—when finding of court presumed to he sustained hy evidence. Where hearing was by the court without a jury, it will be presumed that the finding was upon the material evidence only, although some or most of the evidence was objectionable.
    2. Municipal Court of Chicago, § 13*—what need not he alleged in statement of claim for negligent dental work. In an action to recover for alleged negligent dental work, done in part by the defendant and in part by his employee in his office working for him or under his direction, it was unnecessary to allege in the statement of claim either that the employee made the agreement for the work or that he performed it.

      Appeal from the Municipal Court of Chicago; the Hon. Peter C. Walters, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Stella Smith, plaintiff, against P. M. Swinehart, defendant, to recover damages for negligent dental work. From a judgment for plaintiff for $25, defendant appeals.
    Edmund W. Pottle, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Dentists, § 3*—when immaterial whether dental employee is licensed. Whether or not an employee of a dentist was a licensed dentist was immaterial in an action against the dentist to recover for negligent work done by the employee working in defendant’s office for him or under his direction.


text:
    William H. Wohlberg, Appellee, v. Merchants Reserve Life Insurance Company, Appellant.
    Gen. No. 22,932. (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 69

      —when immaterial whether plaintiff is creditor of insured. Whether plaintiff was a creditor of the insured, in life policies made payable to plaintiff as a creditor, was irrelevant in a suit on such policies, where the insured took out the policies and paid the premiums thereon, as under such circumstances he could make them payable to a stranger.

      Appeal from the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by William H. Wohlberg, plaintiff, against Merchants Reserve Life Insurance Company, a corporation, defendant, to recover on two insurance policies payable to plaintiff as a creditor. From a judgment for plaintiff, defendant appeals.
    Ernest Saunders, for appellant.
    Channing L. Sentz, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Appeal and ebbob, § 367*—When question not made an issue is not revievoable. The question of breach of warranty as to statements in an insured’s application for insurance not made an issue by the pleadings, was not reviewable, even though instructions were given thereon at defendant’s request and even though plaintiff urged that the alleged warranties must be taken as representations, in an action to recover on the policy.

3. Evidence, § 165*—What constitute self-serving statements by an insured. The admission to rebut defendant’s evidence as to plaintiff’s state of health at the time of delivery to him of an insurance policy sued on, of copies of his applications for insurance in other companies prior to his application for the policy sued on, and of the medical examiner’s reports accompanying same, was prejudicial error, as such were self-serving statements and inadmissible, in an action to recover on the policy under an issue as to the applicant’s prior state of health.


text:
    American Contracting & Supply Company, Appellee, v. Speedway Park Association, Appellant.
    Gen. No. 22,940. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Statement of the Case.
    Action by American Contracting & Supply Company, a corporation, plaintiff, against Speedway Park Association, a corporation, defendant, in the Municipal Court of Chicago, to recover on certain certificates issued by defendant to plaintiff as contractor for certain construction work for defendant. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Municipal Coubt of Chicago, § 13

      —when affidavit of merits is insufficient. An affidavit of merits not containing an explicit denial of any material averment in the statement of claim but in the nature of an argument with mere conclusions of fact or law, was insufficient.
    2. Municipal Coubt of Chicago, § 13*—when affidavit of merits in action 5y contractor on certificates is insufficient. Where a contract was entered into between the owner of certain construction work and the contractor therefor, providing that the former would pay certain certificates theretofore issued by it to the contractor “upon the presentation of all waivers of all claims for possible liens,” a general averment in the former’s affidavit of merits in an action in the Municipal Court of Chicago to recover on the certificates that plaintiff had failed to present to defendant “waivers of all claims or any claims for possible liens,” and the averment that plaintiff had not paid the two claims referred to in its statement of claim averring waivers of liens of such claims, without any specific denials of the averments in the statement that there were no other claims than those stated or allegations therein of facts from which it appeared no other liens could be asserted, held insufficient to present an issue of fact as to whether plaintiff had presented waivers of all possible liens under the contract.

      Bach certificate contained provisions that plaintiff was entitled to the amount thereof for work done under the contract on or before July 31, 1915, and also to a mechanic’s lien therefor. In settlement of a dispute arising after issuance of the certificates, another contract was entered into April 15, 1915, providing, among other things:
    “The party of the first part (defendant) hereby recognizes and agrees to pay all certificates heretofore issued to the party of the second part (plaintiff) upon the presentation of all waivers of all claims for possible hens and agrees that the execution of this agreement or anything herein contained shall in no way affect the mechanic’s hen of the party of the second part.”
    See also Heller v. Speedway Park Ass’n, Gen. No. 22,938, post, p. 181, and American Contracting & Supply Co. v. Speedway Park Ass’n, Gen. No. 22,939, post, p. 179.
    Campbell & Fischer, for appellant.
    Hoag & Ullmann, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Municipal Coubt of Chicago, § 13 —when statement of claim, in action 6y contractor on certificates is sufficient. Where a contract between the owner of certain construction work and the contractor therefor provided that the former would pay certain certificates issued by it to the contractor “upon the presentation of all waivers of all claims for possible liens,” an averment, in a statement of claim in an action to recover on the certificates, of the presentation of the waiver called for by the contract was sufficient without averring also an extinguishment of the liens.


text:
    American Contracting & Supply Company for use of William E. Dee Company, Appellee, v. Speedway Park Association, Appellant.
    Gen. No. 22,939. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by American Contracting & Supply Company, a corporation, for use of William E. Dee Company, plaintiff, against Speedway Park Association, defendant, to recover on certificates issued by defendant to plaintiff as contractor for certain construction work for defendant, and assigned to William E. Dee Company, a subcontractor. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    Contracts, § 345

      —when action may be brought on certificates by contractor for use of subcontractor. Where a contractor for certain construction work assigned' to a subcontractor certain certificates issued by the owner of the work to the contractor in payment therefor, but did not indorse same over to the subcontractor, an action on the certificates was properly brought by the contractor for the use of the subcontractor.
    Appeal presents same questions as appeal in ease of American Contracting & Supply Co. v. Speedway Park Ass’n, Gen. No. 22,940, ante, p. 177, opinion in which is signed the same day, and for the reasons appearing therein this judgment is affirmed.
    See also, Heller v. Speedway Park Association, Gen. No. 22,938, post, p. 181.
    Campbell & Fischer, for appellant.
    John M. Quinlan and Hoag & Ullmann, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Charles Heller, Administrator, Appellee, v. Speedway Park Association, Appellant.
    Gen. No. 22,938. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Statement of the Case.
    Action by Charles Heller, administrator of the estate of Michael J. Sampson, deceased, plaintiff, against Speedway Park Association, a corporation, defendant, to recover on certain certificates issued by defendant in payment of certain construction work done for it by the American Contracting & Supply Company as contractor, assigned to plaintiff’s intestate as a subcontractor. From a judgment for plaintiff, defendant appeals.
    This appeal presents the same questions as appeal in case of American Contracting & Supply Co. v. Speedway Park Ass’n, Gen. No. 22,940, ante, p. 177, opinion in which is signed the same day, and for the reasons appearing therein this judgment is affirmed. See also, American Contracting & Supply Co. v. Speedway Park Ass’n, Gen. No. 22,939, ante, p. 179.
    Campbell & Fischer, for appellant.
    Charles J. Trainor and Hoag & Hllmann, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Nellie Havern and Maggie Huebner, Appellees, v. National Council of Knights & Ladies of Security, Appellant.
    Gen. No. 22,941. (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 211

      —what constitute material warranties in application. The statements in an insured’s application for membership in a fraternal benefit society that he had only one brother dead and that he had no sister dead were material and constituted warranties.
    2. Insurance—when admission of evidence of relative as to statements made to examiner is error. The admission of evidence, in an action to recover on a certificate of membership in a fraternal beneficial society, under an issue as to statements in the member’s application concerning his family history being warranties and false, of the member’s sister as to statements by her to the medical examiner when she shortly before her brother’s application also applied for membership in the same society, giving a complete history of their family to show notice of death of insured’s brother and sister, was reversible error.

      Appeal from the County Court of Cook county; the Hon. X. J. Cooke, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Nellie Havern and Maggie Huebner, plaintiffs, against National Council of the Knights & Ladies of Security, defendant, to recover as beneficiaries of a benefit fund certificate issued by defendant to plaintiffs’ brother. From a judgment for plaintiffs, defendant appeals.
    A. W. Fulton, for appellant.
    Thurman, Hume & Kennedy, for appellees.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    E. M. Babbitt and M. H. Bird, trading as Millet Elevator Company, Appellees, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 22,943. (Not to be reported in full.)
    Abstract of the Decision.
    1. Cabbiers, § 139

      —u>liat constitutes prima facie proof in action to recover for toss of goods of timely claim for toss. Evidence that certain goods shipped by plaintiffs were delivered and that within four months thereafter about a certain date plaintiffs wrote defendant carrier’s claim agent stating the circumstances of a loss of goods and making claim therefor, from which plaintiffs never directly heard, to which evidence no objection was made or rebuttal offered, constituted prima facie proof of compliance with a provision of the bill of lading under which the goods were shipped that claims for loss must be presented within four months after delivery, in an action to recover for a loss, wherein the defense set up was noncompliance with such provision.

      Appeal from the Municipal Court of Chicago; the Hon. John R, Newcomeb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Statement of the Case.
    Action by E. M. Babbitt and M. H. Bird, trading as Millet Elevator Company, plaintiffs, against Grand Trunk Western Railway Company, defendant, to recover for loss of goods in an interstate commerce transaction, brought by the shippers against the initial carrier. From a judgment for plaintiffs, defendant appeals.
    Kretzinger & Kretzinger and L. L. Smith, for appellant.
    Stewart Reed Brown, for appellees.

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

      See Illinois Notes Digest, Vols. XY,, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Appeal and error, § • 365*—what questions cannot first he raised on appeal. Whether the provision in a bill of lading for its surrender is for the benefit of the carrier only, and whether such provision was waived by reason of certain facts were questions which could not be raised for the first time on appeal, in an action to recover for loss of goods shipped.


text:
    McCormick Theological Seminary, Appellee, v. E. F. Thompson, Appellant.
    Gen. No. 22,947. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by McCormick Theological Seminary, a corporation, plaintiff, against E. F. Thompson, defendant, for rent. From an order "denying defendant’s motion to vacate the judgment rendered against him, defendant appeals.
    Thompson, Moore & Clark, 'for appellant.
    Mather & Hutson, for appellee; Claude B. Church, of counsel.

      Abstract of the Decision.
    Estoppel, § 6

      —when defendant is estopped hy record from claiming that no order placing cause on short cause calendar was entered. Where a record recited that a cause came on for trial before a jury in regular course, defendant being absent and not represented, and that it was placed on.the short cause calendar on a certain date, on which date his attorney was notified to appear, held that such record imported verity and that defendant could not be heard to say as against it that no order placing the cause on the short cause calendar was entered, in a petition to vacate the judgment entered on the trial in the absence of defendant’s attorney, irrespective of the question whether the petition stated a good cause of defense.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    Harry S. Stewart, Plaintiff in Error, v. Emily H. Junkin, Defendant in Error.
    Gen. No. 22,668. (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13a

      —when admission of evidence of payment is inadmissible under pleadings. The admission of evidence of payment of a promissory note sued on in the Municipal Court of Chicago, was reversible error where the only defenses set up in defendant’s affidavit of defense were nondelivery of the note, no consideration therefor, and an understanding that it was not to become a binding obligation, notwithstanding the affidavit contained a general denial of liability also.
    2. Municipal Court of Chicago, § 13*—when general denial in affidavit of merits is mere conclusion. Where an affidavit of merits in an action in the Municipal Court of Chicago set up certain specific defenses and contained also a general denial of liability, held-that such denial was in fact a mere conclusion based upon such defenses.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term", 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Statement of the Case.
    Action by Harry S. Stewart, plaintiff, against Emily H. Junkin, defendant, to recover on a promissory note for $10,000, with interest. From a judgment for defendant for costs, plaintiff brings error.
    Charles Hudson, for plaintiff in error.
    Ryan, Condon & Livingston, for defendant in error; Jaimes Gr. Condon and Irvin I. Livingston, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    George R. Boyd, Appellee, v. David C. Schnell, trading as T. Schnell, Appellant.
    Gen. No. 22,910. (Not to be reported in full.)
    Abstract of the Decision.
    1. Assumpsit, Action of, § 6

      —when court has jurisdiction of action to recover on common counts for value of shipments of hay. In an action to recover on the common counts for the value of certain shipments of hay made by plaintiff to defendant, to which the defendant pleaded the general issue, with affidavit averring that plaintiff had agreed to make the shipments on consignment, that defendant was to sell the same,' and that the profits, if any, were to he equaUy divided between them, and that defendant had sold the hay and made full accounting therefor to plaintiff, held that the court had jurisdiction of the action, whether or not the parties were copartners in the contemplated profits, where the evidence tended to show that under the agreement plaintiff was to purchase the hay, advance the purchase price thereof and draw on defendant for same, and that his compensation was to he paid out of the profits realized from defendant’s sale of the hay.

      Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    "Action by George B. Boyd, plaintiff, against David C. Schnell, trading as T. Schnell, defendant, to recover the value of certain shipments of hay made by plaintiff to defendant. From a judgment for plaintiff, for $629.18, defendant appeals.
    Levisohn & Levisohn, for appellant; Alvin E. Stein, of counsel.
    Charles W. Stieeel, for appellee.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

2. Appeal and error, § 1060*—when error cannot be predicated upon giving of an instruction. Error cannot be predicated upon thev giving of an instruction where the record fails to disclose on whose behalf it was given.

3. Damages, § 200*—when instruction properly refused. An instruction excluding the element of profits held properly refused where there was no evidence tending to show profits and plaintiff made no claim therefor.

4. Appeal and error, § 1514*—when improper remarles of counsel are not reversible error. Improper remarks of plaintiff’s counsel in his closing argument to the jury were not reversible error where plaintiff’s recovery was limited to moneys actually advanced by him, in an action on the common counts.


text:
    Martin Driensky and Anna Driensky, Appellees, v. Mary Skonieczny and Tomasz Skonieczny, Appellants.
    Gen. No. 22,913. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Peter C, Walters, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Martin Driensky and Anna Driensky, plaintiffs, against Mary Skonieczny and Tomasz Skonieczny, defendants, to recover damages arising out of defendants ’ refusal to consummate an exchange of real estate contemplated in a contract of sale entered into between them and plaintiffs. From a judgment for plaintiffs, defendants appeal.
    Frank H. Janiszeski, for appellants.

      Abstract of the Decision.
    Exchange of property, § 9

      —when damages may not he recovered for refusal of party to comply with contract. Where a party to a contract for the exchange of certain real estate is unable to comply with the terms of the contract on his part, he cannot recover damages arising from the other party’s subsequent refusal to complete the contract because of the first party’s inability to comply therewith, notwithstanding such other party may have refused to comply before learning of such inability of the first party.
    Charles J. Michal, for appellees; Oscar H. Olsen, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Anton J. Cermak, Bailiff, Appellee, v. Anna H. Schwendel, Appellant.
    Gen. No. 22,919. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed with statutory damages.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Anton J. Cermak, bailiff of the Municipal Court of Chicago, for use of Samuel B. Goldberg, plaintiff, against Anna H. Schwendel, defendant, to recover on a stay of execution bond executed by defendant as surety. From a judgment for plaintiff, defendant appeals.
    Henry Both and Charles P. B. Macaulay, for appellant.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim states good cause of action on stay of execution "bond. A statement of claim alleging the procuring of a judgment in the Municipal Court against a third person, after which he sued out a writ of error to review the same, that in order to stay execution on the judgment pending decision of the Appellate Court such third person as principal and defendant as surety executed a stay of execution bond providing that if the principal should prosecute the writ with effect and pay the amount of the judgment, costs, interest and damages rendered and to he rendered against him should the Appellate Court affirm the judgment, then the bond to be void, otherwise to remain in full force and virtue; that the writ was duly docketed in the Appellate Court, was duly called in the regular course of procedure, but, for the principal’s failure to file a record from the trial court, the writ was dismissed for want of prosecution, wherefore the bond became forfeited, etc., held to state a good cause of action under the Municipal Court Act.
    . 2. Municipal Court of Chicago, § 13*—what need not be alleged in statement of claim in action on stay of execution bond. The payment of the judgment involved in an action in the Municipal Court of Chicago on a stay of execution bond against the surety on the bond is matter to be set forth by way of defense and not necessary to the statement of the claim.
    3. Municipal Court of Chicago—when surety is estopped to deny validity of stay of execution bond. The defendant sued as surety on a stay of execution bond furnished under section 23 of the Municipal Court Act (J. & A. If 3335) is estopped to deny the validity of the bond on the ground of the unconstitutionality of said section, where there was a stay of execution for which the bond was given and the principal has obtained all the benefits incident thereto.
    Sonnenschein, Berkson & Fishell, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Charles Sheahan, Appellee, v. Hadfield Ice Cream Company, Appellant.
    Gen. No. 22,923. (Not to be reported in full.)
    Abstract of the Decision.
    Corporations, § 296

      —when evidence shows promise of increased salary by president in official capacity. Evidence held to sustain the finding that the promise made by the president of the defendant company to pay plaintiff a certain sum per month in addition to his stated salary was made by the president on behalf of the company and not on his individual account, in an action to recover for services rendered by plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Charles Sheahan, plaintiff, against Had-field Ice Cream Company, a corporation, defendant, to recover a balance dne for services rendered. From a judgment for plaintiff for $575, defendant appeals.
    Henry W. Olschner, for appellant.
    Charles C. Bodenstab, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.