author: Mr. Justice Fitch

text:
    City of Chicago, Appellee, v. John P. Agnew et al., Appellants.
    Gen. No. 17,855.
    1. Municipal corporations, § 396

      —what is effect of settlement t>y city council of disputed claim of contractor. A city council may settle a dispute between a contractor and the Commissioner of Public Works as to the value of work done, and any settlement or compromise of such contractor’s claim, if made in good faith, is binding on the city, hut such a settlement is not binding on the contractor’s surety unless he consents thereto.
    2. Principal and surety, § 26—when surety discharged. Where the situation of a surety is materially changed to his prejudice without his consent by any act of the principal and the creditor, the surety is wholly discharged from liability.
    3. Principal and surety, § 26*—when surety is discharged. Where a contract of a city for a public improvement provided for the issuance of estimates by the Commissioner of Public Works of the value of work done and the payment of a portion of such estimated value, the remaining portion being reserved until completion of the work, and the city council settled a dispute as to the value of work done in such a manner that the contractor received nearly twenty thousand dollars before he had performed his work, held that such settlement, which was not consented to by the contractor’s surety, was a material alteration of the contract operating to discharge the surety.
    Appeal from the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed November 3, 1913.
    Sheriff, Dent, Dobyns & Freeman, for appellant.
    William H. Sexton, for appellee; Charles M. Haft, of counsel.

      See Til in nía Notes Dieest, Veis. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

Appellee recovered a judgment in the Municipal Court against appellant for damages for a breach of the conditions of a bond given by John P. Agnew, as principal, and appellant, as surety, to secure the performance by Agnew of his contract with appellee for the construction of what is known as “section N of the Lawrence Avenue Intake tunnel,” in the City of Chicago. The suit was brought against both Agnew and appellant, but Agnew pleaded a discharge in bankruptcy, and this appeal only brings up the judgment against the surety company. Its defense to the action was and is that the City, without its consent, made overpayments and advance payments to the contractor and others in violation of the provisions of the contract, whereby it is claimed the surety company was released and discharged from all liability on the bond. The City does not deny that overpayments and advance payments were in fact made to the contractor and to others for his benefit, but claims that under the circumstances shown in this case, the position of the surety was not thereby changed to its prejudice, except perhaps to the extent of such overpayments.

In 1905, Agnew and appellee entered into a contract by the terms of which the former agreed to construct a concrete tunnel under the shoal water of Lake Michigan, from a point at the shore line, connecting with a conduit in Lawrence avenue, to a point approximately 1370 feet east, beyond the line of a proposed breakwater in the lake, in accordance with plans and specifications attached to and forming a part of said contract; all of the work to be done under the immediate direction and superintendence, and to the “entire satisfaction, approval and acceptance” of the Commissioner -of Public Works, who was authorized to make such alterations “in the execution of the work” as he might deem proper-or necessary, and whose decision upon “all questions arising as to the proper performance of the work” should be final; said work to begin at once and be finished on or before July 31, 1906. Appellee, on its part, agreed to pay $138.33 per lineal foot for the completed work, and agreed to issue to Agnew during the progress of the work, if the rate of progress was satisfactory to the Commissioner of Public Works, estimates in its usual form, for 85% of the “value of the work done and in place at the time of issuing such estimate,” the remaining 15% “being reserved until the final completion and acceptance of said work, at which time 2/3 of said 15% so reserved shall be paid to said contractor and the remaining 1/3 retained for one year as per specifications.” The specifications provide that on the sixth day of each month “vouchers for 85% of the estimated value of the work done the previous month” will be issued, the remaining 15% to be reserved until the acceptance of the whole work, when two-thirds of the amount reserved shall be paid to the contractor and the remainder held for one year “to' secure repair of streets, sewers, etc.” The specifications further provide that the contractor shall “furnish and put in place such shores, braces, sheeting, etc. as may be necessary for the safety of the work or the public;” that the shaft at the shore end shall be inclosed by a sheet piling protection, which is to be “permanent and to remain in place and to be included in the contract price; ’ ’ that the vertical side walls of the tunnel shall be built first in “box-headings ahead of the arch;” that the contractor shall use the pneumatic process of construction, and install a complete and adequate plant for the use of compressed air; that the contractor shall also install a pumping plant with a capacity of “12,000 gallons per minute against the head,” and shall maintain and operate the pumps day and night to discharge the sewage and storm water from the Lawrence avenue conduit into the lake, such maintenance and operation to be without “additional” cost to the City; and that oak “tubbing”'shall be used in building the upper arch, the cost of which.“in place” shall be included in the contract price.

The first estimate issued under these provisions of the contract was dated July 11,1906. It estimated the total amount due at that date for work done by the contractor to be $26,424.44, which included the estimated value of two hundred and fifty-six feet of “breakwater protection around shaft,” seventy-one feet of conduit “timbered and ready for concrete lining,” fifty-four feet of concrete lining in. place, seven hundred and fifty feet of “side wall excavation” (valued at $12 a foot), and “nine months pumping sewage.” It is evident from this estimate, which covered only about one-eighth of the estimated total cost of the tunnel, that the contractor was in no position to complete his contract before the expiration of the time limited, viz: July 31, 1906. It does not appear, however, that the City made any objection to the rate of progress, and on October 1, 1906, the city council passed an order authorizing the Commissioner of Public Works to modify the contract by extending the time of performance to May 31, 1907. The next day a supplemental agreement to that effect was signed, and on October 16, 1906, Agnew and the appellant surety company executed the bond upon which this suit was brought, for $380,000. The bond recites the making of the contract and the supplemental agreement, and is conditioned for the due performance of the same by Agnew “in accordance with the terms thereof and the plans and specifications therein prescribed.”

On October 18,1906, two more estimates were issued to the contractor, and on October 29, 1906, a fourth estimate was issued. The total amount covered by these four estimates was $50,487.44, of which 85% was paid to Agnew and the remainder reserved. In. all these estimates the “box headings” were valued at $12 a lineal foot. These box headings were timbered excavations intended to receive the concrete which formed the side walls of the tunnel. Agnew complained to the Commissioner of Public Works that the amount included in the estimates as the value of these box headings was too small, and requested an additional estimate. Thereupon the Commissioner requested the city engineer to make a special personal examination and valuation of the box headings. The engineer did so and reported that in his opinion the value did not exceed $12 a foot. Agnew persisted, however, in his claim and his request for a higher valuation, and upon this point, he testified as follows: “I told him (the Commissioner) I didn’t think I was getting enough money for those box headings and I wanted considerably more; that the amount I was getting was losing me money, and I told him I had to have at least $20 a foot for them. He said he could not award me $20 a foot himself, but that if I could have the City Council order him to so do, he would be very glad to pay me $20 a foot.” Acting upon this suggestion, Agnew succeeded in having an order passed by the city council on November 12, 1906, by the terms of which the Commissioner of Public Works was “authorized and directed * * * to estimate the cost of constructing the box headings at the rate of twenty dollars per lineal foot,” provided Agnew should first convey to the City all his right, title and interest in the plant used by him in the construction of the tunnel, “said plant to become the property of said Agnew whenever said tunnel is fully completed,” and provided further, that a bond in the sum of $40,000 be executed by Joseph Hanreddy as principal and sureties to be approved by the Commissioner conditioned for the completion of the contract by Hanreddy in case Agnew should fail to do so. The conveyance and bond were executed and delivered, and thereupon a new estimate (the fifth) was issued in which 2,506 lineal feet of box heading was valued at $20 a foot, increasing the previous estimates of the value of that part of the work by $19,664, and that additional amount, less 15% reserved, was paid to Agnew as an amount due him under the terms of his contract. The payment of this estimate made the total amount paid to Agnew $60,924.97, and made the total amount reserved $10,751.47. The city engineer and two of his assistants who were in charge of the work testified that the value of the box headings did not exceed $12 a foot, but Agnew testified that it cost him. approximately $17 a foot to construct them. Soon after receiving the amount of the fifth estimate, Agnew stopped work and in March, 1907, the Commissioner of Public Works notified him that his contract was annulled, and notified appellant to complete the work if it desired to do so, otherwise the City would readvertise and relet the contract. Appellant replied that it did not desire or intend to complete the work, because its liability on the bond had terminated. The City then relet the contract to other parties who completed the tunnel at a total cost of $237,134.50. Meantime, the City paid out all of the reserved fund above mentioned for pumping sewage, and for labor and materials furnished, during the interval between Agnew’s abandonment of the work and the reletting of the contract. After the tunnel was completed, the City brought this suit to recover the difference between the whole amount paid out for the work, and the original contract price. The case was tried before the court without a jury, and after deducting from the City’s demand the additional amount paid for box headings, and $10,800 paid to the second contractors as a bonus, the court entered judgment for the remainder, $71,545.41.

In Finney v. Condon, 86 Ill. 78, a contract for the erection of a building provided that partial payments should be made to the contractor as the work progressed to the extent of 85% of the value of work done, upon estimates to be made by the superintending architect, whose opinion and decision “on all matters” should be final and conclusive. The defendant guaranteed in writing the performance of the contract. The owner made various payments to the contractor, upon estimates issued by the architect, exceeding 85% of the contract price. The contractor failed to complete the work, and the owner sued the guarantors. They contended they were discharged from liability because of such overpayments by the owner without their consent. The court held that under the facts of that case, the estimates of the architect made in good faith were equally binding on the owner and the guarantors, and that for this reason the usual rule under which a surety is discharged if, without his consent, the contract he has guaranteed be materially changed, did not apply. The general rule in that respect was there stated as follows (p. 81):

“The law upon this subject seems to be, the reserved per cent to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract, as for him for whom it is to be performed. And there is great justness in the rule adopted. Equitably, therefore, the sureties in such cases are entitled to have the sum agreed upon held as a fund out of which they may be indemnified, and if the principal releases it without their consent it discharges them from their undertaking. The principle is, the withdrawal of the fund agreed upon as security for the performance of the contract without his consent is a prejudice to the surety or guarantor. Sureties and guarantors are not to be made liable beyond the express terms of their engagements. They have the right to prescribe the terms and conditions on which they will assume responsibility, and neither of the principals can change those terms without the consent of the sureties, even with a view to avoid ultimate liability.”

In this case, the contract does not give to the Commissioner of Public Works the same power of final decision as to “all matters,” that the contract in the Finney case, supra, gave to the architect. The Commissioner’s power in that respect is limited to “questions arising as to the proper performance of the work and the rate of progress thereon.” Conceding, however, that this provision and the several provisions of the contract regarding the issuance of estimates are broad enough, when construed together, to give him the right to conclusively determine what amounts shall be estimated as the value of work done, we think the contract clearly contemplates that in the exercise of that power, the Commissioner must act upon his own judgment of values, based upon facts within his own knowledge and experience or within the knowledge and experience of his department engineers, who were in immediate charge of the work. It appears from the evidence that the first four estimates were in fact made in that manner, but that the fifth was not. It was made solely upon the order of the city council, after the Commissioner had declined to assume the responsibility of increasing his previous estimates of the value of box headings to $20 a foot. By that order, the city council assumed the right to substitute its judgment as to the value of the box headings for that of the Commissioner. There is nothing in the contract which authorized the city council to make estimates of the value of work -done, or to command the Commissioner of Public Works to suspend his own judgment and accept the value given him by the council. It is true that as between the City and Agnew, the city council had the undoubted right to settle a dispute between Agnew and the Commissioner as to the value of the work done, and any settlement or compromise of Agnew’s disputed and doubtful claim, if made in good faith, was binding upon the City. City of Chicago v. Pittsburg, C., C. & St. L. Ry. Co., 244 Ill. 220, 230. But a surety is not bound by such a settlement, unless he also consents. There is no evidence tending to prove that appellant ever assented to the agreement which was made between Agnew and the city council. The estimate thus made has not, therefore, the same conclusive character as the estimates which were under consideration in the Finney case, supra. There the architect and the owner both testified that when the estimates in that case were issued and paid, they were thought to correctly represent the fair value of the work done. Here the most that can be said is that the fifth estimate represents the value of the work as agreed on by Agnew and the city council in settlement of a disputed and doubtful claim. In the Finney case, the contractor was entitled to his estimates by the terms of his contract. Here Agnew was not entitled to the additional estimate, unless in the judgment of the Commissioner, the value previously estimated for the box headings was erroneous. The evidence clearly shows that such was not the fact. Hence it follows that Agnew received nearly $20,000 in advance and before he had performed his part of the contract. The incentive to perform was thereby removed. The surety was thereby deprived of the most effective means, possibly the only means left to it, of inducing the contractor to continue at work, viz: the hope of reward or of profit. We are clearly of the opinion that by this act of the City and the contractor, the contract between them was materially altered to the prejudice of appellant.

The question then arises: What effect does this conclusion have upon the liability of appellant in this case? We are of the opinion that the great weight of authority supports the proposition that where the situation of the surety has been materially changed to his prejudice by any act or conduct of the principal debtor and the creditor, the surety is wholly discharged from liability. In Calvert v. London Dock Co., 2 Keen 639, which is cited with approval by the Supreme Court of this State in the case of Finney v. Condon, supra, the Dock Company made a contract with one Streather, a builder, to perform certain work which was to be paid for as the work progressed, upon estimates of the company’s engineer, to the extent of three-fourths of the cost of the work, and the remainder after the work was fully completed. A bond was given to secure the performance of the contract by Streather. Streather began work and during its progress was paid on the engineer’s estimates to an amount considerably in excess of three-fourths of the contract price. Then he became bankrupt and the company finished the work, and sued the sureties upon Streather’s bond. Thereupon the sureties filed their bill in equity, claiming that the company had violated its contract and released the sureties by advancing to Streather more than it was bound to do by the terms of the contract. Lord Langdale, Master of the Rolls, in deciding the case in favor of the complainants, said, page 645: “What the company did was perhaps calculated to make it easier for Streather to complete the work, if he acted with prudence and good faith; but it also took away that particular sort of pressure, which by the contract, was intended to be applied to him. And the company, instead of keeping themselves in the situation of debtors, having in their hands one-fourth of the value of the work done, became creditors to a large amount, without any security; and under the circumstances, I think that their situation with respect to Streather, was so far altered-that the sureties must be considered to be discharged from their suretyship.” That case has been followed and the same conclusion reached on similar facts in many later cases. Prairie State Nat. Bank v. United States, 164 U. S. 227 (citing the case of Finney v. Condon, supra, and other cases); Bragg v. Shain, 49 Cal. 131; Glenn County v. Jones, 146 Cal. 518; Village of Chester v. Leonard, 68 Conn. 495; First Nat. Bank v. Fidelity & Deposit Co., 145 Ala. 335; Wehrung v. Denham, 42 Or. 386; Fidelity & Deposit Co. v. Agnew, 82 C. C. A. 103, 152 Fed. 955; Board of Com’rs Morgan Co. v. Branham, 57 Fed. 179; Evans v. Graden, 125 Mo. 72; Bell v. Paul, 35 Neb. 240.

In Glenn County v. Jones, supra, Jones entered into a contract with the County to construct a high, school building for a certain sum, payable in three instalments ; the first, when all the material for the building shall have been delivered on the building site; the second, when the roof was on, and the balance on the completion of the building. Jones gave /a bond to secure the performance of the contract. After he had delivered the rough lumber and a portion of the materials on the building site he applied to the County Board of Supervisors and was paid the first of the three payments, whereupon he abandoned the contract and left the materials upon the ground unpaid for. The County brought suit on the bond, and in deciding that the sureties were released from all liability, the Court said: “In our opinion the obligation of the principal was altered in a material respect without the consent of the sureties. The contractor was under the obligation of placing all the materials on the building site before he was entitled to any money under the terms of his contract. By the payment to him before he had done so, he secured the money before performing his obligation. The pressure which would have been exerted upon him to continue in the performance of his contract and place all the materials on the site, was removed when he received the money. He received it before he was entitled to it, without the consent of the sureties. The sureties had bound themselves upon the assumption that the plaintiff would keep its contract in good faith. We can see no difference in principle if the whole of the contract price had been paid before any of the materials were placed on the ground. In such case could any one doubt that the sureties would have been exonerated? The risks of guarantying the construction of á building to be paid for when completed and accepted, is quite different from the risk of guarantying its construction, if the whole contract price should be paid in advance. In the one case the contractor can only get the money by performing his contract, while in the other he would only pay out the money already received, in performing it. * * * By the payment, the hope of reward for further performance was lost, the temptation to act dishonestly was increased.”

The trial court seemed to take the view that although the principle of the foregoing cases had been recognized in Finney v. Condon, supra, yet the principle has been ignored in later cases. No case, however, has been cited which supports this view, nor do we know of any such case. All the cases cited, in which the court has declined to apply the rule, are readily distinguishable on the facts, from cases like those of Calvert v. London Dock Co., supra, and Glenn County v. Jones, supra.

Counsel for appellee have cited many cases in which the rule is stated that if an obligee, without the consent of the surety, parts with securities which have been placed in his hands by the principal debtor, the surety is thereby released only to the extent of the value of the securities thus released. In most of such eases, however, the placing of such securities in the hands of the obligee was a collateral undertaking, and we do not think the principle announced in such cases is applicable to the facts in this case. In the case of collateral undertakings, the principle involved is that of subrogation, the surety being entitled to the benefit of securities deposited by the principal debtor. In the present case, the principle involved is that of a material change in, or departure from, the terms of the contract itself by the principals without the consent of the surety. This distinction is clearly pointed out in Rogers v. School Trustees, 46 Ill. 428, at p. 433.

For the reasons indicated, the judgment of the Municipal Court will be reversed and the case remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Whitney

license: Public Domain

text:
    Carl O. Nyman, Appellee, v. Manufacturer’s and Merchant’s Life Association, Appellant.
    Gen. No. 5,494.
    1. Insurance, § 866

      —what declaration must contain. In an action on an insurance policy providing for the payment of a specific sum on the death of the insured, the declaration must aver the making of the certificate, its terms, the payment of the premiums, the death of insured and the giving of notice and proof of death as required in the certificate, and upon proof of such averments a prima facie right of recovery will be established.
    2. Insurance, § 872*—when insurer has burden of proof. An insurance association has the burden of establishing a defense, set up in special pleas, that the insured was suffering from Bright’s disease when accepted, and that her answers as to health were false.
    3. Insurance, § 909*—when finding will not be disturbed. Where an insurance association contended that the insured was suffering from Bright’s disease when accepted, and that her answers as to health were false, held that the findings of the jury that such defense was not sustained by the evidence would not be disturbed, such findings not being the result of passion or prejudice, or mistake as to the evidence.

      4. Tblal, § 213

      —when direction of Verdict is improper. The giving of an instruction directing a verdict for plaintiff would be reversible error where a defense alleged in a special plea was ignored, but such error would not be prejudicial where the preponderance of evidence does not support such plea.
    5. Insurance, § 871*—what mil Be presumed. An association which has insured a person, after a medical examination, cannot attack the statements of its physician in an action on such policy, and it will be presumed that such physician acted in good faith and in the full discharge of his duties when he made the examination and report.
    6. Insurance, § 120*—how policy is construed. Where a provision of an insurance policy is inserted by the insurance association of its own volition, it will be given that construction which is most favorable to the insured.
    7. Insurance, § 330*—what is effect'of notice to agent of insurer. Notice to an agent at the time of application for insurance of facts material to the risk is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within the knowledge of the agent.
    Appeal from the County Court of Winnebago county; the Hon. ■ Arthur H. E’rost, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    C. E. Botsford and F. A. McCarthy, for appellant; R. K. Welsh, of counsel.
    J. E. Goembel, for appellee; Walter E. Healy and G. R. Beverly, of counsel.

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

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

This is an action in assumpsit brought in the court below on a benefit certificate for $2,000 issued by the Manufacturer’s and Merchant’s Life Association to Amin. ,S. Nyman in which Carl O. Nyman, a son, was beneficiary. The general issue and three special pleas were filed to the declaration. The first special plea averred that the insured warranted that her answers to the questions in the application were true and agreed that such answers should be a part of the contract; that she was asked “Are you in good health?” to which she answered “Tes sir,” and averred that said answer was false; that she was afflicted with Bright’s disease; that the warranty was broken and the certificate null and void. The second special plea was the same as the first except that it was based on the question “When were you last attended by a physician?” to which she answered “About two years,” which answer the plea averred was false and concluded the same as the first. The third special plea averred that the certificate contained the clause: “This certificate to take effect and be in force only on the date received by the party and on condition that she then be in good health; ’ ’ that on the date of the delivery of the certificate she was suffering from Bright’s disease and other serious ailments and that the Association did not learn of this fact until after her death. There was a replication to each of the special pleas. The replication to the first and second denied that the answers to the questions were false. The replication to the third plea averred that she was in good health at the time she received the certificate. The trial resulted in a judgment against appellant for $2,058.33 from which the appellant prosecutes this appeal. The errors assigned and argued are (1) that the verdict is against the evidence and the weight thereof; (2) error in refusing to set aside the verdict and grant a new trial; (3) error in refusing to direct a verdict for defendant at the close of all the evidence; (4) error in giving third instruction asked by plaintiff.

In an action of this character where the policy provides for the payment of a specific .sum on the death of the insured, the declaration must aver the making of the certificate, its terms, the payment of the premiums, the death of the insured and the giving of the notice and making of the proof thereof to the Association as required in the certificate, and upon proof of such averments in so far as their proof is not waived or dispensed with, a prima facie right of recovery will be established which the Association must meet by affirmative action to defeat recovery. Continental Life Ins. Co. v. Rogers, 119 Ill. 474.

The declaration in this case averred these necessary things. Appellee’s proof shows the answers to the questions set np in the first and second pleas were made on April 11, 1910; that the first premium was paid and certificate delivered to the insured April 19, 1910; that the last premium was paid June 20, 1910; that she died of Bright’s disease June 22, 1910; that the Association was notified of her death and furnished with proof thereof; that appellee was her son and the beneficiary named in the certificate. This made a prima facie case. The burden of establishing the defense set up in the special pleas was upon appellant. The evidence on the questions averred in these pleas was conflicting, the credibility of the several witnesses for the respective parties and the weight of evidence having been in the first instance for the jury to determine, and the verdict bearing the approval of the trial judge, the finding of the jury that none of the special pleas were sustained by the evidence, should not be disturbed unless this court be satisfied that the jury was moved by passion or prejudice or great mistake as to the effect of the evidence, or that there is reversible error in the giving or refusing of instructions. We cannot conclude from the record in the case that the jury was moved by any improper influences, or that they in any way went outside of their legitimate province in the weighing* of the evidence. Therefore, we see no error of- the trial court in refusing to direct a verdict for appellant. The third instruction asked by appellee directed a verdict for appellee, and the giving of it would have been reversible error because it ignored the defense alleged in the second special plea if we were not of the opinion that the error was not prejudicial to appellant, as we are of the further opinion that the preponderance of the evidence did not support said second special plea. We find there was no reversible error in the giving or refusing of instructions as contended for by appellant. The case therefore comes before this court to determine whether we ought to come to a conclusion on the facts different from that announced in the verdict of the jury. As a basis for the issuing of the policy of the Insurance Association there was a medical examiner’s statement by Dr. William E. Park, whose undisputed testimony is that he was appellant’s medical examiner. Therefore he was its agent, certainly as to everything connected with the medical examination. Dr. Park’s report is in substance as follows: Knows applicant to be the same person named in the application; the answers were made and signed in the examiner’s presence; it is not believed the applicant is older than the age given; has no reason to suspect applicant of intemperate habits or leading an immoral life; has no reason to doubt any statement made by applicant; color of hair, gray; eyes, brown; applicant is a female; sight, good; hearing, good; figure, spare; healthy appearance. (The blank on which the report is written contains the following printed matter of which Dr. Park cannot plead ignorance.) “The following questions are to be answered ONLY after a physical examination of the applicant and a medical examination of the urine. ’ ’ The report then continues in substance as follows:—“Bate of pulse, 72; does not intermit; is not irregular; height, 5 feet 7 inches; weight, 127 pounds; measure of chest, 32; expiration, 30; inspiration, 34; measure of waist, 24; finds no indication of disease of the heart or blood vessels; finds no indication of disease of the nervous system; finds no indication of disease of the respiratory organs; finds no disease of the abdominal or pelvic organs; analysis of urine, reaction acid; specific gravity, 1020; no albumen and no sugar; (a) is sure urine examined was passed by applicant; (b) date of examination, April 11, 1910; (c) examination made at office; found applicant free from physical and mental defect and in good health; risk first class; certifies above statement is true. Signed, William E. Park, M. D. Medical Examiner, Bockford, Illinois.”

It is presumed appellant’s medical examiner was acting in good faith and in the full discharge of his duties when he made this examination and report, at least appellant cannot now be heard to say he did not by his report intend to state the truth. This report must be held to be contradictory to all evidence offered on- the trial to the effect that applicant was afflicted with chronic Bright’s disease at the date of the medical examination, to-wit, April 11, 1910. It is absolutely inconsistent with the hypothesis that insured was afflicted with that disease in chronic form on the date of the delivery of the certificate of insurance a few days later, on April 19, 1910, and it certainly establishes prima facie appellee’s position that she was not afflicted with any disease on the said last mentioned date. By the language of the policy, appellant’s articles of incorporation are expressly declared to be a part thereof, and section 4 of said articles of incorporation provides: “The association shall issue policies of insurance * * * to persons who have passed a satisfactory medical examination.” Under the provisions of the policy it rested with the medical examiner to determine finally for the Association whether applicant should be accepted or rejected. Whatever may have been her actual physical condition, by the contract between the parties, it was expressly committed to the examiner to decide the question whether or not the applicant should be entitled to receive the certificate of insurance. This provision was inserted therein by the Association of its own volition and appellee is accordingly entitled to the benefit of the most favorable construction that can be placed upon the same. Grand Legion of Illinois Select Knights v. Beaty, 224 Ill. 346. Notice to the agent at the time of the application for the insurance of facts material to the risk is notice to the insurer, and will prevent him from insisting upon a forfeiture for causes within the knowledge of the agent. Phenix Ins. Co. v. Hart, 149 Ill. 513; Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284; Boyal Neighbors of America v. Boman, 177 Ill. 27; Arnhorst v. National Union, 179 Ill. 486; Provident Sav. Life Assur. Soc. v. Cannon, 201 Ill. 260; Mystic Workers of the World v. Troutman, 113 Ill. App. 84; Garfinkel v. Alliance Life Ins. Co., 140 Ill. App. 380.

It is claimed that Dr. Hansen, who was sworn for appellant, stated that insured told him she had consulted with Dr. Nyman within two years. That might be implied from what he stated she said, but a careful reading of his testimony will show that he did not so say. After Dr. Hansen had treated her for about a month, Dr. Kimball was called, and he testified he found her in advanced stages of Bright’s disease and that he had sometimes attended her. He did not testify he had attended her within two years preceding the delivery of the certificate. Dr. Fitch stated he had attended her off and on for twenty years. He did not state he had attended her for two years previous to the delivery of the certificate. This was all the evidence offered as tending to show that she had been treated by a physician within two years prior to the application for the certificate, or that she was not in good health on the delivery of the certificate. It appears from a consideration of the medical evidence offered on both sides of the case that Bright’s disease is really an inflammation of the kidneys that is denominated either acute or chronic, chiefly with reference to the period it has existed in the subject; the chronic form extending over a period of several months, and the acute form appearing suddenly and usually being of very short duration. It was also testified to by physicians on both sides, indeed, it may be said to be the consensus of opinion among all the physicians who testified, when their several statements both on direct and cross are considered, that albumen might be present in the urine and yet there might be no trace of Bright’s disease in the subject, and that a person who had previously been in good health might suddenly be afflicted with an acute form of the complaint and as a result die in the course of two or three weeks.

It is thought no useful purpose can be served by detailing the evidence of the several physicians in this respect. It does not appear from the evidence that it was not possible for the insured to have been in good health when the certificate of insurance was delivered to her and that Bright’s disease might have developed thereafter. It is deemed sufficient to say that in the conflicting and contradictory state of the evidence, we are not prepared to say the jury was wrong in rendering a verdict for the plaintiff. Finding no reversible error in the record, the judgment of the court below is affirmed.

'Affirmed.


text:
    Belle Kinkaid, Appellee, v. William L. Kinkaid, Appellant.
    Gen. No. 5,497.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Warren county; the Hon. Robebt J. Gbiek, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed August 2, 1913.
    Hanley & Cox, for appellant.
    D. C. Miller and R. C. Hunt, for appellee.
   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Abstract of the Decision.

In accordance with directions of Supreme Court in 256 Ill. 548 to this court to affirm or reverse and remand, this cause is reversed and remanded. See 168 Ill. App. 333.


text:
    Frank Kohl, Administrator, Appellee, v. Chester D. Clarkson, Appellant.
    Gen. No. 5,670.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Death, § 46

      —evidence sufficient to prove want of contributory negligence. In an action for death of plaintiff’s intestate where there was no eyewitness to the killing, administrator may prove ordinary care on the part of deceased by the highest proof of which the case is capable, including the habits of deceased, and from any other facts and circumstances from which jury may find that he exercised such care.

      Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puteebatjgh, Judge, presiding. Heard in this court at the April term, 1913.
    • Reversed with finding of fact.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Frank Kohl, administrator of the estate of Henry Kohl, deceased, against Chester D. Clarkson to recover damages for the death of deceased while in the employ of defendant. From a judgment in favor of plaintiff for two thousand dollars, defendant appeals.
    Frank T. Miller and Jay T. Hunter, for appellant.
    Nathan H. Weiss, for appellee.

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

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

2. Death, § 78 —when verdict not sustained by the evidence. In an action against an owner of a laundry to recover for death of an employe while cleaning a laundry wringer, verdict • in favor of plaintiff, held contrary to the weight of the evidence.

3. Witnesses, § 131*—when defendant incompetent in an action for wrongful death. In an action for wrongful death, defendant held incompetent to testify whether he had talked with deceased or warned him with reference to the use of a machine.

4. Instructions, § 126*—propriety of abstract instruction. Instructions which are only abstract propositions of law not connected with the evidence in the case may be properly refused.


text:
    Henrietta Bertha Hunse, Administratrix, Appellee, v. Chicago Great Western Railway Company, Appellant.
    Gen. No. 5,674.
    (Not to be reported in full.)
    Appeal from the Circuit Court of DuPage county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed with finding of fact.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Henrietta Bertha Hunse, administratrix of the estate of Henry A. Hunse, deceased, against the Chicago Great Western Railway Company, to recover damages for the benefit of the next of kin of the deceased for the death of deceased resulting from being struck by defendants train at a highway crossing. From a judgment in favor of plaintiff for two thousand one hundred and forty-two dollars, defendant appeals.

      Abstract of the Decision.
    1. Death, § 78

      —sufficiency of the evidence. In an action for death of deceased resulting from being struck by a train while driving over a highway crossing, the evidence held insufficient to sustain verdict for plaintiff.
    2. Railroads, § 667*—duty to look and listen at railroad crossings. Failure of a person approaching a railroad crossing upon a highway to look and listen precludes recovery for personal injuries when a reasonably prudent man so situated would look and listen.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and J. Sidney Condit, of counsel.
    Childs & Childs, for appellee.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    Benjamin D. Herrick, Defendant in Error, v. Lizzie Grove Ryan et al., Plaintiffs in Error.
    Gen. No. 5,707.
    (Not to he reported in full.)
    Error to the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Bill for partition by Benjamin D. Herrick against Lizzie Grove Byan and others. From an order denying a motion to retax costs, after sale of the property, defendant appeals.

      Abstract of the Decision.
    I. Pleading, § 236

      —when party has notice of amendment. A defendant who is in court, or represented therein by counsel, when leave is given to file an amended bill cannot plead ignorance of the fact that it was filed.
    2. Appeal and error, § 1341*—what presumed as to costs on appeal. Every intendment is in favor of the proper taxation of costs.
    3. Costs, § 65*—when motion to retax is properly denied. Where a record shows no evidence of error in taxing costs, but merely the item to pay “clerk’s costs, $121.75,” and a motion below was the only basis for retaxation of costs, the Appellate Court will presume that sufficient proof was heard to justify the denial of the motion.
    H. E. Torrance, for plaintiff in error, Lizzie Grove Ryan.
    A. F. Goodyear and Harry Thom, for defendant in error.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    Mrs. M. Sears, Appellant, v. C. C. Emerson & Company et al., Appellees.
    Gen. No. 5,753.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Putman county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Rehearing denied October 9, 1913.
    Statement of the Case.
    Attachment proceeding by Mrs. M. Sears against C. C. Emerson & Company and others. From a judgment finding a certain fund to be the property of the American National Bank, which filed an interpleader, plaintiff appeals.
    Abstract of the Decision.
    1. Interpleader, § 2

      —when hill will lie. Where various proceedings were had in an attachment suit and on the garnishment branch thereof, before the filing of an interpleader, but final judgment had not been rendered for the attaching creditor or against the garnishee, the interpleader was filed in apt time, and a motion to strike from the files was properly denied.
    2. Interpleader, § 15*—what is effect of demurrer. The filing of a demurrer to an interpleader is a waiver of a claim that such interpleader was interposed too late.
    3. Appeal and error, § 1680*—when objection to pleading is waived. Where a demurrer to an interpleader is overruled and the party demurring goes to trial on the issues made, such action is a waiver of a claim that the court erred in overruling the demurrer.
    4. Banks and banking, § 82*—what is effect of deposit. Where a bill of lading and draft are deposited with a bank in the usual course of business instead of being deposited for collection, and there is no proof of fraud, it will be presumed that such deposit was like any other deposit, being subject to check, wherefore the bank had title to the money involved.
    5. Instructions, § 181*—when instruction must he written. Whether an instruction to find for a claimant to a fund is verbal or written is immaterial when such claimant is clearly entitled to the fund.
    J. L. Murphy, for appellant.
    George W. Hunt, for appellees.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    Oliver P. Hiett, trading as Oliver P. Hiett Company, Plaintiff in Error, v. Turner-Hudnut Company, Defendant in Error.
    Gen. No. 5,757.
    1. Seals, § 2

      —when contract is sealed. Where a contract for the erection of an elevator by plaintiff for defendant purported to be under the hands and seals of the parties, and there was a seal opposite the signature of plaintiff but no other seal, such contract was a sealed contract.
    2. Contracts, § 251*—when contract cannot he modified. Where an agreement is under seal it is not competent to modify or change it by proof of a subsequent parol agreement, and in the application of such rule it is immaterial that the contract yould have been valid without a seal.
    3. Evidence, § 347*—when parol evidence is inadmissible. A sealed contract to erect an elevator cannot be modified by a subsequent verbal agreement to pay a different sum for the construction of it than that named in the contract.
    Error to the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Quinn, Quinn & McGrath and Clarence W. Heyl, for plaintiff in error.
    Page, Wead, Hunter & Scully, for defendant in error.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

This is an action in assumpsit, brought to recover $7,534.65, in which the pleadings are the common counts to which the general issue was pleaded. A trial was had and at the close of the evidence a motion was made by defendant in error, hereinafter for brevity styled defendant, to direct a verdict for defendant, which was sustained and judgment entered accordingly, on which this writ of error is prosecuted. Numerous errors are assigned on the record, but in the argument no questions of the improper admission or rejection of evidence are urged, but everything seems to be urged against the action of the court in its sustaining defendant’s motion to direct a verdict and instructing the jury to find for the defendant and incidentally against the action of the court in not granting a new trial. The whole weight of plaintiff’s brief and argument is directed to the proposition that the alleged change or modification of the written contract mentioned in evidence should have been left to the jury to decide and that the court erred in taking the case from the jury on that proposition. The parties to the suit made a written contract under seal for the erection of an elevator by plaintiff for defendant for the price stated in the contract, according to the general specifications mentioned therein, to the satisfaction of the defendants, or their agents. The contract purported to be under the hands and seals of the parties. There was a seal opposite the signature of plaintiff, but no other seal. This was a sealed contract. Ryan v. Cooke, 172 Ill. 302; Jackson v. Security Mut. Life Ins. Co., 233 Ill. 161.

Where an agreement is under seal, it is not competent, either at common law or under the law of this State, to modify or change it by proof of a subsequent parol understanding or agreement, and in the application of this rule it makes no difference that the contract may be one which would have been valid without any seal. Ryan v. Cooke, 172 Ill. 302, and cases therein cited; Leavitt v. Stern, 159 Ill. 526. We regard the attempt to prove the modification of this sealed contract, even if it had not been disputed by the defendant, as but offering proof of an executory verbal agreement. In its fullest extent it was evidence only of a verbal agreement, made before the elevator was constructed, to pay a different sum for the construction of it than that named in the sealed contract, and this the law will not permit. The plaintiff testified that a few days after the sealed contract was made he informed defendant that he could not build the elevator at the price therein stated and that the defendants then told him to go ahead and do the job and keep the bills and do it to the satisfaction of their agent, naming the agent, and they would pay him what he had expended and make it a percentage job, which the plaintiff testified meant, he should be allowed ten per cent, for his services. He completed the elevator and was paid as much as the contract called for and was also paid for extras, of which he kept an account. In addition to that he built a water leg, or attachment for loading boats on the river from the elevator, and that being outside the contract he kept a separate account of that expense. If the conversation he testified to meant that the parties to the sealed contract then abandoned the contract for building the elevator and it was then agreed that the plaintiff should build such an elevator as the defendants might choose to have him build and pay its cost and ten per cent, additional, then the plaintiff would be entitled to recover.

Our conclusion is that what the conversation testified to by plaintiff meant, was that the plaintiff should go ahead and complete the job he had contracted to do and they would pay him its cost and ten per cent, additional.

Viewing the contract in the light above indicated, we regard it as clear that this proof of an oral modification of the sealed contract was not admissible to vary the terms of the sealed contract. There are many circumstances in evidence in the case that cast a doubt upon plaintiff’s understanding of the conversation testified to by him. He directed his bookkeeper to keep an account of extras on the building. There would be no extras under the verbal change" testified to by him. He did not present his bills to the defendants when he sought to settle. He did not make the claim he now makes until long after the building was done. But these are matters which it is unnecessary to consider, as the weight of the evidence cannot be considered, and is not involved on this hearing. Evidence of the oral modification of the sealed contract was not competent and the plaintiff had no competent evidence to go to the jury, as he had already been paid the contract price and for extras and something in addition to the contract price, owing to his importunities therefor. Judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Appellee, v. Lucy Moore, Custodian, Appellant.
    Gen. No. 5,761.
    (Not to be reported in full.)
    Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Petition to inquire into the alleged dependency of Carl Moore, a male child in the custody of Lucy Moore. From judgment committing the child to a home and aid society, Lucy Moore appeals.
    Charles S. Stubbles, for appellant; E. J. Slough, of counsel. , . - .
    C. E. McNemar, for appellee; George A. Shurtleff and Clarence D. Murphy, of counsel.
   Mr. Presiding Justice Whitney

delivered the opim ion of the court.

Abstract of the Decision.

Venue, g 3*—when county court has jurisdiction of dependent children. County court has jurisdiction of an infant to inquire into its dependency where the child is in the custody and control of a person within the county and the child is within the county part of the time.


text:
    Emma V. Hanna, Plaintiff in Error, v. Peoples National Bank of Monmouth, Illinois, Defendant in Error.
    Gen. No. 5,765.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Banks and banking, § 118

      —when paid checks admissible. In an action to recover money deposited with a bank, checks showing payment of the money to plaintiff’s husband held admissible to show that bank did not still hold the money and to corroborate testimony of bank officers.

      Error to the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Emma Hanna against Peoples National Bank of Monmouth, Hlinois, to recover money alleged to have been deposited with defendant by plaintiff. From a judgment in favor of defendant, plaintiff brings error. .....'
    C. M. Huey and L. E. Murphy, for plaintiff in error.
    Brown & Soule, for defendant in error.

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

   Mr. Presiding Justice Whitney

delivered the' opinion of the court.

2. Banks and banking, § 82*—deposits in wife’s name. Husband may legally deposit money in the bank in his wife’s name so that he can draw checks against it.

3. Banks and banking, § 117*—proof of deposit. Evidence held insufficient to prove that plaintiff deposited money in defendant’s bank.


text:
    State Bank of New Boston, Appellant, v. Kate B. Livingston et al., Appellees.
    Gen. No. 5,770.
    1. Bills and notes, § 56

      —failure of consideration. Notes given by the widow and an heir to release a claim against the estate, which claim was barred against the estate for failure to file the claim within the time allowed for presentation, are without consideration.
    2. Bills and notes, § 332*—when payment of interest does not har defense of want of consideration. Parties giving a note without consideration are not barred of their defense by the payment of interest thereon.
    3. Bills and notes, § 358*—when plea of want of consideration sufficient. In an action on a promissory note given to plaintiff by an heir and her husband in lieu of a note which plaintiff held against the estate, special pleas setting up that the latter note was barred as a claim .against the estate because not filed as a claim within the time allowed for presentation, that the estate was solvent and that all the assets were inventoried, held to show that the note sued on was without consideration; and replications filed thereto alleging that note in suit was given in consideration of plaintiff’s clainf against the estate, and that the defendants had paid interest thereon, were demurrable.
    Appeal from the Circuit Court of Mercer county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    W. J. Graham, for appellant.
    Church & Church, for appellees.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

This suit was brought by the State Bank of New Boston against Kate B. Livingston and Frank Livingston to recover on a promissory note dated April 12, 1907, given by Frank Livingston and Kate B. Livingston to the State Bank of New Boston for $711.96, with interest at three per cent, from date until paid, with the privilege of extending the same from year to year for not exceeding ten years.

Appellant filed a declaration counting on the note, to which appellees filed the general issue and a special plea.

Appellant filed two replications to the special plea to which appellees demurred. The demurrers were sustained, appellant elected to stand by its replications, and judgment was entered by the court in favor of the defendants and against the plaintiff on its election to stand by its replications and dismissing the suit at plaintiff’s costs and judgment was entered against the plaintiff for costs, from which judgment this appeal is prosecuted.

The judgment is erroneous. The judgment should have been that the plaintiff take nothing by its suit, or that the defendants go hence without day. Though the form of the judgment is erroneous, yet it is a final judgment for costs. Appellees assigned no cross-errors and we cannot, for the reason that the judgment is erroneous in form, reverse it at the instance of appellant. The special plea filed by appellees is in substance as follows:

“Defendants aver that one George W. Bridger, a resident of New Boston, Mercer county, Illinois, prior to June 1, 1905, made, executed and delivered to plaintiff, certain promissory notes, to-wit: One dated September 5, 1904, due on demand, for $3,546.45 with interest at six per cent.; one dated March 2, 1905, due January 1,1906, for $3,736.60, with interest at five per cent., and one dated March 1, 1905, due on demand, for $1,000, with interest at six per cent.; that on April 29, 1905, said George W. Bridger died intestate, leaving Josie F. Bridger as his widow, and Kate B. Livingston and Howard Bridger as his only children and heirs at law; the said Kate B. Livingston being intermarried with the defendant, Frank Livingston. That on May 9, 1905, letters of administration were issued out of the County Court of Mercer county, Hlinois, to the said Josie F. Bridger and Frank Livingston, as administrators of the estate of George W. Bridger, deceased; that said estate was solvent; that said administrators gave notice to the July term of said court, as by law required to all persons having any claims or demands against the estate of George W. Bridger to appear before said court on the first Monday of July, 1905, for the purpose of having the same adjudged, as provided by law; that all property of said George W. Bridger was inventoried in said estate and that plaintiff filed its aforesaid notes in the nature of claims against the estate, duly sworn to by them, on November 14, 1905, January 16, 1906, and on November 18, 1905, and that on January 17, 1906, judgments were rendered against said estate in favor of the plaintiff for $5,190.90 and $1,403.30 respectively, which in due course of administration were duly paid; that on February 28, 1907, notice of final settlement in said estate was given pursuant to law and on March 22, 1907, said administrators filed their •fiua.l report of administration, and on said date were duly discharged as having duly administered the said estate.
“And defendants further aver that said administrators during the time allowed by law to file claims against said estate requested plaintiff to file any and all claims it had against the estate of George W. Bridger, deceased, and that plaintiff had personal knowledge through its officers of the death of George W. Bridger, and that said estate was being administered as aforesaid.
“And defendants further aver that subsequent to the time allowed by law for the filing of claims, to-wit: May 9, 1906, and subsequent to the order of discharge of said administrators, said plaintiff claimed and pretended that said George W. Bridger owed them another note of the principal sum of $2,135.88, or thereabouts, which said plaintiff never filed for probate against, said estate, and never presented the same to said administrators for payment during the time allowed by law, to probate the same against said estate of George W. Bridger, deceased, or in any manner ever attempted to collect same during the time allowed by law so to do, and never to this day has shown or exhibited said note to these defendants, which pretended note defendants aver became barred and of no force and effect on May 9, 1906, and on April 12, 1907, and prior thereto, was barred and uncollectable against the estate of George W. Bridger, deceased, and was of no force and effect against any other person.
“Defendants further aver that subsequent to March 22,1907, plaintiff applied to the defendant, Frank Livingston, and requested payment on said pretended note, whereupon in compliance with said request, and for and in respect of the note of said $2,135.88, or thereabouts, so remaining due as claimed by plaintiff against George W. Bridger, and for no other consideration whatever, the defendant Frank Livingston, as principal, and the said Kate B. Livingston as a surety thereon, on April 12, 1907, made, and on April 13, 1907, delivered the note mentioned in the declaration of the plaintiff for and in lieu of said pretended indebtedness aforesaid of George W. Bridger, and the said Josie F. Bridger at the same time did likewise with a note of the same amount, and defendants aver that there never was any consideration for said note so given by them in the declaration mentioned, except as aforesaid.
“And defendants further aver that at the time of the giving of said note mentioned in the declaration and delivery of same to the plaintiff, they demanded said original note of the plaintiff as given by said George W. Bridger, but that plaintiff refused to give the same to them or any one for them, and still holds said note of George W. Bridger and has never surrendered the same to them or any one of them.
“Defendants further aver that at the time, to-wit, April 12, 1907, there was no person liable for the pretended debt of the said defendant, George W. Bridger, in the sum of $2,135.88 or thereabouts, which plaintiff claimed remained unpaid.
“And defendants further aver that there was no person liable for said pretended debt so remaining due as aforesaid and no person or persons that plaintiff could sue upon the pretended debt or note of the said George W. Bridger, deceased, of April 12, 1907.
“And this the defendants are ready to verify, wherefor they pray judgment that the plaintiff ought not to maintain its aforesaid action thereof against them. ’ ’

The first replication to the special plea alleged the payment of interest for several years on the note in suit and that the defendants had ratified the giving of the same. We think the demurrer to this replication was properly sustained. Parties who give a note without consideration are not barred from their defense by the payment of interest thereon. The second replication alleged the giving of the note in suit and one other note of like effect and amount by Josie P. Bridger in consideration of the plaintiff releasing any claim it had against the Bridger estate on a note given for $2,135.88 given by Bridger and mentioned in the pleading. This special plea avers facts from which it is clear that no person whatever was liable on the note for $2,135.88 as well as a specific averment to that effect. It clearly appears from the averments of said plea that neither Josie F. Bridger, the widow, or Kate B. Livingston, the daughter of the deceased Bridger, were ever under any legal obligation to pay said note. The plea alleges that the Bridger estate was solvent; that administration was had thereon; that all its assets were inventoried; and that no claim was presented for said note; and that the time allowed for the presentation of claims had elapsed and administration had been closed and the administrators discharged. There is nothing in the pleadings to show that appellees received any property of the deceased’s estate, and in the absence of such an averment there is no showing of any moral obligation on their part to pay said note of $2,135.88. There having been no obligation on the part of the widow and heir to pay the original indebtedness, there was nothing for them to settle or compromise and there was no consideration for the notes given by them respectively. The demurrer was properly sustained as to the second replication. The judgment of the Circuit Court is therefore affirmed.

Judgment affirmed.


text:
    State Bank of New Boston, Appellant, v. Josie F. Bridger, Appellee.
    Gen. No. 5,771.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Mercer county; the Hon. Prank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action on a note by State Bank of New Boston against Josie F. Bridger. From a judgment for defendant, plaintiff appeals.

      This case is controlled by the decision in State Banlc of New Boston v. Livingston, Gen. No. 5,770, ante, p. 529.
    W. J. Graham, for appellant.
    Church & Church, for appellee.
   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    True A. Miller, Appellee, v. P. M. Carney et al., Appellants.
    Gen. No. 5,773.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Continuance, § 10

      —when properly denied. A motion for continuance on account of the illness of a party is properly denied where it was not shown that the presence of such party was indispensable or that such party was to be a-witness, and the affidavit in support of the motion did not show what was expected, to be proved by such witness as required by statute.

      Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Wobthington, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by True A. Miller against P. M. Carney and others to recover for work performed. From a verdict for plaintiff for $99.50, defendant appeals.
    E. E. Harding, for appellants.
    Kirk & Shurtleff, for appellee.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

2. Appeal and error, § 592*—when motion for new trial is necessary. A motion for a new trial is necessary to preserve the question as to whether the evidence is sufficient to support the verdict where a case is tried by a jury.

3. New trial, § 119*—what is effect of motion. Upon a motion for new trial where no written points are filed, all questions which could be heard upon such a motion are considered to be presented, but if the points are filed they constitute a waiver of all other points.

4. Appeal and error, § 601*—what is necessary for preservation of objections. In order to render available an objection that a verdict is against the law and the evidence, as stated in a motion for new trial, it is also necessary to assign for error, on the record, the refusal of said motion.

5. Appeal and error, § 604*—what is necessary for preservation of errors in instructions. Rulings on instructions are not preserved for review where no motion for new trial is interposed, and if such motion is interposed and points in writing are filed which do not object to rulings on instructions, such rulings are waived.


text:
    Ole Johnson, Appellant, v. Gail C. Downing, Appellee.
    Gen. No. 5,778.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Boone county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Ole Johnson against Gail C. Downing to recover damages for the shooting of a dog. From a judgment for defendant, plaintiff appeals.

      Abstract of the Decision.
    1. Animals, § 47

      —what are questions of fact. In an action for damages for shooting a dog, held that the question whether defendant was justified in shooting was for the jury.
    2. Appeal and ebbob, § 1465*—when admission of evidence is harmless. The admission of evidence of the general vicious character of a dog cannot he complained of where the answers of witnesses to such questions, after objections were overruled, were not responsive, and where such evidence was given by other witnesses without objection.
    3. Animals, § 48*—when instructions are improper: Instructions ignoring evidence as to attacks of a dog on different persons and that the owner of such dog knew of the attacks, instructions leaving it to the jury to determine what was a legal reason for killing a dog and instructions stating that a defendant was liable if he killed a dog without any legal reason for so doing, held properly refused.
    F. A. Oakley, for appellant.
    William L. Pierce, for appellee.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


author: Mb. Presiding Justice Whitney

text:
    Excelsior Steel Furnace Company, Appellant, v. F. Meyer & Brother Company, Appellee.
    Gen. No. 5,782.
    1. Patents, § 39

      —what court has jurisdiction of infringement. The remedy for infringement by making articles which are covered by letters patent issued to a plaintiff or his assignor, or where such a plaintiff is protected by an application for a patent, the rights of which have been assigned to him, is in the United States Courts.
    2. Injunction, § 51*—when hill will lie. Equity has no jurisdiction of a suit by one trader in an article to enjoin another trader in a similar article from telling falsehoods about his own article, as where such other trader falselyo stamps his article as patented.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaügh, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Benjamin T. Roodhouse, for appellant.
    William V. Tefft, for appellee.

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

   Mb. Presiding Justice Whitney

delivered the opinion of the court.

The Excelsior Steel Furnace Company, appellant, filed its amended bill for an injunction against F. Meyer & Brother Company, appellee, and appellee interposed a demurrer thereto, which was sustained and appellant elected to stand by its bill and the same was dismissed for want of - equity, and the appellant brings the case here on appeal. The bill charges appellant manufactures certain articles upon which a patent has been applied for and all rights under such application assigned to appellant, and certain other articles upon which it holds a patent, and, as we read the record, manufactures certain other articles not covered by any patent or application for patent, and it charges that appellee made copies of these various articles and had stamped on them “Patented Oct. 16-1894,’’ whereas, appellee has no patent upon said articles and that it is thereby deceiving' the public and injuring appellant’s business.

In so far as appellant is making articles which are covered by letters patent issued by the United States to appellant, or appellant’s assignor, or is protected by an application for a patent, the rights under which have been assigned to appellant, the remedy of appellant is in the United States Court. Here the complainant in the bill alleges that it has certain rights under certain patents and that it should be protected thereunder against the acts of the defendants, thus bringing the case clearly within the Patent Laws of the United States. Pratt v. Paris Gaslight & Coke Co., 168 U. S. 255. In so far as appellee is manufacturing articles like those that appellant manufactures and has falsely stamped upon them that they are patented, we are of opinion that equity will not interfere in the way and manner indicated by this bill. We do not believe equity has jurisdiction at the suit of one trader in an article to enjoin another trader in a similar article from telling falsehoods about his own article. It is not charged as to these articles that appellee is telling any falsehood about appellant’s articles, but merely that he is telling falsehoods about the articles which appellee manufactures. We think the demurrer was properly sustained. The judgment of the court below is affirmed.

Affirmed.


text:
    Spring Valley Coal Company, Appellee, v. John Framasetta, Appellant.
    Gen. No. 5,784.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Bill for an injunction by Spring Valley Coal Company against John Framasetta. From a decree granting such injunction, defendant appeals.

      Abstract of the Decision.
    1. Injunction, § 206*—what evidence is admissible to show breach. In an action to enjoin the sale of intoxicating liquors on certain premises in violation of a covenant in a deed, the allegations of the bill may be proved by direct or circumstantial evidence or both.
    2. Covenants, § 15*—when breach is shown. Evidence held to show the sale of intoxicating liquor on certain premises in violation ' of a covenant in a warranty deed.
    J. L. Spaulding, for appellant.
    Mastin & Sherlock and George S. Skinner, for appellee.
   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    Charles I. McNett, Appellee, v. Donald J. McDonald, Appellant.
    Gen. No. 5,786.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Kane county; the Hon. Duane J. Caenes, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action of assumpsit by Charles I. McNett against Donald J. McDonald. From a judgment for plaintiff for one thousand dollars, defendant appeals.
    Callahan & Callahan, for appellant.
    Mighell, Gunsul & Allen, for appellee.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Abstract of the Decision.

New trial, § 125 —when refusal will not be reviewed. Where the record does not show the nature of a plaintiff’s suit, nor what defense defendant had thereto, it cannot be said that the trial judge exceeded his discretionary powers in refusing to set aside the verdict and grant a new trial though such verdict was rendered in the absence of defendant and his attorneys.

Mr. Justice Carnes having tried the case in the court below, took no part in this decision.


author: Mr. Presiding Justice Whitney Per Curiam :

text:
    Janett Grier, Executrix, Appellee, v. Catharine Barkley, Executrix, Appellant.
    Gen. No. 5,788.
    1. Executors and administrators, § 265

      —when immaterial whether estate is testate or intestate. Ordinarily in the trial of a claim against an estate it is immaterial whether decedent died testate or intestate.
    2. Executors and administrators, § 269*—what evidence immaterial to establish claim. Neither the will of deceased nor the inventory of the estate are material on the question whether deceased owed money at time of his death.
    3. Executors and administrators, § 270*—when evidence sufficient to establish claim for loan. Claim for money loaned held established where the evidence establishes the loan and there is no pretense that it has ever been paid.
    4. Executors and administrators, § 270*—admission of hearsay evidence as proof. Hearsay evidence to the effect that a loan was made to deceased by her husband in consideration of her signing a contract to sell land, not proof of such fact though admitted without objection.
    5. Evidence, § 169*—competency of admissions. Admissions of one who is the sole party in interest are always competent.
    6. Appeal and error, § 1256*—when appellant cannot complain of instructions. Appellant cannot complain that the jury were not fully instructed where all instructions asked by him were given.
    7. Appeal and error, § 804*—when evidence excluded must be preserved. Alleged error in refusing to admit in evidence an inventory of the estate of appellee’s testator cannot be considered when such inventory is not incorporated, or its contents stated, in the bill of exceptions or anywhere in the record.
    Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farkahd, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Rehearing denied and opinion refiled October 9, 1913.
    R. R. Tiffany and P. J. Geib, for appellant.
    W. O. Robinson, for appellee; Warren B. Wilson, of counsel.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

On June 16, 1911, a claim, was filed against the estate of Catharine Nesbitt, deceased, in the County Court of Stephenson county by appellee, consisting of the following items: 1908, March 31—To cash $1,024; 1909, March 22—To cash $1,000; 1909, October 8—To cash $1,000; 1910, March 7—To cash $2,552, which was allowed by said County Court on July 23, 1912, for $4,500. The matter of said claim was appealed to the Circuit Court where on a jury trial a verdict was rendered for the claimant for $500; a new trial was granted and the case was again tried in the Circuit Court and a verdict was returned for claimant for $5,500; a motion for a new trial was made by appellant and heard, and the claimant entered a remittitur of $1,000; the motion for a new trial was thereupon overruled and judgment entered against appellant for $4,500, from which this appeal is prosecuted.

It appears that the deceased, Catharine Nesbitt, and Alexander Nesbitt, of whose will Janett Grier is executrix, were married and lived together for several years and up to the time of Mrs. Nesbitt’s death which occurred about a month prior to the death of Alexander Nesbitt, and that Catharine Nesbitt had previously been the wife of one Zimmerman, who died leaving her by his will a farm, which had been during Zimmerman’s lifetime mortgaged for $5,500 to one Smith, and that the mortgage was unpaid at the time of Zimmerman’s death, so that it was a debt against the Zimmerman farm at the time of Zimmerman’s death, and Mrs. Zimmerman took the farm with the mortgage still unpaid, and as it appears Mrs. Zimmerman still owed the mortgage at the time of her marriage to Alexander Nesbitt. Out of the existence of that mortgage the present claim arises. It is clear from the evidence that Catharine Nesbitt got the money from Alexander Nesbitt, her husband, to pay off this mortgage at about the times stated in the claim, which is the basis of this litigation; that both Catharine Nesbitt and Alexander Nesbitt said it was a loan by him to her; Catharine Nesbitt repeatedly said to the witness Adaline Smith, to whom the money was paid, in substance, that she was borrowing the money from her husband, Alexander Nesbitt, to pay the mortgage, and that she intended to pay him when she sold her farm. The record of Adaline Smith’s testimony is long and many objections were interposed, but a careful reading of the record (not the abstract) will show that the substance of this claim was proved by this witness by testimony given in answer to questions to which no objections were made. The witnesses Charles Geiser and Mrs. Charles Geiser, his wife, testified to conversations of Catharine Nes3 bitt in which she said in substance that her husband loaned her the money to pay off the mortgage and that she had to pay, or would pay it back to him, so that the claim was proved by undisputed testimony. It also appears from the evidence that Alexander Nesbitt stated he would be satisfied if his wife paid him back $4,500. The judgment therefore, .ought to stand unless it appears from the evidence that the amount loaned by Alexander Nesbitt to Catharine Nesbitt was repaid or released or waived in some valid way, or unless there is found in the record reversible error on some of the points assigned. There was no error in the admission of the evidence to the effect that all legacies had been paid, and that Catharine Barldey was the only person interested in the suit, because that was admitted to be the fact by Catharine Barkley’s counsel on the trial.

The admissions of one who is the sole party in interest are always competent. McMillan v. McDill, 110 Ill. 47; 1 Grreenleaf on Evidence, par. 180.

There is no evidence in the record that Catharine Nesbitt and Alexander Nesbitt ever made an agreement by which in effect if Catharine Nesbitt would sign a contract for the sale of Alexander Nesbitt’s farm, then that Alexander Nesbitt in consideration thereof would pay off said mortgage, aside from hearsay evidence, and therefore, the contract for a deed offered in evidence was not competent.

Ordinarily in the trial of a claim against an estate it is not material whether decedent died testate or intestate, or, if he made a will, what were the circumstances surrounding its execution, or whether or not an inventory has or has not been filed in the estate. We see nothing in the present claim that tends to take it out of the general rule. Neither the will of Catharine Nesbitt nor the inventory in her estate were material evidence on the question of whether she owed the money in question at the time of her death. Either the claim existed or did not exist independently of whether Catharine Nesbitt made a will or not and whether she had any property or not. We see nothing reversible in the rejection of any other evidence offered by appellant when the whole record is considered. No reversible error is seen in the admission or refusal to admit any of the evidence.

All of the instructions asked by appellant were given so that appellant is not in a position to claim that the jury were not fully instructed. North Chicago City Ry. Co. v. Gastka, 128 Ill. 613. Complaint is made of the giving of the instructions for appellee. The fifth and sixth instructions are claimed to be bad because they directed a verdict and did not include all the elements necessary to a finding for the claimant. We think the instructions were based on the evidence and did not ignore any theory of defense of which there was any competent evidence offered. Under the authority of West Chicago St. Ry. Co. v. Lieserowitz, 197 Ill. 607, we hold the first in-, struction to be good. No other instructions are complained of. We see no error in the giving of any of appellee’s instructions.

The remittitur seems to have been formally entered and there was no error in allowing that. The evidence established the loaning of the money by Alexander Nesbitt to Catharine Nesbitt. There is no pretense that Catharine Nesbitt actually paid it in her lifetime or that her executrix paid it after her death, and there is no competent evidence of any agreement or arrangement between Alexander Nesbitt and Catharine Nesbitt by which the money was advanced for any other purpose than as a loan. The fact that hearsay evidence to the effect that Alexander Nesbitt advanced this money to Catharine Nesbitt in consideration of her signing a contract to sell certain land of his may have been admitted without objection does not establish the fact that either Alexander Nesbitt or Catharine Nesbitt ever so said or understood.

The judgment seems to be just under the evidence.

Judgment affirmed.

Upon consideration of a petition for a rehearing herein the following additional opinion was filed on October 9, 1913.

Per Curiam :

On the petition for rehearing it is claimed that the trial court erred in refusing to admit in evidence the inventory in the estate of Alexander Nesbitt, deceased, but we fail to find said inventory incorporated in the bill of exceptions or' anywhere in the record or any statement of its contents, and therefore we are unable to determine whether or not by reason of anything therein stated or omitted it was competent or material evidence.


text:
    Mary Hanson, Appellee, v. Julius Nolting et al., Appellants.
    Gen. No. 5,795.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipai, corporations, g 917

      —reasonableness of use of sidewalk, question of fact. Whether or not the use which an abutting owner puts a sidewalk is reasonable with reference to the public is a question of fact.
    Appeal from the City Court of Elgin; the Hon. Edwahd M. Mangan, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Mary Hanson against Julius Nolting and others to recover damages for personal injuries sustained by plaintiff alleged to have been caused by the negligence of the defendant in having woven wire on the sidewalk, over which plaintiff tripped and fell. Prom a judgment in favor of plaintiff for five hundred dollars, defendant appeals.
    Frank W. Shepherd and Ernest C. Luther, for appellants.
    Botsford & McCarthy, for appellee; R. S. Egan, of counsel.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

2. Municipal corporations, § 917*—when temporary obstruction not justified. Temporary obstruction of a street is not justified by the necessities of the person who obstructs the street when such obstruction is not reasonable with reference to the public.

3. Municipal corporatlons, § 1062*—when pedestrian not negligent in failing to see obstruction on sidewalk. Evidence held sufficient to sustain finding of jury that plaintiff was not guilty of contributory negligence in failing to see an obstruction on the sidewalk, over which she fell and was injured.

4. Appeal and error, § 608*—what essential to preserve objection for excessive verdict. Objection that verdict is excessive is waived when not included in motion for a new trial or motion in arrest of judgment.


text:
    J. F. Hessling, Appellant, v. Henry Frey, Sr., Appellee.
    Gen. No. 5,798.
    (Not to be reported in full.)
    Appeal from the City Court of Sterling; the Hon. Henry C. Ward, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by J. F. Hessling against Henry Frey, Sr., to recover commissions for procuring a purchaser for the sale of real estate of the defendant. From a judgment in favor of defendant, plaintiff appeals.
    Brooks & Brooks and N. G. Van Sant, for appellant.
    Carl E. Sheldon and A. A. Wolfersperger, for appellee.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 43 —when entitled to commissions. An agent employed by owner to sell real estate is entitled to commissions when he is instrumental in bringing the owner and buyer together and the owner concludes the sale at a less price than that at which it is listed with the agent.

2. Brokers, § 38*—when agent is procuring cause of sale. Agent is entitled to his commission when the purchaser was induced to apply to the owner through the instrumentality of the agent or through or by means employed by the agent.

3. Brokers, § 97*—when instruction on right to commissions improper. Instruction to jury to find for owner unless they believe from the evidence that the agent had established by a preponderance of the evidence that agent named terms to the purcnaser who was ready, willing and able to accept, held improper.

4. Brokers, § 98*—when instruction erroneous as not applicable to the evidence. Instruction directing a verdict for owner unless the jury believe from the evidence that agent was prevented from bringing about a consummation of the sale by fraud, etc., held bad when no attempt is made to apply it to the evidence.