text:
    Abraham Miller et al., Appellants, v. Alfred C. Stanley et al., Appellees.
    Gen. No. 5,864.
    1. Biles and notes, § 451

      —when defense that obligation was discharged by agreement with one of the payees sustained by the evidence. In an action by the payees on a promissory note signed by several, where the note contained a condition that the note should be paid in railroad stock in case a certain railroad was constructed on or before the maturity of the note, and the railroad was not built within the time required by the condition, held that a defense by some of the signers, who were made defendants, that one of the payees on behalf of himself and the other payee agreed that the obligation on the note should be discharged if the defendants, who were directors of the railroad named in the condition, would furnish funds to complete the construction of the railroad, was sustained by the evidence.
    2. Bills and notes, § 294

      —when obligation on note may be discharged by agreement with one joint payee. Where a promissory note is signed by several persons and made payable to joint payees, the entire obligation thereon may be discharged by an agreement with one of the payees.
    3. Pleading, § 104

      —necessity of electing between inconsistent pleas. A proposition of law to the effect that if there is a conflict between two special pleas the defense must elect which one they will rely on, held not to state the law in this State.
    4. Pleading, § 104

      —right to file inconsistent pleas. The right to file inconsistent pleas has always been recognized in this State, except that a plea in bar to the entire declaration pannot be filed with a plea of tender.
    Appeal from the Circuit Court of Whiteside county; the Hon. Fbank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    H. H. Waite and H. C. Ward, for appellants.
    Jacob Cantlin, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abraham Miller and Edward Fehlman, payees in a note dated May 3, 1904, for the sum of $2,000, with interest at five per cent, per annum, and due two years after date, brought this suit against the seven signers of said note, and had service upon three only of said signers, namely, Alfred O. Stanley, Andrew S. Goo dell and John Pippert. The note contained the following provision: “It is understood and agreed by and between the parties hereto that if the Dixon, Bock Falls and Southwestern Electric Bailway is built to Hoop-pole, Henry County, Illinois, on or before the maturity of. this note, the said sum, including interest, shall be paid in stock of said Dixon, Bock Falls and Southwestern Electric Bailway Company at the rate of Eighty-five Dollars per share of stock, the par value of which shall be One Hundred Dollars.” There was indorsed on said note two payments, one of $535, on July 23, 1907, and one of $500, on April 25, 1908. On the day of the trial in the court below there was due on said note $1,692.60, unless it had been discharged in the manner hereinafter stated. Special counts of the declaration averred that said condition was not performed and that the road was not built within the time agreed, and the proof so showed. The defendants who were served filed three pleas, the general issue and two amended special pleas, which were each quite lengthy. The substance of the second plea was that both plaintiffs were residents of the village of Hooppole, and owners of farm lands near there and heavy shippers of produce, and that Miller conducted a general store there, and that Hooppole was without railroad facilities, being ten or twelve miles from the nearest railroad points, to which places it would be necessary to haul overland by team all merchandise and deliver all grain and farm produce for market; and that to procure better shipping facilities, Miller, on behalf of himself and Fehlman, agreed with said defendants that in consideration that said defendants, being directors of the railroad company named in said condition, would furnish funds towards the construction of a railroad from Tampico to Hoop-pole, and would, as such directors, and on behalf of said company, construct said railroad to Hooppole, and give Hooppole communication by rail with the market, the plaintiffs would cancel said note; and that said defendants did furnish funds and di'd construct said railroad from Tampico to Hooppole on or before September 1, 1910, and that said furnishing of funds and constructing said railroad was accepted by plaintiffs in full satisfaction of the promises made in said note, and in payment of all sums alleged to be due in the declaration and each count thereof. The third plea was in substance .the same, except that it averred that by the performance by defendants of said agreement to construct said railroad, the said sums alleged to be due on said note were paid and settled in full, and that plaintiffs agreed that no demand should ever be made for said moneys, or any suit ever instituted therefor against the defendants or their co-defendants, but that they were thereby released from all further obligation on.said note, and from all causes of action which plaintiffs then had against the defendants or either of them by reason of anything previous to that time. To the second plea, being the first special plea, said plaintiffs replied by denial that Miller made any such agreement with the defendants, and they denied that said defendants, in pursuance of any such agreement with Miller, furnished funds towards the construction of said railroad, and denied that the plaintiffs accepted any such action in satisfaction and discharge of the promises in the note sued on; and they filed a similar replication to the other special plea. Said defendants rejoined, averring that Miller did make such promise. Plaintiffs also replied to said special pleas the statute of frauds, to which defendants, instead of demurring, rejoined that said agreements were not such as were barred by the statute of frauds because not to be performed within one year. A jury was waived, there was a trial and a finding and a judgment for defendants, from which judgment plaintiffs below prosecute this appeal.

It is held in Lumberman’s Ins. Co. v. Preble, 50 Ill. 332, that one of several obligees may execute a valid release, by which the entire obligation will be discharged. In Harding v. Parshall, 56 Ill. 219, it is held that a payor or other obligor may pay either of several joint payees, and thereby become fully discharged. In Lyman v. Gedney, 114 Ill. 388, on p. 406, it is held that payment to one of two joint payees extinguishes the debt. In Austin v. Hall, 13 Johns. (N. Y.) 286, the headnote is as follows: “Where several plaintiffs must join in bringing a personal action, a release by one joint plaintiff is a bar to the action.” In 3 Eandolph on Commercial Paper, sec. 1446, it is stated that payment of a note may be made to either of several joint payees. We therefore conclude that appellees could settle this note with Miller.

Appellees, in support of their special pleas, proved by three witnesses that long after the maturity of this note and the entire violation of the condition above quoted therefrom, Miller applied to the defendants, who were directors of the railroad company, to be permitted to come in and be a director and an officer and assist in the construction of the road, and to have them put in more money so that it could be completed to Hooppole, and they told him that if they did take him in as a director and an officer, and did put more money in and complete the road to Hooppole, he would have to take care of this note, and that he replied that if they would put in money and get the road built to Hooppole he would take care of this note and the signers should never be pressed for it, and that the payees would never try to collect it. They further proved that they did then put in various large sums of money, amounting to much more than this note, and did make him a director and an officer of the road, and put into his hands the acceptance of each mile of the road as it was built, and that he acted in those capacities. They also proved two other interviews with him before the completion of the road, in which they inquired about the note, and in which he told them that he would take care of the note and that defendants would not be bothered any more about it, and that they were not to be called upon to pay it, and that so long as there was a road to Hooppole the plaintiffs were satisfied, and that it made no difference what kind of a road it was; that what the payees of the note wanted was something to take the freight out and in, and they would be perfectly willing to have an engine to start with. They further proved that they did complete the road to Hooppole, and that afterwards they asked him about the note and he said it would be taken care of; that the note was already taken care of; that it was already settled, and that they need not worry about it. They also introduced a letter from Miller to one of the appellees, dated September 13, 1910, in which he said: “We are into Hooppole, and feel quite good over the matter. We start from this end in the morning and meet the 9 a. m. train and meet the 4 p. m. and make two trips per day. You can ride to Hooppole now in case you come to Hooppole.” They also proved by a fourth witness that he had several conversations with Miller during the time the road was being built from Tampico to Hooppole, in which Miller told him that if the road was built into Hooppole this note was not to be enforced, but it was to be satisfied thereby. Miller denied each and every one of these alleged conversations and of these alleged promises. He testified that while the road was being built he was urged by some of the signers to induce the persons interested in this note to wait for its payment until the road was completed to Hooppole, and that he promised that he would try and do so. It should be stated that while Miller and Fehlman are the sole payees of this note, yet the money for which it was given was not all owned by Miller and Fehlman, but that other citizens of Hooppole, interested in securing railroad transportation from Hooppole to a railroad line, furnished part of the money for which the note was given, and these other persons were consulted at various times. The witnesses who testified to these promises and conversations with Miller do not state them in exactly the same way. They do not all absolutely agree either as to the precise time when the several conversations were had, or as to all the persons who were present, and these variations may be considered as weakening their testimony, or they may be considered as strengthening it. After this suit was begun, the payees and other parties interested and the defendants who were served with summons had a meeting looking towards a settlement, at which these three defendants offered to pay $700 in satisfaction of the note, and nothing was said in that interview to the effect that the note had been settled and discharged by building the road to Hooppole. The absence of any such declaration is entitled to be considered in its effect upon their testimony.

Nevertheless, it still remains that the defense set up by the appellees is sworn to by four witnesses and is contradicted by no one but Miller. The trial judge saw the witnesses and believed the appellees. It is impossible for us to demonstrate that he is wrong and should have believed Miller and disbelieved the other four.

Appellants contend that the road has not been built to Hooppole as contemplated by the alleged arrangement. It seems that it has in fact been built from Tampico, a railroad point, to Hooppole, and that engines do run over it, and that one of the parties interested, who is a grain buyer, does ship his grain out over it. It is evidently not well ballasted. Some of the land it runs over has not been secured for a right of way. A part of the way it runs in a public highway, by permission of the highway commissioners. Electricity has not been supplied as the motive power. The name of the corporation under whose charter the road was built contains the word “Electric,” but the corporation was organized under the railroad act, and its charter does not show that it was to use electrical power, and it is expressly shown that Miller, in his promises to appellees, told them that it made no difference if they did use engines, at least at first. The proof also shows that Miller accepted or treated the road as a compliance with the requirements made by him. There was no agreement that the road should be operated in any particular manner, nor that it should be kept up to any particular degree of efficiency, and it appears that it is used by shippers for the transfer of produce and merchandise between Hooppole and Tampico. We conclude that the court did not err in adjudging that the defense was established.

Plaintiffs offered eight propositions of law. The court refused the fifth and seventh and gave the others. The substance of the fifth was that if there was a conflict between the two special pleas the defense must elect which one they would rely upon. This is not the law in this State. The right to file inconsistent pleas has always been recognized in this State (Barker v. Barth, 88 Ill. App. 23; Heard’s Civil Pleading, 205), except that a plea in bar of the entire declaration cannot be filed with a plea of tender. Jo Daviess County v. Staples, 108 Ill. App. 539; O’Meara v. Cardiff Coal Co., 154 111. App. 321. The seventh proposition was to the effect that the negotiable character of this instrument is not affected by the condition written therein. This was wholly immaterial, as the instrument had not been negotiated.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    William F. Mehlenbeck, Appellant, v. John Steitz, Appellee.
    Gen. No. 5,867.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by William F. Mehlenbeck against John Steitz to recover fifty dollars claimed to have been loaned by plaintiff to defendant. Suit was originally brought before a justice of the peace where plaintiff recovered a judgment. An appeal was taken to the Circuit Court where defendant had verdict and judgment. From the judgment of the Circuit Court, plaintiff appeals.
    Clarence W. Heyl, for appellant.
    C. E. McNemar, for appellee.
    Abstract of the Decision.
    1. Assumpsit, action op, § 89

      —when evidence insufficient to establish loan. In an action for money loaned, where the defense was that the money was not loaned to defendant but that he received it from a third party who had received it from the plaintiff, and that defendant had repaid such third party, held that a verdict for defendant was not against the weight of the evidence.
    2. Appeal and error, § 613

      —when errors not urged in motion for new trial waived. Errors in instructions given not mentioned in written grounds for motion for new trial are waived. Section 81 of the Practice Act, J. & A. ¶ 8618, obviating the necessity of an exception, does not affect the rule.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. James A. Campbell, Appellee, v. J. J. Taxman, Appellant.
    Gen. No. 5,871.
    1. Intoxicating liquors, § 34

      —when ordinance does not require petition on application for license. Under an ordinance requiring an application for a saloon license, to he accompanied with a petition signed by property owners but not requiring the filing of such petition, where a place was conducted as a saloon at the time the ordinance was adopted, unless the place then used for saloon purposes was vacant and abandoned for such use for seven months, held that a person conducting a saloon at the time of the adoption of the ordinance was entitled to a license without filing a petition, where he made application before seven months expired, though the mayor failed to issue the license until after the expiration of such time.
    2. Quo warranto, § 46

      —sufficiency of pleas setting up right to saloon license. On information in the nature of a quo warranto to require a saloon keeper to show by what warrant he exercised his license, held that a demurrer to pleas filed by the respondent setting up facts showing his right to a license on an ordinance was properly sustained to all of the pleas except one.
    3. Quo warranto, § 46

      —when pleading ordinance, etc., hy reference sufficient. On information in the nature of quo warranto against a saloon keeper requiring him to show by what warrant he exercised his license, a plea, instead of setting out ordinances, bonds and license, referred to former pleas therefor. Held that such was not model pleading but permissible.
    4. Intoxicating liquors, § 31

      —when applicant for license must he in possession of premises. Where ordinances require an applicant for a saloon license to state in his application his place of business, it is necessary that the applicant shall be in possession of the premises when he makes the application.
    5. Appeal and error, § 784

      —what writings must appear in hill of exceptions. On appeal from a judgment on information in the nature of quo warranto, certain written objections, motions and affidavits held no part of the record, unless made so by a bill of exceptions.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 15, 1914.

      McEniry & McEniry and J. T. & S. R. Kenworthy, for appellant.
    Floyd E. Thompson, Connelly & Connelly and Searle & Marshall, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On January 8,1913, the People, by the State’s Attorney on the relation of James A. Campbell, by leave of court filed in the Circuit Court of Bock Island county an information in the nature of quo warranto against J. J. Taxman, requiring him to show by what warrant he exercised the license of keeping a saloon at No. 3106 Fifth avenue, in the city of Bock Island, which the information averred that he was keeping without any lawful license. The respondent filed four pleas, to which a demurrer was sustained, and then, by leave of court, amended said pleas and filed two additional pleas, to all of which pleas demurrers were sustained. He abided by said pleas and there was a judgment of ouster, from which he prosecutes this appeal.

Pursuant to section 81 of the Practice Act, as amended in 1911 (J. & A. ¶ 8618), appellant filed a praecipe, by which he directed the clerk to make up a record containing the information, pleas, demurrers, judgment and appeal. Appellee filed a praecipe, directing the inclusion of objections filed by appellant to the filing of the information, and an affidavit filed therewith, and a certain motion by appellant to vacate the leave to file the information, and an affidavit filed therewith, appellant’s election to stand by his pleas and the relator’s motion for judgment. The record filed in this court contained all the matter required by each praecipe. Appellant moved to strike from the record all the papers inserted by direction of appellee and we took that motion with the case. Said papers were not made a part of the record by any bid of exceptions. Very many cases in the Supreme and Appellate Courts of this State hold that such papers are not a part of the record, unless made so by a bill of exceptions. Town of Scott v. Artman, 237 Ill. 394, is a recent example. Appellee, however, argues that in said written objections and motion, as filed, appellant expressly made said affidavits a part thereof, and that said objections and motion are pleadings, and that all pleadings are a part of the record without a bill of exceptions, and that therefore these affidavits are a part of the record. The proper contents of a common-law record are stated by McAllister, J., in Van Cott v. Sprague, 5 Ill. App. 99, and we collected other authorities on the subject in Burke v. Chicago & N. W. R. Co., 108 Ill. App. 565. They do not include written motions and affidavits unless made a part of the record by a bill of exceptions. We hold that such objections and motions have none of the qualities of common-law pleadings. The filing in the office of a clerk of a court of a paper purporting to be a motion is not a motion, unless brought to the attention of the court. City of Marengo v. Eichler, 245 Ill. 47; City of Decatur v. Barteau, 260 Ill. 612. Even then it can only be preserved by a bill of exceptions. People v. Ellsworth, 261 Ill. 275; Chicago, B. & Q. R. Co. v. Hazelwood, 194 Ill. 69; Radeke Brewing Co. v. Granger, 101 Ill. App. 599. The documents incorporated in appellee ’s praecipe were lengthy papers filed with the clerk, stating many objections to the leave to file the information and many reasons why the order giving that leave should be vacated. The matters written up by the clerk in his record are the things which were actually before the court, and that record is all that there is before the court now on that subject, in the absence of a bill of exceptions. The record, so written by the clerk, does not incorporate these affidavits. If the clerk had undertaken to incorporate them in his written record, that act would have been a nullity. In an action at law, no one but the trial judge has power to certify what affidavits were presented to him in support of these objections and of that motion. These affidavits, therefore, are no part of the record. The affidavits tend to show that this is a controversy between rival saloon keepers, and that the vital result will be to determine what brew of beer shall be sold at retail in that locality. But the purpose of appellee in desiring to get these affidavits into the record is because he claims that there is an inconsistency between certain allegations in the affidavits and certain allegations in the pleas, from which he argues that there are sham pleas, and that because thereof the demurrer was properly sustained. We grant the motion to strike from the record said objections and motion and affidavits, but deny it as to other matters contained in said praecipe. There is therefore nothing in the record to show that these are sham pleas.

There have been in force in Bock Island two ordinances concerning saloons, one adopted April 16, 1903, and the other August 18,1910. The latter alone is relied upon in the first plea and both are relied upon in other pleas. The ordinances divided the license year into two periods, one from the first Monday of May to the first Monday of November, and the other from the first Monday of November to the first Monday of May, and fixed a license fee for a whole year and one-half thereof for each period. This seems to be approved in Hoyt v. McLaughlin, 250 Ill. 442, 451. The application by appellant for a license was for the period ending the first Monday of May, 1913. The ordinances required the application to be accompanied by a petition, signed by a majority of the property owners on each side of the street within a certain distance from the front door of the premises for which it was proposed to issue a license, and also required that every application should be published in a newspaper for a certain length of time. Appellant did not have a petition and did not give such notice. The ordinances did not make these requirements as to any place where at the time such ordinance was adopted a saloon was being conducted under a license already issued, but provided that if any place then used for saloon purposes and vacant and abandoned for said use and so remained for more than seven months, then it should be necessary to file the petition of property owners. These pleas alleged that No. 3106 Fifth avenue in said city was occupied as a saloon under a license when each ordinance went into effect and from thence continuously until the first Monday of May, 1912, and that appellant made application to the mayor for a license to keep a saloon at that place on November 19, 1912, which was less than seven months after the first Monday of May, 1912, and that he filed therewith the bond required by the ordinances and the bond required by the statute, and that he possessed the requirements and had paid the fee fixed by the ordinance, and that the mayor, on January 13, 1913, issued to him a license to keep a saloon at that place from that date to the first Monday of May, 1913, and that it was a mistake of the mayor not to date the license back to November 19, 1912; and each plea set up that at the time the information was filed he was exercising the right to keep a saloon at that place by virtue of said license so obtained.

We think it a true construction of the ordinances that if the premises were occupied continuously as a saloon under licenses from the city from a period prior to the adoption of said respective ordinances and until the first Monday of May, 1912, and if, on November 19, 1912, appellant applied for a license to keep a saloon there and complied in every respect with the ordinances and the statute, then the mere fact that the mayor failed to issue a license until after the seven months had expired would not defeat appellant’s right to a license and to keep a saloon thereunder after a license was issued; and though the averments of the amended pleas are criticized in various respects, yet we are of opinion that they allege a substantial compliance with the ordinances and the law, except as hereinafter stated. The first amended plea does not aver that appellant was in possession of the premises, or had the right of possession thereof, on November 19, 1912, nor at any time during the period of seven months after the first Monday of May, 1912, nor that a saloon was run upon said premises under a license at any time during seven months after the first Monday of May, 1912. The plea must be construed most strongly against the pleader and we must therefore take the plea to mean that he was not in possession and did not have the right of possession on November 19, 1912, nor at any time within seven months after the first Monday of May, 1912. The ordinances required the applicant to state in his application his place of business. It was obviously not intended that a person, who did not own or occupy the place where it was proposed to operate a saloon, could obtain a license to keep a saloon there and, after obtaining a license, endeavor to make arrangements with the owner or occupant to obtain possession for that purpose. We are satisfied it is the spirit of the ordinances that the applicant shall be in possession of the premises when he makes the application. Because of that defect in the first amended plea, we are of opinion that it is insufficient. The same objections exist to the second amended plea. The third amended plea avers that appellant was the owner of the premises on November 19, 1912, but does not aver that he was in possession thereof or had the right of possession thereof at that time. We must infer, against the pleader, that some one else was in possession. We hold this plea also defective for the same reason. The fourth amended plea avers that appellant was the owner and in possession of said premises on November 19,1912, and from, thence until the time this information was filed. The plea is peculiar in that instead of setting out the ordinances it refers to the former pleas therefor, and the same course is pursued as to the bonds and the license. This is certainly not a model of pleading, yet this course was permitted, though hardly approved, in Lake Shore & M. S. Ry. Co. v. Hessions, 150 Ill. 546, on pp. 556 to 559, and in Consolidated Coal Co. of St. Louis v. Schneider, 163 Ill. 393. It was approved in Columbian Accident Co. v. Sanford, 50 Ill. App. 424, and by this court in Fraternal Tribunes v. Hanes, 100 Ill. App. 1. It is within the rule laid down in 1 Chitty PI. 413. We therefore hold the fourth amended plea good. The first additional plea avers that on November 19, 1912, and from thence to the time of the filing of the information, appellant had the legal right to the possession and had the actual possession through his tenants, and that, if the mayor had issued him a license, he could and would have opened a saloon at said place immediately upon the issuing of the license and within seven months after the first Monday of May, 1912. We are of opinion that under these ordinances a landlord cannot lawfully ask for a license when he is not in possession of the premises, and that this plea is bad. The second additional plea averred that on November 19, 1912, appellant was .the owner and in possession of said premises and so continued until the time of the filing of the information. This language of the plea was then qualified by the allegation that on November 19, 1912, and every day thereafter, appellant had the legal right to the actual possession of said premises and did have the actual possession thereof through his tenants, and that, if the mayor had issued to him a license, he could and would have opened a saloon at said place immediately and within seven months after the first Monday of May, 1912. These inconsistent averments must be construed against the pleader, and the plea means that tenants were in possession when he made this application, and that he had some arrangement with them by which he expected they would surrender the possession to him, if he obtained the license. We are of opinion that under such circumstances he was not entitled to a license when he applied therefor on November 19, 1912.

The ruling of the court upon the demurrer is approved as to all the pleas, except the fourth amended plea. The judgment is reversed at the cost of the relator, and the cause is remanded with directions to overrule the demurrer to the fourth amended plea.

Affirmed in part, reversed in part and remanded with directions.


author: Mr Justice Dibell

text:
    Frank P. Hawkins et al., Appellees, v. Harry L. Taylor, Appellant.
    Gen No. 5,872.
    (Not to he reported in full.)
    Appeal from the County Court of Lake county; the Hon Pebby L. Pebsohs, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Frank P. Hawkins and Bichard W. Hawkins, trading as Frank P. Hawkins and Company, against Harry L. Taylor to recover a commission for the sale of certain real estate belonging to defendant. The jury returned a verdict for'plaintiffs for one hundred and fifty dollars, and in addition a special finding that plaintiffs were the procuring and efficient cause of the sale. From a judgment entered on the verdict, defendant appeals.
    Heydecker & Jorgenson and Samuel F. Knox, for appellant.
    Henry E. Mason, for appellees.

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

   Mr Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 90 —when evidence sufficient to sustain a recovery of commissions. In an action for a commission for selling real estate belonging to defendant, a verdict for plaintiffs and a special finding that plaintiffs were the procuring cause of the sale, held sustained by the evidence, it appearing that defendant had listed the premises with plaintiffs to be sold at a certain price and that the defendant had consummated a sale with a purchaser whom the plaintiffs had negotiated with for the purchase of the property.

2. Brokers, § 48 —when real estate agents entitled to a commission. Where real estate agents were the procuring and efficient cause of a sale they are entitled to a commission though the owner completed the negotiations.

3. Appeal and error, § 1002 —when sufficiency of evidence to support verdict not presented for review. Where the abstract does not show that the bill of exceptions contains a motion for a new trial, it does not show that the sufficiency of the evidence to support the verdict is presented by the record. The clerk’s record cannot supply the omission.


text:
    Charles M. Henderson, Appellee, v. Frank Blakesley, Appellant.
    Gen. No. 5,875.
    (Not to he reported in full.)
    Appeal from the County Court of McHenry county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Charles M. Henderson against Frank Blakesley to recover $1.50 per rod for digging a ditch across a portion of defendant’s land. The suit was originally commenced before a justice of the peace where plaintiff recovered a judgment, and on appeal to the County Court plaintiff had a verdict and judgment for the same amount. From the latter judgment, defendant appeals.

      Bernard Barnard, for appellant.
    No appearance for appellee.
    Abstract of the Decision.
    1. Assumpsit, action of, § 89

      —when recovery for digging ditch sustained by evidence. In an action to recover charges for digging a ditch across defendant’s land, plaintiff claimed that the work was done under an express contract that he was to be paid a certain sum per rod, and defendant claimed that he made no such contract but that he gave plaintiff permission to cross his land with the ditch if a third party, who was benefited by the ditch as an outlet, would pay for it, and that plaintiff said he would charge the work to the third party: Held that a verdict for plaintiff was sustained by the evidence.
    2. Evidence, § 476

      —number of witnesses as determining weight of evidence. It is not the law that if the number of witnesses on each side of an issue is equal the evidence is therefore evenly balanced, and that he who has the affirmative of the issue must fail.
    3. Appeal and erbor, § 1009

      —when irregularity in impanelment of jury not presented for review. Irregularity in the impanelment of the jury is not presented for review where it is not shown in the bill of exceptions and it does not appear that there were any objections to the course pursued.
    4. Appeal and ereob, § 1560

      —when refusal of requested instruction harmless. Refusal of a requested instruction which was not based upon any proof and was against appellant’s interest, held harmless.
    5. Contracts, § 393

      —when requested instruction properly refused. In an action to recover charges for digging a ditch, an instruction requested by defendant stated that if the minds of the parties did not come together upon all the terms and conditions of the alleged contract plaintiff could not recover. Held that the instruction was too broad as applied to the case, the pleadings being oral and defendant testifying that plaintiff said nothing about the price, in which case it would appear that defendant retained a bill for the work, without objection, for such a time as to establish an admission and acquiescence" in the price charged.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    M. H. Fitzsimmons, Appellee, v. William Cowan et al. Fred Siebel, Appellant.
    Gen No. 5,878.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McHenry county; the Hon. Chables H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Bill by M. H. Fitzsimmons against William Cowan and Maggie Cowan, his wife, the McHenry Comity State Bank and Fred Siebel to forclose a trust deed securing a promissory note for $2,500. The note and mortgage were executed by the Cowans to J. D. Donovan upon a lot in the city of Woodstock, and the note became the property of the complainant. Subsequent to the execution of the trust deed, William Cowan executed two promissory notes for $1,000 each to the Bank and gave the Bank a second trust deed on the same real estate to secure the same. This trust deed was not executed by Cowan’s wife. After the second trust deed was recorded, Fred Siebel obtained a judgment against the Cowans and had an execution within one year. The Bank was not served and Donovan was not made a party to the bill. A decree was entered finding the amount due to complainant and directed a sale of the premises and the payment of said sum to complainant from the proceeds of the sale. The decree further directed that the master, out of the interest of William Cowan in the remainder of said proceeds, pay the Bank the sum found due it “if he can determine his interest” and bring the balance into court. The master made his report of sale and of payment to complainant in full and that he had in his hands $1,107.96, the balance of the proceeds of said sale, awaiting further order for distribution, as he was unable to ascertain William Cowan’s interest in the real estate. Thereafter the court entered an order that the balance of the proceeds be paid by the master to the Bank “and that it be accepted by the Bank subject to the inchoate right of dower which the defendant Maggie Cowan, may or might have in and to said sum.” From the last order, Fred Siebel appeals.
    M. A. Carmack and A. F. W. Siebel, for appellant Fred Siebel.
    V. S. Lumley, Charles T. Allen and R. D. Donovan, for appellee.
    Abstract of the Decision.
    1. Mortgages, § 654

      —When validity of original decree cannot be questioned on appeal from, subsequent order. On appeal from a decree disposing of the proceeds of a foreclosure sale, the original decree cannot be attacked as erroneous because the trustee who held title to the land was not made a party.
    2. Mortgages, § 647

      —when mortgagor’s interest in the land should be determined before order for distribution of surplus. In a foreclosure proceeding where there was a residue of the proceeds of the sale after payment of sum decreed to the complainant and there were other parties to the suit who claimed such residue, held that the residue could not be ordered paid to anyone of such claimants without first determining by a supplemental decree the interest the mortgagors had in the land, where such determination was necessary to make proper distribution and there was no averment or proof of their interest in the foreclosure proceedings.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Susan K. Antrim, Appellant, v. Thomas Noonan et al., Appellees.
    Gen. No. 5,882.
    1. Limitation of actions, § 68

      —when amended count does not state new cause of action. In an action for injuries sustained by the negligent driving of an automobile, where an original count in the declaration alleged that the automobile was driven at a dangerous rate of speed which was in excess of twenty miles per hour, held that an amendment to such count charging for the first time that the automobile was run at a rate of speed in violation of the statute did not state a new cause of action, the original count stating a rate of speed which was in fact a violation of the statute.
    2. Limitation of actions, § 68

      —when counts may be amended without stating a new cause of action. Where one of the original counts alleges as negligence the driving of an automobile at a dangerous rate of speed, other counts may be amended so as to include such element of negligence, and such amended counts do not state a new cause of action.
    3. Limitation of actions, § 68

      —when proposed amendment of declaration not statement of new cause of action. In an action for personal injuries sustained by plaintiff resulting from a buggy in which plaintiff was riding being struck by an automobile, where the original declaration charged that plaintiff was thrown down and her knee then and there dislocated, held that to permit the striking out of an allegation that the buggy was thrown against her leg and thereby her knee was dislocated and the insertion in lieu thereof of an allegation that the actions of the frightened horse threw plaintiff upon the floor of the bridge and thereby her knee was dislocated would not cause the amendment to state a new cause of action.
    4. Automobiles and garages, § 3

      —when direction of verdict improper. In an action against the owner of an automobile and the driver thereof for personal injuries, a direction of a verdict for defendant at the close of plaintiff’s evidence held to have been error under the facts of the particular case.
    5. Damages, § 173

      —when evidence of physician’s bill paid by plaintiff’s husband inadmissible. In an action by a wife for personal injuries where plaintiff sought to prove the amount of bills incurred by her with a physician and her nurse, held that the evidence was properly excluded where it was disclosed that plaintiff’s husband had paid the bills.

      6. Witnesses, § 122

      —when defendant conservator competent for plaintiff. In an action against the owner of an automobile and the driver thereof for personal injuries, a conservator appointed for the owner and made a party defendant pending suit, held a competent witness to testify for plaintiff.
    7. Witnesses, § 95

      —when plaintiff incompetent in suit, against conservator and another. In an action against the owner and driver of an automobile for personal injury where a conservator was appointed for the owner and made a party pending suit, held that plaintiff was incompetent as a witness in her own behalf as against the owner or the owner’s conservator, and that plaintiff could testify to nothing which would tend to make a case against the driver without also tending to make a case against the owner, so that a verdict against both owner and driver would stand.
    Appeal from the Circuit Court of Livingston county; the Hon. Geobge W. Patton, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    A. C. Norton and F. A. Ortman, for appellant.
    E. A. Simmons and H. E. Torrance, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On June 20, 1908, Glenn Antrim was driving east upon a bridge over Vermillion Eiver in Livingston county in a buggy drawn by a horse, and his mother, Mrs. Susan K. Antrim, was seated at his left side. After they were some considerable distance in upon the bridge an automobile approached, driven at rapid speed. Glenn got out of the buggy and took his horse by the head. The horse reared and backed and was struck by the automobile. Mrs. Antrim was much frightened and attempted to alight. In doing so, she was thrown to the floor of the bridge and her right knee was dislocated. The after effects were very serious. The automobile was possessed and controlled by Mrs. Adele L. M. Carothers and she was riding therein, and it was driven by Thomas Noonan, and two other persons were in the automobile. Mrs. Antrim brought this suit against Noonan and Mrs. Carothers to recover damages for her injuries and had service upon both defendants and filed a declaration containing nine counts. Afterwards, Mrs. Carothers became insane and A. M. Legg was appointed her conservator and was made a party to the suit by amendment to the declaration and was served with summons, and filed pleas for Mrs. Carothers. The suit was begun on June 17, 1910, and the declaration was filed on June 18, 1910, both within two years after the injury. On February 24, 1913, by leave of court, each count of the declaration was amended on its face in red ink. Each defendant filed a plea of the general issue and also a plea that the cause of action in the amended declaration did not accrue to plaintiff within two years next before the amendment of said declaration and that said amendment set up a new cause of action not alleged in the original declaration. To each of these second pleas plaintiff replied that said causes of action did accrue to her within two years next before the commencement of the suit. To this replication to the second pleas, the defendants demurred. The court held that the third count, as amended in red ink, stated a new cause of action, barred by the statute of limitations, and sustained the demurrer to the replication to the pleas of the statute of limitations, so far as it affected said third count, and overruled said demurrer as to the replication to the second pleas as to all the other counts. The assignments of errors and cross-errors question these rulings. " As to all the counts except the third, the amendment in red ink first alleged a duty of the defendants to drive said automobile at a safe and reasonable rate of speed and not at a dangerous rate of speed, and alleged in most of them that the automobile was driven at a dangerous rate of speed. The original third count alleged that the automobile was driven at a dangerous rate of speed. Therefore the element of dangerous rate of speed was stated as a cause of action in the declaration before the expiration of two years from the injury. It was therefore competent to amend the other counts at any time, so as to include that element of negligence. When the facts are stated from which an inference of a duty arises and of a violation thereof, it is not necessary to state specifically what the duty was that was violated. The amendment to the third count charged for the first time that the automobile was run at a speed which violated the statute. But the original third count alleged a rate of speed in excess of twenty miles per hour, to wit, thirty miles per hour. The statute in force when this accident happened was the motor Vehicle Act of 1907, and section 10 (J. & A. ¶ 10010) thereof provided that upon any public highway in this State situated as this highway was, a motor vehicle should not exceed a speed of one mile in three minutes, which is twenty miles per hour. We are of opinion that when the count stated a speed which was in fact a violation of the statute it was not necessary to allege in the count that that was a violation of the statute, since the statute is presumed to be known to the court and the parties. The court therefore should have overruled entirely the demurrer to each of these replications to the second pleas. As the amendments then made to the declaration did not any of them state a new cause of action, the demurrer to the replication should have been carried back and sustained to said second pleas.

Plaintiff introduced no evidence tending to establish a cause of action, unless it be in the particulars hereinafter mentioned. At the close of plaintiff’s evidence, defendants presented instructions to find said defendants not guilty. After argument the court announced orally that he should give said instructions. Thereupon plaintiff asked leave to amend the first and second counts of the declaration and presented the proposed amendments in writing. The defendants filed written objections thereto to the effect that said amendments were not presented in apt time, were dilatory, that plaintiff had not shown diligence and that the amendments set np a new cause of action, barred by the statute of limitations. The court refused leave to file the amendments and directed a verdict for the defendants, which was' rendered, and a motion for a new trial was denied and defendants had judgment. Each count had stated, as an excuse for the effort of plaintiff to get out of the buggy, that she believed that there was great danger that the horse would back the buggy with plaintiff in it off the bridge into the river twenty-five feet below. Plaintiff requested leave to strike out that allegation and to insert in lieu thereof that plaintiff reasonably believed from the circumstances that there was greater danger in injury to herself by remaining in the buggy than by attempting to get out of it. The original allegation was unnecessary and that amendment was immaterial. Each count charged that the plaintiff was in the exercise of due care. What she may have thought at the time was merely evidence tending to show her exercise of due care under those circumstances. By the other amendment proposed, plaintiff asked leave to strike out an allegation that the actions of the frightened horse threw some portion of the buggy violently against plaintiff’s leg, and the same was thereby dislocated at the knee, etc., and to insert an allegation that the actions of the frightened horse threw plaintiff upon the floor of the bridge and thereby her knee was dislocated. The evidence did not show that the buggy was thrown against the plaintiff’s leg, but that while attempting to get out of the buggy she was thrown to the floor of the bridge and by that fall her right knee was dislocated. By section 39 of the Practice Act of 1907 (J. & A. ¶ 8576), re-enacting a provision in force for many years in this State, amendments to any pleading are allowed at any time before final judgment, so as to enable plaintiff to sustain the action for the claim for which it was intended to he brought. If the declaration was as appellant supposes, we are unable to see that a change in the statement of the precise manner in which plaintiff’s right knee was dislocated could be considered the introduction of a new cause of action. The material matter of the charge was that the negligent operation of the automobile resulted in the dislocation of plaintiff’s right knee, but in fact, each count of the declaration not only stated that the actions of the frightened horse threw some part of the buggy violently against plaintiff’s leg and the same was thereby dislocated at the knee, but each count also alleged that “by means whereof” (which may have meant by being struck by the buggy or by the action of the frightened horse or by the negligent operation of the automobile/, “the plaintiff was thrown down and was greatly cut, bruised and wounded, and the knee of the plaintiff was then and there dislocated or partially dislocated.” The original declaration therefore charged that the plaintiff was thrown down and her knee was then and there dislocated. With these allegations in the declaration, we are of opinion that to permit the striking out of the allegation that the buggy was thrown against her leg and thereby her knee was dislocated and inserting in lieu thereof the proposed amendment was not the stating of a new cause of action. In fact, each count stated two ways in which plaintiff’s knee was dislocated, and the amendment only proposed to expunge one of those allegations. Very likely the amendment was unnecessary, and the action of the court in refusing to permit it proper, but, if so, then so far as that subject is concerned the cause should have gone to the jury upon the evidence submitted.

It is contended that as to Mrs. Carothers, the direction to find a verdict for her was proper, because the proof did not show that Noonan, the driver of the machine, was her servant. It was shown that as a rule her son operated her machine and that when he did not she got Noonan to operate it; that Noonan was working for a certain company and had directions to drive Mrs. Carothers when she wanted him to do so. He was a servant loaned to Mrs. Carothers to operate the automobile, and we are of opinion there was sufficient evidence in the record so that the jury might have found that when running the automobile he was acting for her. Consolidated Fireworks Co. of America v. Koehl, 190 Ill. 145; Grace & Hyde Co. v. Probst, 208 Ill. 147; Harding v. St. Louis Nat. Stock Yards, 242 Ill. 444. But, if the instruction to find Mrs. Carothers not guilty was proper, that would not justify a like direction as to Noonan, who, according to the evidence, was running at a very rapid rate of speed.

Legg, the conservator, was called as a witness for plaintiff. Defendants objected to his competency. This objection was overruled. 'This ruling is assigned for error by the appellees, but that assignment is not argued. We are not aware of any reason why he was not a competent witness.

Plaintiff sought to prove the amount of bills in- . curred for her with her physician and her nurse. It was disclosed that her husband had paid those bills. The court thereupon excluded the evidence on that subject. The liability of plaintiff to her physician and her nurse had been extinguished and she was not liable to her husband therefor. She therefore cannot recover those sums, as she has not expended them and .cannot be called upon to expend them. Whether her husband has a cause of action against defendants therefor is a matter not before us upon this record.

Plaintiff was offered as a witness in her own behalf. An objection was made in behalf of Mrs. Car-others and her conservator to the competency of the plaintiff as a witness. The objection was sustained, but she was held competent as to Noonan, and she testified, and the court stated that her testimony must be understood by the jury as limited to the defendant, Noonan, and that the jury should be so instructed later. Plaintiff excepted to this ruling. She was incompetent under the statute as to Mrs. Carothers and Legg. No assignment of error or cross-error questions the ruling of the court in permitting her to testify against Noonan. Similar rulings were approved in Eich v. Sievers, 73 Ill. 194; People v. Hotz, 261 Ill. 239, on page 256; People v. Barr, 262 Ill. 202 on page 214; and Johnson v. Cunningham, 56 Ill. App. 593. But we are unable to see how the course pursued in those cases can be applicable to this case. No evidence which plaintiff gave or could give could tend to make a case against Noonan without also tending to make a case against Mrs. Carothers, but if there was a verdict against Mrs. Carothers and Noonan there could be but one assessment of damages against each. Plaintiff’s testimony tended to increase the damages by showing the extent of her pain and suffering. The damages could not be increased against Noonan without also being increased against Mrs. Carothers. If at another trial there should be a verdict and a judgment against both defendants, we are unable to see how it can be sustained if Mrs. Carothers continues insane and her conservator objects to plaintiff’s testifying, and plaintiff does testify ostensibly against Noonan only.

For the errors above stated, the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Skilbeck and Brown, Appellees, v. Hans Andreasen, Appellant.
    Gen. No. 5,884.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by G-erald W. Skilbeck and Evan Brown, co-partners trading as Skilbeck & Brown, against Hans Andreasen to recover a bill claimed to be owed plaintiffs for lathing done for defendant on a building. The suit was originally commenced before a justice where plaintiffs recovered a judgment for $63.83. On appeal to the Circuit Court plaintiffs had a verdict and judgment for $50. From the judgment of the Circuit Court, defendant appeals.
    Charles H. King, for appellant.
    E. V. Orvis, for appellees.
    Abstract of the Decision.
    1. Building and construction contracts, § 97

      —admissibility of evidence. In an action for lathing done on a building, defendant testified that he paid a certain sum to a third person to secure other men to do part of the work not done by plaintiffs and such testimony was excluded. Held that exclusion of such testimony was proper where there was no testimony showing the hiring of such third person was necessary, the time spent by him in finding lathers or that such sum was a reasonable compensation.

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Appeal and ebbob, § 472 —necessity of preserving objection to questions asked of witness by court. Though section 81 of the Practice Act, as amended in 1911, J & A. ¶ 8618, does away with the necessity for preserving an exception, it is still the law that counsel considering themselves injured by question asked of a witness by the court must object thereto and give the trial judge an opportunity to withdraw the objectionable question.

Whitney, J., took no part in this decision.


text:
    Rommel Brothers, Appellees, v. W. H. Wenks, Appellant.
    Gen. No. 5,892.
    1. Assumpsit, action op, § 46

      —necessity for privity of contract. In an action on the common counts for money had and received, the right to recover does not depend on privity of contract but is governed by principles of equity, although the action is at law.
    2. Assumpsit, action of, § 44

      —when lies against person receiving overpayment on check. Where a check is given for a certain amount and cashed by the bank for a greater amount, owing to an ambiguity, the drawer may treat the bank as justified in paying the greater amount and sue the party who had the check cashed at the bank to recover the overpayment, in an action for money had and received.
    3. Assumpsit, action of, § 89

      —when evidence sufficient to show amount received for check. In an action for money had and received against a person who cashed plaintiff’s check at the bank for a greater amount than the check was intended to be given, evidence held sufficient to show that the defendant received the greater sum and that he was not entitled to the whole amount.
    4. Evidence, § 73

      —when rendered admissible by cross-examination. Not error for court to admit evidence made necessary and proper by cross-examination.
    5. Instructions, § 107

      —iohen rulings on proper. Action of court in giving certain instructions and in refusing requested instructions, held proper as against complaints thereto based on an unsound position of appellants.

      6. Appeal and ebrob, § 1523

      —when giving of instruction harmless. The giving of an instruction so worded that it might be thought to cast distrust upon the arguments of counsel and also indicating that in ascertaining the facts the jury were not to consider the absence of testimony, held harmless.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    J. T. & S. R. Kenworthy, for appellant.
    Searle & Marshall, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Rommel Brothers are partners in the business of farming near the village of Edgington. Miller West-bay is in the harness business at Edgington. W. H. Wenks is a merchant at the same place. Robert P. Waite lives at Reynolds and runs two private banks, one at Reynolds and one at Taylor Ridge, the latter named the Bank of Taylor Ridge, and conducted by Jennie McConnell, as cashier. Edgington is five miles from Taylor Ridge. Rommel Brothers had an account with the Bank of Taylor Ridge and had an arrangement by which they could overdraw their account. There was no bank at Edgington and Wenks was accustomed to cash checks for people of that vicinity. On March 28, 1910, Rommel Brothers had occasion to pay Westbay $2.75, and did so by a check on the Bank of Taylor Ridge, payable to the order of Westbay, but by mistake made his name read “Miller Westay.” The words in the check were ‘ ‘ two seventy-five dollars. ’ ’ In the margin was a dollar sign. Next to the right of that a figure “2” and then next to the right of that and a little higher up than the figure “2” the figures “75,” and still further to the right two ciphers with a line drawn underneath. The words are ambiguous. By section 17 of the Negotiable Instrument Law of 1907 (J. & A. ¶ 7656), where there is a discrepancy between the words and the figures in such an instrument, the words control, but if the words are ambiguous or uncertain, reference may be had to the figures to fix the amount. Reference being had to these figures the rea- . sonable construction of the check is that it is for $275. Westbay received it for $2.75. A day or so later he took it to'the store of Wenks and asked Wenks to cash it and Wenks gave him $2.75 for it. Shortly after this check was issued, one of the Rommels was in the Bank of Taylor Ridge and told the cashier that they had certain checks outstanding, including one to Westbay for $2.75 and asked if they had money enough to their credit to pay those checks and the cashier gave them the amount of their balance, which was a few cents less than Rommel had supposed, and he deposited enough to cover those outstanding checks. On April 8, 1910, Wenks went into the Bank of Taylor Ridge with a number of checks, and asked the cashier to cash them. Among them was this check. The cashier cashed the checks for Wenks. It is claimed that the cashier paid Wenks $275 upon this check. She charged the check to Rommel Brothers at $275, thereby creating an overdraft. Some days later Rommel Brothers ascertained there was an overdraft to their account and went to the bank and saw the'check and brought Wenks and Waite together. It is a disputed question whether Wenks admitted that he received $275 on the check. He refused to refund. Afterwards this suit was instituted and a declaration was filed, containing the common counts only, to which was attached a statement of the alleged facts and charging that the check was drawn to pay an indebtedness of $2.75, and by mistake was so drawn as to direct the payment of $275; that the payee indorsed and delivered it to Wenks as a check for $2.75 and that Wenks received $275 from the bank thereon, all of which except $2.75 was paid to Wenks by mistake. Wenks pleaded the general issue and there was a jury trial and a verdict and a judgment for Rommel Brothers for $308.05, being $272.25 and the interest thereon to the date of the trial. Wenks appeals.

It is proved without dispute that the check was issued to pay Westbay $2.75 and that Wenks paid Westbay $2.75 for it and that he presented it at the bank on April 8th, with other checks, and that the checks were cashed by the cashier. Miss McConnell testified that the books showed the payment of $275 on this check to Wenks and that she had the recollection, independent of the books, that she paid him $275 on that check. The abstract makes her say, on cross-examination, that she had no knowledge that Wenks presented the Bommel check. The record shows that she testified exactly the contrary to that on cross-examination. Waite testified that he was present near the cashier when Wenks presented the checks and that he heard the cashier count out to Wenks somewhere between $3.00 and $400, but the precise amount he did not remember. The cashier presented figures from the books showing the name and the amount of each of the other checks which Wenks then cashed, and they were for small sums in the aggregate. The cashier testified that she balanced her cash each night and that she did so on the close of business on that day and that her cash exactly balanced, counting this check at $275. Wenks testified that he did not know how much the checks amounted to nor how much money he received. He testified that he told Waite and Bommel that he did not get $275 on this check and this was denied by Waite and partially denied by Bommel, but Wenks did not testify that he did not receive $275 on this check. It is entirely clear that the great weight of the evidence is that he did receive $275 thereon. He therefore received $272.25 to which he was not entitled, and his declaration that he would not refund until compelled to do so waived any necessity for a demand.

Appellant contends that if he did receive that sum in excess he is indebted to the bank alone therefor and not to Bommel Brothers, who have not yet paid the bank the amount of the overdraft. He contends that the question whether or not the bank was negligent in paying $275 on this check instead of $2.75 was material to be tried by the jury, and he makes an ingenious argument, which carried to its logical conclusion might relieve him from refunding the excess to anybody. These contentions do not meet our approval. He received this money on the written order of Eommel Brothers. The check was carelessly drawn and might easily be understood to be a check for $275. Eommel Brothers were not required to litigate that question with the bank. They had a right to treat the bank as justified in paying that sum. It has been charged against Eommel Brothers in the bank and they have not repudiated the charge and were not required to do so. Wenks has money to which he is not entitled which he has received upon the order of Eommel Brothers and which is charged to their account. If privity of contract were necessary to be shown, there is sufficient here to uphold this suit by Eommel Brothers against Wenks. But the common counts are, among other things, for money had and received, and the right to recover under that count does not depend upon privity of contract, but is governed by principles of equity, although the action is a law. “The action is maintainable in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it and which ex aequo et bono belongs to another.” Highway Commissioners v. City of Bloomington, 253 Ill. 164, on page 174. But appellant expresses a fear that he may be liable to another action by Waite for the same money. The proof shows that Waite took one of appellees to Waite’s attorney and laid the facts before him and they agreed that the attorney should bring the action against Wenks in such form as he considered legal and proper. Waite attended the trial and was a witness for appellees. He will be estopped from maintaining an action against Wenks for the same money.

Complaint is made of rulings upon evidence in admitting conversations between Waite and one of the Rommels with the attorney who brought the suit. This evidence was made necessary and proper by the cross-examination of the two appellees. One of them was made to state on cross-examination that the suit was brought without his knowledge or consent. The other appellee was cross-examined on the same subject. and left the matter of his authorizing the suit in some doubt. It then became proper to show that Waite and one of the appellees authorized the attorney to bring the suit in such name as he thought best. The evidence did not injure appellant. The court did not err in that respect.

Appellant complains of instructions given at the request of appellees and of the refusal to give instructions requested by appellant. These complaints are mostly based upon appellant’s position that it was essential for appellees to prove that they made the mistake which led to the overpayment and that the bank did not make a mistake in paying $275 on the check, and that if the proof showed that the bank was negligent, then plaintiffs could not recover. The rulings of the court on those instructions were correct, because this position by appellant is unsound. Some other criticisms on appellees’ instructions are not well founded. One instruction, given at appellees’ request, was intended to tell the jury that they must look to the evidence and not to the arguments of counsel to ascertain what facts were proved, but it was so worded that it might be thought to cast distrust upon the arguments of counsel. It also indicated that in ascertaining the facts, the jury were not to consider the absence of testimony. The only absence of material testimony to which this would apply was the failure of Wenks to testify that he did not receive $275 on the check, but in that respect the instruction was favorable, instead of harmful, to appellant. We do not approve the form of the instruction, but consider it harmless in this case. The verdict does substantial justice.

The judgment is affirmed.

Affirmed.


text:
    Sam Clouston, Appellee, v. Galesburg & Kewanee Electric Railway Company, Appellant.
    Gen. No. 5,898.
    (Not to be reported in full.)
    Appeal from the City Court of Kewanee; the Hon. H. Steeling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Sam Clouston against Galesburg & Kewanee Electric Railway Company to recover for injuries to plaintiff’s horses and wagon by being struck by one of defendant’s street cars. The wagon was used as a street sprinkler and was being driven by a servant of the plaintiff at the time of the accident. From a judgment entered on a verdict for plaintiff for two hundred dollars, defendant appeals.
    Robert C. Morse and Sturtz & Ewan, for appellant.
    James H. Andrews, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Street railroads, § 131 -—when evidence sufficient to sustain recovery for injuries to horses and wagon. In an action against a street railway company to recover for injuries to horses and wagon owned hy plaintiff and driven by his servant for the purpose of sprinkling the street, it appearing that the wagon was being driven along the side of defendant’s car tracks and that the wagon was struck by a street car going in the same direction, held that a verdict for plaintiff was sustained by the evidence.

2. Street railroads, § 124 —what evidence competent to show speed of car at time of collision. In an action for injuries to plaintiff’s horses and wagon by being struck by defendant’s street car while the wagon was being driven by plaintiff’s servant, testimony by the servant as to personal injuries held competent, as tending to show the speed with which the car was driven when it struck the wagon.

3. Appeal and error, § 1489 —when admission of testimony as to facts otherwise proved not prejudicial. In an action to recover for injuries to plaintiff’s horses and wagon while being driven by a servant of plaintiff, resulting from being struck by defendant’s street car, permitting the servant to describe his injuries held not prejudicial error, for the reason that such injuries were proved by other testimony to which no objections were made.


text:
    W. H. Chadwick, Appellee, v. The Dicke Tool Company, Appellant.
    Gen. No. 5,901.
    1. Corporations, § 450

      —power to execute promissory notes. A corporation organized for pecuniary profit has power to give a note during the two years allowed for its liquidation for a debt which existed before the period of its corporate authority had expired by limitation.

      2. Corporations, § 57

      —when estopped to deny corporate existence. In an action against a company on its promissory note where its defense was that the corporate existence of the defendant had expired by limitation before the note was given and that therefore the note was void, held that the defendant by assuming to act as a corporation was estopped from denying its existence as a corporation.
    Appeal from the Circuit Court of Du Page county; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Oliver M. Olson and Charles H. Leech, for appellant.
    Bunge, Harbour & Chadwick, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On March 1, 1909, appellant executed its promissory note to the order of G. H. Bunge, payable one year after date, in the sum of $55 with interest at the rate of six per cent, per annum. Bunge indorsed said note to the order of W. H. Chadwick, and the latter, after the maturity of the note, sued appellant thereon before a justice of the peace and had a judgment, from which appellant appealed to the Circuit Court, where a jury was waived and the cause was tried and there was a judgment against appellant for $68.40, from which defendant below appeals to this court.

The defense interposed was that the corporate existence of appellant had ended before this note was given and therefore the note was void. Appellant was organized under the Act of 1872 relating to corporations for pecuniary profit. (J. & A. ¶¶ 2418 et seq.) Section 2 of that Act requires that the statement to be filed in the office of the Secretary of State shall set forth, among other things, the duration of the corporation. Section 4 requires that after certain preliminaries the Secretary of State shall issue a certificate of the complete organization of the corporation and attach thereto certain papers, and that said copy shall be recorded in the office of the recorder deeds of the county where the principal office of such company is located, and that when so recorded the corporation shall be deemed fully organized and may proceed to business. Section 10 provides that corporations whose powers expire by limitation shall continue their corporate capacity for the term of two years for the purpose only of collecting the debts due it and selling and conveying its property and effects. The statement made by those who organized this corporation set forth the location of its principal office as Chicago and its duration as ten years. Its certificate of complete organization was dated February 20, 1897, and was recorded in Cook county on March 10,1897. It was then deemed to be completely organized, and the ten years named in its application or statement expired on March 10, 1907, and the two years given for settling its business expired March 10, 1909, and this note was therefore given before the expiration of said two years, contrary to the contention of appellant. The consideration for the note was the preparation of legal papers for a sidetrack, and some other services of that kind for appellant. It seems that the persons owning the appellant Company arranged to incorporate under another name, but they had many things to do to close up the business of appellant and they did business under the name of Dicke Tool Company as late as July 12, 1912, over three years after this note was given. There was no proof when the services were rendered for which the note was given, although that fact was within the knowledge of appellant and cannot be presumed to have been within the knowledge of appellee, who was only the indorsee of the note. We do not doubt the power of a corporation to give a note during the two years allowed for its liquidation for a debt which existed before the period of its corporate authority had expired by limitation. . But if it be a fact that the corporation continued to transact business in its corporate name after the ten years and the two years had expired, nevertheless, we think the corporation would be liable even if not then lawfully doing business in the corporate name, under the principles laid down in United States Exp. Co. v. Bedbury, 34 Ill. 459, as follows: “When an association of persons assume a name, which implies a corporate body, and exercise corporate powers, they should not be heard to deny that they are a corporation. When they do act and contract they are estopped from denying their corporate liability.”

The judgment is therefore affirmed.

Affirmed.


text:
    Mable Trapp, Administratrix, Appellee, v. Rockford Electric Company, Appellant.
    Gen. No. 5,904.
    1. Evidence, § 173

      —when telephone conversation admissible. The rule that the recognition of the voice of the person talking is indispensable to the admission in evidence of a conversation over a telephone is not applicable to a conversation with a business house over the telephone of such house and in relation to the business there carried on.
    2. Negligence, § 230—when giving of instruction as to care required of child not prejudicial. In an action to recover for the death of a child, the giving of an instruction for plaintiff to the effect that a boy of the age of deceased was only required to exercise that degree of care and caution which boys of his age, capacity and experience may be reasonably expected to use under like circumstances, held not reversible error, for the reason that it omitted the element of ordinary prudence.
    3. Electbioity, § 26

      —when evidence offered to show no complaint was made of defective wires properly rejected. In an action against an electric light company for the death of a child where plaintiff had introduced evidence showing that the company had been notified by telephone of the defective condition of wires, an offer by defendant to show by a witness that by the rules of defendant’s office a memorandum was made of any complaints which came in by telephone and that the records of the office showed no such complaint, held properly rejected, it appearing that the complaint by telephone had been received by a man and there was no offer to show whether there were more than one or two men employed at the office who could have received such evidence and there being no offer to show that telephone complaints were preserved in any books.
    4. Electbioity, § 27

      —when recovery for death resulting from defective wire sustained hy the evidence. In an action against an electric light company to recover for the death of a child caused by his touching or taking hold of a hoisting wire attached to a pole and used in raising and lowering an arc light in a street, a verdict for plaintiff held sustained by the evidence.
    5. Death, § 67

      —when verdict for death of child not excessive. A verdict for $5,200 for loss to next of kin resulting from the death of a child, sustained as not excessive, it appearing that the boy was twelve years old, that he had been a newspaper boy in evenings earning $3.50 to $4.00 per week since he was six years old, that he gave his money to his mother and that his father was in an insane asylum.
    Appeal from the Circuit Court of Winnebago county; the Hon. Abthob H. Frost, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Fisher & North, for appellant.
    E. D. Reynolds, 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. Justice Dibell

delivered the opinion of the court.

Arthur Trapp, twelve years and four months old, touched or took hold of the lower end of a hoisting wire attached to a pole and used in raising and lowering an arc light, operated by the Rockford Electric Company in the city of Rockford, on the evening of July 7, 1912, and received a charge of electricity which instantly killed him. He left surviving a mother, a father, who was in an insane asylum, and nine brothers and sisters. His mother was appointed administratrix of his estate and she brought this suit against the Rockford Electric Company to recover for the loss to the next of kin of the deceased. She filed a declaration, containing several counts, charging liability in various ways. There was a jury trial and a verdict and a judgment for plaintiff for $5,200, from which defendants below appeal.

It is argued that error occurred in the impanelment of the jury. Appellee’s counsel put a question to a juror. That question is not in the bill of exceptions. A colloquy ensued between court and counsel as to whether appellee’s counsel in questioning a juror concerning the degree of care to be required of deceased should insert the qualification of reasonable prudence. The court expressed the opinion that that qualification need not be inserted in the question and the court held that it would allow the juror to be questioned on the line he had indicated. An exception to that ruling was taken. The bill of exceptions does not show what questions were propounded, what answers were made nor whether the juror was accepted or rejected. Obviously, no error at that point is shown. The question will be discussed further in considering instructions.

North Horsman street runs north and south and Lapp court crosses it at right angles. On the north side of Lapp court and on the east and west sides of North Horsman street were two poles, owned by appellant and stationed between the sidewalk and the traveled part of the street where the ground was level. There were two cross-arms upon each pole. A cable across the street supported an arc light in the center of the street. Upon these cross-arms were electric light wires and from these main wires on the lower cross-arms of the pole at the northwest corner two feed wires ran to the arc light. A small hoisting wire extended from a point about four and one-half feet above the street to a point three feet above the top cross-arm and from there over a pulley to the mechanism about the arc light in the center of the street. About three feet above the lower end of the hoisting wire was an insulator. This hoisting wire was not connected with any wire which conveyed electricity, but the obvious purpose of the insulator near its lower end was to protect those who used the hoisting wire from any accidental current of electricity thereon. The hoisting wire was attached to the pole by a snap or lock at its lower end. This lamp was in a thickly-settled residence district. Many children were accustomed to play about that corner in the evenings, attracted no doubt by the light. This pole at the northwest corner was commonly used by the children as a goal in their games. Some twenty-seven .children had been playing about there that evening, which was Sunday, and ten or twelve were playing there at the time Arthur was killed. He and others were playing hide and seek. Arthur ran up to the pole, struck it three times and thereby liberated himself from the game, picked up a piece of tin from the street and said he was going to play “electric man,” and either touched or took hold of the lower end of this hoisting wire and fell dead. There is no doubt but that he received a heavy charge of electricity, such as was used in the night to supply the feed wires. Whether the apparatus for conveying heavy voltage from the pole to the lamp and the apparatus for lowering and hoisting the lamp were out of repair, whether the insulation on the feed wires had become defective and dangerous, how the electricity passed from the feed wire to the hoisting wire, whether the insulation on the hoisting wire was out of repair, and whether these things were unsafe and had been so for so long that appellant should have known the fact and repaired the defect, were all questions for the jury, to be determined from the direct and circumstantial evidence introduced.

It is argued that the court erred in rulings upon evidence. Mrs. Snyder, who lived on North Horsman street a little south of Lapp court, testified that between the pole in question and the next pole south of it, the electric wires pass through trees and that the leaves of those trees, where they came into contact with the wires, had often been on fire during a period of more than a year before this accident, and that more than a month before Arthur was killed she saw them on fire and called up the electric company by telephone and was answered by a man and reported to him the fact concerning the fire communicated from said wire to said leaves. It is argued that this conversation was incompetent, as she did not recognize the voice of the person with whom she talked. There are a number of cases in the Appellate Court reports holding that a recognition of the voice of the person talking is indispensable to the admission of a conversation over a telephone. That rule, however, is not applicable to a conversation with a business house over the telephone of such house and in relation to the business there carried on. Upon this subject in a similar case the Supreme Court of Missouri, in Wolfe v. Missouri Pac. Ry. Co., 97 Mo. 473, 3 L. R. A. 539, 542, used the following language:

“The courts of justice do not ignore the great improvement in the means of intercommunication which the telephone has made. Its nature, operation and ordinary uses are facts of general scientific knowledge, of which the courts will take judicial notice as part of public contemporary history. When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible. The ruling here announced is intended to determine merely the admissibility of such conversations in such circumstances; but not the effect of such evidence after its admission. It may be entitled, in each instance, to much or little weight in the estimation of the triers of fact, according to their views of its credibility, and of the other testimony in support, or in contradiction, of it.”

Our Supreme Court approved of this rule in Godair v. Ham Nat. Banh, 225 Ill. 572. We followed the same rule in Snively v. Colburn, 78 Ill. App. 93, and in Rogers Grain Co. v. Tanton, 136 Ill. App. 533. Appellant contends that this is the only evidence tending to charge appellant with notice of the defective conditions of the wires at said corner, but it will be seen hereafter that we find much evidence which might reasonably tend to charge appellant with notice. It was not error to admit this telephone conversation In answer to this evidence appellant called a young woman, who testified that she was an employe of appellant during the period covered by the evidence of Mrs. Snyder and that it was her duty to attend the telephone during the hours when she was at work and that she received no such complaint. Appellant also called another young woman, who testified that she was an employe in appellant’s office during that period and that, to the best of her knowledge, no such complaint was received. Appellant then offered to prove by a witness that by the rules of the office of appellant, whenever a complaint came in by telephone as to any pole, wire or lamp, the party receiving the complaint made a memorandum of it and placed it on file for the heads of the department to do the repairing, and that said witness had searched the records of the office pertaining to such complaints during the time she had been in the office, and that the records did not show snch a complaint with reference to the pole, lamp or wire at the corner of these streets. It is urged that the court erred in sustaining an objection to said offer of proof. Mrs. Snyder testified that her complaint was received by a man. Appellant did pot examine on this subject any man in its employ in its office. For aught that we can know, it may have had but one or two men who worked in its office and who could have received such a message, and calling such man upon the subject might have completely answered the evidence of Mrs. Snyder or might have proved her evidence true. If it had been shown that there had been a large number of men in its office during that period, who might have answered the telephone, and that some of them were where they could not now be found, perhaps the offered evidence might have been admissible; but, further, there was no offer to show that the memoranda of telephone complaints were preserved or entered of record in any book, and the offer did not exclude the destruction of them as soon as acted on. We conclude that, under the circumstances existing, the offer was properly rejected. But, if not, there was proof of so many other circumstances calling upon appellant to take notice of the condition of its wires at that street corner that we are of opinion that there was no reversible error in the rejection of this offer. Complaint is made of the argument of counsel for appellee to the jury. The court seems to have ruled with appellant on the only objection it made upon that subject, and it made no further objection and we find no reason to believe that what was said was injurious or improper.

The second instruction, given at the request of appellee, was in part to the effect that a boy of the age of deceased was only required to exercise that degree of care and caution which boys of his age, capacity and experience may reasonably be expected to use under like circumstances. It is argued that it should have included that degree of care that an ordinarily prudent boy would exercise under like circumstances, and that the instruction was erroneous in not including the element of ordinary prudence. The question what is required of such a child has often been passed upon by our Supreme Court and the terms used have not always been exactly the same. In City of Pekin v. McMahon, 154 Ill. 141, the court held that a child over seven years of age was bound to use such care as children of his age, capacity and intelligence are capable of exercising. In Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, age, intelligence, capacity and experience were held to be the requirements established by the decisions of this State, and an instruction which omitted some of these elements was held to have been erroneously given. In the two cases last cited several other earlier Illinois cases are referred to. In Quincy Gas & Electric Co. v. Bauman, 104 Ill. App. 600, the same instruction now under consideration was given and approved, and on appeal to the Supreme Court it was held in 203 Ill. 295, that said instruction fairly presented the law applicable to the case. In United Breweries Co. v. O’Donnell, 221 Ill. 334, the diligence required of the child was that which a reasonable person of his age should exercise, taking into consideration his age, capacity and discretion to avoid danger, which was qualified by other instructions, making age, intelligence, capacity, experience and ability to take care of himself the elements required. In Lake Erie & W. R. Co. v. Klinkrath, 227 Ill. 439, and Fowler v. Chicago & E. I. R. Co., 234 Ill. 619, where the elements stated in the instruction were age, capacity and intelligence, the instructions were held erroneous because they did not include the element of experience. Supported as the instruction now before us is by these authorities, we cannot say that it was reversible error to give it. But, further, if it omitted a necessary element of prudence, as contended, yet it did not direct a verdict, and the sixth instruction,' given at the request of appellant, included the element of prudence, and the fifth and eight instructions given for appellant practically placed on the deceased the same duty to care for himself as if he had been an adult. Under the rule that the instructions are to be considered as a series, and construed together, the jury were fully instructed on this subject, even upon appellant’s own view of the law. Moreover, by the third instruction, given at appellant’s request, the jury were told that they should consider each and all of the instructions as one charge to the jury, and that they should give force and effect to each and all of the instructions, and that unless the preponderance of the evidence brought appellee’s case within the law, as laid down by the whole series of the instructions, they should find for appellant. In this condition of the record there was no reversible error in giving the second instruction requested by appellee. Appellant complains of instructions Nos. 6, 8 and 9, given at appellee’s request on the subject of damages. If No. 6 stood alone, we should regard it as questionable, as tending to allow the jury to select their own measure of damages. But these defects are covered, we think, by the eighth and ninth. The ninth told the jury that in making an estimate of the damages they were not limited to the earnings of deceased until he should arrive at the age of twenty-one, but might take into consideration every reasonable expectation such next of kin may have had of pecuniary benefits or advantages from the continuance of his life, so far as the same may be shown by the evidence. Said instructions Nos. 8 and 9 are criticized by appellant, but No. 8 is approved in North Chicago St. R. Co. v. Fitzgibbons, 180 Ill. 466; Richardson v. Nelson, 221 Ill. 254, and Keokuk & H. Bridge Co. v. Wetzel, 228 Ill. 253; and No. 9 is approved in Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535, and cases there cited; North Chicago St. R. Co. v. Johnson, 205 Ill. 32, and United States Brewing Co. v. Stoltenberg, 211 Ill. 531. The two instructions requested by appellant and refused were embodied in those given at its request. We conclude there is no reversible error in the instructions.

It is contended that appellant is not liable under the proof. Many boys who played about that corner were witnesses, some called by appellee and some by appellant. It clearly appears that for a long time and perhaps for a year or more electricity had been passing down the hoisting wire and past the insulator to the end of the wire and that it had been common practice for a long time for the boys to touch or take hold of the end of the hoisting wire and receive a slight shock therefrom; that once the shock had been sufficiently strong to knock down the boy who made the experience, but whether Arthur knew that fact does not appear; that the arc light at that place had often gone out or sputtered, indicating trouble in that vicinity; that the leaves in the trees between that pole and the next had often been on fire from contact with wires. There was proof tending to show that the insulator in the hoisting wire had “broken down.” There was proof tending to show that the insulation of the feed wires from the pole to the lamp had “broken down” or worn through. From all the evidence on that subject, the jury might reasonably infer that the lamp and the wires in question had long been in a defective and dangerous condition, and that appellant, in the exercise of ordinary care over so dangerous an agency, should have known thereof long prior to the death of Arthur and should long prior thereto have repaired the same. The jury might well find that appellant, by the exercise of ordinary care, should have known what all the boys in that neighborhood knew and had known for a year. One or two boys testified that deceased told them to be careful about touching .this hoisting wire or they would be killed, from which appellant argues that deceased knew the danger. One of said witnesses in cross-examination stated the matter somewhat differently. The rule in question is intended to protect children against their lack of sound judgment. The frequency with which the boys had been shocked by touching this wire and received no ill effects tended to lull them into security and to cause them to fear no actual harm therefrom. We are of opinion that the jury were warranted in finding that appellant was guilty of negligence charged in the declaration and leading to the death of appellee’s intestate, and in finding that the deceased had not been guilty of any conduct which the law would impute to him as negligence.

It is said the damages are excessive. We would have been better satisfied- with a smaller allowance, for this is not to compensate deceased or his pain, but relates only to the pecuniary loss to the next of kin. But Arthur had been a newspaper boy in eyenings, earning from $3.50 to $4 per week, ever since he was six years old, besides attending school in the daytime, and he gave this money to his mother, and was in good health. His father was in an asylum and obviously not able to care for himself. The question how much the next of kin lost by his death is one impossible to be measured with any exactness. It depends upon what might have happened in the future if he had lived. It seems peculiarly the province of the jury to determine what sum shall be allowed, and we are not at liberty to disturb the award of the jury, unless it is so great as to indicate that it was rendered from improper motives. We do not feel warranted in saying that in this case.

The judgment is therefore affirmed.

Affirmed.