author: Mr. Justice Holdom

text:
    Jacob L. Kesner, Appellee, v. Charles Truax and Willard T. Block, appeal of Willard T. Block, Appellant.

      Gen. No. 20,350.
    1. Trial, § 68

      —when counter-affidavits inadmissible. Counter-affidavits read, on a motion to open a judgment- by confession, which are not filed and are withdrawn before the conclusion of the hearing, cannot be considered as in the case as evidence, but the decision on the motion will be held to have been made on other evidential facts.
    2. Appeal and error, § 1380

      —when motion to vacate judgment addressed to discretion of court. An application to vacate a judgment is addressed to the sound discretion of the court and on appeal, unless the court of review can say from the evidential facts in the record that such discretion has been abused or inequitably exercised, the judgment appealed against will not be disturbed.
    3. Judgment, § 281

      —when laches a, ground for refusal to open judgment by confession. A motion to open a judgment by confession and for leave to plead and defend being analogous to a motion to vacate a judgment by default, the rule as to laches in default cases applies, and a long delay after judgment in making such motion is negligence constituting laches sufficient to bar relief.
    4. Joint tenancy, § 3

      —when possession by one tenant is possession by the other. Where one of cotenants equally bound by the lease and having joint rights and obligations is in possession, such possession is the possession of both.
    5. Landlord and tenant, § 216

      —when failure to make changes not ground for cancellation of lease. Where a tenant enters upon the term and receives possession, he cannot cancel a lease on the ground of the landlord’s failure to make changes and improvements covenanted to be made in the lease, but subject to no time limit, by giving notice after so taking possession.
    6. Landlord and tenant, § 310

      —when tenant not released by a note given by cotentant. The giving of a note by one of two cotenants with collateral security for rent past due does not release the other from the obligation imposed upon him by reason of his being a lessee in the lease nor relieve him from his covenant to pay rent.
    7. Landlord and tenant, § 6

      —when lease not tentative. Evidence in action for rent examined and held not to support contention that lease was only tentative.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Lyman, Adams & Bishop, for appellant.
    D’Ancona & Pflaum, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal by Willard T. Block from an order denying his motion to open a judgment by confession for $16,000 against himself and his colessee, Charles Truax, entered in virtue of a power of attorney contained in a certain lease to both of them of parts of the premises numbered 116 South Michigan avenue, Chicago, and for permission to plead to the action. The judgment was for rent of the demised premises from February 1st to September 30, 1912, and does not include any amount for attorneys’ fees.

There is no dispute concerning the execution and delivery of the lease. The judgment was entered November 7, 1912, and the motion of appellant to be let in to plead filed January 25,1913. The motion was fortified with the affidavit of appellant; and his codefendant, at his instance, gave oral testimony upon the hearing. Counter-affidavits were read by counsel for Kesner, but were not filed and before the conclusion of the hearing were withdrawn. It appears that the lessees contemplated forming a corporation to carry on business upon the leased premises, and an addenda to the lease was made, providing that when such corporation was formed the lease might be assigned to it, the lessees, however, remaining liable for the performance of all the covenants of the lease obligatory upon them thereunder. After default in the payment of some rent, Truax gave a note to Kesner with collateral security as additional security for its payment. Certain alterations and changes in the leased premises were covenanted to be made by the lessor, but no time for the completion thereof was fixed upon. The lessees were allowed by the terms of the lease to move into the demised premises their trade fixtures at any time after the execution of the lease and before the commencement of the term demised. Such fixtures were placed in the premises soon after the lease was executed, and the lessees through Truax took possession at about the same time. Appellant, on January 8, 1912, wrote a letter to the lessor that he withdrew from the lease because improvements agreed to be made were not made by January 1, 19,12. Thereafter the lessor replied to this letter denying that delay in making the improvements was his fault, claiming it was occasioned solely through lessees changing their ideas, necessitating corresponding alterations. Appellant also wrote his cotenant, Truax, informing him of his letter to Kesner. It also appears that at the end of September, 1912, Truax removed from the premises, Block, the appellant, never having personally taken possession. Whatever possession appellant had was constructive and arises from the possession of his cotenant, Truax.

The counter-affidavits, portions of which were read by appellee upon the hearing of the motion, never having been filed, were ultimately withdrawn from the consideration of the court. While such affidavits in certain circumstances are admissible (Farrior v. Mickle, 133 Ill. App. 444), yet in the condition of this record we must hold that they are not and never were in this case as evidence, and that the decision of the court upon appellant’s motion was based solely on the other evidential facts, and that the court disregarded these counter-affidavits.

An application to vacate a judgment is addressed to the sound discretion of the court (Blake v. State Bank of Freeport, 178 Ill. 182), and unless the court of review can say from the evidential facts in the record that such discretion has been abused or inequitably exercised, the judgment appealed against will not be disturbed. Mumford v. Tolman, 157 Ill. 258; Kloepher v. Osborne, 177 Ill. App. 384.

The court says in the Osborne case, supra, that “although it may be shown that the defendant has a good defense, a default will not be set aside if the defendant, or his attorney, has been guilty of negligence.” A motion to open a judgment by confession and for leave to plead and defend is analogous to a motion to vacate a judgment obtained by default, and the rule as to laches in default cases is applicable. We think that the long delay of appellant after judgment in making his motion was negligence on his part, which negligence constituted laches sufficient to bar him from obtaining relief.

Appellant and Truax were cotenants and both were equally bound by the lease. Their rights and obligations were joint, and the possession of Truax operated in law as the possession of both. The changes and improvements covenanted to be made in the lease are subject to no time limit, but had the landlord been in default as to such covenant, appellant could not cancel the lease by the notice he gave or thereby evade his liability as tenant in possession; for, as said in Reno v. Mendenhall, 58 Ill. App. 87: “If a landlord covenants to repair before the term commences, the tenant might refuse to enter upon the term until the repairs are made, but having entered upon the term and received possession, he cannot abandon the lease and refuse to pay rent for the breach of that covenant.” The giving of the note by Truax with collateral security for rent past due in no way tended to release appellant from the obligation imposed upon him by reason of his being a lessee in the lease or to relieve him from his covenant to pay rent.

The contention of appellant that the lease in the record was only of a tentative nature finds no support in that document.

The record failing to show that appellant has any meritorious defense to the claim for rent for which the judgment found in the record was confessed, the judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    New Idea Arc Light Company, Plaintiff in Error, v. G. C. Renneker Company, Defendant in Error.
    Gen. No. 20,390.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by New Idea Arc Light Company, a corporation, plaintiff, against Gr. C. Renneker Company, a corporation, defendant, for a balance due on goods sold and delivered.
    This action was based upon three written contracts for the sale by plaintiff to defendant of thirteen electric lamps at the price of $15 each, payable in instalments. The lamps were installed and $24 paid on the total purchase price of $195. Defendant contended that the lamps did not perform the work for which they were bought, and counterclaimed against plaintiff’s claim the $24 it had paid on account. The trial court found the issues for the defendant on the counterclaim and gave judgment in its favor for $24, and plaintiff prosecutes this writ of error in an effort to reverse the judgment.
    There was evidence that the plaintiff was a manufacturer of the lamps contracted to be sold to defendant; that defendant operated printing presses which caused considerable vibration, and that the lamps which defendant was using were often broken by reason of the vibration; that it was represented to defendant at the time of the sale that plaintiff’s “New Idea” lamps would withstand the vibration without breaking; that the lamps sold were to take the place of the ones then in use, which were discarded and the “New Idea” lamps installed! in their stead; that the “New Idea” lamps did not fulfil the purpose for which they were bought and which plaintiff knew they were intended to serve; that the new lamps did not withstand the vibration caused by the running of the presses, but constantly broke so that they could not be used successfully to light the presses.
    Abstract of the Decision.
    1. Evidence, § 360

      —when parol evidence admissible to show relation of parties to contract to each other. In an action on a written contract, evidence of the relation of the parties to each other when the contract was made is admissible to enable the court to construe the contract in that light.
    2. Sales, § 282

      —when evidence sufficient to show breach of implied warranty. Evidence in action for purchase price of goods, examined and held to show breach of implied warranty as to suitability of goods for use for which purchased.
    3. Sales, § 252

      —when warranty of suitability of goods implied. When a manufacturer of articles sells them for a specific use, there is an implied warranty on bis part that they are reasonably fit for such use.
    Defendant offered to return the lamps and demanded that the instalment of $24 paid to plaintiff be returned to it. Plaintiff refused either to pay the $24 or receive back the lamps, and defendant thereupon put the lamps in storage and notified plaintiff of that fact.
    Leon A. Berezniak and H. L. Cavender, for plaintiff in error; H. L. Cavender, of counsel.
    Frank B. Murray, for defendant in error; O. A. Arnston, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    John Dresen, Defendant in Error, v. Metropolitan Life Insurance Company, Plaintiff in Error.
    Gen. No. 20,464.
    1. Insurance, § 84

      —when ladle of insurable interest avoids life policy. A policy of life insurance naming as beneficiary a person who has no insurable interest in the life of the insured is a wager policy and void.
    2. Insurance, § 84

      —when taking out policy and payment of premium by insured does not cure lack of insurable interest. The fact that the insured took out the policy in the first instance and paid the first premium before delivering the policy to the beneficiary does not validate a life policy naming as beneficiary one having no insurable interest.
    3. Insurance, § 332

      —when notice to agent does not validate life policy naming beneficiary having no insurable interest. Notice by a beneficiary of a life policy to the collecting agent of the insurer that he is neither a cousin nor next of kin to the insured is not a waiver by the insurer of the beneficiary’s lack of interest, though he is designated in the policy as cousin of the insured.
    4. Insurance, § 84

      —when statement in application insufficient to create insurable interest. The statement by the insured, in an application for insurance, that the reason for naming the beneficiary is because he contributes to her support and will care for her in case of her death is insufficient to create an insurable interest,
    5. Insurance, § 84

      —when moral claim insufficient to constitute insurable interest. A moral claim of the insured in a life policy upon the beneficiary named therein for support during her lifetime does not constitute an insurable interest.
    6. Insurance, § 159

      —when beneficiary without insurable interest not entitled to premiums. One named a beneficiary in a life insurance policy who had no insurable interest in the insured is not entitled to receive back premiums paid by him, such payments being considered as made as agent and being due to the estate of the insured, if returned.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed November 1, 1915.
    Hoyne, O’Connor & Irwin, for plaintiff in error; Carl J. Appell, of counsel.

      A. W. Fulton and Albert Schaffner, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Annie Kasen in her lifetime took out a policy of insurance upon her life for $210 in the defendant company and named therein as the beneficiary the plaintiff, who was designated in the policy as bearing towards her the relationship of cousin. Annie Kasen paid the first three premiums, the remaining premiums being paid by plaintiff, to whom the policy was delivered by the insured. Annie Kasen died in November, 1913. Plaintiff, having made proofs of the death of the insured and delivered the same to the defendant company, and payment of the amount of the insurance being upon demand refused, brought this suit. The trial was before the court and jury, resulting in a verdict and judgment in favor of plaintiff and against defendant for the amount of the policy. Motions by defendant for a new trial and in arrest of judgment being overruled, it prosecutes this writ of error to reverse the judgment.

While several reasons are argued by defendant why the judgment should be reversed, we shall dispose of the case upon the one fact that plaintiff had no insurable interest in the life of the insured, which fact makes the policy void as a “wager contract” and therefore against public policy.

Plaintiff admitted on the trial that he was not a cousin of the insured or any other blood relation of hers. Nor does it appear that he was a creditor of the insured or that he sustained any other relationship to her which, under the law, would give him an insurable interest in her life. The fact that the insured took out the policy in the first instance and paid the first premium before delivering the policy to plaintiff does not change the situation. The fact that plaintiff paid substantially all the premiums from the time the policy was issued, and had the policy in his actual possession from about the date of its issue, may be said to demonstrate that he indirectly procured the policy to issue upon the life of the insured for his benefit. The fact that plaintiff informed the collecting agent of defend•ant, when premiums were paid by him, that he was neither a cousin nor of kin to the insured, cannot be held as a waiver by defendant of the lack of an insurable interest of plaintiff in the life of the insured. Even the solemn agreement of the parties to that effect could not override the public policy of the State which the transaction involves. By that public policy, the lack of an insurable interest of the beneficiary in the life of the insured makes the policy void. The insured in her application for the policy stated as a reason for naming plaintiff as her beneficiary, “because my cousin, John Dresen, contributes to my support and would care for me in case of my death.” Even if this statement were true, it would be unavailing to create an insurable interest of plaintiff in the life of the insured, because whatever he did or might do. in the way of caring for the insured, either in her lifetime or after her death, would be voluntary and could not by law be compelled, she being neither of kin to nor legally dependent upon plaintiff. Had the insured a moral claim upon plaintiff for support in her lifetime, this would not constitute an insurable interest in her life in favor of plaintiff. A policy of life insurance naming as beneficiary a person who has no insurable interest in the life of the insured is a wager policy and void. Guardian Mut. Life Ins. Co. of New York v. Hogan, 80 Ill. 35; Golden Rule v. People, 118 Ill. 492; Brockway v. Mutual Benefit Life Ins. Co., 9 Fed. 249

While premiums paid upon the policy were tendered by defendant to plaintiff and refused by him, we are unable to say that, under the circumstances shown in this record, plaintiff was entitled to receive such premiums, as, in paying them, he must be regarded as having acted for the insured. Consequently, if these premiums are due from defendant to any one, they are due to the estate of the insured, for in the circumstances of this case there is no privity of contract between the plaintiff and the defendant.

The trial judge erred in not instructing the jury, at the close of plaintiff’s case, to find a verdict for defendant, the proof showing that plaintiff had no cause of action upon the policy in question against the defendant. For this reason the judgment of the Municipal Court is reversed and, as there can be no recovery, the cause is not remanded.

Reversed.


text:
    William J. Kelly, Defendant in Error, v. Mary M. Good, Plaintiff in Error.
    Gen. No. 20,539.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by William J. Kelly, plaintiff, against Mary M. Good, defendant, to recover rent. A trial before the court resulted in a judgment for $104, the sustaining of the right of the plaintiff to levy the distress warrant, the taxing of costs at $6 for appraiser’s fees and $42 for custodian fees, and ordering special execution against the property distrained as well as a general execution. To reverse the judgment, defendant prosecutes this writ of error.'
    Plaintiff, claiming that defendant owed him for rent $114, issued his distress warrant, and, while it does not appear to have been executed, certain personal property of defendant was distrained and two custodians placed in charge of it. Defendant in her affidavit of merits asserted as a defense to $85 of her landlord’s claim that she gave her note for $85 in settlement of that amount of rent, and that the only rent due and unpaid at the time of levying the distress warrant was $20.
    Defendant testified that she settled with one J. A. Lucas, the agent of defendant, for the rent due to February 1, 1914, by giving to him her note for $85. The giving of this note was admitted, but through Lucas, his agent, plaintiff denied that it was given in payment of rent, and asserted that he destroyed the note and did not therefore have it in his possession. On the Question of the giving of the note in payment of the rent, the trial judge seemed to be in doubt and expressed a wish to have plaintiff present in court for interrogation as to whether it was received in payment or as collateral. Thereupon Lucas stated: “I cannot bring in the landlord, for the reason that the landlord is absent from the city; Kelly is a traveling salesman and he is in Texas. ” When the plaintiff was produced in court he testified that at the former hearing he was at home and that Lucas told him to stay at the premises rented to defendant and not to allow any one to enter them, and that “when Mrs. Good returned to the premises I did not allow her to enter.”
    Leon A. Berezniak, for plaintiff in error; Cavender, Kaiser & Wermuth, of counsel.
    Bolton & Moriarty, for defendant in error; Maurice J. Moriarty, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 325 —when evidence insufficient to support claim for rent. Evidence examined and held to show that tenant was entitled to credit on amount claimed to be due for rent.

2. Witnesses, § 257 —when conduct tends to discredit testimony. A false statement made to the trial court by a witness, knowingly and intentionally, tends to discredit his uncorroborated testimony as to other matters.


text:
    American Heating & Plumbing Corporation, Plaintiff in Error, v. William E. Salomon & Company, Defendant in Error.
    Gen. No. 20,606.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed November 1, 1915.
    Statement of the Case.
    The defendant, the general contractor for the building of the “Iris Theater” at No. 5743 West Chicago avenue in Chicago, on the 29th day of November, 1913, entered into a contract with plaintiff for the installing of a heating and ventilating plant in said “Iris Theater.” The contract price was $2,700, which was to be paid, $1,000 “when boiler and radiators are delivered on the premises,” a like amount “when steam is turned on plant,” and the remainder “twenty days after plant is completed, tested and accepted by superintendents.” The amount involved in this suit is the $1,000 payable “when steam is turned on plant.” The defenses interposed are that plaintiff has neither complied with nor completed its contract; that no money is due plaintiff under the contract and -that plaintiff has failed to comply with the mechanic’s lien law of the State. The hearing was before the court, who found the issues for the defendant and entered a judgment of nil capiat and for costs against plaintiff, who brings this writ of error in an effort to reverse that judgment.
    Abstract of the Decision.
    1. Evidence, § 361

      —when parol evidence admissible to show meaning of technical terms. Parol evidence is admissible to show that certain words and phrases used in a contract have a known and established meaning among dealers engaged in the class of trade which is the subject of the contract.
    The first payment of $1,000 was made in accord with the contract without any question or dispute. The first contention of plaintiff is that the provision for the payment of the sum here demanded, “when steam is turned on plant,” méans, by interpretation, when steam is generated in the boiler, circulates through the steam mains and branches leading to the radiators, with steam in the radiators, and the plant is in operation. Plaintiff maintains that the term “when steam is turned on plant” is a trade term, having a significance known to the trade, which significance, under well-settled principles of law, is to be ascertained and followed as entering into the contract , and as being presumably known to the parties at the time the contract was made. The parties introduced evidence of witnesses to sustain their respective contentions.
    J. S. Dudley, for plaintiff in error; William R. Wiley, of counsel.
    Francis E. Croarkin, for defendant in error.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Appeal and error, § 1471 —when admission of parol evidence not ground for reversal. In an action on a written contract where both parties offer parol evidence as to the meaning given by the trade to a certain phrase, neither party can avail of any objection to such evidence on appeal.

3. Contracts, § 198 —what interpretation to be given to trade term. In an action on a contract for installing a heating and ventilating plant, a provision calling for the payment of a certain part of the contract price “when steam is turned on plant” is to be construed in accordance with the significance given to the term by the trade.

4. Contracts, § 198 —how trade term construed. The provision in á contract for installing a heating and ventilating plant that the second instalment of the purchase price shall be paid “when steam is turned on plant” is to be construed as meaning when steam is generated in the boiler, circulates through the steam mains and branches leading to the radiators, and the plant is in operation.

5. Contracts, § 246 —when certificate not essential to payment of part of contract price. If the contract makes no provision that a certificate of the superintendent, that the instalment of the contract price is due, shall be procured before the payment of the instalment, such a certificate is not prerequisite to a right to demand the payment of such instalment where the terms of the contract have been complied with and the work performed.

6. Mechanics’ liens, § 61 —when Act not applicable to subcontractor. Section 5 of the Mechanic’s Lien Act (J. & A. ¶ 7143) does not apply to subcontractors.

7. Mechanics’ liens, §66 —when verified statement by subcontractor not necessary. A request for a verified statement from a subcontractor under section 22 of the Mechanic’s Lien Act (J. & A. If 7160) comes too late when made after the subcontractor has abandoned the contract for the other party’s breach, and letters thereafter written making such request are inadmissible.


text:
    C. F. Geist and J. W. Geist, Trading as Geist Brothers, Defendants in Error, v. Louis Kaplan, Plaintiff in Error.
    Gen. No. 20,700.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the October term, 1914.
    Abstract of the Decision.
    1. Appeal and error, § 1380

      —when leave to defend after confession a matter of discretion. The granting of leave to defend after judgment has been confessed, under power contained in a lease, is a matter addressed to the sound discretion of the court, and unless it can be said that there has been an abuse of discretion, the court of review will not disturb the action of the trial court.

      Affirmed.
    Opinion filed November 1, 1915.
    Rehearing denied November 15, 1915.
    Statement of the Case.
    Action by C. F. Geist and J. W. Geist, trading as Geist Brothers, against Louis Kaplan, defendant, to recover $242.50 alleged to be due as rent'under a lease from plaintiffs to defendant. There was a confession of judgment, under power of attorney so to do, contained in the lease for the sum of $242.50.
    Defendant made a motion to be let in to defend, which motion the court; denied. To reverse the judgment, defendant prosecutes this writ of error.
    Defendant in his affidavit, upon which he grounds his motion to be permitted to defend, sets up that he sold his business carried on in the demised premises and assigned the lease to Osias Moskowitz, and that a clerk of the agent of plaintiffs accepted a surrender of the lease and of the demised premises and accepted Moskowitz as tenant in defendant’s stead. Defendant also set up that there have been material alterations in the lease, made by some one not disclosed.
    That such alteration was authorized or made by any one having authority from the landlord, nowhere appears, nor is it claimed by defendant that such surrender was by authority emanating from the plaintiffs.
    Edward J. Kelley, for plaintiff in error.
    Ringer, Wilhartz, Loner & Concannon, for defendants in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Landlord and tenant, § 325 —when evidence insufficient to show alteration of lease. In an action by a lessor against a lessee for rent, a naked charge in the affidavit of defendant that the lease was materially altered or changed after its execution, without a showing that the alteration was authorized or made by any one having authority from the landlord, is an insufficient defense.

3. Landlord and tenant, § 418 —when lessee not released By assignment to third person. A lessee is still liable for the rent payable under the lease notwithstanding the assignment of the lease to a third person, unless he is relieved from that liability by the landlord or some one acting under the landlord’s direction.

4. Alteration of instruments, § 24 —when materiality question of law. The question of the materiality of .an alteration in a written instrument is one of law for the court and not of fact for the jury.


text:
    William C. Clingen, Charles H. Newman and Emil Feldman, trading as Clingen Curtain System, Appellees, v. Carter H. Harrison, Mayor, William H. Sexton and James Gleason, Appellants.
    Gen. No. 20,815.
    I. Mandamus, § 1

      —when injunctional order not to be included in. Mandamus and injunction cannot be granted in the same order nor in the same cause.
    2. Mandamus, § 1

      —hoto distinguished from injunction. The writ of mandamus commands a thing to be done; the writ of injunction restrains the doing of an act; mandamus is a legal civil proceeding; the remedy by injunction is solely equitable.
    3. Mandamus, § 177

      —when order objectionable as including injunctional order. An order of mandamus directing a municipal officer to issue a permit of a motion picture which also provides that “to give full effect and force to the process and mandamus of this court, you and your agents, servants and employees and agents, servants and employees of the City of Chicago and the successor in office to you, are hereby restrained and commanded to refrain from interference in the exhibition of the films aforesaid until the further order of this court,” is objectionable as including injunctional provisions.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed November 1, 1915.
    William H. Sexton, for appellants; Max M. Korshak and George L. Reker, of counsel.
    No appearance for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The Circuit Court awarded a writ of mandamus in this case against James Gleason as General Superintendent of Police of the City of Chicago, directing him to issue a permit for the exhibition of a motion picture called “Magda, A Modern Madam X.” To the mandamus part of the order appellants do not complain. They do, however, complain against that part of the order which is in its terms injunctional, and they moved the trial court to expunge it from the order, which motion being denied, appellants prosecute this appeal.

That part of the order said to be erronébus is encompassed within the following words: “And to give full effect and force to the process and mandamus of this court, you and your agents, servants and employees and agents, servants and employees of the City of Chicago and the successor in office to you, are hereby restrained and commanded to refrain from interference in the exhibition of the films aforesaid until the further order of this court.”

The part of the so-called mandamus order recited above is in its essence and purport injunctional. It is the rule in this and other jurisdictions, where the distinction between law and equity jurisdiction obtains, that mandamus and injunction cannot be granted in the same order or in the same cause. These actions are separate and distinct both in their essence and operation. The writ of mandamus commands a thing to be done, while the writ of injunction restrains the doing of acts or things. Each is foreign to the other and has its separate and distinctive functions. The remedy by mandamus has no equitable function. It is a legal civil proceeding. The remedy by injunction is solely equitable and is jurisdictional in a court of equity and in no other forum. The text writers, such as Merrill on Mandamus and High on Extraordinary Legal Remedies, are in accord on this proposition, and our own Supreme Court has adhered to the same doctrine. In People v. Crabb, 156 Ill. 155, it was directly held that a mandamus proceeding is an action at law and is governed by the same rules of pleading that are applicable to other actions at law. In Fletcher v. Tuttle, 151 Ill. 41, it was held that “where the established distinctions between equity and common-law jurisdiction are observed, injunction and mandamus are not correlative remedies ’ ’; and in volume 13, Encyc. of Pl. and Pr., 491, it is stated, with ample supporting authority, that in nearly all the States mandamus is considered a common-law remedy and is held to have no connection with equitable jurisdiction, and it is also held that the procedure in equity is not applicable.

The order appealed from being erroneous in the particulars above pointed out, the judgment of the Circuit Court is reversed, and as the mandatory part of the injunction is at this time a moot question, the cause is not remanded.

Reversed.


text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 20,868.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of David Kaufman, plaintiff, against Chicago City Railway Company, defendant, to recover damages of defendant for negligently causing the death of plaintiff’s intestate. From a verdict and judgment for plaintiff for $3,000, defendant appeals.
    Plaintiff contends that defendant’s car, while at' a standstill and taking on passengers, suddenly and without warning started while deceased was in the act of boarding it, with one foot on the running board, causing him to be thrown to the ground, inflicting injuries from which he shortly thereafter died.
    The deceased was with his wife and other friends, all of whom were boarding the car, and all but deceased succeeded in so doing without accident. All these persons, including the deceased, were in clear view of the conductor and their purpose of boarding the car while it was stationary was apparent.
    The plaintiff’s intestate, at the time of suffering the injuries which it is claimed resulted in his death, was seventy-one years of age. An autopsy disclosed that at the time of his death certain of his internal organs were diseased, including his heart, kidneys and stomach.
    There is no evidence that deceased was consciously suffering from any fatal malady on the day of his death or that he had complained of any particular physical distress. At the time of the accident he was going about his usual affairs and was on his way to visit at the house of a friend. His widow testifies that he had not been recently treated by a medical man and had not taken to his bed on account of sickness for more than five years prior to his death. These facts appear from her testimony: “Before this accident my husband looked well and seemed perfectly well. * * * I do not know of my husband being under the doctor’s care before this accident for anything except —I guess it is ten or fifteen years ago. * * * Before this accident he was not in bed, I am sure not in five years, for any cause. ’ ’
    Abstract of the Decision.
    1. Carriers, § 476

      —when evidence sufficient to support verdict finding negligence in starting car. In an action against a street railroad company to recover for the death of plaintiff’s intestate alleged, to have, been caused' by the negligence of defendant’s servant in starting the car before the intestate had a reasonable opportunity to board it, the evidence examined and held to support a finding that defendant was negligent.
    2. Carriers, § 367

      —what duty owed to persons hoarding car. Where persons intending to board a street car are in clear view of the conductor and their purpose of boarding the car while it is stationary is apparent, it is the duty of the conductor not to start the car until all of them are safely on and to give them sufficient time to board it.
    3. Carriers, § 476

      —when evidence sufficient to show that negligence was proximate cause of death. In an action against a street railroad company to recover for the death of a person alleged to have been caused by defendant’s negligence in starting its car as deceased was attempting to board it, the evidence examined and held sufficient to support a finding that the injury resulted by the starting of the car was the proximate cause of his death and that the death was not due to diseases with which he was afflicted at the time the injury was received.

      James G. Condon and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    James C. McShane, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Evidence, § 387 —when expert’s opinion as to cause of death admissible. In an action against a street railroad company to recover for the death of a person alleged to have been caused by the starting of defendant’s car while he was in the act of boarding it, where it is not disputed that the immediate cause of death was edema of the lungs, it is competent for an expert medical witness to give his opinion as to the cause of the edema.

5. Appeal and error, § 1474 —when admission of evidence not ground for reversal. The admission of opinion evidence is not ground for reversal even though the objection thereto is well founded, where evidence of a like character was introduced by both parties.


text:
    Pasqualino DeVincenzo, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 21,020.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Pasqualino DeVincenzo, by his next friend, plaintiff, against Chicago Railways Company, defendant, to recover for injuries alleged to have been received by being struck by defendant’s car while crossing defendant’s track. A trial before court and jury resulted in a verdict and judgment for $750, from which defendant appeals.
    The evidence showed that plaintiff was struck by a car of defendant while he was crossing on or near the Sangamon street viaduct from the east to the west side of the same. The accident is accounted for by plaintiff as due to dense smoke emanating from railroad engines passing under the viaduct which obscured his view of defendant’s car.

      Abstract of the Decision.
    1. Street railroads, § 111

      —when burden of showing due care on plaintiff in action for injury at crossing. In an action against a street railroad company to recover for injuries alleged to have been received by being struck by defendant’s car while crossing defendant’s line at a viaduct over a railroad, while in the exercise of due care at and immediately before the happening of the accident, the burden is on the plaintiff of showing by preponderance of the evidence that he was in the exercise of such care regardless of any negligence of which the defendant may have been guilty, where the inability of plaintiff to see the car is claimed to have been due to dense smoke from railroad engines passing under the viaduct.
    2. Street railroads, § 95

      —what degree of care required in crossing track where vision obscured. One crossing a street railroad on a viaduct over a railroad when the track is obscured by dense smoke from steam engines is required to exercise caution and to be on the lookout for the approach of cars.
    3. Street railroads, § 131

      —when evidence sufficient to show negligence in crossing track. Evidence examined in action for personal injuries through being struck by street car, and held to show that plaintiff was guilty of contributory negligence in attempting to cross tracks where they were obscured by smoke from a nearby railroad.
    Charles L. Mahoney and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Bolton & Moriarty and John B. Calo, for appellee; Maurice J. Moriarty and John B. Calo, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    The People of the State of Illinois ex rel. Maclay Hoyne, State’s Attorney, Appellant, v. Harry M. Fisher, Judge, Appellee.
    Gen. No. 21,753.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed November 8, 1915.

      Abstract of the Decision.
    1. Taxation, § 19

      —Act of 1898 as providing new system for assessment of property. The Act of 1898 (J. & A. ¶ 9516-9576) was intended to provide a new system for the assessment of property and not to amend the General Revenue Act, and as to that subject it is substantially complete in itself, constituting an entire plan for making the assessment.
    2. Statutes, § 146

      —when new statute prevails over old one. Where the Legislature frames a new statute upon a certain subject-matter with an evident intention to revise the whole subject-matter legislated upon, there is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and that whatever is excluded is discarded, and that the provisions of the new law shall be substituted for those of the old.
    3. Taxation, § 19

      —what portions of general revenue law are superseded, 6y the Act of 1898. The language o£ section 55 of the Act of 1898 (J. & A. ¶ 9572), providing that “all the provisions of the general revenue law in force prior to the taking effect of this act shall remain in force * * * except in so far as by this act is otherwise expressly provided,” does not mean that every section of the general revenue law in force prior to the taking effect of the Act of 1898 shall remain in force unless the later act expressly provides otherwise, but also means that wherever the later act legislates on the subject-matter of the earlier, the earlier act shall fall, and such legislative intent is as clearly indicated thereby as though there were an express provision that the earlier law should not remain in force.

      Statement of the Case.
    Action by the People of the State of Illinois ex rel. Maclay Hoyne, State’s Attorney, plaintiff, against Harry M. Fisher, Judge of the Municipal Court, in the Circuit Court of Cook county, praying for leave to file a petition in mandamus against the defendant, commanding him to grant leave to relator to file a criminal information against one Jacob L. Kesner, charging a violation of section 24 of the General Revenue Act of the State (J. & A. ft 9234). From an order denying such petition, plaintiff appeals.
    Maclay Hoyne, for appellant.
    Richard S. Folsom, for appellee; John E. Foster, of counsel.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

4. Taxation, § 199 —when statute provides penalty for refusal to make and swear to schedule. The provision in the Act of 1898 (J. & A. ¶ 9534) that on the refusal of a person to make and swear to a schedule of his property for taxation, the assessor shall list his property and add to the valuation an amount equal to fifty per cent, of such valuation, provides a penalty for such refusal.

5. Statutes, § 152 —when statute imposing penalty is repealed by implication. Where there are two statutes imposing a penalty and the penalty imposed by one is not the same as that imposed by the other, the later statute repeals the earlier by implication.

6. Mandamus, § 16 —when petition for leave to apply for writ properly denied. Rev. St., ch. 120, see. 24 (J. & A. ¶ 9238), providing that one required by law to list personal property who shall refuse, neglect or fail when requested by the proper assessor to do so shall be guilty of a misdemeanor, held repealed by implication by Act of 1898, sec, 19 (J. & A. ¶ 9534), providing that on the refusal of a person to make and swear to a schedule of his property therein required, the assessor shall list his property and add to the valuation an amount equal to fifty per cent, of such valuation, and hence a petition for a writ of mandamus to compel a judge to grant leave to file an information charging an offense under the act, is properly denied. .


author: Mr. Presiding Justice Gridley

text:
    Henry J. Beer, Appellee, v. Maud A. Strode, Appellant.
    Gen. No. 21,924.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Appeal dismissed.
    Opinion filed November 9, 1915.

      Abstract of the Decision.
    Appeal and error, § 657

      —when bond signed by one of several appellants insufficient. Where an appeal to the Appellate Court is prayed by three defendants and allowed by the Circuit Court upon said defendants filing an appeal bond, a bond signed by only one of the appellants who prayed and were allowed the appeal is defective, and the appeal will be dismissed on motion of appellee, as the right of appeal is purely statutory ánd appellants must strictly comply with the order of the court granting the appeal, in order to entitle themselves to the right.
    Statement of the Case.
    Action of forcible detainer by Henry J. Beer, plaintiff, against Maud A. Strode, William Strode and A. J. Hastings, defendants, in the Circuit Court of Cook county. From a judgment for plaintiff for possession and for costs, defendants appealed. But one defendant having signed the appeal bond, plaintiff moved to dismiss the appeal.
    Sabath, Stafford & Sabath, for appellant.
    George F. Borman, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    National Bank of Commerce, Appellee, v. Norman W. Church, Appellant.
    Gen. No. 22,029.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Appeal dismissed.
    Opinion filed November 9, 1915.

      Abstract of the Decision.
    Appeal and error, § 671

      —when bond filed after time insufficient. An appeal bond filed and approved after the time limited for such filing by the order granting the appeal is a nullity, and the appeal must be dismissed unless the judge granting the appeal shall before the expiration of the filing time' make an order extending the time, as on the expiration of such time for appeal without an order extending the time, the court loses jurisdiction of an appeal in the cause.
    Statement of the Case.
    Action by the National Bank of Commerce, a corporation, plaintiff, against Norman W. Church, defendant, in the Municipal Court of Chicago. From a judgment for plaintiff for $10,817.33, defendant appeals. Plaintiff moves to dismiss the appeal on the ground that the appeal bond was not filed in time.
    Dunne & Murphy, for appellant.
    Rosenthal & Hamill, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    William J. Doyle and James A. Doyle, Defendants in Error, v. John P. Considine, Plaintiff in Error.
    Gen. No. 20,732.
    1. Bills and notes, § 334

      —when indorsee may sue in own name. A suit may be brought in his own name on a promissory note by an indorsee who received it in due course, for value and before maturity.
    2. Bills and notes, § 118

      —when reference to collateral agreement does not affect negotiability. A promissory note containing the statement, “This note is given in accordance with a land contract of even date between B and C,” is negotiable within the meaning of the Negotiable Instruments Act (Hurd’s Rev. St., ch. 98, sec. 21, J. & A. ¶ 7642), which provides that a “promise to pay is unconditional within the meaning of this act though coupled with * * a statement of the transaction which gives rise to the instrument,” and an action may be maintained thereon by any holder in due course.
    3. Bills and notes, § 431

      —when evidence of collateral agreement inadmissible. If a note be negotiable, evidence of the contract which gave rise to the note is incompetent although a reference be made thereto in the body of the instrument.
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 15, 1915.
    C. S. O’Meara, for plaintiff in error.
    Thomas B. Lantry, for defendants in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

In a suit on a promissory note, plaintiffs had judgment for $696.76, which defendant says should be reversed because (1) the suit can only be brought in the name of E. H. Bauch, the original payee, and (2) as the note contains a reference to a “land contract” it is not a negotiable instrument; and also it was error not to permit defendant to show what was done under this contract.

As to the first point, the note was indorsed by Bauch and plaintiffs received it in due course before maturity for value; hence they properly could bring suit.

As to the second point, the note says: “This note is given in accordance with a land contract of even date herewith between E. H. Bauch and J. P. Considine.” By the Negotiable Instruments Act, ch. 98, sec. 21 (J. & A. ¶ 7642), it is provided that a “promise to pay is unconditional within the meaning of this act, though coupled with * * * a statement of the transaction which gives rise to the instrument.” That is this case, and the instrument is negotiable, and an inquiry into the contract was incompetent. The judgment is affirmed.

Affirmed.


text:
    R. F. Conway Company, Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 20,822.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 751

      —when facts and conclusions in order not reviewahle. An order dismissing a bill for want of equity should not, as a matter of proper practice, recite facts and conclusions from the evidence, and on appeal such facts and conclusions, if recited, are not before the Appellate Court for review.
    2. Injunction, § 72

      —when enforcement of contract not restrained. A contract whereby a contractor agrees to construct a wooden pavement in a street, and as a guaranty of the faithful performance of the agreement further agrees to keep the same in a satisfactory condition for a term of years without additional cost to the contractee, is not so unreasonable as to require the interference of a court of equity to restrain its enforcement, for the reason that a guaranty of the durability of an improvement constructed by the guarantor has reference not only to the materials used and to the work done but also Includes the finished product, with reference to any reasonable and probable future use thereof:

      Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Bill by R. F. Conway Company, a corporation, plaintiff, against the City of Chicago and others, defendants, in the Circuit Court of Cook county, to restrain the enforcement of and to determine the question of liability under a contract for constructing a public improvement. From an order dismissing the bill for want of equity, plaintiff appeals.
    Tolman & Redfield, for appellant.
    John W. Beckwith and Joseph F. Grossman, for appellees.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Contbacts, § 169 —how contract for improvement construed. Where a contractor as a guaranty of faithful performance of a contract to construct a wooden pavement in a street whereon a street railroad is maintained, agrees to maintain such pavement in a satisfactory condition for a term of years after completion without additional cost to contractee, it is unreasonable to require contractee to continue to use or cause to be used on such street the same type of cars used at the time the improvement was constructed, for the reason that the contract must be deemed to have been made with knowledge of and reference to the possibility that in the future a different and heavier type of cars might be used on such street, whose added weight might have such an effect on the soil of the street as to cause the pavement constructed by the contractor to sink and require repair under the contract.

4. Contracts, § 175 —how contract for improvement construed. A contract whereby a contractor agrees to construct an improvement, and as a guaranty of the faithful performance thereof further agrees to maintain the same in a satisfactory condition for a term of years after completion, without additional cost to contractee, and also agrees that contractee may retain a part of the contract price during such term to secure such performance, is not a contract to maintain a local improvement by special assessment, although contractee threatens if contractor fails to maintain the improvement as provided by the contract, contractee will cause the necessary repairs to be made and apply to the payment therefor the amounts retained under the contract.


text:
    In re Estate of Mae E. Pribyl, Deceased. Charles E. Wesely, Claimant, Plaintiff in Error, v. Estate of Mae E. Pribyl, Defendant in Error.
    Gen. No. 20,834.
    1. Judges, § 9

      —when interchange authorized. Rev. St., ch. 37, sec. 245 (J. & A. H 3294), authorizes judges of city courts to hold court for Circuit Court judges in Cook county.
    2. Appeal and error, § 1718

      —when question of constitutionality of statute waived. The Appellate Court cannot pass on the validity of a statute for the reason that in talcing an appeal to that court instead of to the Supreme Court all constitutional questions are waived by appellant.
    3. Appeal and error, § 714

      —when plácito sufficient. Where a judge of a city court holds court for a judge of the Circuit Court, although it would have been well if the plácito had stated that such judge of the city court had been requested to hold court in the Circuit Court, the plácito is not fatal]** defective in that it does not so state.
    4. Parent and child, § 45

      —when gift presumed. Improvements made by a parent on the property of a child are presumed to be intended as a gift in the absence of evidence of a contract or promise of the child to pay for such improvement, or of a statement for such work rendered to her, or that an account had ever been kept between them with reference to the work.
    Error to the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 15, 1915.
    Q. J. Chott and Frank H. Culver, for plaintiff in error.
    Benjamin B. Kahane and Daniel P. Trude, for defendant in error.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

A claim by Charles E. Wesely against the estate of Mae E. Pribyl, deceased, was dismissed by the Probate Court. Upon appeal to the Circuit Court a jury, as instructed by the court, found the issues for the defendant. Claimant seeks to have the judgment entered thereon reversed.

The trial judge was H. Sterling Pomeroy, a judge of the City Court of Kewanee, Henry county, Illinois, then sitting in the Circuit Court of Cook county, and the principal point urged by claimant is that Judge Pomeroy had no right to preside in the Circuit Court and to hear the case at bar.

Section 245 of chapter 37, Rev. St. (J. & A. ¶ 3294), clearly seems to authorize judges of city courts to hold court for Circuit Court judges in Cook county. The section reads as follows:

“Such judge? may, with like privileges as the judges of circuit and county courts, interchange with each other, and with the judges of circuit, superior, county and probate courts, and may hold court for each other, and for judges of circuit, superior, county and probate courts, and perform each other’s duties, and the duties of judges of circuit, superior, county and probate courts, when they find it necessary or convenient.”

In American Car & Foundry Co. v. Hill, 226 Ill. 227, it was held that under this statute a judge of a city court was qualified to preside at the trial of a cause in the Circuit Court. See also, opinion in White v. Herhold, 182 Ill. App. 477, in which this identical question was involved.

We cannot pass upon the validity of the statute. Case v. City of Sullivan, 222 Ill. 56; Rogers v. St. Louis-Carterville Coal Co., 254 Ill. 104.

It is not fatally defective that the placita did not recite that Judge Pomeroy had been requested to hold court in the Circuit Court. Upon a similar point the Supreme Court said in Reitz v. People, 77 Ill. 518: "It would have been well the placita should have stated-, ‘holding the term by request of the judge of the 23rd judicial circuit, ’ but the omission does not render the proceedings void.”

The claim is for labor and materials furnished by claimant in building a porch on the premises owned by Mae E. Pribyl, who was his daughter. Testimony was introduced tending to prove the value of the labor and materials. There was no evidence of any contract or promise by Mae E. Pribyl to pay her father, .nor any proof that a statement for said work had ever been rendered to her, or that there had been any account with reference thereto kept between them. No claim therefor was made until nearly three years after the daughter had died.

It was decided in Maciejewska v. Jarzombek, 243 Ill. 136, that improvements made by a parent on the property of a child are presumed to be intended as a gift. Hence it was not error for the court herein to instruct the jury to find against the claimant. The judgment is affirmed.

Affirmed.


text:
    Cole Motor Company, Appellee, v. Centaur Motor Company of Illinois, Appellant.
    Gen. No. 20,946.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Instructions, § 85

      —when instruction as to burden of proof improper. In an action of trover to recover for the conversion of an automobile, where the conversion was by defendant’s agent, an instruction that the burden was on the defendant to show by a preponderance of evidence that in doing the acts constituting the conversion such agent was not acting for defendant is erroneous.

      Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by the Cole Motor Company, a corporation, plaintiff, against the Centaur Motor Company of Illinois, a corporation, defendant, in the County Court of Cook county, to recover for the conversion of an automobile. From a judgment for plaintiff, defendant appeals.
    Miller, Gorham & Wales, for appellant.
    Walter F. Olds, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Trover and conversion, § 47 —what proper measure of damages. In an action to recover damages for the conversion of an automobile, the measure of damages is the value of the automobile at the time of the conversion.

3. Chattel mortgages, § 224 —when purchaser of property charged with notice. Where a chattel mortgage duly recorded provides that if the mortgagor sells or assigns the mortgaged property the mortgage debt shall at once become due and payable “without notice to any one,” and that the mortgagee in such case at its option may take immediate possession of the mortgagéd property, any person claiming title to the mortgaged property under the mortgagor is charged with notice of the provisions of the mortgage, and such person taking under the mortgagor is not entitled to notice if the mortgagee exercises its option.

4. Trover and conversion, § 36 —what sufficient to show conversion. Where the facts relied upon to prove a conversion are that an agent of1 defendant negotiated a sale of the property converted, and where a second sale of such property took place the same day, it is unimportant whether the conversion took place at the first or second sale.


text:
    Fred Barth, Appellee, v. Farmers & Traders Bank, Appellant.
    Gen. No. 20,949.
    1. Judgment, § 110

      —when entry by default improper. It is error to enter a default after striking the affidavit of defense without first striking the pleas, proper practice requiring that where the affidavit filed with the plea is stricken, the plea shall be ordered stricken for want of the required affidavit before entering default.
    2. Conflict of laws, § 15

      —what law governs certificate of deposit. A certificate of deposit, made in a foreign State by a bank of that State and payable to a payee in that State, is governed by the laws of such foreign State.
    3. Evidence, § 7

      —when courts do not take judicial notice of foreign law. Where an affidavit of defense sets up a defense grounded on the law of a foreign State, where the contract was made and by the law of which it is governed, it is error to strike the plea or to attempt, prior to the trial, to determine the fact of the law of such foreign State, as the courts do not take judicial notice of the laws of a foreign State, but such laws are questions of fact, to be proved as other facts are proved.
    4. Appeal and error, § 1034

      —when judicial notice not taken. The same rule which prevents the trial court from determining, the law of a foreign State before proof of such law is made will prevent the Appellate Court from determining such question on appeal from the decision of the trial court.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an action to recover upon a certificate of deposit issued by the defendant to the Columbia Casualty Company in the sum of $2,500.

The first count of the declaration declares specially upon the certificate of deposit, the second on the common counts. To the declaration was attached an affidavit showing the nature of plaintiff’s' demand and the amount due him. Defendant filed a plea of nonassumpsit and several special pleas together with an affidavit of defense. By order of the court this affidavit of defense was stricken from the files for insufficiency and leave granted to file an amended affidavit. Subsequently an amended affidavit of defense was filed specifying the nature of the defense, which by order of court was stricken from the files and default entered against defendant for want of-an affidavit of defense. Damages were assessed by the court in the sum of $2,564.17, and judgment entered against the defendant for that amount.

Default of the defendant should not have been entered without first striking the pleas from the files.

Kearney v. County of Cook, 187 Ill. App. 435; McDonnell v. Harter, 22 Ill. 28; Filkins v. Byrne, 72 Ill. 101; New York Nat. Exch. Bank v. Reed, 232 Ill. 123; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516. The proper practice, where the affidavit filed with the plea is stricken from the files, is to order the plea stricken for want of the required affidavit. After this is done it is proper to enter an order of default.

Defendant by its amended affidavit specifies as defenses, among other things, that the certificate sued on is governed by the laws of Indiana; that it is non-negotiable as an inland bill of exchange under the laws of Indiana because it is not payable in a bank in Indiana, not payable at a definite and certain time, and is payable in current funds and not in money; that the certificate is assignable by indorsement under the statute of Indiana, and on such transfer successive purchasers took subject to defenses and equities; that it was ultra vires the Columbia Casualty Company to invest its funds in certificates of deposit under the statute of Indiana under which it was organized, and that it was without authority to indorse, discount and deal in same. It is not necessary for the purposes of this opinion to note the other matters of defense appearing in the affidavit.-

The certificate of deposit sued on was made in Indiana by a bank of that State, payable to an Indiana corporation in the State of Indiana, and is therefore governed by the laws of that State. There seems to be no controversy as to this proposition. Evans v. Anderson, 78 Ill. 558; Walker v. Lovitt, 250 Ill. 543.

If the law of Indiana was as claimed by defendant, an adequate defense was presented and defendant was entitled to go to trial upon the question of fact as to the law of that State. The trial court apparently being of the opinion, after examinations of decisions, that the Indiana law was not as claimed in the affidavit of defense, struck it from the files. In so doing the court committed reversible error. What the law of another State is on a given subject is a question of fact, to he proved as other facts are proved. Milwaukee & St. P. Ry. Co. v. Smith, 74 Ill. 197; Louisville, N. A. & C. Ry. Co. v. Shires, 108 Ill. 617. In volume 13 Amer. & Eng. Encye. of Law, page 1058, appears the statement: “It is well settled that the courts of the several States do not take judicial notice of the laws of the other States of the Union, but such laws are matters of fact and must be proved as other facts by introducing evidence thereof.” This statement is supported by a very large number of citations of cases from almost every State. See also 46 L. R. A. (N. S.) footnotes 176, also footnotes in 25 L. R. A. 449. In Marshall v. Coleman, 187 Ill. 556, 582, the court said: “The laws of foreign countries or other States are facts.”

It was just as erroneous for the court to attempt to ascertain the fact as to the Indiana law before evidence thereof was introduced as it would have been to have attempted to determine any other fact set out in the affidavit of merits before evidence of such fact was before the court.

The same rule which inhibits the trial court from determining the law of another State before such law has been introduced in evidence, likewise prevents this court from passing upon the question as to what the law of Indiana is, although this is argued at length by respective counsel. It would be inconsistent with our holding, as above stated, for us to do so.

For the error indicated the judgment is reversed and the cause remanded for trial.

Beversed and remanded.


text:
    Robert W. Schupp, Appellee, v. State Bank of Monticello, Appellant.
    Gen. No. 20,954.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Action by Robert W. Schupp, plaintiff, against the State Bank of Monticello, defendant, in the Superior Court of Cook county.
    The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante,p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that ease also occurred in this, and the reason for reversing and remanding in that case is applicable to this case.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Robert W. Schupp, Appellee, v. State Bank of Monticello, Appellant.
    Gen. No. 20,963.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.

      Statement of the Case.
    Action by Robert W. Schupp, plaintiff, against the State Bank of Monticello, defendant, in the Superior Court of Cook county.
    The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case also occurred in this, and the reason for reversing and remanding in that case is applicable to this case.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Robert W. Schupp, Appellee, v. State Bank of Monticello, Appellant.
    Gen. No. 20,992.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by Robert W. Schupp, plaintiff, against the State Bank of Monticello, defendant, in the Superior Court of Cook county.

      The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case also occurred in this, and the reason for reversing and remanding in that case is applicable to this case.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Missouri State Life Insurance Company, Appellee, v. State Bank of Monticello, Appellant.
    Gen. No. 20,993.
    (Hot to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by the Missouri State Life Insurance Company, plaintiff, against the State Bank of Montieello, defendant, in the Superior Court of Cook county.
    The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case also occurred in this, and the reason for reversing and remanding in that case is applicable to this ease.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Missouri State Life Insurance Company, Appellee, v. State Bank of Monticello, Appellant.
    Gen. No. 20,995.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by the Missouri State Life Insurance Company, plaintiff, against the State Bank of Monticello, defendant, in the Superior Court of Cook county.
    The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case occurred also in- this, and the reason for reversing, and remanding in that case is applicable to this ease.

      James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Missouri State Life Insurance Company, Appellee, v. State Bank of Monticello, Appellant.
    Gen. No. 20,997.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed, and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by the Missouri State Life Insurance Company, plaintiff, against the State Bank of Monticello, defendant, in the Superior Court of Cook county.
    The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held- to be reversible error in that ease occurred also in this, and the reason for reversing and remanding in that ease is applicable to this case.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Missouri State Life Insurance Company, Appellee, v. State Bank of Monticello, Appellant.
    Gen. No. 20,999.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by the Missouri State Life Insurance Company, plaintiff, against the State Bank of Monticello, defendant, in the Superior Court of Cook county.
    The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case occurred also in this case, and the reason for reversing and remanding in that case is applicable to this case.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Missouri State Life Insurance Company, Appellee, v. Central Bank, Appellant.
    Gen. No. 20,994.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by the Missouri State Life Insurance Company, plaintiff, against the Central Bank, defendant, in the Superior Court of Cook county.
    The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case occurred also in this, and the reason for reversing and remanding in that ease is applicable to this case.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Phil E. Davant, Appellee, v. Central Bank, Appellant.
    Gen. No. 20,996.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by Phil E. Davant, plaintiff, against the Central Bank, defendant, in the Superior Court of Cook county.
    The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case occurred also in this, and the reason for reversing and remanding in that case is applicable to this ease.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Charles A. Treadwell, Appellee, v. Central Bank, Appellant.
    Gen. No. 20,998.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914,
    Reversed and remanded.
    Opinion filed November 15, 1915.

      Statement of the Case.
    Action by Charles A. Treadwell, plaintiff, against the Central Bank, defendant, in the Superior Court of Cook county.
    The facts in the above- entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case occurred also in this, and the reason for reversing and remanding in that case is applicable to this case.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    William H. Long, Appellee, v. Central Bank, Appellant.
    Gen. No. 21,000.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by William H. Long, plaintiff, against the Central Bank, defendant, in the Superior Court of Cook county.

      The facts in the above entitled case, with unimportant differences, are similar to those set forth in Barth v. Farmers & Traders Bank, ante, p. 318, in which an opinion was filed the same day, and present the same questions. The proceeding held to be reversible error in that case occurred also in this, and the reason for reversing and remanding in that ease is applicable to this case.
    James Bingham and Castle, Williams, Long & Castle, for appellant.
    Adams, Follansbee, Hawley & Shorey, for appellee; Mitchell D. Follansbee, Clyde E. Shorey and John E. Gavin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    James F. Quirk, Defendant in Error, v. Joseph S. McDonnell, Plaintiff in Error.
    Gen. No. 21,056.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 15 1915.
    Statement of the Case.
    Action by James F. Quirk, plaintiff, against Joseph S. McDonnell, defendant, in the Municipal Court of Chicago, to recover back money paid under an agreement to sell real estate on the ground of default by the defendant in performance of such agreement. The material parts of the agreement are as follows:
    “That if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on Ms part to be made and performed, the said party of the first part hereby covenants and agrees to convey and assure to the said party of the second part, in fee simple, clear of all incumbrances whatever by a good and sufficient warranty deed, the lot, piece or parcel of ground situated in the County of Cook and State of Illinois, known and described as Lot 10 in Block 6 in Tolman & Tondelius subdn. of Lot 3, otherwise known as number 3949 S. Artesian avenue, and the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of Fourteen Hundred and 00/100 Dollars in the manner following: Three Hundred Dollars on the signing of this agreement and assume a One Hundred to Seven Hundred Dollar mortgage or trust deed to be secured against the property due in about three to five years and the balance of the purchase price at not less than Fifteen Dollars per month, payable monthly in advance on the fifteenth day of each month at the office of J. McDonnell, Chicago, Illinois, with interest at the rate of six (6%) per centum per annum, payable semi-annually, on the whole sum remaining from time to time unpaid, and to pay all taxes, fire insurance assessments or impositions that may be legally levied or imposed upon said land, subsequent to the year 1913. And in case of the failure of the said party of the second part to make either of the payments, or any part thereof, or perform any of the covenants on his part hereby made and entered into, this contract shall at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by him sustained, and he shall have the right to re-enter and take possession of the premises aforesaid.

      Abstract of the Decision.
    1. Vendor and purchaser, § 333

      —when evidence inadmissible in action to recover bade purchase price payments. Where by the provisions of an agreement to sell real estate it appears that vendor will not be required to make conveyance for a period of more than two years, testimony as to the reasonableness of or the time taken by vendor to perfect his title is irrelevant.
    2. Vendor and purchaser, § 164

      —when purchaser to have possession. An agreement to sell real estate wherein it is provided that vendor shall make certain repairs, and that vendee shall pay taxes and other assessments before conveyance, evidences an intention of the parties that vendee shall have possession of the premises before such conveyance.
    3. Vendor and purchaser, § 164

      —when possession to be given in reasonable time. Where an agreement to sell real estate shows an intention of the parties that vendee shall have possession before conveyance, and the agreement fixes no definite time when such possession is to be delivered to vendee, the law implies that such possession shall be delivered within a reasonable time.
    4. Vendor and purchaser, § 164

      —where parol agreement as to delivery of possession valid. Where an agreement to sell real estate requires that possession be delivered to vendee before conveyance but fixes no time for such delivery, the parties may validly make a parol contract as to what shall be deemed such reasonable time.
    “In consideration of the premises herein mentioned the said J. McDonnell agrees to make the following repairs: Straighten and side the basement, build two new stairways, one in front and one in rear, fix water pipe in basement, build 2%-foot cement walk from lot line in front to rear steps.”
    To reverse a judgment for plaintiff for Three Hundred Dollars, defendant prosecutes this writ of error.
    Francis A. McDonnell, for plaintiff in error.
    Litzinger, McGurn & Reid, for defendant in error; Leonard C. Reid, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

5. Evidence, § 350 —when parol evidence of collateral agreement admissible. Where an agreement to sell real estate requires that possession be delivered to vendee before conveyance, but fixes no time for such delivery, parol evidence of a contract fixing such time for delivery is competent, and has no tendency to vary the terms of a written instrument.

6. Vendor and purchaser, § 164 —when delay in delivery of possession unreasonable. Where an agreement for the sale of real estate dated March 25th gave vendor a period of more than two years in which to make conveyance, but was construed to require delivery of possession to vendee within a reasonable time, and where there was evidence of a verbal agreement to deliver such possession April 15th, a finding that vendor unreasonably delayed to deliver such possession held warranted by the evidence, where it appeared that as late as May 18th such possession had not been delivered, although there was evidence that at such last mentioned date vendor had not perfected his title, for the reason that under the agreement the time for conveyance and the time for delivery of possession were not the same, and therefore failure to perfect title did not excuse vendor for unreasonable delay in delivering possession to vendee.


text:
    City of Chicago, Defendant in Error, v. Jane Doe, alias Mrs. Mary Metz, Plaintiff in Error.
    Gen. No. 21,093.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Prosecution by the City of Chicago against Jane Doe, alias Mrs. Mary Metz, in the Municipal Court of Chicago, charging defendant with being the keeper of a disorderly house in violation of section 2019 of the Chicago Code. To reverse a judgment of conviction, defendant prosecutes this writ of error.
    Charles Horgan, for plaintiff in error.

      Abstract of the Decision.
    1. Disorderly house, § 1

      —when evidence sufficient to support judgment. In a prosecution charging defendant with being the keeper of a disorderly house in violation of section 2019 of the Chicago Code, evidence held sufficient to prove that the character of the house was within the language of the ordinance.
    2. Disorderly house, § 2

      —when evidence sufficient to show keeping. In a prosecution wherein defendant was charged with being the keeper of a disorderly house in violation of section 2019 of the Chicago Code, evidence held sufficient to sustain a judgment of conviction.
    Richard S. Folsom and Harry B. Miller, for defendant in error; John F. Power, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    M. C. Conlon, Defendant in Error, v. Frank Trenkhorst, Plaintiff in Error.
    Gen. No. 21,128.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action of tort by M. C. Conlon, plaintiff, against Frank Trenkhorst, defendant, in the Municipal Court of Chicago, to recover for injuries to plaintiff’s electric car caused by being struck by defendant’s automobile, alleged to have been negligently operated. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Andrew J. Redmond, for plaintiff in error.
    Eben F. Runyan, for defendant in error.

      Abstract of the Decision.
    1. Automobiles and garages, § 2

      —when evidence sufficient to show negligence. In an action of tort to recover for injuries to plaintiff’s electric car by being struck by a 60-horsepower automobile weighing 5,000 pounds, alleged to have been negligently operated by defendant, where it appeared that defendant, going south at a rate of speed estimated at from twenty-five to thirty miles an hour, turned west at a speed of fifteen miles an hour, veering towards the south side of the street into which he turned, so as to strike plaintiff’s electric car which was running east on the same street, evidence held to warrant a finding that defendant was negligent, although he claimed the accident was due to his attempt to avoid striking children who were on the cross walk as he turned, as the evidence warranted the court in finding that the cause of the accident was defendant’s excessive speed.
    2. Damages, § 151

      —when verdict for injury to automobile not excessive. In an action of tort to recover for damages to plaintiff’s electric car due to defendant’s negligent operation of an automobile, a finding of $247.25 for plaintiff held not excessive under the evidence.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.