text:
    Aldora J. Tyler, Appellee, v. Ellen Ross, Appellant.
    1. Judgment, § 83*—what is controlling question on motion to open judgment by confession. On motions to open judgments entered by confession and for leave to plead to the merits, the controlling question is not whether errors of law have been committed but whether the judgment debtor has shown an equitable reason why his motion should be allowed.
    2. Bills and notes, § 469

      —when not error to deny motion to open judgment by confession on note. Denial of a motion to open a judgment by confession on a promissory note which contained a power of attorney authorizing the entry of such a judgment and to stay execution and for leave to plead to the declaration on the merits, held not error, the record showing no equitable reason why the judgment should not stand, it not being' denied that the obligation for which the note was given was bona fide, it not

      being claimed that the judgment was for more than the original obligation with interest and certain stipulated costs and charges added, no fraud in procuring the judgment being shown, and the affidavits and exhibits presented at the hearing of the motion establishing that neither the plaintiff nor her attorney knew of the bankruptcy proceeding, pleaded by the defendant, at the time the judgment was confessed.
    3. Bills and notes, § 469

      —when laches will defeat motion to open judgment by confession on note. On motion to open a judgment by confession on a promissory note, held, that, even if some equitable reason had been shown to exist why the judgment should not have been rendered when and as it was, the fact that defendant had slept for more than 2 years on her rights would be a sufficient reason for holding that she was estopped by laches from asserting the same when she made the first attempt to do so.
    Appeal from the Circuit Court of De Witt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    L. O. Williams, for appellant.
    W. F. Gray, for appellee.

      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 Graves

delivered the opinion of the court.

On March 20, 1908, appellant made, executed and delivered to appellee her promissory note for $181.10, due in 3 months from date and drawing 6 per cent interest per annum until paid. This note contained a power of attorney authorizing the entry of judgment thereon by confession. On February 8, 1915, judgment by confession was entered on the records of the Circuit Court of DeWitt county in vacation, in favor of appellee and against appellant for $274.54 and for costs. On May 22, 1917, appellant filed her motion in the Circuit Court of DeWitt county to stay an execution issued on that judgment and for leave to.plead to the declaration' on the merits. On May 28, 1917, that motion was heard and allowed. On August 6, 1917, appellant filed a plea charging that on February 14, 1917, she was adjudged a bankrupt and that on February 19,1917, she was discharged in bankruptcy. On August 6, 1917, the order staying the execution and giving appellant leave to plead was set aside and vacated and the motion of appellant of May 22, 1917, was taken under advisement. The September term of said court was held but no order was made in this case. At the January term of said court, 1918, the plea of appellant was stricken from the files and her motion to open the judgment and stay execution and for leave to plead to the declaration on the merits was denied. Upon the hearing of that motion it was shown by affidavits that appellant knew within a few days after the judgment was rendered that it had been entered; that neither appellee nor her attorney prior to the entry of said judgment by confession had any notice or knowledge that appellant claimed to have been discharged in bankruptcy; that on March 5, 1915, within 30 days after the judgment was entered, appellee upon being advised that appellant claimed to have been discharged in a. proceeding in bankruptcy notified appellant that unless she proceeded to have the judgment by confession set aside and vacated on motion made for that purpose, she, appellee, would proceed to collect the same; that notwithstanding such facts, appellant made no move to cause the judgment to be set aside, vacated or opened or for stay of execution or for leave to plead to the merits until more than 2 years and 3 months had elapsed after the entry of such judgment, and no reason justifying such delay was shown on the hearing of that motion. There was also some proof presented at that hearing to the effect that appellant had promised and intended to pay the judgment.

On motions to open judgments entered by confession and for leave to plead to the merits, the controlling question is not whether errors of law have been committed but whether the judgment debtor has shown an equitable reason why his motion should be allowed. Moyses v. Schendorf, 238 Ill. 232; Mumford v. Tolman, 157 Ill. 258-265.

The record in this case shows no equitable reason why the judgment should not stand. It is not denied that the obligation for which the note was given was bona fide. It is not claimed that the' judgment was for more than the original obligation with interest and certain stipulated costs and charges added. No fraud in procuring the judgment is shown. The affidavits and exhibits presented at the hearing of the motion are convincing that neither appellee nor her attorney knew of the bankruptcy proceeding at the time the judgment in question was confessed. Even if some equitable reason had been shown to exist why the judgment should not have been rendered when and as it was, still the fact that appellant has slept for more than 2 years on her rights would be sufficient reason for holding that she was estopped by laches from asserting the, same when she made the first attempt to do so.

Counsel for appellant have argued that want of jurisdiction may be taken advantage of at any time, and, that being true, laches could not be imputed to her. There is no question of the jurisdiction in this case.

The court committed no error in denying appellant’s motion. The judgment of the Circuit Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Graves

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Louis Blankenburg, Plaintiff in Error.
    1. Intoxicating liquors, § 152*—what sufficient proof that city is anti-saloon territory. A certificate of the city clerk showing that the question of making the city anti-saloon territory had been submitted to vote and had been carried would be sufficient proof of the fact in a prosecution for selling liquor if no board of election commissioners existed in such city.
    2. Intoxicating liquors, § 5*—meaning of word “clerk" in local option statute. The word “clerk,” as used in the local option statute, means “Board of Election Commissioners” when such a board exists. (Hurd’s Rev. St. 1917, ch. 43, § 1, J. & Á. If 4637.)
    3. Intoxicating liquors, § 140*—tohen certificate of hoard of election commissioners and not certificate of city clerk is prima facie evidence that city is anti-saloon territory. Since the word "clerk,” as used in the local option statute, means “Board of Election Commissioners” when such a board exists (Hurd’s Rev. St. 1917, ch. 43, § 1, J. & A. f 4637), it follows that, as applied to a city which has such a board, Hurd’s Rev. St. 1917, ch 43, § 7, J. & A. 1i 4643 must be construed to require the board to record the result of an election under such statute and to make the certificate of such board instead of the certificate of the city clerk prima facie evidence that the city has become anti-saloon territory.
    4. Intoxicating liquors, § 162

      —when judgment of conviction will he reversed for insufficiency of evidence that city was anti-saloon territory. Where the certificate of the city clerk offered in evidence in a prosecution for selling liquor was incompetent to prove that the city was anti-saloon territory and such fact was not proved in any other way, the judgment of conviction will be reversed.
    Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed October 21, 1919.
    J. M. Boyle and Bindley, Penwell & Bindley, for plaintiff in error; Walter O. Bindley, of counsel.

      John H. Lewman, for defendant in error; Buell H. Snyder, of counsel.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Plaintiff in error was convicted for the sale of intoxicating liquor in the City of Danville, while the same was anti-saloon territory. To prove the fact that Danville was anti-saloon territory, the State offered in evidence a certificate of the city clerk showing that the question had been submitted to vote there and that it had carried. That certificate would have been sufficient if no Board of Election Commissioners existed there. Such a board in fact does exist there. Where such a board exists, the word “clerk” used in the local option statute means “Board of Election Commissioners.” Chapter 43, sec. 1, J. & A. Stat. ff 4637. It follows that chapter 43, sec. 7, J. & A. Stat. 4643, when applied to the City of Danville while it has election commissioners must be construed to require such board of commissioners to record the result of elections under the Local Option Act and to make the certificate of such board instead of the certificate of the city clerk prima, facie evidence that the territory has become anti-saloon territory. (People v. Coit, post, p. 574.)

Because the certificate of the clerk offered in evidence in this case was incompetent to prove that Dan-ville was anti-saloon territory, and that fact was not proven in any other way, the judgment of the Circuit Court is reversed and the cause is remanded to that court.

Reversed and remanded.


author: Mr. Presidirg Justice

text:
    Adolph Hunziker, Appellee, v. Thomas A. Mulcahey and Katherine A. Mulcahey, Appellants.
    1. Pleading, § 161*—what is effect of filing affidavit of meritorious defense. The effect of filing an affidavit of meritorious defense is to limit the defense to the facts set up therein.
    2. Pleading, § 157*—granting of leave to file amended or additional affidavit of merits as discretionary. The question whether a defendant shall he granted leave to file an amended or additional plea or affidavit of merits is very largely within the sound discretion of the trial judge.
    3. Appeal and error, § 1362*—when ruling on matter of filing amended or additional plea or affidavit of merits will constitute reversible error. The manner in'which a trial judge exercises his discretion in the matter of defendant’s application for leave to file an amended or additional plea or affidavit of merits it subject to review, and when an abuse of such discretion is found, it will constitute reversible error.
    4. Pleading, § 157*—how discretion in matter of application for leave to file amended or additional plea or affidavit of merits should not be exercised. The discretion of the trial judge in the matter of an application for leave to file an amended or additional plea or affidavit of merits should not be so exercised as to defeat justice but should be liberally exercised in favor of allowing such new pleadings as are essential to the presentation of a party’s cause of action or defense.
    5. Bills and notes, § 369*—when payment can be proved under pleadings in action on note. When no affidavit of claim is filed and no affidavit of meritorious defense is either filed or necessary, the defense of payment of the promissory note sued on can be proved under the general issue, but when an affidavit of claim is filed with the declaration and an affidavit of meritorious defense filed in connection with a plea of the general issue or other plea does ■ not include payment as the defense or one of the defenses relied on, payment cannot be proved.
    6. Appeal and error, § 1362

      —when refusal to permit filing of additional affidavit of merits by defendants in action on note is reversible error. That plaintiff had the contracts, which resulted in the giving of the note sued on, in his possession; that he had refused defendants’ request that they be permitted to see such contracts; that the court had refused an order for inspection; that

      the transaction in which the note was given had been closed for 7 years and more, and that defendants had forgotten the details thereof until their minds were refreshed by an inspection of the contracts when produced by plaintiff as a witness, held to be sufficient reasons why the defense of payment 'was not included in defendants’ original affidavit of merits and to constitute it an abuse of discretion and error for the court to refuse to permit the filing of an additional affidavit stating such defense. '
    Appeal from the Circuit Court of Tazewell county; the Hon. C. V. Miles, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed October 21, 1919.
    Jesse Black, Jr. and J. M. Powers, for appellants.
    Currar & Dempsey and William A. Potts, for appellee.

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

   Mr. Presidirg Justice

Graves delivered the opinion of the court.

Appellee in September, 1918, began a suit in assumpsit to recover on a promissory note for, $1,000, dated September 29,1910, signed by appellants. With his declaration he filed an affidavit of claim stating that there was then due on the note $1,453.16. Appellants filed a plea of the general issue and filed with it an affidavit of meritorious defense. The effect of filing such an affidavit is to limit the defense to the facts set up therein. Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276. In this affidavit the defense was stated to be in substance and effect that the note was given by appellants as a forfeiture in a real estate transaction and was only to be paid or collected in case appellants failed to consummate the deal; that the deal was fully consummated without default on the part of appellants in the spring of 1911, and the forfeiture note was to have been delivered up to be canceled but that appellee had neglected so to do. Later at the suggestion of the trial judge appellants filed special pleas embodying the defense set up in this affidavit of merits. At the trial of the case before a jury, appellants called appellee to the witness stand and required him to produce the contracts in the real estate transaction in which the note was given. Upon inspection of those contracts, appellants discovered that the facts set forth in their affidavit of meritorious defense theretofore filed were not complete and then and there prepared and asked leave to file instanter two pleas, one of release and one of payment, and also prepared and asked leave to file an additional affidavit of meritorious defense in which it was stated in substance that not only was the note sued on given as a forfeiture in ease appellants should not complete the real estate transaction in which it was given, but that it also constituted part of the consideration to be paid by appellants in case the deal was consummated; that the deal was in the spring of 1911 duly consummated and the consideration to be paid by appellants for the land including the note sued on was fully paid and the only reason why the note was not then and there surrendered was that appellee did not bring it with him when the parties met to complete the real estate transaction. It was amply made to appear to the court that the reason why the new facts set up in the affidavit of merits sought to be filed were not set up in the one on file was that appellants did not have in their possession the contracts concerning the real estate transaction or access to the same until the same were produced by appellee while a witness on the trial of. the cause; that not only had appellants and their attorney, before the trial began, asked appellee for permission to see and copy the same and had been refused such permission, but appellants had sought an order of the court on appellee to permit such inspection, which order had also been refused by the court, and that by reason of the fact that the transaction had been closed for 7 years or more, appellants had forgotten the details of the transaction until their minds were refreshed by an inspection of the papers when produced by appellee as a witness. The right to file these two new pleas and this new affidavit of meritorious defense was denied and appellants were compelled to proceed with the trial of the case on the issues as already made up. At the end of the evidence the court peremptorily instructed the jury to find the issues for appellee and to assess the damages against appellants at the sum of $1,468.16. Judgment was entered on the verdict.

The question whether a defendant shall be granted leave to file an amended or additional plea or affidavit of merit is very largely within the sound discretion of the trial judge. The manner in which that discretion is exercised is however subject to review, and when it is found to have been abused, such abuse constitutes reversible error. It is a discretion that should be liberally exercised in favor of allowing such new pleadings as are essential to the presentation of a party’s cause of action or defense. Delfosse v. Kendall, 283 Ill. 301. Such discretion should not be so exercised as to defeat justice. Carlson v. Johnson, 263 Ill. 556.

When no affidavit of claim is filed and no affidavit of meritorious defense is either filed or necessary, the defense of payment of a promissory note sued on can be proven under the general issue, but when an affidavit of claim is filed with the declaration and an affidavit of meritorious defense filed in connection with a plea of the general issue or other plea does not include payment as the defense or one of the defenses relied on, payment cannot be proved. Kadison v. Fortune Bros. Brewing Co., supra.

The affidavit of meritorious defense on file with the pleas in this case did not state that the note had been paid or facts amounting to payment, and the court properly under the pleadings as they stood excluded all proof of payment. If the note was in fact paid, justice demands that appellants should have an opportunity to prove it. It was necessary, in order that they should have their defense of payment adjudicated, that an affidavit of merits putting that defense in issue should be filed. The reasons shown why the defense of payment was not included in the affidavit of merits on file and was included in the one proposed to he filed were reasonable and sufficient.

It was an abuse of discretion and error to refuse to allow appellants to file the affidavit of merits tendered.

Other errors have been argued but it will not now be necessary to discuss them. The judgment of the Circuit Court is reversed and the cause is remanded to that court.

Reversed and remanded.


text:
    Emma J. Rickly, Executrix, Appellee, v. Parlin & Orendorff Company, Appellant.
    1. Contracts, § 186*—when subsequent contract constitutes construction of original contract. A contract, granting the manufacturer of a patented article a discount from the royalty, provided for in the original contract, held, to he a construction hy the parties of the original contract in the matter of whether the royalty accrued on the manufacture or only on the manufacture and sale of the article.
    2. Patents, § 27

      —right to manufacture patented article as carrying with it right to sell manufactured article. The right to manufacture a patented article carries with it the right to sell the article manufactured when it is from its sale that the manufacturer must derive the benefit of his right to make it, but where the right to sell is implied from the right to make, it is the right to make that is primarily the basis of royalty.
    3. Patents, § 33

      —when royalty contract properly construed as requiring payments of royalty on number of articles manufactured. Construction of a royalty contract between the owner of patent rights and the manufacturer of the patented article as requiring the payment of the royalty on the number of articles manufactured and not only on the number manufactured and sold, held proper.
    Appeal from the City Court of Canton; the Hon. Habby C. Moban, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    Rehearing denied December 29, 1919.
    Harvey H. Atherton, for appellant.
    0 ’Hern & 0 ’Hern, for appellee; Thomas L. 0 ’Hern and Charles V. 0 ’Hern, of counsel.

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

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

   Mr. Presiding Justice Graves

delivered the opinion

of the court.

George O. Rickly, deceased, was in his lifetime the owner of certain patents on a machine known as the Campbell Sub-surface Packer. On December 23, 1908, he entered into a contract with appellant for the manufacture of those machines during the life of the patent. He was to receive certain stipulated royalties. This contract consisted of a proposition contained in a letter written by Rickly to appellant and accepted by it in writing on its face. This contract is as follows:

Canton, Ill., 12-23-08.
“Parlin & Orendorff Company,
Canton, Ill.
‘ ‘ Gentlemen:—
1 herein grant you the exclusive right to manufacture and market in the United States and all foreign countries, the Campbell Sub-surface Packer, on which I control all patents. I agree to furnish you with all necessary patterns for the construction of this machine as now built. Any changes or improvements which you desire to make on same I am to reimburse you for the pattern work, same to be mutually agreed upon.
The basis of royalty which you are to pay me, is as follows:
10-wheel machine ..................25c per wheel
16-20-24-wheel machine.............20c per wheel
Tour acceptance hereon to constitute an agreement between us during the life of said patents.
(Signed) Gr. C. Eickly.
“Accepted:
Parlin & Orendorff Co.,
By (Signed) U. Gr. Orendorff,
Secy. & Treas.”
This contract was on December 29, 1911, modified also by a proposition contained in a letter written by Eickly and accepted by appellant on its face in the following words and figures:
“Parlin & Orendorff Co.,
Canton, Ill.
‘ ‘ Gentlemen:—
Answering yours of the 26th, if I am correct I offered in my letter of November 20th to make you a discount of 10% from the royalty prices named in my contract with you for the manufacture of Campbell Sub-surface Packers to help you meet prices that were being made by your competitors for 1912 business, providing you would accept at once. Ton did not accept this proposition but I now desire to repeat my offer as explained above for all packers you may make during the year 1912 or expiration of patent and if you accept at once the same to he a part of the contract above mentioned.
Hoping this will be satisfactory, I remain,
Tours truly,
(Signed) G. C. Eickly.
“Accepted:
Parlin & Orendorff Co.,
By (Signed) W. H. Parlin,
Pt.”

On December 30, 1911, appellant wrote to Rickly as follows:

“Yours of the 29th is at hand enclosing agreement covering 10% discount from royalty on packers. We have accepted the agreement and enclose you copy of same, and thank you very much for your concession.”

The patent expired on August 27, 1912. After the expiration of the patent and after the death of Rickly, appellee began this suit to recover the unpaid royalties. The case was tried by the court, jury being waived. The controversy at the trial was as to whether the royalties were, by the contract between appellant and George C. Rickly, to be paid on all of the machines manufactured by appellant during the life of the patent or only on those manufactured by it that were sold before the expiration of the patent. The court held that the royalty was earned when the machines were manufactured regardless of whether they were sold within the life of the patent or later, and adjudged that appellant pay to appellee $2,837.83. There is no conflict as to the number of machines made and it is conceded that if appellee is entitled to royalty on all machines made up to the end of the life of the patent regardless of whether the machines were sold or not, then the judgment is correct.

The original contract expressly grants to appellant the “right to manufacture and market” the machines in question, but there are no express words designating when the royalty is earned. The parties have, however, by contemporaneous construction supplied the desired information, for in all correspondence between the parties to the contract during the life of the patent, appellee has spoken of the royalties as maturing on the machines manufactured, no reference being made to whether the machines were marketed or not. In a letter of September 9, 1909, Rickly said to appellant :

“Your letter of the 7th received, and note what you say that you will report annually on account of royalties on the manufacture of Campbell Sub-surface Packers under our contract, which is satisfactory to me. ’ ’

In one dated February 5, 1910, he said:

“Several months ago I called your attention to a statement of what Packers have been manufactured and will request that you look up this correspondence and give me such information as I am entitled to in our contract.” ,

And in one dated June 2, 1910, he said:

“Will you please favor me with a statement of Packers manufactured for the last year in accordance with our contract, and oblige.”

And in one dated June 6, 1910, he said:

“Your letters of the 3rd received with your check on Corn Exchange national Bank of Chicago for $1,000 to apply as part payment against royalty on Sub-surface Packers manufactured by you for the year ending December, 1909, for all of which please accept my thanks.”

And in one dated December 19, 1911, he said:

“ * * * you made an agreement with me to pay me a certain amount for each machine or wheels you made under the Campbell patent. If others are infringing upon your rights it is up to you to protect the same. There is no provision in our contract that J should protect you and the trade you have established on this machine. You certainly can’t afford to discontinue its marmfacture and so far as you getting around the patents I do not believe you can do ibis any more than any other manufacturer who uses the wedge or knife shape wheel in their construction.” And in one dated February 12, 1912, he said:

“I hope you can favor me at this time with a statement of number of Packers made in 1911, and if it is not convenient for you to send check, then' the payment of balance can be arranged to suit you.”

In all of these letters the understanding a.nd construction of the contract by Biddy was clearly shown to be that he was to have royalty on all machines made within the time limit, regardless of when they were sold or whether they were sold or not. If appellant ever made any objection to that construction during the life of the contract the record in this case fails to disclose that fact. After the patent expired and all royalties ceased to accrue, appellant did set up the claim that royalties were only to be paid on machines made and sold within the time limit. If appellant during the life of the contract entertained any such view as to effect of the terms thereof, it was consistently and persistently kept from the knowledge of Rickly during all of the time it was in force. That appellant knew all the time it was manufacturing the machines that royalty was to be paid on all machines made, regardless of whether they were sold or not, is conclusively shown by the "wording of the supplemental contract of December 29, 1911.

In the proposition made by Rickly on which is written “Accepted: Parlin & Orendorff Co., by W. H. Parlin, Pt.” the royalty is specifically stated to be for “all packers you may make during the year 1912 or the expiration of patent.” It is also recited in that supplemental contract that it was made for the purpose of making “a discount of 10% from the royalty prices named in my contract with you for the manufacture of Campbell Sub-surface Packers * * * .” This new contract is a construction by the parties of the first one witnessed by their signatures, and is both clear and binding. United States Casualty Co. v. Crown Novelty Co., 195 Ill. App. 267-269. In it there is no reference to what is to be done with the machines. It treats of the right to “make” and to “manufacture” the patented article. To be sure the right to manufacture a patented article carries with it the right to sell it when it is from its sale that the manufacturer must derive the benefit of his right to make it. But where the right to sell is implied from the right to make, it is the right to make that is primarily the basis of royalty. We have no doubt of the correctness of the construction placed on this contract by the trial court and the judgment is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Charles Mankus and Annie Mankus, Plaintiffs in Error.
    1. Criminal law, § 530*—when fact that jury was improperly chosen will not reverse. Deviations from the method of selecting and serving jurors, provided in Hurd’s Rev. St. 1917, ch. 37, sec.
    110, J. & A. f 3236, will not cause the reversal of judgments based on verdicts returned by juries improperly chosen, unless it affirmatively appears in the record that the defendants so convicted sustained positive injury as a result of such deviation.
    2. Juby, § 72*—how many peremptory challenges two joint defendants entitled to. Two joint defendants are entitled to twelve peremptory challenges—six apiece.
    3. Criminal law, g 460*-—when errors not considered by Appellate Court. Courts of review uniformly refuse to consider errors that do not appear from an inspection of the abstract.
    4. Juby, § 72*—what is effect of error in ruling on number of peremptory challenges to which two joint defendants were entitled.

    Even though the trial court 'did erroneously rule that the two plaintiffs in error were entitled jointly to but six peremptory challenges, the error would not relate back to the manner of procuring the attendance of the jury at the term of court and would not even tend to show that either of the plaintiffs in error was injured by reason of any improper practices in procuring such attendance.
    5. Criminal law, § 483

      —necessity of assignment of error as to rulings on qualifications of jurors. The action of the trial court in its rulings during the examination of jurors as to their qualifications to serve in the particular case is a matter that can be reviewed only when the same is challenged by an appropriate assignment of error.

      6. Criminal law, § 530*—When manner in which attendance of jury was procured is not prejudicial. Record held not to show that joint defendants who had failed to exhaust the peremptory challenges to which they were entitled had been injured by the manner in which the attendance of the jury was procured.
    7. Jury, § 45*—when juror does not have confirmed ideas and prejudices on local option question. Examination of juror in prosecution for selling liquor in anti-saloon territory, held to show that he did not have the “confirmed ideas and prejudices on the local option question” alleged on challenge for cause.
    8. Criminal law, § 530*—when overruling of challenge to juror for cause will not be reversible error. Even though cause for challenge is shown by the examination of a juror, it will not be reversible error to overrule the challenge when defendants’ peremptory challenges were not exhausted in selecting the jury.
    9. Criminal law, § 495*—when rulings on cross-examination of witness will not reverse. The extent to which the cross-examination of a witness may go is largely within the discretion of the trial court, and nothing short of an abuse of such discretion will cause a reversal of the judgment because of the court’s rulings on the question.
    10. Criminal law, § 132*—when identification of exhibits introduced in evidence is sufficient. "Where, on a prosecution for selling liquor in anti-saloon territory, the testimony for the State in relation to four exhibits introduced in evidence purporting to be two bottles of whisky and two bottles of beer was that they were purchased by witnesses for the State and turned over by them to the sheriff and by him kept in the same condition as when delivered to him up to the time they were offered in evidence, held that the identification was sufficient and that they were properly admitted in evidence.
    11. Indictment and information, § 17*—when information is sufficiently verified. An information in ten counts for selling liquor in anti-saloon territory does not require an affidavit after each count but only one affidavit to the entire information.
    12. Indictment and information, § 17*—when affidavit to information is sufficient. An affidavit to an information in ten counts for selling liquor in anti-saloon territory which states that the “affiant knows the contents of the foregoing information and that the statements therein are true in substance and in manner of fact as therein stated,” is sufficient.
    13. " Intoxicating liquors, § 148

      —when defendants, in prosecution for selling in anti-saloon territory,' not corroborated. In a

      prosecution for selling liquor in anti-saloon territory, held that the testimony of two hoarders and a friend who lived near by that they saw no sales made did not amount to corroboration of defendants who denied the charge.
    14. Intoxicating liquors, § 147

      —when evidence sufficient to sustain conviction for selling in anti-saloon territory. Evidence held sufficient to sustain a conviction for selling Iquor in anti-saloon territory.
    Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    John G. Friedmeyer, for plaintiffs in error.
    C. F. Mortmer, for defendant in error; Edward Free and James Weldon, 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.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Plaintiffs in error were convicted and sentenced in the County Court of Sangamon county for selling intoxicating liquor in the town of Capital in said county, while the same was anti-saloon territory. The jury before whom they were tried was not selected or served in strict compliance with section 110, eh. 37, Hurd’s Rev. St., paragraph 3236, Jones and Adding-ton’s Rev. St. of Hlinois. However, deviations from the method therein provided will not cause the reversal of judgments based on verdicts returned by juries improperly chosen, unless it affirmatively appears in the record that the defendants so convicted sustained positive injury as a result of such deviation. Siebert v. People, 143 Ill. 571-578; Mapes v. People, 69 Ill. 523-530; People v. Board of Sup’rs of Madison Co., 125 Ill. 334; Barr v. People, 103 Ill. 110; Wilhelm v. People, 72 Ill. 468.

The record in this case fails to show that plaintiffs in error were injured at all by reason of the fact that the jury that tried their case ivas improperly drawn. The examination of the jurors by the respective parties as to their qualification disclosed no prejudice against plaintiffs in error or either of them. But one challenge for cause ivas made by plaintiffs in error that was not sustained by the court, and that was properly overruled and but six peremptory challenges were in fact exercised by both plaintiffs in error, although they were each entitled to six peremptory challenges, twelve in all to both defendants. Chapter 38, div. 13, sec. 12, Rev. St., paragraph 4131, Jones and Adding-ton’s Rev. St.; Spies v. People, 122 Ill. 1. Plaintiffs in error in this case went to trial with six unexercised peremptory challenges. It therefore does not appear from this record how they or either of them were injured by reason of the improper manner in which the jury were procured. It appears from the abstract that plaintiffs in error attempted to peremptorily challenge a seventh juror, a Mr. Dasher, and that the attorney for the People objected because they had exhausted their peremptory challenges, but the abstract fails to show that the court ruled either on the objection or the challenge, and courts of review uniformly refuse to consider errors that do not appear from an inspection of the abstract. Assuming, however, that the court did in fact erroneously rule that plaintiffs in error had jointly but six peremptory challenges, the error would not relate back to the manner of procuring the attendance of the jury at the term of court and would not even tend to sIioav that either of the plaintiffs was injured by reason of any improper practices in procuring such attendance. The action of the court in its rulings during the examination of jurors as to their qualifications to serve in a particular case is a matter that can only be revicAved Avhen the same is challenged by an appropriate assignment of error, and there is no such assignment of error in this case. It is assigned for error that the court erred in overruling plaintiffs in error’s challenge to the array of jurors and also in denying their challenge for cause, but there is no assignment of error challenging the correctness of the rulings of the court in denying their right to exercise more than six peremptory challenges to jurors. We, therefore, hold that it does not appear from this record that plaintiffs in error were injured by the manner in which the attendance of the jury at the court was procured; that the error of the court in denying the peremptory challenge of the juror Dasher is not before us and that the challenge of the juror Dasher for cause was properly denied for two reasons. First, no cause for challenge was disclosed by his examination. The challenge for cause made was that the juror had “confirmed ideas and prejudices on the local option question” but the examination showed exactly the contrary. His entire examination by the State’s Attorney as abstracted is:

“Lives at Dawson. Don’t know anything about the case. Not prejudiced. Would convict the defendant if proven guilty beyond a reasonable doubt.”

His entire examination by plaintiffs in error as abstracted is:

“Don’t know Dr. Wheeler only by sight. Knew John Richardson for a number of years. I am a man of family and have no fixed ideas on the liquor question. I have no objection to the use of liquor if they know how to use it, but don’t use it myself.”

Second, if the cause for challenge had been shown by his examination it was not reversible error to deny it because defendants’ peremptory challenges were not exhausted in selecting the jury. Gott v. People, 187 Ill. 249.

The contention of plaintiffs in error that their attorney was unduly restricted in his cross-examination of the State’s witnesses is without merit. The extent to which the cross-examination of a witness may go is largely within the discretion of the trial court, and nothing short of an abuse of such discretion will cause a reversal of a judgment because of the rulings of the trial court on that question.

The testimony for the State in relation to four exhibits introduced in evidence purporting to be two bottles of whisky and two bottles of beer was that they were purchased by witnesses for the State and turned over by them to the sheriff and by him kept in the same condition as when delivered to him up to the time they were offered in evidence. The identification was sufficient and they were properly admitted in evidence.

The information which was the basis of the prosecution contained ten counts, each of which sufficiently charges the illegal sale of intoxicating liquor by plaintiffs in error in the town of Capital while the same was anti-saloon territory. On motion to quash this information it was contended and is here contended that the affidavit attached to the information was insufficient. The body of the affidavit is as follows:

“John A. Wheeler, being duly sworn on his oath says that affiant knows the contents of the foregoing information and that the statements therein are true in substance and in manner of fact as therein stated.”

That affidavit was signed “John A. Wheeler” and a jurat certifying that the same was subscribed and sworn to before the clerk of the court is attached. It was not necessary to attach an affidavit to each count. This affidavit states that the affiant knows the contents of the foregoing information. That statement includes all ten counts. It also states that the statements therein contained are true. It was sufficient.

The State proved its case by the testimony of two witnesses who positively stated that they bought liquor of different kinds of plaintiffs in error at different times, sufficient if they áre to be believed to amply warrant the verdict returned. Plaintiffs in error both denied the charge under oath. The State’s witnesses were corroborated by the liquors they said they purchased of plaintiffs in error and by the admitted fact that plaintiffs in error had like liquors at the place where they are charged with selling liquors to the State’s witnesses. Plaintiffs in error are not corroborated. Two certain boarders and a friend who lived near by all say in substance that they saw no sales made, but that does not amount to corroboration of plaintiffs in error. It was for the jury after seeing the witnesses and hearing them testify to weigh the evidence and judge of the credibility of such witnesses. After a careful consideration of all the evidence we see no reason or excuse for disturbing the verdict returned.

No reversible error being called to our attention, the judgment is affirmed.

Judgment affirmed,


text:
    George W. Morrow, Plaintiff in Error, v. William A. Compton and James T. Gallagher. William A. Compton, Defendant in Error.
    1. Attorney and client, § 81*—attorney as owing good faith and exercise of best ability to client. In view of the confidential relation existing between an attorney and his client, the former owes to the latter absolute good faith and the exercise of his best ability in the litigation which he is employed to conduct.
    2. Attorney and client, § 93

      —when purchase by attorney from client will be treated as constructively fraudulent. Where an attorney purchases from his client the property which is in litigation, it is not necessary in order that the client may be relieved from the consequences of the transaction that he show actual fraud and imposition on him by the attorney, but the burden is on the attorney to show perfect fairness, adequacy of consideration and equity in the transaction, and, if he fails to make such proof, a court of equity will treat the case as one of constructive fraud.
    3. Attorney and client, § 93*—when transaction by attorney with client's property will be held, to have been made for client.

    The conduct of an attorney in purchasing from his client the property in litigation will be closely scrutinized by the courts, and, if he has not acted with strict fairness, adequacy and equity, the transaction by him and in his name with his client’s property will be held to have been made for his client.
    4. Attorney and client, § 93*—when land transactions between attorney and client are voidable by latter. Transactions between an attorney and his client whereby the title to land involved in litigation passes to the attorney are voidable at the election of the client irrespective of the fairness or unfairness of the contract, provided such election is exercised within a reasonable time.
    5. Attorney and client, § 93*—what does not prevent client from obtaining relief where attorney has purchased land which was in litigation. The fact that shares of stock which an attorney had Induced his client to accept as payment for land, which land was in litigation and which the attorney had purchased from such client, were made out in the name of the client’s wife, held not to in any way interfere with the right of the client to relief in a subsequent suit by him against the attorney for an accounting.
    6. Attorney and client, § 93

      —when dismissal of bill by client against attorney will be error. Dismissal for want of equity of a bill by a client against an attorney for an accounting, the basis of which bill was the purchase by the attorney from the client of land which was in litigation, held error.
    Error to the Circuit Court of McDonough county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded with directions.
    Opinion filed October 21, 1919.
    Modified and refiled December 29, 1919.
    George V. Helerich, for plaintiff in error.
    Midler & Walker, for defendant in error; J. G.
    Friedmeyer and O. F. Mortimer, 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 Graves

delivered the opinion of the court.

Plaintiff in error, G-eorge W. Morrow, filed Ms bill of complaint in the Circuit Court of McDonough county against defendants in error seeking to compel the defendant in error William A. Compton to account for the proceeds of the sale of an undivided one-eighth interest in 170.68 acres of land. Defendant in error James T. Gallagher was défaulted. The other defendant in error, William A. Compton, answered the bill, a replication to his answer was filed, the cause was referred to a special master in chancery to take proofs and report the same without findings either of law or fact. The master took the proof and reported the same to the court. Upon a hearing before the chancellor the bill was dismissed for want of equity.

The facts as gathered from the record are that plaintiff in error Morrow on September 20, 1910, inherited from his father a one-eighth interest in 170.68 acres of land in McDonough county subject to the dower interest of his mother, then 74 years of age. He was a farmer about 34 years <of age whose schooling ended in the sixth grade. He was a man of limited experience in business outside of such transactions as were immediately connected with farming. He and his sister, Mary Brown, who also was the owner of an equal interest with him in the land, employed defendant in error William A. Compton, a lawyer residing in that county, of mature years, having had a wide business experience and being financially well to do, to institute a partition proceeding and thereby secure for them their shares of the real estate left by their father. On October 17, 1910, Compton, acting as solicitor for Morrow and his sister, filed a bill for partition to the January term, 1911, of the Circuit Court of McDonough county. On October 19, 1910, two days after filing the bill, Compton purchased the interest of his clients in the real estate. The agreed consideration for the interest of plaintiff in error was $2,000 and for the sister’s interest was $1,500. In payment for these interests he ga,ve to plaintiff in error Morrow two notes, one for $1,500 and one for $500 and to Mary Brown he gave his note for $1,500. When the deeds were made the name of James T. Gallagher was inserted therein as grantee although he had no interest whatever in the transaction. After these conveyances were made to Gallagher, Compton filed a supplemental hill stating that Gallagher had become the owner by purchase of the interest of plaintiff in error and his sister Mrs. Brown in said premises and praying for a partition of the same. In April, 1911, about 6 months after the deed of the interests of Morrow and his sister in the lands had been executed, Compton sold for $8,534 and conveyed, the same interests that he had purchased from his clients for $3,500, and the bill for partition was then dismissed. After the conveyance by Morrow .of his interest in the lands, Compton claims that he took up the two notes given to Morrow for his lands and delivered to the wife of Morrow his, Compton’s, one note for $2,000 payable to her. Morrow denies that the two notes were so taken up and one note for $2,000 substituted in their place, but in the view we take of the case it is immaterial whether he did so or not. Sometime later, Compton induced Morrow to say he would accept 25 shares of stock in the Western Stoneware Company of the par value of $2,500 for his obligations so representing the consideration paid for the interest of Morrow in the land. Compton then purchased 25 shares of stock in the Stoneware Company for $425 and caused them to be transferred to the wife of Morrow on the books of that corporation and delivered the same to Morrow in exchange for his note or notes.

The evidence in the record establishes to our satisfaction that during all the time the transactions above recited were taking place a confidential relation, namely that of attorney and client, existed between the parties to this suit in which Compton was the dominant factor; that whatever Morrow did in the matter, he did under the advice of Compton; that Compton purposely misstated facts to Morrow, misstated his rights and interests in the matter and misstated the value of his interest in the land; and the costs, difficulties and likely results of the litigation, all of which misstatements-Morrow believed to be true; that by such misstatements of facts he placed Morrow in fear of losing all he had and even of arrest for crime; that whatever was done by Morrow in this transaction from first to last was done at the instigation and on the advice of Compton for his own gain and profit, including whatever was done in regard to transferring the indebtedness of Compton to Morrow, to Morrow’s wife, and in substituting therefor stock in the Stoneware Company; that the stock in the Stoneware Company was practically if not absolutely worthless and that Compton knew it but that Morrow was induced by Compton to believe that it was a good investment worth $80 per share and was thereby induced to surrender Compton’s note or notes to him and to permit the stock in that company to be placed in the name of Mrs. Morrow. The proof further conclusively shows that by the means employed, Compton secured for himself at an outlay of $425 property belonging to Morrow worth, and for which Compton actually received, $4,267, but for which Morrow received nothing of value.

In view of the confidential relation existing between these parties Compton owed to Morrow absolute good faith and the exercise of his best ability to secure for Morrow all of his interests in the land in question. Warner v. Flack, 278 Ill. 303; Mansfield v. Wallace, 217 Ill. 610.

Where an attorney purchases property from his client which is the subject of litigation, it is not necessary in order that the client may be relieved from the consequences of the transaction to show actual fraud and imposition practiced by the attorney on his client. The burden is on the attorney to show perfect fairness, adequacy of consideration and equity in the transaction, and, if he fails to make such proof, a court of equity will treat the case as one of constructive fraud. Warner v. Flack, 278 Ill. 308; Willin v. Burdette, 172 Ill. 117; Elmore v. Johnson, 143 Ill. 513. The conduct of an attorney in such transactions will be closely scrutinized by the courts, and, if he has not acted with strict fairness, adequacy and equity, the transactions by him and in his name with his client’s property will be held to have been made for his client. Hess v. Voss, 52 Ill. 472; Mansfield v. Wallace, 217 Ill. 610-623.

Transactions between an attorney and his client whereby the title to land involved in litigation passes to the attorney are “voidable at the election of the client, irrespective of the fairness or unfairness of the contract, provided such election is exercised within a reasonable time.” Elmore v. Johnson, 143 Ill. 513-528.

Not only has Compton failed to maintain the burden cast upon him by the law, of establishing perfect fairness, adequacy of consideration and equity in the transaction, but the proof positively establishes the opposite condition. It also further establishes that Morrow undertook to repudiate the transaction as soon as he became aware of the deceptions practiced upon him by Compton.

The fact that the shares of stock in the Western Stoneware Company that Morrow accepted from Compton, in lieu of all other promises and consideration for the sale of his interest in the land, "were made out in the name of his wife, in no wray interferes with the right of Morrow to the relief sought by him in the bill in this case for at least three reasons: First, the stock was placed in the name of Mrs. Morrow at the suggestion of Compton for the pretended purpose of getting it beyond the reach of those who might seek to obtain it in the hands of Morrow himself, on some pretended claim or pretext that Compton knew did not exist. It is a legitimate inference in view of one of the defenses made here that the purpose Compton had in having these shares of stock placed in Mrs. Morrow’s hands was to attempt to place them beyond the power of Morrow to return in case a suit like the present one should be instituted. Be that as it may, Compton cannot take advantage of the fact that he by false arts and practices induced Morrow to accept these shares so made out to his wife. Second, Morrow produced the stock in court and offered to surrender it to Compton. Third, the title to the land had passed from Compton into the hands of innocent purchasers and the bill does not seek for the return of the title to the land but for a delivery to Morrow of the proceeds of its sale by Compton, and the law undoubtedly is that the court had power to place Compton in statu quo by crediting him with the amount he paid for the shares of stock, if they could not be returned to him.

The court erred in dismissing the bill for want of equity and the decree is reversed and the cause is remanded with directions to enter a decree finding the equities in favor of Morrow, plaintiff in error, and against Compton, defendant in error, directing plaintiff in error to deposit with the clerk of the Circuit Court of McDonough county for defendant in error the stock in question, entering judgment against defendant in error Compton, in favor of plaintiff in error Morrow, for the sum of $4,267, together with interest to be computed at the rate of 5 per cent per annum from April 25, 1911, to the date when such decree shall be entered, and directing that execution shall issue therefor.

Reversed and remanded with directions.


text:
    M. B. Voorhees, Administrator of the Estate of Lillian Ryan, Deceased, Defendant in Error, v. Chicago & Alton Railroad Company, Plaintiff in Error.
    1. Negligence, § 192*—whether acts constitute wilful negligence as for jury. Whether certain acts constitute wilful negligence is a question of fact for the jury.
    2. Negligence, § 187*—surrounding circumstances to be considered by jury in determining question of wilful negligence. In determining the question of whether certain acts constitute wilful negligence, the jury have a right to and should consider all of the surrounding circumstances.
    3. Railroads, § 737*—what may be considered by jury in action for death at crossing. In an action for a death resulting from a railroad-crossing accident, held, that the jury were not confined to what happened after the engineer saw the rig in which the deceased was riding, hut that they had a right to also consider whether the engineer was or was not guilty of wilful negligence when, knowing all of the surrounding facts and circumstances, he ran his train down hill at a rate of speed of from 45 to 60 miles an hour as it was nearing a grade crossing over a public highway that was hidden from view for at least an eighth of a mile before the crossing was reached where he knew persons were likely to he passing.
    4. Railroads, § 700a*—when engineer's intent to injure or Mil deceased at crossing may be implied. In an action for a death resulting from a railroad-crossing accident, held that, in determining the question of wilful negligence on the part of the engineer, it was not necessary for the jury to find that he was possessed of an actual intent to injure or kill the deceased, since an intent to injure or kill may he implied from acts which show a reckless disregard for the safety of others and which are likely to result in their injury or death.
    5. Railroads, § 783*—concTusiveness of finding of jury, in crossing-accident case, of wilfulness on part of defendant’s servants. Where the jury, in an action for a death resulting from a railroad-crossing accident, determined that the act of the servants of the defendant railroad company was wilful, it is not for the Appellate Court to reverse such finding of fact.
    6. Appeal and error, § 1725

      —holding of Appellate Court as to effect of count in declaration as controlling on subsequent appeal. The holding of the Appellate Court that a certain count in the declaration in an action for a death resulting from a railroad-crossing accident charges wilful negligence is controlling upon such court when subsequently the case again comes before it.
    7. Railroads, § 695*—when declaration in action for death at crossing charges wilful negligence. A count in the declaration in an action for a death resulting from a railroad-crossing accident, held to charge wilful negligence. (Voorhees v. Chicago <6 A. R. Co., 208 Ill. App. 86, adhered to.)
    8. Railroads, § 772*—when number of instructions asked by defendant in crossing-accident case tends to excuse refusal of some of them. The fact that nineteen instructions were asked by the defendant railroad company, sued for a death resulting from a railroad-crossing accident, held to tend strongly to excuse the refusal of some of them even if they were technically correct.
    9. Railroads, § 772

      —when instructions requested by defendant in action for death at crossing are properly refused. In an action for a death resulting from a railroad-crossing accident, held that defendant railroad company’s instructions, one of which told the jury that the failure to ring the bell or sound the whistle did not of itself amount to wilful negligence, and the other of which declared that the operation of the train at a high rate of speed did not of itself amount to wilful negligence, were not correct and were properly refused, since, although it might be that the failure to ring the bell or sound the whistle or the running of the train at a high rate of speed would not separately or collectively constitute wilful negligence, together with other elements they might do so, and since it is misleading and improper to separate each of the elements that together constitute a cause of action but that singly do not do so and instruct the jury that each of such separate elements is insufficient for such purpose.
    Error to the Circuit Court of Jersey county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    C. E. Pope, for plaintiff in error; Silas H. Strawn, of counsel.
    D. J. Sullivan, for defendant in error.

      See Illinois Notes TUerest, 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 Graves

delivered' the opinion of the court.

Appellant’s right of way and tracks cross the public highway at a point about 2 miles south and east of Jerseyville at an acute angle; the railroad right of way and tracks run southeasterly and northwesterly and the public highway runs east and west. The railroad track was on a down grade a.t the rate of 15 feet fall to 3,000 feet run as it approached this crossing from the southeast. On the south side of the highway for about an eighth of a mile east of the right of way of plaintiff in error there was a large hedge that at the time of the occurrence here involved, July 20, 1913, was fully leafed out. On that day Mrs. Mattie Ryan with her two children, Lillian Ryan then 3 years of ag*e and Stuart Ryan then 5 years of age, were riding in a single-seated top buggy drawn by a single horse along the public highway from east to west. When they came upon the intersection of the highway with appellant’s railroad track the rig was struck by a locomotive engine drawing a-passenger train at a rate of speed variously estimated to be from 45 to 60 miles per hour. They were all killed. The engineer testified that he saw the rig in which these people were riding when his train was from 300 to 400 feet southeast from the crossing and that all he did to prevent an accident was to blow the whistle on the locomotive until about the time it struck the rig, when he put on the emergency brake. The testimony further shows that the presence of the hedge above mentioned prevented one approaching the crossing where the collision occurred from the southeast on the railroad track from seeing a rig while it was traveling from a point an eighth of a mile east of the railroad right of way to the east side of the right of way. The engineer in charge of the locomotive was familiar with the track, the grade, the crossing, the hedge and all of the physical conditions there and had been so familiar for a long time. He had run that train regularly for 2 years or more.

This suit was begun by the administrator of Lillian Byan, deceased, to recover damages to the next of kin for her death. The verdict and judgment were against plaintiff in error for $2,000.

The count of the declaration on which this case was tried charged wilful and wanton negligence.

Whether certain acts constitute wilful negligence is a question of fact for the jury. Heidenreich v. Bremmer, 260 Ill. 439; Illinois Cent. R. Co. v. Leiner, 202 Ill. 624; Chicago, B. & Q. R. Co. v. Murowski, 179 Ill. 77. In determining that question the jury have a right to and should consider all the surrounding circumstances. In this case the jury were not confined to what happened after the engineer saw the rig in which the deceased was riding, but they had a right to also consider whether the engineer was or was not guilty of wilful negligence who, knowing all the surrounding facts and circumstances, ran a train down hill at a rate of speed of from 45 to 60 miles per hour as it was nearing a grade crossing over a public highway that was hidden from view for at least an eighth of a mile before the crossing was reached where he knew persons were likely to be passing. In determining that question it was not necessary for the jury to find that the engineer was possessed of an actual intent to injure or kill the deceased. The intent to injure or kill may be implied from acts which show a reckless disregard for the safety of others and which are likely to result in injury or death to them. Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596; Chicago, B. & Q. R. Co. v. Murowski, 179 Ill. 77. The jury having determined that the act of the servants of plaintiff in error was wilful, it is not for this court to reverse such findings of fact. Chicago & A. R. Co. v. O’Neil, 172 Ill. 527; Chicago, B. & Q. R. Co. v. Murowski, 179 Ill. 77.

The question whether the count on which this case was tried amounted to a sufficient charge of wilful negligence is not now open to discussion in this court. In an opinion by Mr. Justice Thompson handed down

in October, 1917, in this ease, this court held that the count now under consideration charged wilful negligence. Voorhees v. Chicago & A. R. Co., 208 Ill. App. 86, also Voorhees v. Chicago & A. R. Co., 208 Ill. App. 96. The opinion handed down in this case when it was first before us is controlling on us now and is adhered to.

The court gave fourteen instructions for plaintiff in error and refused five. It is inconceivable that counsel for plaintiff in error could not in even less than fourteen instructions have stated all the law necessary for the correct guidance of the jury in a case of this kind. The fact that nineteen instructions were asked tends strongly to excuse the refusal of some of them even if they were technically correct, but refused instructions numbered one and two, which are the only ones plaintiff in error has argued should have been given, are not correct and were properly refused. They are as follow:

“1. The Court instructs you that merely failing to ring the bell or sound the whistle as the train approaches the crossing in question, at the time plaintiff’s intestate was killed, does not of itself amount to wanton or wilful misconduct.

“2. The Court instructs you that merely operating a train at a high rate of speed, at the place in question, does not of itself amount to wanton or wilful misconduct. ’ ’

It may well be that to run a train at a high rate of speed or to fail to ring a bell or sound a whistle would not separately or collectively constitute wilful negligence but together with other elements they might do so, and it is misleading and improper to separate each element that together constitute a cause of action, but that singly would not, and instruct a jury that each of those separate elements do not do so.

Instruction No. 3 given for defendant in error is not subject to the criticism made concerning it.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    Emery Andrews, Guardian, Appellant, v. Orville M. McCumber et al., Appellees.
    1. Appeal and error, § 1252*—beneficial error not ground for complaint. A party cannot complain on appeal of an error that is beneficial to him.
    2. ’ Guardian and ward, § 41*—fact that decree for guardian’s sale fails to protect purchaser is not available to guardian. The fact that the decree for- a sale by a guardian fails to protect the interests of the purchaser and his assignees is of no concern to the guardian.
    3. Guardian and ward, § 50*—application of rule of caveat emptor to guardian’s sale. The purchaser at a guardian’s sale comes under the rule of caveat emptor.

    4. Guardian and ward, § 50*—guardian does not warrant title to lands sold under order of court. A guardian, selling the lands of his wards under order of court, does not warrant the title and is not bound to furnish a merchantable one.
    5. Guardian and ward, § 62b

      —when deeree in guardian’s proceeding will be affirmed on guardian’s appeal. Where a life estate in lands is conveyed to a father with remainder to his children as a class and prior to the termination of the life estate the guardian of the living children sells their- interest, under order of court, for the purpose of obtaining money for their education and maintenance and subsequently the Supreme Court holds that the rights of the unborn children of the life tenant were not divested by the sale and that the purchaser at such sale did not acquire a merchantable title, and thereafter the guardian petitions the County Court that entered the order of sale for an order that will let in the after-born children of the life tenant and that will clear the title of the purchaser at the sale and the Circuit Court which disposes of the petition finds and decrees that the sale did not divest the unborn children of the life tenant of their interest in the lands and that the money then in the

      hands of the guardian vested solely in the children of the life tenant who were living at the time of the sale and orders distribution on the basis of such finding, the decree of the Circuit Court will be affirmed on appeal by the guardian.
    6. Guardian and ward, § 57*—when not error to refuse to permit filing of cross petition in guardian’s proceeding. It is not error for the trial court to refuse to permit the filing in a guardian’s proceeding of a cross petition when the averments therein are not sufficient to warrant the relief therein prayed for.
    7. Costs, § 77

      —when costs of appeal will he taxed to guardian individually. Where an appeal is improvidently taken by a guardian for the purpose of advancing the interests of persons whom he has no authority to represent, the cases of the appeal will be taxed to him individually.
    Appeal from the Circuit Court of Douglas county; the Hon. Hranklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    R. G. Real, for appellant.
    S. S. Du Hamel, for Lee, Clyde R., Roy V., Zina M. and Dell R. McCumber, infant appellees.
    John H. Chadwick, for Orville M. and Robert D. McCumber, adult appellees.

      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 Graves

delivered the opinion of the court.

The father of one Charles T. McCumber conveyed to him certain lands for life and by the same deed conveyed to the children of said Charles T. McCumber as a class the estate in remainder after the expiration of the life estate. During the continuance of the life estate of Charles T. McCumber, which has not yet expired, appellant as guardian of the then living children of Charles T. McCumber, obtained an order from the County Court of Douglas county for the sale of the interest of such children in said lands, for the purpose of using the proceeds of such sale for the benefit, education and maintenance of such children. Pursuant to that order the interests of such children were sold and the proceeds derived therefrom were pursuant to an order of that court turned over to appellant as guardian of such children. The rights of possible after-born children of Charles T. MeCumber in the lands so sold or in the proceeds thereof were in no way considered, adjudicated, protected' or referred to in that proceeding. The Supreme Court in the case of Dole v. Shaw, 282 Ill. 642, had under consideration the question whether the rights of after-born children of Charles T. MeCumber, if any there should be, in the lands in question had been divested by the sale of the said lands pursuant to the order of the County Court of Douglas county above referred to, and it was there held that such interest had not been divested, and that the title of the purchaser at that sale was not a merchantable title but was subject to the interest of any child or children that may hereafter be born to Charles T. MeCumber. It was also there held that such decree was binding and conclusive unless the same should be reversed on appeal or writ of error, and could not be collaterally attached. Appellant then filed in the County Court of Douglas county his petition as guardian in the guardianship matter in which the order for the sale of the lands referred to in Dole v. Shaw, supra, was entered in which he states that it was his intention to have obtained an order in the proceedings to sell land for leave to sell the interest of all the children of Charles T. MeCumber, born and unborn, and had supposed that all such interests had been sold until the Supreme Court held to the contrary in Dole v. Shaw, 282 Ill. 642, and prayed directions and for an order of distribution that should let in the after-born children of Charles T. MeCumber, if any such should be bom, to participate with the wards of appellant in the funds then in his hands arising from the sale of lands pursuant to the former decree mentioned and that should “remove the cloud from and clear the title to said lands so that the owner thereof may give good and merchantable title thereto as originally intended by your petitioner and this court in the sale of said lands when said order was entered.” That petition was eventually disposed of by the Circuit Court of Douglas county. That court found, adjudged and decreed “that the sale of said lands as made by the County Court did not divest the unborn children of the said Charles T. McCumber of any interest in said lands they might have upon being bom,” and that the money then in the hands of the guardian vested solely in the children of Charles T. McCumber who were living at the time the lands were sold, and ordered distribution on the basis of such finding. To reverse that decree appellant, the guardian of the living minor McCumber children, has appealed to this court.

The decree appealed from is more favorable to the children of Charles T. McCumber for whom appellant is guardian and for whom only he has authority to act than the decree asked for by him would have been. By the decree appealed from the rights of the wards of appellant are definitely fixed and determined. No matter how many children are yet born to Charles T. McCumber the rights of the wards of appellant remain the same and the amount they each are to receive out of the funds in appellant’s hands is unaffected. If the decree sought for had been entered, each child that should thereafter be bom to Charles T. McCumber would come in for his or her share of the funds in appellant’s hands and would thereby ratably reduce the amount that each of appellant’s wards would otherwise receive. It follows that it is for the interest of those whom appellant represents that the decree appealed from should be affirmed. A party cannot complain of an error that is beneficial to him. Ashley Wire Co, v. Mercier, 163 Ill. 486-493; Miller v. Whelan, 158 Ill. 544; Griswold v. Hicks, 132 Ill. 494; Hall v. Harris, 113 Ill. 410; Decker v. Decker, 121 Ill. 341; Harmison v. Clark, 2 Ill. (1 Scam.) 131. In so far as the petition in question prayed for direction in regard to the disposition of the funds in the guardian’s hands, the same was granted and such directions were given and were even more favorable to those whom petitioner represents than he sought. The fact that the decree failed to protect the interests of the purchaser of the lands at the guardian’s sale, and their assignees is no concern of the guardian. The purchaser at such sales comes under the rule caveat emptor. The guardian at such sale does not warrant the title and is not hound to furnish merchantable title. It follows that no error has been assigned by appellant that can be availed of by him on this appeal.

Appellant contends that the interest of the unborn children in the lands should have been held to he shifted to the funds in his hands and an order of distribution made protecting such interest in such fund." Several answers to that suggestion are apparent: First, appellant does not represent the unborn children and it is none of his business what becomes of their interest in the land; second, the rights of the unborn children are safely protected in the lands; and third, as already suggested, it is against the interest of the wards of appellant that the interest of unborn brothers and sisters should be transferred from the real estate to the funds in the guardian’s hands even if the court had power to order it so transferred.

The guardian ad litem for the minor appellees herein filed a motion for leave to file a cross petition praying that appellant be required to account for the full value of the land sold instead of the amount for which it was sold. Aside from the question whether such a cross petition was germane to the original petition, the averments therein are not sufficient to warrant the relief therein prayed for and no error was committed by the court in refusing leave to file the same.

There being' no error in the record available to appellant and no error in the matters complained of by appellees, the decree of the Circuit Court is affirmed. And because this appeal was improvidently taken by appellant for the purpose of advancing- the interests of persons whom he has no authority to represent, it is ordered that the costs of this appeal be taxed to ap-r pellant individually.

Decree affirmed.


text:
    Orville B. Gorin, Administrator, Appellant, v. R. E. Wiley and F. R. Wiley, Appellees.
    1. Bills and notes, § 308*—what is purpose and effect of Negotiable Instruments Law in matter of discharge of instrument. Section 121 of the Negotiable Instruments Law (X & A. f 7761), relating to renunciation of rights by the holder of an instrument, was undoubtedly intended to protect the innocent holder of negotiable instrument from the necessity of meeting a defense of payment to or discharge by the original payee while the instrument was in his hands, but certainly was never intended to prohibit the maker of a negotiable instrument from paying it to the payee named therein at anytime before or after maturity, if such payee still had the instrument and was willing to receive the amount represented by it, or to prohibit such obligation’s being discharged by any arrangement between the parties which they choose to make while the instrument is still in the hands of the payee therein named.
    2. Bills and notes, § 308

      —right, notwithstanding Negotiable Instruments Law, to discharge instrument by any arrangement desired. That, notwithstanding the provisions of section 121 of the Negotiable Instruments Law (X & A. f 7761), relating to renunciation of rights by the holder of an instrument, it is still possible to discharge the instrument while it remains in the hands of the payee therein named by any arrangement between the parties which they

      choose to make is indicated by section 195 of the Law (J. & A. IT 7835), which provides that “in any case not provided for in this act the law merchant shall govern.”
    3. Bills and notes, § 308*—law merchant as governing defense of novation. The defense of discharge by novation presents a case not provided for by the Negotiable Instruments Law and, therefore, under the provision of section 195 of such Law (J. & A. If 7835), the law merchant must govern.
    4. Bills and notes—what is origin of law merchant. The law merchant grew up from usages of trade which general convenience and a common sense of justice established to regulate the dealings of merchants and mariners in all the commercial countries of the civilized world.
    5. Bills and notes—:what is origin of rules applicable to commercial paper. The rules applicable to commercial paper were transplanted into the common law from the law merchant; they had their origin in the customs and course of business of merchants and bankers and are now recognized by the courts because they are demanded by the wants and convenience of the mercantile world.
    6. Bills and notes, § 308*—payment as not necessary to discharge bill or note. By the law merchant, which has been ingrafted into the common law, payment is not necessary to discharge a bill or note either as to a party secondarily liable or as to one primarily liable.
    7. Novation, § 1*—what obligations can be destroyed by novation.

    Whatever obligation can be destroyed at all can be destroyed by novation.
    8. Bills and notes, § 361*—propriety of overruling demurrer to defendant’s plea of discharge by novation. Where defendants in an action on promissory notes pleaded a discharge of such notes by novation, held that a demurrer to such plea on the ground that the defense of novation was not permissible under the Negotiable Instruments Law was properly overruled.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard • in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    Mills Brothers, for appellant.
    Henry H. Morey, for appellees.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

In the lifetime of Nathan L. Krone, deceased, appellees gave to him certain promissory notes which he held until Ms death. After his death appellant brought suit to recover on all such notes. Appellees filed their plea of discharge by novation. Briefly the facts pleaded are that during the lifetime of Krone, pursuant to a three-sided contract to which Krone, appellees and one Frank Peers were all parties, appellee B. E. Wiley sold and delivered to Peers certain personal property in consideration of the promise of Peers then and there made to appellees and to Krone to pay Krone the notes mentioned in the declaration and that the said Krone then and there accepted the said promise of the said Peers in full satisfaction and discharge of the said obligations declared on in the declaration. A demurrer to that plea was overruled. Judgment against appellant in bar of Ms action and for costs was entered and tMs appeal followed.

Appellant does not deny that the plea sets up a good defense at the common law but insists that the Negotiable Instruments Act, eh. 98, Bev. St., in force July 1, 1907 (J. & A. ft 7640 et seq.) covers the whole field or subject of negotiable instruments and that such instruments can only be discharged under the provisions of sections 51, 87, 118 or 121 of that Act.

By section 51 (J. & A. 7690) it is provided that “the holder of a negotiable instrument may sue thereon in his own name and payment to him in due course discharges the instrument.” Section 87 (J. & A. 7727) provides that: “Payment is made in due course when it is made at or after maturity of the instrument to the holder thereof in good faith and without notice that his title is defective.”

By section 118 (J. & A. f[ 7758) of that Act it is provided that ‘‘ a negotiable instrument is discharged:

“1. By payment in due course by or on behalf of the principal debtor.

“2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation.

“o. By the intentional cancellation thereof by the holder.

“4. When the principal debtor becomes the holder of the instrument at or after maturity in his own right. ’ ’

By section 121 (J. & A. 7761) it is provided:

“The holder may expressly renounce his rights against any party to the instrument before, at, or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument, discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.” ■ Appellant argues that when the legislature enacted the Negotiable Instruments Act it substituted the new law for the old; that not only is the defense interposed not one recognized by the new law but that by the provisions of section 121 above quoted such a defense is prohibited except where the instrument is delivered up to the person primarily liable thereon or the renunciation is in writing.

It may be conceded as appellant argues that the defense of discharge by novation is not recognized in any of the sections quoted from the Negotiable Instruments Act but there is nothing to indicate that section 121 was intended to prohibit it. That section was undoubtedly intended to protect the innocent holder of a negotiable instrument from the necessity of meeting a defense of payment to or discharge by the original payee while the instrument was in his hands. It certainly was never intended by the legislature to prohibit the maker of a negotiable instrument from paying it to the payee named therein at any time before or after maturity, if such payee still had the instrument and was willing to receive the amount represented hy it, or from such obligation being discharged by any arrangement between the parties which they choose to make while such instrument is still in the hands of the payee therein named. That such defenses were intended to be still reserved is shown by section 195 (J. & A. ft 7835) of that Act which provides that “in any case not provided for in this act the rules of the law merchant shall govern.” The defense set up by this plea presents a case not provided for by the Negotiable Instruments Act, therefore the law merchant must govern.

The law merchant grew up from “usages of trade which general convenience and a common sense of justice have established to regulate the dealings of merchants and mariners in all the commercial countries of the civilized world.” Kent’s Commentaries, vol. 3, page 2. The rules applicable to commercial paper were transplanted into the common law from the law merchant. They had their origin in customs and course of business of merchants and bankers and are now recognized by the courts because they are demanded by the wants and convenience of the mercantile world. Woodbury v. Roberts, 59 Iowa 349. By the law merchants so ingrafted into the common law, “payment is not necessary to discharge a bill or note either as to a party secondarily liable or as to a party primarily liable. ’ ’ For instance, a bill or note may be discharged by the act of the parties by novation, by accord and satisfaction, by compromise and settlement, by release, etc. Corpus Juris, vol. 8, page 611, sec. 848. “Parties primarily liable on a bill or a note, such as the makers and acceptors, are discharged and the instrument is extinguished, in general, by any act which will discharge any simple contract for the payment of money, such as payment, release or the like.” Corpus Juris, vol. 8, page 611, sec. 489. “Any obligation which can be destroyed at all may be destroyed by novation. Thus legacies, judgments, mortgages, guarantees, and similar accessories are as much the subjects of novation as simple contract debts. So the rules of novation apply as completely to debts evidenced by mercantile paper as to.other obligations.” Cyc. vol. 29, page 1134; Struble v. Hake, 14 Ill. App. 546; Gannon v. Cook, 122 Ill. App. 615. See also Shinn v. Fredericks, 56 Ill. 439; Daniels on Negotiable Instruments (5th Ed.), secs. 1221, 1233, 1292.

The demurrer to the plea was properly overruled. The judgment is affirmed.

Judgment affirmed.


text:
    Ella A. Moore, Administratrix of the Estate of Alexander Moore, Deceased, Appellee, v. Bloomington, Decatur & Champaign Railroad, Appellant.

      1. Rajxboads, § 762*—when proper to refuse peremptory instruction for defendant in action for death at crossing. In an action for the death of plaintiff’s decedent who was killed as a result of a collision at a highway crossing between the automobile which he was driving and defendant’s interurban electric car, held that the refusal of defendant’s motion for a peremptory instruction was proper, there being evidence from which without doing violence in the eye of the law the jury could find the verdict for plaintiff which it returned.
    2. Ratleoads, §§ 733, 738

      —when evidence sufficient to sustain verdict for plaintiff in action for death at crossing. In an action for the death of plaintiff’s decedent who was killed as a result of a collision at a highway crossing between the automobile which he was driving and defendant’s interurban electric car, held that, considering all of the evidence, it could not be said that the verdict for plaintiff was wrong on the facts either as to the charge of negligence on the part of the defendant or as to the charge of contributory negligence on the part of the deceased.

      3. Railroads, § 709*—when evidence of other accidents at same crossing admissible in action for death at crossing. Where it is charged in the declaration in an action for wrongful death, occurring as a result of a collision at a highway crossing between the automobile which the deceased was driving and defendant’s interurban electric car, that the railroad was so obscured by embankments, weeds, trees and other objects near by that persons approaching the crossing could not see the approach of cars, and proof in support of such allegation is offered, it will not be error to admit proof of other accidents at the same crossing at previous times under similar circumstances for the purpose of showing the existence of inherently dangerous conditions at the crossing and knowledge thereof on the part of the defendant.
    4. Appeal and error, § 1514*—when corporate defendant not injured by argument of counsel. Where, in an action for wrongful death, occurring as a result of a collision at a highway crossing between the automobile which the deceased was driving and defendant’s interurban electric car, counsel for plaintiff began to quote in his argument to the jury what some newspaper had said about corporations that had “no soul to damn” but did not complete the quotation, he being stopped by an objection that was sustained by the court, held that it was not apparent how defendant could have been injured by the incomplete quotation.
    5. Death, § 73*—when instruction on subject of damages is not erroneous. An instruction in an action for wrongful death that if the jury believed from a preponderance of the evidence that plaintiff was entitled to recover, etc., its verdict should be for the plaintiff and it should assess the damages at such sum as it believed from the evidence the party for whose use the suit was brought had actually sustained, if any, was not erroneous because it did not in express terms limit the damages to be allowed to “pecuniary” damages.
    6. Instructions, § 151*—when not error to refuse requested instructions. It is not error to refuse instructions, the subject-matter of which is fully and fairly covered by the instructions given.
    7. Death, § 67

      —when verdict for $5,000 for death of man 64-years old is not excessive. A verdict for $5,000 for the wrongful death of a man 64 years of age, well to do, actively engaged in the business of conducting three farms and in good health with an expectancy of more than 15 years, held not excessive.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    Modified and refiled December 29, 1919.

      Le Forgee, Black & Samuels, for appellant.
    Jesse L. Deck and Charles F. Evans, for appellee.

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

      See Illinois Notos nicest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellee’s decedent was killed at the intersection of a public highway and the railroad tracks of appellant at what is known as Swartz crossing, by a collision between an automobile he was driving and an electrically propelled car belonging to and being operated by the servants of appellant on its tracks there. Appellant concedes that the controversy turns on whether the accident was due to some negligence charged in the declaration or to the contributory negligence of the deceased. Appellee secured a verdict and judgment for $5,000.

The motion of appellant for a peremptory instruction was properly refused. There was evidence from which, without doing violence in the eye of the law, the jury could find the verdict returned. Libby, McNeill & Libby v. Cook, 222 Ill. 206. More than that, a careful consideration of all the evidence in this case leaves us unable to say that the verdict is wrong on the facts either as to the charge of negligence on the part of appellant or as the contributory negligence on the part of the deceased.

It is charged in the declaration that the railroad was so obscured by embankments, weeds, trees and other objects nearby that persons approaching the Swartz crossing could not see the approach of cars from the east on appellant’s tracks, and proof was offered in support of that allegation. Proof of other accidents at this same crossing at previous times under similar circumstances was also admitted. That was not error. The speed of a car run on the tracks of appellant approaching the Swartz crossing might be negligent or not according to known dangerous conditions there existing. If that crossing was by reason of conditions charged in the declaration inherently dangerous, proof of other accidents occurring there under similar circumstances would tend to show not only that the conditions there were inherently dangerous but would also tend to show knowledge on the part of appellant of such conditions, and knowledge of inherently dangerous conditions would require of appellant the running of its train with reference thereto. The Supreme Court said of such evidence: “This evidence was competent, not for the purpose of showing independent acts of negligence, but as tending to show that the common cause of accidents was a dangerous and unsafe thing and the frequency of such accidents also tends to raise a presumption of knowledge.” City of Chicago v. Jarvis, 226 Ill. 614; City of Bloomington v. Legg, 151 Ill. 9; City of Taylorville v. Stafford, 196 Ill. 288.

Counsel for appellee in his argument to the jury began to quote what some newspaper had said about corporations that had “no soul to damn,” but was stopped by an objection that was sustained by the court and did not complete his quotation. It is not apparent how appellant could have been injured by the incomplete quotation. .

The 9th instruction given for appellee dealt with the right to prove by circumstantial evidence the habits of the deceased for care. It is in accord with what has already been said on that subject. The giving of it was not error.

The twenty-first instruction given for appellee was as follows:

“The court instructs the jury that if you believe from a preponderance of the evidence that plaintiff is entitled to recover under any one of the counts of the declaration before you for consideration, your verdict should be for the plaintiff and you should assess the damages at such sum as you believe from the evidence the party for whose use this suit is brought has actually sustained, if any.”

It is argued that this instruction is erroneous because the language employed does not in express terms limit the damages to be allowed to “pecuniary” damages. In support of this contention appellant cites the case of Shields v. J. H. Dole Co., 168 Ill. App. 362. What is there said on this subject is clearly in conflict with the holdings of our Supreme Court in Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, and in Illinois Cent. R. Co. v. Cozby, 174 Ill. 109, and in many other cases. It was not error to give this instruction.

Four instructions offered by appellant on the question of the duty of appellee to prove that the deceased was in the exercise of due care for his own safety, and the effect of contributory negligence of the deceased upon the right of appellee to recover, were properly refused. There is no necessity for the repetition of the same proposition of law over and over again in the same series of instructions. The jury in this case were fully and fairly instructed on the subjects contained in the four refused instructions named.

The verdict was not excessive. It is not too much to expect that a man of 64 years of age, well to do, actively engaged to the business of conducting three farms, and in good health with an. expectancy of more than 15 years would in those 15 years be of more benefit to his next of kin than $5,000.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.