text:
    Albert Ptak, Appellee, v. Morand Brothers, Appellant.
    Gen. No. 20,329.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by Albert Ptak, against Morand Brothers, a corporation. The defendant occupied a building five stories in height, in which was a single belt electric elevator running from the first to the fourth floor. In the fifth story was the drum around which the cable attached to the car was wound and unwound in raising and lowering the car. Plaintiff was a blacksmith employed in the shop of the defendant, and Frank Matthews was the foreman of the shop. Joseph Morand, the treasurer of the defendant, came to the shop and spoke to foreman Matthews. What he said does not appear. Matthews was killed and Morand was not asked what he said to Matthews. Directly after Morand left, Matthews went to the elevator shaft on the third floor, taking with him plaintiff and Blanchard. Blanchard took with him a crowbar, and plaintiff by the order of Matthews took with him a crowbar and an extension light cord. They went to the elevator shaft on the third floor where the car “was stuck,” and Matthews sent plaintiff to the fourth floor to take an electric light from the top of the car and by means of the extension cord lower it into the shaft below the car. Plaintiff obeyed the order and returned to the shaft on the third floor. Matthews and Blanchard were pushing a plank across the elevator shaft, and by order of Matthews plaintiff lifted up the end of the plank and it was shoved onto the floor. Matthews and Blanchard went on the plank and plaintiff stood on the floor alongside of the shaft. Matthews pointed to a piece of wood with his crowbar and said to plaintiff, “Yon see that piece of wood?” Plaintiff answered, “Yes, I see it. What do you want me to do?” and'Matthews said, “I push it up on my side and you take your crowbar and push it up from the other, so we can push it easy. ’ ’ As plaintiff raised his crowbar the car fell and he did not know what happened, “because I lose myself.” The evidence tended to show that the fall of the elevator was due to slack in the cable after it had slipped from the drum to the shaft upon which it revolved.
    Abstract of the Decision.
    1. Master and servant, § 705

      —when evidence sufficient to show cause of accident. In an action for personal injuries caused by the fall of an elevator, evidence held to show as a fact and not by presumption or conjecture that the elevator had become jammed, that plaintiff at the time of his injury was endeavoring to free it, and that it fell upon the dislodging of a block of wood which had caused it to jam.
    2. Master and servant, § 156*—when evidence shows negligence in connection with elevator. In an action for personal injuries by an employee caused by the fall of an elevator which had become jammed while he and other employees were endeavoring to free it, evidence held sufficient to show that the fall of the elevator was due to the fact that the cable suspending it had slipped from the drum to the shaft upon which it revolved, thus making the cable slack, and permitting the fall of the elevator upon the removal of the obstruction which had caused it to stick, and that reasonable care on the part of the foreman in charge of the work required him to ascertain in advance whether there was slack in the cable, and his failure to do so was negligence.

      Judgment for the plaintiff and defendant brings error.
    F. J. Canty and P. L. McArdle, for appellant; J. C. M. Clow, of counsel.
    David K. Tone, 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. Justice Baker

delivered the opinion of the court.

3. Master .and servant, § 248 —when foreman a vice-principal. In an action by an employee for personal injuries caused by the fall of an elevator which had become jammed while plaintiff and other employees were endeavoring to free it, the failure of the foreman in charge of the work to ascertain in advance whether there was any slack in the cable suspending the elevator which would permit it to fall upon the removal of the obstruction causing it to jam, held the act of a vice-principal for which defendant was liable.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Vincent Sotek et al., Appellees, v. Antonia Sotek et al., Appellants, impleaded with Michael Snyder et al., Defendants.
    Gen. No. 20,348.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Poell, Judge, presiding. Heard in this court at the March term. 1914. Appeal from order of November 24, 1913, dismissed.
    Decree entered September 29, 1913, affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by Vincent, Anton and Elizabeth Sotek, against Antonia Sotek, Josephine Howard and Jennie Snyder, impleaded with Michael Snyder, Mary Slama, Max W. and Ottillie Kujawski, Kate Sotek and Tillie Habel, in the Superior Court of Cook County. This cause was before the Supreme Court on appeal of Antonia Sotek and two other defendants in 1911. The Supreme Court held that Antonia Sotek had not abandoned her homestead in the premises in question, and reversed and remanded the cause. See 253 Ill. 302. May 27, 1912, an amended bill and an answer by Antonia Sotek and her daughters, Josephine and Jennie, were filed and a decree entered. By the .decree Antonia Sotek was adjudged a homestead in the premises; the rights of the parties in the property were declared, partition ordered and commissioners appointed to make partition. The commissioners reported that partition could not be made, and a decretal order was entered directing the master to sell the real estate and divide the proceeds among the parties entitled thereto; and out of the proceeds to pay Antonia Sotek the value of her homestead, fixed at $1,000. It was also adjudged that she had received rents and profits of the premises and expended money thereon for taxes, repairs and other expenses; and the cause was referred to the master in chancery to take an account of the receipts and expenditures of Antonia Sotek from and on account of said real estate. January 28, 1887, her widow’s award was appraised at $1,805, and the appraisal was approved by the Probate Court. In the accounting she claimed credit for her widow’s award with the interest thereon.
    Whether Antonia Sotek was entitled to be allowed in the accounting the amount of her widow’s award appears to be the only question in controversy on this appeal.
    October 6, 1897, the Probate Court approved the final account of the executor of Anton Sotek, and ordered that because more than ten years had elapsed since the award of Antonia Sotek, his widow, had been so set off in said estate, and no claim had been made by her for the payment of such award, that such widow’s award be and the same is hereby released to this estate. The master found that the Probate Court had no jurisdiction to release and satisfy the award, but also found that her claim to such award was barred by laches. The master found that there was a balance due from the widow, Antonia Sotek, on the accounting of $2,675.42. The report was approved September 29, 1913, and the decree approving the report permits deductions by Antonia Sotek of her own distributive shares of both the proceeds of the real estate and of the balance for rents, and found that she owes net $2,389.62, and orders that she pay that sum to the master in chancery for distribution by him to the parties entitled thereto.
    Abstract of the Decision.
    Executors and administrators, § 186

      —when laches bars right to subject realty to payment of award. Right of widow to subject real estate to the payment of her award held barred by laches, where no steps were taken by her to that end for twenty-five years after her award was appraised by the Probate Court.
    The master sold the premises and his report of such sale approved. November 24, 1913, an order was entered that the master distribute the proceeds of the sale as declared in and by the decree of May 27, 1912. From this decree Antonia Sotek and her daughters, Josephine and Jennie, appealed. This court treated the appeal as an appeal from the decree of September 29, 1913, and affirmed that decree.
    Otto L. Steiskal, for appellants; Lewis Edward Dickinson, of counsel.
    Simon P. Gary, for appellees; Michael Lyons, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Centaur Motor Company of Illinois, Plaintiff in Error.
    Gen. No. 20,795.
    1. Taxation, § 188

      —what is character of Act of 1898. The Revenue Act of 1898 (J. & A. 1f1f 9516-9564) was intended to provide a new system for the assessment of property and not to amend the general revenue act in other particulars.
    2. Statutes, § 148*—what is effect of revision. The revision of section 24 of the Act of 1872, as amended hy the Act of 1879 (J. & A. If 9238), providing for the listing of property for taxation, by the Act of 1898, sec. 19 (J. & A. If 9534) and the omission of the misdemeanor clause in the former act evidenced a legislative intention to substitute the provisions of the new law for the old upon the subject.
    3. Taxation, § 188*—how far General Revenue Act affected by Act of 1898. Section 55 of the Revenue Act of 1898 (J. & A. jf 9572), providing that “all provisions of the general revenue law in force prior to the taking effect of this act shall remain in force * * * except in so far as by this act is otherwise expressly provided,” does not mean that all provisions of the prior act shall remain in force unless the act expressly provides otherwise, but that wherever in the Act of 1898 the Legislature has made provision concerning the subject-matter of the Act of 1872, the latter act must fall.
    4. Taxation, § 188*—what penalty prescribed for failure to file schedule. The provision in section 19 of the Revenue Act of 1898 (J. & A. If 9534), that if any person shall refuse to make and swear to the schedule required by the act, the assessor shall list his property and add to the valuation of such list an amount equal to fifty per cent, of such valuation, provides for a penalty for such refusal.
    5. Statutes, § 152*—when impliedly repealed. When there are two statutes imposing a penalty and the penalty imposed by one is not the same as that imposed by the other, the later statute repeals the earlier.
    6. Taxation, § 188*—provisions of Act of 1872 relating to filing of schedule repealed. Section 19 of the Revenue Act of 1898 (J. & A. If 9534), providing for the listing of property for taxation and imposing a penalty for refusal to file the schedule provided for, repeals section 24 of the Revenue Act of 1872 (J. & A. If 9238), making the failure to file such schedule a misdemeanor.

      Error to the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed April 26, 1915.
    Miller, Gorham & Wales, for plaintiff in error.
    Maclay Hoyne and Hayden N. Bell, for defendant in error; Francis E. Hinckley, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings in review a judgment of the County Court imposing a fine of One Hundred and Fifty Dollars against the defendant, the Centaur Motor Company of Hlinois, on an information filed by the State’s Attorney in the name of the People charging that defendant refused and neglected to list and schedule its personal property for taxation between April 1 and June 1, 1914, in the manner and form required by law with the Board of Assessors of Cook County. Section 24 of the Revenue Act of 1872 was as follows:

“Persons required to list personal property shall make out and deliver to the assessor at the time required a schedule of the numbers, amounts, quantity and quality of all personal property in their possession, or under their control, required to be listed for taxation by them. -It shall be the duty of the assessor to determine and fix the fair cash value of all items of personal property.”

This section was amended by the Revenue Act of 1879 (J. & A. ¶ 9238) by adding the following provision:

“Any person so required to list personal property who shall refuse, neglect or fail, when requested by the proper assessor to do so, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding $200, and the several assessors shall report any such refusal to the county attorney, whose duty it is hereby made to prosecute the same.” Laws of 1879, p. 253.

The clause above quoted is the only provision in any revenue act making it a misdemeanor to refuse, neglect or fail to list personal property for taxation. The contention of the defendant in error is that the above quoted misdemeanor clause in the Act of 1872 as amended by the Act of 1879 was not repealed by the Act of 1898. This contention is based on section 55 of the Act of 1898 (J. & A. ¶ 9572), which is as follows:

“All the provisions of the general revenue law in force prior to the taking effect of this act shall remain in force and be applicable to the assessment of property and collection of taxes except in so far as by this act is otherwise expressly provided.”

The act of 1872 is a general revenue act, contains 294 sections and many of its provisions remain unchanged. The Act of 1898 contains 59 sections and relates exclusively to the assessment of property. Section 19 of that Act (J. & A. ¶ 9534) is as follows:

“The assessor shall require every person to make, sign and swear to the schedule provided for by this act. If any person shall refuse to make the schedule herein required, or to subscribe and swear to the same, the assessor shall list the property of such person according to his best knowledge, information and judgment, at its fair cash value, and shall add to the valuation of such list an amount equal to fifty per cent of such valuation. Whoever in making such schedule shall wilfully swear falsely in any material matter shall be guilty of perjury and punished accordingly.” • That the Act of 1898 was intended to provide a new system for the assessment of property and not to amend the general revenue act in other particulars is shown by the provisions of the act, and it was so held in People v. Knopf, 183 Ill. 410, where it was said, p. 417:

“The Act of 1898, however, provides for an entire new system of making the assessment, and the basis of it, with new modes of procedure and a new system of review, and as to that subject it is substantially complete in itself, constituting an entire plan for the making of the assessment.”

In People v. Town of Thornton, 186 Ill. 162, it was said, p. 173:

“Where the legislature frames a new statute upon a certain subject matter, and the legislative intention appears from the latter statute to be to frame a new scheme in relation to such subject matter and make a revision of the whole subject, there is in effect a legislative declaration, that whatever is embraced in the new statute shall prevail, and that whatever is excluded is discarded. The revision of the whole subject matter by the new statute evinces an intention to substitute the provisions of the new law for the old law upon the subject. (Black on Interpretation of Laws, p. 116; Murdoch v. Mayor of Memphis, 20 Wall. 590).” People v. Freeman, 242 Ill. 152.

If the contention of defendant in error is correct, then if the Legislature desired to retain the penalties provided by section 24 as amended in 1879, it was not necessary to provide any penalty for the refusal to list property. That contention is that the penalties provided by the Act of 1879 were continued in force by virtue of section 55. But the Legislature by section 19 of the Act of 1898 undertook to fix the penalties for such refusal to-list, and that section omits the misdemeanor clause. The subject-matter of the assessment of property was revised by the Act of 1898, the provision as to the filing of a schedule was revised and the misdemeanor clause omitted. This, as was held in People v. Thornton and in People v. Freeman, supra, evidenced a legislative intention to substitute the provisions of the new law for the old upon the subject.

The words of section 55 of the Act of 1898 do not mean that every section of the general revenue law in force prior to the taking effect of the Act of 1898 shall remain in force unless the act expressly provides otherwise, but also means that wherever in the Act of 1898 the Legislature has made provision concerning the subject-matter of the Act of 1872, the latter act shall fall. Such action on the part of the Legislature evinces an intention that the old law for which the new is substituted shall not remain in force quite as clearly as could an express provision by the Legislature that the old law should not remain in force.

The provision in the Act of 1898 that if any person shall refuse to make and swear to the schedule required by the act, the assessor shall list his property and add to the valuation of such list an amount equal to fifty per cent, of such valuation, clearly provides a penalty for such refusal. Monticello Seminary v. Board Review Madison Co., 249 Ill. 481; People v. Meacham, 241 Ill. 415.

When there are two statutes imposing a penalty and the penalty imposed by one is not the same as that imposed by the other, the later statute repeals the earlier. Gorman v. Hammond, 28 Ga. 85.

It was clearly the intention of the Legislature to do away with the provision of the Act of 1872, making the failure to file a schedule a misdemeanor, and to leave as the sole penalty therefor the addition of a fifty per cent, valuation, as provided in section 19 of the Act of 1898.

We think that section 24 of the Act of 1872 is repealed by the Act of 1898, and that the defendant in failing to file a schedule of its property in 1914 was not guilty of a misdemeanor.

If upon any ground it could be held that the Act of 1872 was in force in 1914, the evidence, in our opinion, is not sufficient to sustain the conviction. Inasmuch, however, as in our opinion section 24 of the Act of 1872 is not to .be extended to cover violations of the Act of 1898, and the judgment must therefore be reversed without remanding the case, we do not deem it material to point out in what particular the evidence is insufficient to sustain the judgment.

The judgment of the County Court is reversed.

Reversed.


author: Mr. Justice McSurely

text:
    R. L. Halperin, Defendant in Error, v. Louis Dultz, Plaintiff in Error.
    Gen. No. 19,183.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Raeeerty, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by R. L. Halperin against Louis Dultz in the Municipal Court of Chicago to recover rent of a certain store belonging to the plaintiff, for the months of November, 1911, to February, 1912, inclusive, at the rate of thirty-seven dollars per month. The defendant had rented the premises in question by parol lease at thirty-seven dollars per month for a certain period. Defendant sold the business conducted by him in the store to other parties. The plaintiff consented to this and gave them a lease. The parties to whom the defendant sold remained on the premises under the lease to them from the plaintiff for a while but moved out before the term of the lease expired without the consent of the plaintiff. Plaintiff testified that at the time the defendant proposed that he lease the premises to these parties and at the time he leased it to them he told the defendant that he would look to him for any loss and that the defendant agreed to this. Judgment for the plaintiff and defendant brings error, Reversed without remanding the cause,

      Abstract of the Decision.
    1. Landlord and tenant, § 451*—what constitutes a surrender. Where a party who has verbally leased premises íor a certain period sells out his business conducted therein with the consent of his lessor, who agrees to take a lease from the new tenants and does so, such act by the lessor operates as a surrender of the original lessee’s verbal lease.
    2. Frauds, statute of, § 13 when promise to answer for debt of another void. A verbal promise by the lessee of premises to his lessor that he will be responsible for any loss which he may suffer in re-renting the premises to other parties to whom the lessee has sold his business conducted therein is void under section 1 of chapter 59 of the act in relation to fraud and perjuries (J. & A. jf 5867).
    Winston, Payne, Strawn & Shaw, for plaintiff in error; John C. Slade, of counsel.
    No appearance for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice McSurelt

text:
    In re Estate of Maud M. Thompson, Deceased. Archie W. Campbell and Frank E. Campbell, Appellants, v. Wilder B. Thompson, Appellee.
    Gen. No. 19,932.
    1. Pleading, § 304

      —when affidavit necessary to denial of execution of writing. Under section 52 of chapter 110 of the Practice Act of the Illinois Statutes (J. & A. j[ 8589), the execution of an instrument in writing upon which any action may be brought cannot be denied unless a plea shall be filed with affidavit denying the execution.
    2. Pleading, § 304*—how execution of note filed as claim in Pro-hate Court must he denied. Section 52 of chapter 110 of the Practice Act (J. & A. If 8589), requiring any one denying the execution of an instrument in writing upon which any action may be brought to file a plea with affidavit denying the execution, applies to a claim on a note filed in the Probate' Court.
    3. Conteacts, § 373

      —when consideration need not he proved. Where the instrument sued on recites an adequate consideration, the claimant need not prove the consideration by any evidence other than the instrument itself.
    4. Wills, § 68*—when instrument not void as a testamentary disposition. An instrument acknowledging an indebtedness from the maker to the payee, who was the husband of the maker, and providing for the deduction of the amount from the maker’s share of the payee’s estate in the event that she survived him, or the payment of same out of her estate should he survive her, provides for payment within a time certain and is not invalid as an attempted testamentary disposition.
    5. Interest, § 12*—when interest allowed after maturity. Under section 2, ch. 74, of the Illinois Statutes (J. & A. "|f 6691), entitled “Interest,” which provides that interest shall be allowed “for all moneys after they become due on any bond, bill, promissory note, or other instrument in writing,” interest may be allowed on a non-negotiable instrument for a certain sum of money, acknowledged therein to be payable to a party therein named, after maturity.
    Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomeboy, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 26, 1915.
    Frederic R. De Young, for appellants.
    William Slack, 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. Justice McSurelt

delivered the opinion of the court.

The appellee, Wilder B. Thompson, filed his claim in the Prohate Court of Cook county against the estate of his deceased wife, Maud M. Thompson. The portion of the claim now before us is based upon the following instrument:

“I, Maud M. Thompson, the wife of Wilder B. Thompson, do hereby acknowledge that I am indebted to my said husband in the sum of Four Thousand ($4,000) Dollars, which sum without interest, shall be deducted from my share in my husband’s estate in the event of his prior death. Should I depart this life, however, before my said husband, then the said sum of Four Thousand ($4,000) Dollars, without interest, shall be paid to him out of my estate. This instrument is, and shall be, non-negotiable. “Dated, at Harvey, Illinois, this fifth (5th) day of September, A. D. 1908. (Signed) MAUD M. THOMPSON.”

This claim was allowed by the Probate Court, and from the order of allowance appeal was taken to the Circuit Court, where, upon trial without a jury, the issues were found for the claimant and his damages assessed at $4,253.28, the sum mentioned in the instrument with interest thereon, and judgment for that amount was entered.

It is first argued that the claimant before he can recover must prove the signature of the intestate to the instrument in question. The point is not well taken. Under section 52 of chapter 110 of the Practice Act of the Illinois Statutes (J. & A. ¶ 8589) it is provided that no person shall be permitted to deny the execution of an instrument in writing upon which any action may be brought, unless a plea shall be filed with affidavit denying the execution; and in DeClerque v. Campbell, 231 Ill. 442, it is held that the requirement of an affidavit denying the execution of any instrument in writing in order to compel proof of the genuineness of the signature applies to a claim on a note filed in the Probate Court the same as in a suit at law on a note in any other court.

The second point is that the consideration must be proven by the claimant by evidence other than the instrument itself. This is not the law where the instrument itself recites an adequate consideration. As was said in McFarlane v. Williams, 107 Ill. 33: “The contract recites an adequate consideration, and the" burden is upon appellant, if he would impeach that recital, to do so by a clear preponderance of evidence.”

It is next said that the instrument in question is an attempted testamentary bequest, and void because not executed in conformity with the Statute of Wills. We do not think the language of the instrument can be construed as a testamentary bequest. It explicitly recites an indebtedness from the maker of the instrument to the appellee. It has been held in a number of decisions in this State that a promise to pay a certain sum of money “after death” is a promise to pay at a time certain. Among the cases so holding are Neish v. Garmon, 198 Ill. 219; Shaw v. Camp, 160 Ill. 425; Goodwin v. Goodwin, 65 Ill. 497; Safford v. Graves, 56 Ill. App. 499.

The last point presented by appellants is that it was error to allow interest. The judgment includes interest after the maturity of the note. We hold that interest was allowable after maturity. Section 2, ch. 74, Illinois Statutes (J. & A. ¶ 6691), entitled “Interest,” provides that interest shall be allowed “for all moneys after they become due on any bond, bill, promissory note, or other instrument in writing.” See also Whittaker v. Crowe, Hargadine & Co., 132 Ill. 627.

We think the judgment of the. Circuit Court was correct, but we are not disposed to grant the motion of the appellee that he be awarded statutory damages, as we aré not persuaded that this appeal has been prosecuted for delay.

The judgment is affirmed.

Affirmed.


text:
    City of Chicago, Plaintiff in Error, v. W. W. Quinn, Defendant in Error.
    Gen. No. 20,134.
    Abstract of the Decision.
    1. Intoxicating liquors, § 162

      —when judgment for defendant sustained. Where the trial court might reasonably infer from the evidence in an action by the City against one for the violation of an ordinance against keeping saloons open after a certain hour, that the ordinance has not been violated, the Appellate Court will affirm the judgment of the trial court in favor of the defendant.
    2. Appeal and error, § 1034*—when ordinance not judicially noticed. Where a city ordinance has not been preserved for the consideration of the Appellate Court it will not take judicial notice of the existence of such ordinance.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by the City of Chicago against W. W. Quinn in the Municipal Court charging the defendant with keeping his saloon open after one o’clock a. m. in violation of the city ordinance. The trial court found for the defendant and the plaintiff brings error.
    William H. Sexton and James S. McInerney, for plaintiff in error; Ulysses S. Schwartz, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Me. Justice McSueely

text:
    Lyon & Healy, Plaintiff in Error, v. John S. Baxter, Defendant in Error.
    Gen. No. 20,244.
    Interest, § 2

      —when refusal to allow erroneous. Refusal of the trial court to allow interest on a note which, by its terms, bore interest from date, held erroneous.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed with judgment in this court.
    Opinion filed April 26, 1915.
    Charles S. Knudson, for plaintiff in error.
    No appearance for defendant in error.

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

   Me. Justice McSueely

delivered the opinion of the court.

Plaintiff brought suit in the Municipal Court against the defendant, John S. Baxter, on the following instrument :

“$945.00 Chicago, Ill., Jan. 14, 1910.
For value received, we promise to pay to the order of Lyon & Healy, at their office in Chicago, Ill., with current exchange and with interest from date at the rate of six per cent per annum, the full sum of Nine Hundred Forty-five Dollars, payable in installments as follows: The sum of Thirty dollars on the 14th day of February, 1910, and a like sum on the 14th day of each month thereafter; the last installment becoming due on the 14th day of September, 1912; and if any installment be not paid when due, then at the option of the holder of this note all unpaid installments shall become at once due and payable. This note is secured by chattel mortgage.
John S. Baxter,
Agney B. Baxter.”

The only matter in dispute was whether defendant was obligated to pay interest; the amount of interest is not in controversy. By his affidavit of defense defendant alleged a verbal agreement that he was not to pay interest, and upon the trial testified to such an agreement made with a salesman of the plaintiff. Defendant can read and write perfectly, is a man of intelligence, and understood that he was sighing a promissory note. Subsequently the trial court held that parol evidence was inadmissible to contradict or vary the terms of the instrument, and prepared and marked “held” the following proposition:

‘1 The court decides this question upon the language of the note itself and the evidence as to the manner of payment with no reference to conversations between the parties before the note was executed.”

He then found the issues for the defendant and against the plaintiff.

Defendant does not appear in this court to suggest any construction of the language of the note or anything concerning the manner of payment which would relieve him from the obligation to pay interest. We are not informed as to the particular considerations which led the trial court to hold as he did. After examining the instrument in question no sufficient reason occurs to us for holding inoperative the promissory provision to pay “interest from date at the rate of six per cent per annum.” We must therefore reverse the judgment, and as there is no controversy over the amount, judgment will be entered in this court' for the plaintiff for the amount of interest claimed from the defendant.

Reversed with judgment in this court.


text:
    Christian Johnson, Appellee, v. Paul F. P. Mueller, Appellant.
    Gen. No. 20,281.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action brought by Christian Johnson, plaintiff, against Paul F. P. Mueller, defendant, in the Superior Court of Cook county for damages for personal injuries.
    Plaintiff, a carpenter, was employed by defendant in the work of constructing temporary framework for the cement used in the construction and erection of a building called the Steele-Wedeles building, at the north end of the Dearborn Street Bridge in Chicago. The construction proceeded in this manner: Upright steel columns were erected and these were connected by steel crossbeams; both columns and beams were then covered with cement, and to do this wooden boxes were constructed around the columns and beams, and into these boxes the wet cement poured, and after it had hardened the temporary wooden boxes or coverings were removed. The boxes were simply molds into which the plastic cement was poured. That the boxes around the beams might not sag when the cement was poured into them, temporary wooden uprights, called shores, were placed under them. These shores were planks, usually about two by ten inches and about seven and one-half feet long. Across the top was nailed a crosspiece, giving the shore somewhat a T shape, and when the shore was placed in position it was fastened by driving tenpenny nails through these crosspieces up into the bottom of the box. Ordinarily when thus nailed the lower end of the shore would stand about two or three inches clear of the floor, and wedges would be driven into this space so as to make the shores firm'and to secure the proper levels. These shores were set six or seven feet apart, about three under one beam.
    Abstract of the Decision.
    1. Master and servant, § 683

      —when evidence insufficient to show negligence. Where in an action for personal injuries there was evidence that a shore or support fell and struck the plaintiff, an employee of the defendant, hut it did not appear where it fell from or where it was standing before it fell or that at the time of the accident it was being used by the defendant, and there was evidence that the plaintiff before using shores had been in the habit of leaning them against upright columns, although warned not to do so, and a witness for the defense testified that the plank which struck the plaintiff “was an upright leaning against another upright,” the evidence was insufficient to support plaintiff’s claim that it fell because it had not been nailed.
    2. Master and servant, § 584*—when doctrine of res ipsa loquitur inapplicable. In an action for damages by a servant against the master for injuries received from a falling shore, the single fact that the plaintiff was struck by a falling shore is not sufficient to show the negligence of the defendant.

      Plaintiff alleged that while engaged in wedging the shores which had already been placed in position under the boxes by the defendant, a shore near by, so placed in position by defendant but through negligence not nailed to the box overhead, fell and struck plaintiff, inflicting injuries.
    Judgment of three thousand dollars for plaintiff and defendant appeals.
    Brundage, Landon & Holt, for appellant; Robert N. Holt, of counsel.
    Alexander H. Heyman, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Master and servant, § 127*—what is duty as to safe place where conditions are changing. It is the duty of the master to use reasonable care to furnish a reasonably safe place to work, even where the conditions are changing from time to time during the performance of the work.

4. Master and servant, § 833*—when modification of instruction harmless. It is not prejudicial error for the trial court to modify an instruction on assumption of risk offered by the defendant in an action of negligence by striking out the words, “and the law presumes plaintiff charged for such risks,” where these words merely repeat essentially what was already contained in the instruction, namely, that plaintiff “contracted with reference to” such risks.

5. Limitation of actions, § 58*—when additional count not tarred. A demurrer to a plea of the statute of limitations to ti.i additional count filed after verdict is properly sustained where the additional count set up the same cause of action originally declared on.


text:
    National Meter Company, Appellee, v. Village of Bellwood, Appellant.
    Gen. No. 20,331.
    1. Municipal corporations, § 164

      —when burden on municipality to show illegality. Where it is within the general power of a village to purchase a water meter and it failed to take the necessary steps to authorize the particular act in question, the burden is upon the village to plead and prove facts rendering the contract of purchase illegal.
    2. Municipal corporations, § 166*—what constitutes ratification of contract. In an action on a contract to recover the purchase price of a meter sold in a village where it appears from the evidence that the meter was sent to the village on the order of the president of the village board, and that it was received and used by the village, such acts of the village constitute a ratification of the contract, rendering it liable for the purchase price.

      Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    George E. Brannan, for appellant.
    Haight, Brown & Haight, for appellee.

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

   Mr. Justice McSurelt

delivered the opinion of the court.

This is a suit for five hundred dollars, the price of a water meter furnished by plaintiff to the defendant in February, 1911. The trial was by the Court, and plaintiff had judgment for the amount claimed.

On February 16, 1911, the president of the Village Board of Bellwood, the defendant, wrote to plaintiff certifying that a resolution had been passed by the Village Board requesting him to order a six-inch' Crown water meter, price five. hundred dollars, to be shipped to Melrose Park, Illinois, to be placed on the water main from Melrose Park to Bellwood; the expense of setting the meter to be borne by the Village of Bellwood. The letter concluded: ‘1Consider this an order from the Board of Bellwood, Illinois.” The meter was forthwith shipped, received by defendant and set in place in the Village of Bellwood, and since then has been in continuous service for the defendant.

In December, 1911, the village clerk of defendant wrote to plaintiff that the five hundred dollars which the village owed would not be paid until May 1, 1912. On April 26, 1912, he again wrote that the board had instructed him tó write that as soon as the appropriation would be made, which would be some time in May, the bill would be paid. On August 16, 1912, the clerk again wrote, saying that the president and board of trustees instructed him to say that the appropriation had been made and the amount would be paid,

The judgment of the trial court was proper. It was within the general powers of defendant to purchase a water meter, and if it failed to take the requisite steps to authorize the particular act in question, the burden was on the defendant to plead and prove facts rendering the contract of purchase illegal. City of Chicago v. Peck, 196 Ill. 260; Schuyler County v. Missouri Bridge & Iron Co., 256 Ill. 348. Defendant has not made the proof necessary to avoid payment for the meter. From aught that appears from the record a special appropriation ordinance may have been passed, or it may be that in the general appropriation ordinance for the year beginning May 1, 1912, and ending April 30, 1913, this purchase was provided for. It is a fair inference from the letters of the village clerk that this latter supposition is the fact.

Even if this were not so, by its acts the defendant has ratified the contract of purchase and is obligated to pay for the meter. Under similar facts it has been so held in City of Chicago v. Norton Milling Co., 196 Ill. 580; Shoenberger v. City of Elgin, 164 Ill. 80, and Sanitary Dist. of Chicago v. George F. Blake Mfg. Co., 179 Ill. 167.

The judgment meets with our approval and is affirmed.

Affirmed.


text:
    Mary Tucker Gould, Appellant, v. E. Iles Kerlin and Coleman G. Buford, Appellees.
    Gen. No. 20,753.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action by Mary Tucker Gould against E. lies Kerlin and Coleman G. Buford in the Superior Court of Cook ■ county for damages for trespass to the person of the plaintiff in removing an ovarian t mor, the gist of which action was the removal of the tumor, by performing an entirely different operation from the one authorized by the plaintiff. Dr. Buford examined the plaintiff and in a letter to the plaintiff’s family physician described the operation which the plaintiff complained of and what it was for. The plaintiff’s family physician gave this letter to the plaintiff. She after-wards presented herself to him to be operated upon without any objection to the operation outlined in the letter. The letter follows:
    “Dr. Coleman G. Buford,
    100 State Street,
    Chicago, Ill.
    Chicago, Ill. Jan. 19, 1910.
    Dr. Ben Carlos Frazier,
    Louisville, Kentucky.
    My Dear Doctor:
    I examined Mrs. Gould in anesthesia in the presence of Drs. Kerlin and Hequembourg. These gentlemen do a good deal of their surgical work together. Digital examination revealed a nodular tumor, the major portion of which was the size of a bantam’s egg, located in the anterior surface of the rectum so that through bimanual examination I could very easily engage the entire tumor in my examining fingers. The tumor was hard, its base rather narrow and movable and there seemed to be a beginning invasion of.the surrounding territory at its base. The speculum revealed the above described tumor, but it did not show loss of epithelial covering anywhere. In one locality there was a dilation of veins and I think that before many weeks the tumor will break down in this area.
    • The affliction has probably been benign or relatively benign until lately. I think therefore that malignancy has just begun.
    In considering how this patient should be operated upon, I had thought of a dissection of the vagina off of the rectum, then loosening the rectum all around as high up as I could, drawing it down through the perineum and resecting the tumor, after which the gut would be closed, replaced and the perineum and vaginal wall repaired. If on further examination this route still appeared to be usable I think I would prefer to operate by this method; at least I should like to try this route first before entering the abdomen.
    I cannot tell until the parts are exposed whether a section of the gut will have to be removed or the base of the tumor excised and the wound closed by transverse suture. This would be determined at the operation, first by clinical findings and second, probably, by making a frozen microscopic section which I would examine immediately. I am inclined to think that the anal end of the gut will not have to be disturbed and that the mesentery of the sigmoid, which is free and not infiltrated, will allow sufficient freedom to make an end to end anastomosis.
    I have had a good deal of experience in connection with carcinoma of the rectum and frankly admit that the cosmetic results are not as good as patients and their friends would like to have them. Occasionally we are surprised by an excellent result, but more often the commonplace thing happens, the anastomotic sutures pull out or the patient suffers from fecal fistula. Either of these are more or less amenable to treatment after the operation when sufficient time has elapsed to remove a larger portion of the induration and consequent fixity of the parts resulting from repair.
    Abstract of the Decision.
    1. Physicians and surgeons, § 12

      —when consent to operation implied. Where a patient presents herself to a surgeon, who had examined her, for operation without objecting to the method of operation upon her which such physician had outlined in a letter to her family physician, which she had received, the reasonable inference is that where the operation was performed as outlined it was done with her knowledge" and consent.
    2. Physicians and surgeons, § 12*—when patient cannot recover on account of method employed in operating. A patient who presents herself to a physician to have an operation performed, which he performs in the manner outlined in a letter to her family physician, which she had received, without any objection from her, and he was without any knowledge that she had objected to any one to the operation as outlined by him in such letter, cannot recover in an action of trespass against him because he performed the operation in such manner.
    3. Physicians and surgeons, § 14*—when physician merely

      present at operation not Haile. Where a physician advises a patient to have an examination made by another physician, and is merely present in the operating room at the time the latter performs the operation, he is not liable in trespass because of the method employed.

      Tours very truly,
    Coleman G-. Buford.”
    The tumor was removed through an incision made in the skin immediately between the external openings of the genitals and the bowels, or what the-plaintiff called the “lower or rectal operation.” She further claimed that she consented to an operation by an incision through the walls of the abdomen but not to the lower or rectal operation. From a judgment for defendants, on a directed verdict, plaintiff appeals.
    Carlton H. Pendleton and Thomas L. Stitt, for appellant.
    Robert J. Folonie, for appellees.

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

   Mr. Justice McSurelt

delivered the opinion of the court.


text:
    John D. Casey, Administrator, Appellee, v. Wabash Railroad Company and Chicago & Western Indiana Railroad Company, Appellants.
    Gen. No. 20,832.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazziisi Slussbr, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.
    Statement of the Case.
    Action brought by John D. Casey, administrator of the estate of Bernard J. Carroll, deceased, plaintiff, against the Wabash Railroad Company and Chicago & Western Indiana Railroad Company, defendants, in the Superior Court of Cook county.
    Plaintiff recovered judgment of three thousand dollars against defendants for the death of Bernard J. Carroll, an employee of the Wabash Road, who was struck by a Wabash engine running under a contract of license on the tracks of the Chicago & Western Indiana Road near Twenty-Sixth street in Chicago. It was the custom for the Wabash Road to run a train for its employees, taking them in the morning to their various places of work along the line, and returning homeward with them in the evening. The railroad men call this train the “hurdy-gurdy.”
    Carroll was a switchman for the Wabash, stationed at the yards at Landers, which is abont an hour’s ride from Twenty-Sixth street. The “hurdy-gurdy” would stop at Twenty-Sixth street for Carroll to board the train, and on the return trip would stop at this point to permit him to alight. There were six railroad tracks at this point running northerly and southerly, numbered consecutively from east to west, the most easterly track being Ño. 1 and the westerly No. 6. The work of elevating these tracks was in progress at the time of the accident. The east retaining wall, which was about twelve or fifteen feet high, was built, but the west wall was not yet constructed. The “hurdy-gurdy” on the return trip ran north on track No. 1, although one witness seemed to think it ran on track No. 3. There was no passenger station at the point near where the train stopped at Twenty-Sixth street, and employees wishing to board it would climb up the sloping side of the elevation on the west and cross over the intermediate tracks to the “hurdygurdy,” and in the evening when alighting the employees, in order to reach the street level, were obliged to walk westerly across the tracks and descend on the westerly incline of the track elevation.
    It was about seven o’clock on the evening of January 10th, the time of the accident in question, when the “hurdy-gurdy” stopped near Twenty-Sixth street to allow Carroll and another workman, Eeynolds, to alight. It was a dark night, described as “a bad, cold night, with snow on the ground.” With Eeynolds leading, they walked in a westerly direction across the tracks. As the work of elevation was in progress the way was rough and uneven, covered with loose ties, rails, stone and other materials scattered between the tracks. Each of the men had a lantern and as Eeynolds says, “we picked our way across the tracks.” An engine with no cars was coming from the south on track No. 5, running at a speed which some witnesses estimated at eight or nine miles an hour, and another witness at twenty miles an hour. Reynolds says that before he reached this track he looked north and south but saw no headlight of any engine; that the first he knew of the approaching engine was when he was in the middle of the track upon which it was running, when he happened to raise his head and saw it only three or four feet from him; that he “hollered” to Carroll and just had time to step off the track when the engine went by. Carroll was struck and knocked to one side. The engine ran on some little distance before it was stopped. Carroll died within a few minutes thereafter. Reynolds testified that he heard no whistle blown or hell rung, while the testimony of the crew on the engine was that both whistle and hell were sounded. Carroll was a man forty-eight years of age, and his condition of health and strength was good and his sight and hearing normal. Reynolds says he had no conversation with Carroll after they got off the “hurdy-gurdy” and that he did not hear the engine approaching until it was close to him.
    Abstract of the Decision.
    1. Master and servant, § 152

      —when evidence sustains recovery. Where in an action against a railway company, for the wrongful death of an employee, who had just alighted from a train used for the purpose of transporting employees to and from work, it was shown that the accident occurred at night, that decedent and his companion carried lanterns, that owing to work of elevation in progress the ground was rough and uneven and care was required in walking over it, that decedent was obliged to cross the tracks and that his companion saw no headlight and heard no warning signal before the accident, the evidence was held to support a verdict for plaintiff.

      Zane, Morse & McKinney, for appellants; J. L. Minnis, of counsel.
    John A. Bloomingston, 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. Justice McSurely

delivered the opinion of the court.

2. Negligence, § 182 '—when evidence as to habits for care admissible. In an action for the wrongful death of a railway employee who was struck by an engine while crossing defendant’s tracks at night, evidence as to the habits of decedent for care and caution are admissible, there being no eyewitnesses, neither the engineer on the train nor decedent’s companion, who had immediately preceded him across the tracks and barely escaped being struck, having actually seen the accident.

3. Negligence, § 182*—when not essential to show habits of decedent as to sobriety. In an action for the death of an employee, where there were no eyewitnesses to the accident, evidence as to the habits of decedent for care and caution is not rendered incompetent because there was not also testimony' as to habits of sobriety.

4. Death, § 67*—when damages not excessive. A verdict of three thousand dollars in an action for the wrongful death of a switchman, where the widow testified that her only source of income was what her husband made, is not excessive.

5. Instructions, § 151*—when properly refused as embodied in other given. Instructions requested by defendant as to the duty to exercise care toward decedent are properly refused where they cover essentially the same point included in the instructions given in behalf of the plaintiff.


author: Peb Cubiam.

text:
    Truax Greene & Company, Defendant in Error, v. M. E. Emrick, Plaintiff in Error.
    Gen. No. 20,786.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 26, 1915.

      Abstract of the Decision.
    1. Municipal Court of Chicago, §■ 26

      —when stenographic report stricken. Where there is nothing in the record to justify the trial court in granting an extension of the period for filing a stenographic report after thirty days had expired from the entry of the judgment, which order was filed nune pro tune as of a date within that period, the stenographic report will be stricken.
    2. Municipal Court oe Chicago, § 31*—when judgment affirmed. Where there are no errors assigned which can be considered in the absence of the stenographic report which this court has stricken from the record, because not signed or filed within thirty days after entry of judgment of such court, the judgment will be affirmed.
    Statement of the Case.
    Action by Truax Greene & Company against M. E. Emrick in the Municipal Court of Chicago. The defendant failed to file the stenographic report within thirty days from the entry of judgment. By order of the court the time for filing was extended to ninety days from the entry of judgment nunc pro tunc.

    Beckman, Cottrell & Phillips, for plaintiff in error.
    H. A. Barnhardt, for defendant in error.

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

   Peb Cubiam.


author: Mr. Presiding Justice Baume

text:
    John B. DeVoney, Defendant in Error, v. A. Chiappe et al., Plaintiffs in Error.
    Gen. No. 18,809.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by John B. DeVoney against A. Chiappe, E. Chiappe and J. Linale in the Municipal Court of Chicago for $315 on a judgment note. Upon a motion of the makers of the note, the judgment was opened up and leave was given to file an affidavit of defense upon the merits. The suit was discontinued as to E. Chiappe. Verdict and judgment for plaintiff for $315. Defendant brings error.
    The evidence offered by defendants tended to show that in March, 1911, they entered into negotiations with plaintiff for the purchase of certain improved real estate in Chicago, owned by Eafelo Arrigo, for whom defendant in error was agent; that as defendants were unable to speak or understand the English language the negotiations were conducted by all the parties in the Italian language; that the property was represented by plaintiff to be thirty-seven and one-half feet in width and one hundred feet in depth; that relying upon the representation of plaintiff that the only incumbrance upon the property was a mortg’age for $5,000, defendant agreed to purchase the property for $9,200, paying $500 in cash, $3,700 within five days after the title to the property was found to be good, and assuming the payment of the said mortgage and the taxes for 1910; that plaintiff then knew that the property was subject to an easement of passageway and to certain building line restrictions for the benefit of the owner of the adjoining lot; that the contract for the sale and purchase of the property was drafted by plaintiff in the English language, and as so drafted the property was to be conveyed subject to party wall agreements, building line restrictions and building restrictions of record; that defendants then informed plaintiff that they did not understand the provisions of the said agreement as drafted in the English language and that they would not sign the same unless and until plaintiff gave them a paper written in the Italian language embodying the terms of the contract; that plaintiff then prepared and gave to them a paper written in the Italian language, which he signed and which he assured them was just like the contract written in the English language; that defendants thereupon signed the contract as drafted in the English language;.that the correct English translation of the said paper written in the Italian language is as follows :
    “Chicago, March 11, 1911.
    I, John B. DeVoney, with these presents do guarantee to convey to brothers A. & E. Chiappe and J. Bínale, the property in Chicago at Number 903 Franklin Street, and said parties agree to purchase for Nine Thousand Two Hundred Dollars ($9,200) and pay all Taxes for the year 1910. The above amount to be paid as follows: Forty-two Hundred Dollars ($4,200) in cash, and to assume a mortgage of Five Thousand Dollars ($5,000), with interest at 5%%. The title to the property must be free from all impediments.
    Oak Savings Bank.
    Jno. B. DeVoney.”
    F. William Kraft, for plaintiffs in error.
    I. B. Perlman, for defendant in error; M. A. Milkewitch, of- counsel.

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

      —what should accompany request for amendment of affidavit of merits. A motion for leave to amend the affidavit of the merits should be accompanied with a statement of the matters constituting the proposed amendment.
    2. Evidence, § 264*—when translated copy of contract admissible. Where parties unable to understand the English language conducted negotiations for the purchase of property in their own language, and agreed to purchase property at a certain price free from any restrictions, and the vendor drafted the contract of sale so that the property was subject to party wall agreements, building line restrictions and building restrictions of record, and the vendees refused to sign the contract until the vendor prepared a copy of it in their own language, such instrument, purporting to be a copy of the original contract but which recited that the property sold was free from all incumbrances, is admissible in evidence in an action against the vendees upon a note given under the contract.
    3. Vendor and purchaser, § 352*—when certified copy of instrument creating incumbrance admissible. In an action on a judgment note given under a contract for the sale of land free from incumbrances, certified copies of agreements creating an easement and building restrictions on the property are improperly excluded.
    4. Vendor and purchaser, § 143*—when easement an incumbrance. An easement is an incumbrance on property within the terms of a contract for the sale of land free from incumbrances.
    5. Fraud, § 134*—when instruction erroneous as invading, province of jury. An instruction, which states that if the defendants were illiterate persons and signed the papers in question upon the reading thereof by the plaintiff, when they had a friend or friends near by who. might have been called upon to read the same, they were guilty of such negligence as would preclude them from any remedy for fraud in misreading, infringes upon the province of the jury.
    6. Instructions, § 119*—when erroneous as not based on evidence. An instruction that if the defendants were illiterate persons and signed the papers in question upon the reading of the same to them by the plaintiff, when they had a friend or friends near by who might have been called upon to read such papers, they were guilty of such negligence as would preclude them from any remedy for fraud, is prejudicial where there is no such evidence in the record.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    J. J. Warren, v. Inter State Realty Company, Appellee, on appeal of T. E. Walters, Garnishee, Appellant. J. J. Warren, Defendant in Error, v. Inter State Realty Company, Plaintiff in Error.
    Gen. No. 19,337.
    Gen. No. 19,543.
    (Not to be reported in full.)
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago in case No. ,19,337. Error to the Municipal Court of Chicago in case No. 19,543; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913. Reversed as to No. 19,337.
    Reversed and remanded as to No. 19,543.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by J. J. Warren against the Inter State Eealty Company, a corporation and T. E. Walters, garnishee.
    No. 19,337 involves the propriety of a judgment in the Municipal Court for $2,469 in favor of the Inter State Eealty Company against T. E. Walters, garnishee, for the use of J. J. Warren, and No. 19,543 involves a judgment for the like amount recovered in said court by said Warren against said Inter State Eealty Company.
    In No. 19,337 there was a trial by the court and the record is here on the appeal of the garnishee, Walters, while in No. 19,543 there was a trial by jury, and the record is here on a writ of error prosecuted by the Inter State Realty Company. The two causes were consolidated for disposition in this court.
    The controversy had its inception in the following agreement:
    “Aurora, Illinois. This agreement made in triplicate this 18th day of March, 1911, by and between T. E. Walters, B. F. Smith, Gr. V. Smith and J. J. Warren all of Aurora, Illinois, for the purpose of an organization to buy and sell land. The principal plan is to act as selling agents for property owners. The organization to be known as the Inter State Realty Company. The immediate proposition is the entering into a selling contract with one N. J. Nagel of San Antonio, Texas, to sell twenty-three thousand acres situated in Webb County, Texas.
    “The said B. F. Smith, and Gr. Y. Smith agreeing to finance the proposition. That is to say, they will furnish the money for the purpose of investigating said land, incorporating, office expense, etc. In fact all necessary expense to further the sale of such lands, but not to exceed $......
    “As soon as a part of said lands are sold and enough money or notes received to pay the running expenses then the said B. F. Smith or Gr. Y. Smith shall be reimbursed for all money they have advanced for the above named purpose.
    “As soon as they have received all of said money, then the said Gr. Y. Smith, T. VE. Walters and J. J. Warren shall share and share alike in all future profits of said organization until mutually dissolved.
    “It is also agreed that the said Gr. Y. Smith shall be elected treasurer of said organization.
    “Witness our hands the day and year first above written.
    T. E. Walters,
    B. F. Smith,
    J. J. Warren.”
    Following this agreement T. E. Walters and J. J. Warren went to Texas where they inspected the land, and entered into an agreement, which, omitting provisions not here involved, is as follows:
    “This agreement made and entered into this, the 28th day of March, 1911, between Esperanza Live Stock and Land Company, incorporated, of the City of Dallas, State of Texas, party of the first part, acting by C. J. Sorrells, its president, thereunto, duly authorized by resolution adopted by said corporation, party of the first part, and J. J. Warren and T. E. Walters of Chicago, Illinois, parties of the second part, Witnesseth;
    “WHEREAS the party of the first part is the owner of approximately Twenty-five Thousand (25,000) acres of land in Webb County, Texas, near the station of Encinal, described and known as the Wolcott Ranch, all under fence, and the said parties of the second part are desirous of advertising and selling the said lands for the said party of the first part;
    “Now, therefore, the said party of the first part agrees to and with the said parties of the second part as follows: * * *
    “Fourth: The price for which said land shall be sold shall be such that the said first party will receive twenty ($20) dollars per acre for the land. * * *
    “Fifth: The party of the second part shall have as their commission or profit for the sale of said land, all money or notes received by them over and above the stipulated price of twenty ($20) dollars per acre.
    “Sixth: The said parties of the second part agree and bind themselves to contract for sale as much of said land as fifteen hundred (1500) acres on or before the first day of January, 1912. * * *
    “Seventh: It is actually agreed between the parties hereto that this contract shall be binding upon the parties of the first part and its successors- or assigns, and that the parties of the second part may assign this contract to the Inter State Realty Company of Chicago, Illinois, and that when so assigned said Inter State Realty Company shall succeed to all the rights of the parties .of the second part under this contract and shall he hound by all of the agreements and obligations of the parties of the second part of this contract.
    “Eighth: It is agreed between both parties hereto that this contract shall be and remain in force for a period of three years from the date hereof, at which time it shall lapse by its own terms.
    “The failure of the parties of the second part or their assigns to make sales of said land as provided in this contract and especially in paragraph six thereof, shall, at the option of the party of the first part or its assigns, annul this contract in so far as it relates to land remaining unsold at the time of the forfeiture, and thereafter the parties of the second part, or their assigns shall have no claim against the first party relating to the land so remaining unsold.
    “Witness the hand and seal of said corporation by C. J. Sorrell, its president, and the hands of the parties of the second part, in triplicate.
    Esperanza Live Stock and Land Company,
    By C. J. Sorrells, President.
    J. J. Warren,
    T. E. Walters.
    Witness:
    N. J. Nagel.”
    In April, 1911, the Inter State Realty Company was incorporated under the laws of Arizona, and officers were elected as follows: President, T. E. Walters;
    Secretary, J. J. Warren; Treasurer, Gr. V. Smith; Vice-president and Sales Manager, Gr. W. Hoyt. The same persons were also elected directors of the corporation.
    The agreement of March 28, 1911, appears to have been assigned by Messrs. Warren and Walters to the • corporation, which thereupon proceeded to operate thereunder.
    Shortly following the organization of the corporation, B. F. Smith, who had agreed to finance the proposition under the contract of March 18, 1911, after advancing some money, became dissatisfied and refused to be further bound by his agreement and thereupon T. E. Walters verbally agreed to assume and carry out the obligations of said Smith. On May 3, 1911, at a meeting of the directors and stockholders of the corporation, Gr. V. Smith tendered his resignation as treasurer and director and T. E. Walters was elected treasurer in his stead and W. J. Levery was elected a director. The latter was a gratuitous holder of one share of stock, but had no financial interest in the corporation. At a meeting of the directors then held, at which Messrs. Walters, Warren, Hoyt and Levery were present, on motion of Mr. Walters seconded by Mr. Hoyt, the salaries of Messrs. Walters, Hoyt and Warren were fixed at $300 per month. Hoyt and Warren were employed as salesmen, and their duties consisted in finding prospective purchasers for the lands in Texas, accompanying such prospective purchasers upon a tour of inspection of the lands, and in closing contracts for the purchase by them of said lands. The corporation maintained an office in Chicago, and prospective purchasers were sought for by it in Illinois and elsewhere; and in the instances in which contracts were procured by it to be made with persons in Illinois, such contracts were there executed and delivered. The corporation was not licensed to do business in Illinois.
    The statement of claim filed by defendant in error, Warren, upon which he recovered a verdict and judgment against the plaintiff in error corporation for $2,469, was for $3,400, as salary and $85 for cash advanced for expenses.
    Charles H. Darling, for appellant and plaintiff in error.
    Walter H. Eckert, for appellee and defendant in error.

      Abstract of the Decision.
    1. Corporations, § 19

      —for what purpose may not he organized. A corporation for the purpose of transacting the business of real estate brokerage cannot be organized under any existing statute of this State.
    2. Corporations, § 669*—when foreign corporation cannot he authorized to enter State. Since a corporation for the purpose of transacting the business of real estate brokerage may not be organized under any existing statute of this State, under the Foreign Corporation Act of 1905, sec. 2 (J. & A. If 2527) a foreign corporation organized for that purpose cannot he authorized to do business in this State.
    3. Corporations, § 709*—when foreign corporation doing business in State. A foreign corporation organized for the purpose of transacting a real estate brokerage business is doing business in this State, where it maintains a general office here and not merely solicits residents to purchase lands, but actually executes the contracts therefor in this State.
    4. Corporations, § 745*—when officer of foreign corporation cannot recover on contract. A director of a corporation, in the absence of proof to the contrary, must be held to have been conversant with the character and scope of business in which the corporation was engaged, and the manner in which it was transacted,- and where the corporation was illegally doing business in the State, he cannot recover upon a contract for compensation entered into with it.
    5. Contracts, § 157*—when illegal contract not enforced. Where a contract between a principal and an agent grows directly out of an illegal transaction, in the execution of which the agent has been concerned and in which he participated, the law will not assist the principal to recover from the agent or assist the agent to recover from the principal.
    6. Corporations, g 714*—when contract with foreign corporation illegal. A contract between a foreign corporation, which could not be authorized to transact business in this State, and one of its officers, which contemplated the performance of services by him and the transaction of business by such corporation in this State, is illegal.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

7. Corporations, § 745 —when foreign corporation not estopped to raise defense of ultra vires. As between a foreign corporation and one of its officers, the former cannot be estopped to assert the illegality of a contract between them which was ultra vires because contemplating the transaction of business in this State, which the corporation" was not authorized and could not under the law be authorized to transact.

8. Assumpsit, action op, § 71*—when quantum meruit proper for recovery on illegal contract. The fact that a contract between a foreign corporation and one of its officers for the performance of services by the latter was illegal because it was not authorized to transact business in this State, does not preclude a recovery upon the quantum meruit, but in such case inquiry should be permitted as to the amount already paid to such officer under the terms of the contract.

9. Appeal and error, § 1794*—when judgment against garnishee reversed. A reversal of a judgment against the defendant in the principal action necessarily requires a reversal of the judgment against the garnishee.

10. Frauds, statute op, § 24*—when agreement not to he performed within one year. An agreement on the part of one of the officers of a corporation to finance the corporation, which was organized to sell lands under a contract, giving it brokerage rights for a period of three years, is within the Statute of Frauds.


text:
    John Nelson, Appellee, v. Samuel Cohn et al., on appeal of Michael Cagney, Appellant.
    Gen. No. 19,346.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker and Hon. Richard S. Tuthill, Judges, presiding. Heard in the Branch Appellate Court at the March term, 1913. Reversed and remanded.
    Opinion filed April 28, 1915.
    Rehearing denied May 12, 1915.

      Abstract of the Decision.
    1. Equity, § 479

      —when decree pro confesso must conform to the Mil. It may be shown by a defendant in a decree entered pro confesso that the decree is not justified by the averments in the bill.
    2. Mortgages, § 477*—when exhibits on bill to foreclose control allegations. Where a bill for the foreclosure of a mortgage predicates a right to relief on a note and mortgage, which, as exhibits, are made a part thereof by reference, they control the allegations of the bill, and hence where they show that an interest note, nonpayment of which was the basis of the proceeding, had not matured at the time suit was begun, a decree pro comfesso will be set aside.
    Statement of the Case.
    Bill by John Nelson in the Circuit Court of Cook county against Samuel Cohn, Michael Cagney and Hannah C'ohn to foreclose a deed of trust in the nature of a mortgage, executed by Samuel Cohn and Hannah Cohn to secure the payment of notes by them payable to the order of themselves. The deed was entered pro confesso. There is no appearance in the Appellate Court by the appellee.
    Michael Cagney, pro se.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    William T. Pridmore, Administrator, Appellee, v. The Chicago, Rock Island & Pacific Railroad Company, Appellant.
    Gen. No. 19,359.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed February 3, 1915.
    Rehearing allowed February 18, 1915, and opinion filed April 28, 1915.
    Statement of the Case.
    In this suit instituted in the Superior Court by William T. Pridmore, administrator of the estate of William T. Pridmore, Sr., deceased, against the Chicago, Bock Island & Pacific Bailroad Company to recover damages for the alleged wrongful death of plaintiff’s intestate, a trial by jury resulted in a verdict and judgment against the defendant for forty-five hundred dollars.
    On the night of July 11, 1910, defendant* had two cars of grain for delivery at the yards of the Pennsylvania Bailroad Company at Boby, Indiana, which delivery defendant desired to make on- or before twelve o’clock midnight in order to avoid the payment of demurrage charges on said cars. Defendant procured permission from the Pennsylvania Company to haul said cars upon the tracks of that company from Bock Island Junction, where the tracks of the two companies intersected, to Boby. The distance between those two points is not disclosed by the record, but the evidence shows that the distance from Biver Branch Junction, a point a short distance east of Bock Island Junction, to Boby is two miles. Defendant’s train crew, consisting of a conductor, locomotive engineer, fireman and two flagmen, operating the train, consisting of defendant’s locomotive No. 113 and the said two cars of grain, left Bock Island Junction upon the eastbound track of the Pennsylvania Company at 11:50 or 11:56 p. m. and arrived at Boby at 11:58 p. m. or 12:01 a. m. The tracks of the Pennsylvania Company between said points were at street grade. After crossing the Calumet Biver the tracks of the Pennsylvania Company running in a southeasterly direction intersect in the order named, Avenue N. Avenue M, Avenue L and Ewing avenue, all of which run north and south. Whether crossing flagmen were stationed at each of the avenues named does not clearly appear, but it does appear that at the railroad crossings at Avenue L and Ewing avenue crossing flagmen employed by the Pennsylvania Company were stationed at night. One, Binnman, was stationed at the Avenue L crossing, and plaintiff’s intestate was stationed at the Ewing avenue crossing near its intersection with One-Hundredth street. There was no eyewitness of the occurrence which resulted in the death of plaintiff’s intestate. The flagman’s shanty which was occupied by the deceased was located east of Ewing avenue and south of the railroad tracks. Binnman testified that at about midnight on the night in question he was looking towards the crossing on Ewing avenue and saw a freight train approaching that crossing from the east; that he saw a lantern moving in a northerly direction from the flagman’s shanty at said crossing and come to a stop at the center of said crossing at a point north of the westbound track; that after said freight train had cleared said crossing he saw the lantern moving back across the crossing towards the shanty; that about the time said westbound train cleared his crossing at Avenue L a locomotive and two cars passed him on the eastbound track, and that he did not again see the lantern at the Ewing avenue crossing; that after the locomotive and two cars had passed east, two regularly scheduled trains also passed going east, and that failing to then see any lantern at the Ewing avenue crossing his suspicions were aroused and he went to that crossing for the purpose of making an inspection; that he there saw the dead body of appellee’s intestate. The body was first found between the rails of the eastbound track about two hundred fifty feet east of the shanty. The evidence tends to show that the night was dark and that the streets in the immediate vicinity of the Ewing avenue crossing were but dimly lighted.
    Abstract of the Decision.
    1. Railroads, § 733

      —when evidence shows negligent operation. In an action for the death of a crossing flagman, who was killed by the train of another railroad operating under a license upon the ■ tracks of decedent’s employer, evidence held to show negligence on the part of defendant in operating its train at high speed at night without a headlight and without giving warning signals.

      The evidence showed that the loctimotive and two cars then being operated by the servants of defendant were running at a speed of from thirty-five to fifty miles an hour at the time they approached and crossed Ewing avenue; that the headlight upon said locomotive was not then lighted, and that no bell was then , rung and no whistle was then sounded. While plaintiff offered no evidence as to the habits of the deceased regarding care for his own safety, proof was made showing that he was an industrious, sober, strong, healthy and intelligent man in possession of all his faculties.
    M. L. Bell and A. B. Enoch, for appellant.
    Frank P. Sadler, 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.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

2. Evidence, § 267 —when train registers admissible. Train registers containing- notations made hy telegraph operators who were called as witnesses, showing the time of the arrival and departure of trains from the stations at which they were employed are admissible.

3. Evidence, § 267*—when railroad records admissible against licensee railroad. A railroad company operating its trains upon the tracks of another company becomes subject to the rules and regulations governing the operation of trains of the latter company, and train records made in the ordinary course of business which would be competent evidence in an action against the latter are competent against the former.

4. Appeal and bbbor, § 1469*—when admission of hearsay evidence harmless. Even though a train register showing the time of the departure of a train from a certain station, entered upon telegraphic information from the operator at such station, who was not called as a witness, was incompetent as hearsay, its admission was held harmless where the running time between such station and another point was not in issue and the usual running time of trains between the two points was shown by other evidence.

5. Evidence, § 377*—when admission of opinion as to giving of signals not erroneous. Where a witness testified that he did not hear an engine whistle as it approached a certain point, a question as to whether or not in his opinion the engine whistled, while objectionable in form, held not erroneous, being closely akin to the approved line of inquiry as to whether if the whistle had been sounded he would have heard it.

6. Appeal and ebkob, § 1505*-—-when calling of witness by court harmless. The calling hy the court of an employee of defendant as a hostile witness, without a showing on the part of plaintiff to justify it, held harmless error where the same witness was subsequently called by the defendant and the same ground covered on direct and cross-examination.

7. Municipal corporations, § 104*—when ordinance conditionally effective inadmissible. An ordinance which by its terms, is not to become effective until the performance of certain conditions is properly excluded in the absence of proof of the performance of such conditions.

8. Railroads, § 461*—who within protection of statute regulating rate of speed. A crossing flagman killed by the train of another company operating over the tracks of his employer is within the protection of statutes and ordinances relating to the speed of trains.

9. Railroads, § 464 —who within protection of statute as warning. A crossing flagman killed by the train of another company operating over the tracks of his employer is within the protection of statutes and ordinances requiring headlights on trains and the giving of warning signals.

10. Instructions, § 1*—use of expressions found in judicial opinions. Isolated and fragmentary expressions found in judicial opinions may very infrequently be safely employed as vehicles for accurate statements as to the law of a case, to be embodied in instructions.


author: Mr. Presiding Justice Baums

text:
    Albert G. McLean, Plaintiff in Error, v. Thomas M. Hunter, Bailiff, Defendant in Error.
    Gen. No. 19,384.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Pbindivxlle, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    On April 15, 1911, the Consolidated Agency Company, a corporation, recovered a judgment in the Municipal Court against Albert Gr. McLean for $62.20, and on April 24th, following, an execution issued on said judgment was served on said McLean by the bailiff of the Municipal Court, who then notified McLean that he must, within ten days thereafter, file a schedule of his property, if he desired to avail himself of the benefit of the exemption laws. On May 1st, following, McLean executed what purported to be a schedule of his personal property, wherein he set forth that he was the head of a family consisting of a wife and one child, and resided with the same, and stated that he desired to avail himself of the benefit of the act relating to exemptions. The property schedule was described therein, as follows: “A small stock of groceries and meats not to. exceed One Hundred Dollars ($100.00); one suit of clothes. Cash on hand, None; Debts due and owing me, None.” On May 2nd, following, the attorney for McLean went to the office of the bailiff of the Municipal Court and handed the schedule to a deputy bailiff at the window there, and told him that he (the attorney) had a schedule here. The deputy bailiff took the schedule, examined it, folded it up and stamped it: “Deceived—First District. Thomas M. Hunter, Bailiff of the Municipal Court of Chicago, this 2nd day of May, A. D. 1911.”
    After the filing of the said schedule in the office of the bailiff, the attorney for the judgment creditor was notified thereof, and he then informed the chief deputy bailiff that the manner of the description of the property in the schedule rendered the same illegal and void for uncertainty. Upon the execution by the judgment creditor of an indemnifying bond, the bailiff levied the execution upon certain specifically described property, consisting of more than one hundred separate items of property, such as are ordinarily included in a stock of groceries and meats, and being the same property which was claimed by McLean to be exempt. McLean then procured a writ of replevin to be issued out of the Municipal Court for the recovery of said property from the bailiff and said property was taken under said writ by the sheriff and returned to McLean.
    Upon the trial of the replevin suit in the Municipal Court, a jury having been waived, the court found the issues in favor of the defendant, Thomas M. Hunter, bailiff, and judgment was entered upon such finding for the return of said property to said defendant and against the plaintiff, McLean, for costs. This writ of error is prosecuted to reverse such judgment.

      Abstract of the Decision.
    1. Exemptions, § 28

      —what are requisites of schedule. A schedule under which the debtor claims exemptions, which describes the property claimed as exempt as “A small stock of groceries and meats not to exceed One Hundred Dollars ($100.00); one suit of clothes. Cash on hand, None; Debts due and owing me, None,” is insufficient under the Exemption Act (J. & A. '1f 5584).
    2. Exemptions, § 28*—what are requisites of schedule. The schedule in which exemptions are claimed should list separately each article of a distinct kind or of a distinct quality, and the filing of a schedule claiming exemptions which does not do so is not a compliance with the statute (J. & A. f[ 5584), which provides that the debtor “shall make a schedule of every kind and character.”
    3. Exemptions, § 28*-—when defects in schedule not waived. The act of the bailiff of the Municipal Court in receiving and filing a schedule claiming exemptions without objections as to its sufficiency does not operate to estop him from contesting the sufficiency of such schedule or operate as a waiver of any informality therein.
    Litzinger, McGurn & Reid, for plaintiff in error; Leonard C. Reid, of counsel.
    William Chones and Olaf F. Severson, for defendant in error; Charles E. Carpenter, of counsel.

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

   Mr. Presiding Justice Baums

delivered the opinion of the court.


text:
    In re Estate of Anna Reed, Deceased. Annie Johnson, Appellee, v. John F. Devine, Administrator, Appellant.
    Gen. No. 19,409.
    Abstract of the Decision.
    1. Executors and administrators, § 252

      —when amended state-merit of claim not inconsistent. A claim as originally filed, “To services rendered by claimant * * * to be compensated for by legacy to claimant for * * * $3,000.00,” implies the existence of a contract or agreement as the basis of the claim, and is not inconsistent with a claim subsequently filed, based upon a contract to bequeath.

      (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Claim of Annie Johnson against John F. Devine, as administrator de bonis non of the estate of Anna Reed, deceased, for $3,000, which the claimant alleges the intestate agreed to bequeath to her by will. The Probate Court disallowed the claim. The claimant prosecuted her appeal to the Circuit Court where she had a verdict and judgment thereon for the full amount. On appeal to this court the case was reversed and remanded. (166 Ill. App. 341.) Upon reinstatement of the case in the Circuit Court a verdict was returned for the plaintiff and judgment entered thereon for the full amount of the claim. Defendant appealed.
    Stern, Anderson & Davis, for appellant; Louis C. Ehle, of counsel.
    Gideon S. Thompson, 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 Baume

delivered the opinion of the court.

2. Wills, § 64 —what evidence proper in action to enforce contract to bequeath. In an action by a claimant of an estate on a contract to bequeath, the jury are entitled to know all the facts and circumstances concerning the existing relations between the parties, their disposition and conduct towards each other and the character and extent of the services performed by the claimant, for the purpose of enabling the jury to weigh- the testimony of the witnesses, in the light of all the facts and circumstances of the case, and determine the credibility of the same.

3. Wills, § 54*-—what proof required to enforce contract to bequeath. In an action on an oral contract, which the claimant claimed was made between the deceased and herself, in which contract she claimed the deceased agreed to give her a certain sum of money if she would stay with her until the death of the deceased, it is only necessary to enable the claimant to recover thereon to prove her case by a preponderance of the evidence.

4. Wills, § 52*-—when consent implied to contract to bequeath. Where statements were made by the deceased in the presence of the claimant that she had agreed to bequeath the 'claimant a certain sum of money to stay with her until her death, the assent of the claimant to such arrangement may properly be implied.

6. Wills, § 52*—when evidence shows contract to bequeath. Evidence held sufficient to establish a contract on the part of decedent to bequeath a definite sum of money to a servant who had been in her employ many years and whose wages, in comparison with the character of the work performed, had been inadequate.

6. Executors and administrators, § 313*—when award of execution against estate improper. The award of an execution against an administrator in an action by a claimant- on a contract made by the claimant with the deceased is improper, the judgment in such case should be against the administrator to be paid in due course.

7. Appeal and error, § 1804*—when cause not remanded for error subsequent to judgment. Where no error intervened prior to the entry of judgment against an administrator, on which judgment execution was erroneously issued from the Circuit Court, a venire facias de novo will not be awarded, but the judgment will be reversed and the cause remanded with directions to the Circuit Court to enter a judgment upon the verdict against the administrator to be paid in due course of administration.


text:
    T. G. Vance et al., Plaintiffs in Error, v. Isabel MacLean, Defendant in Error.
    Gen. No. 19,471.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 8

      —when has jurisdiction over an accounting. An affidavit of defense in an action for rent, setting up an agreement which, if true, involved an inquiry in the nature of an accounting between the plaintiff and the defendant, if it arises on a book account, may properly be heard and determined by the Municipal Court in an action of the fourth class and under section 17 of an act in regard to actions on account (J. & A. T 43), and section 2 of the Municipal Court Act (J. & A. If 3314) and it is not improper to refuse to strike the same from the files on the motion of the plaintiff that it does not state facts sufficient to constitute a cause of action.

      (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action in the Municipal Court by T. G. Vance, G-. H. Harte and Mrs. George H. Williams, a copartnership, against Isabel MacLean to recover $30 for office rent for February and March, 1912, claiming that under her agreement with plaintiffs the rental and expenses of the office were to be borne pro rata, and that the amount she had already paid exceeded, so far as her pro rata share was concerned, the total of such expenses by $50. A judgment was rendered in her favor on her set-off for $34.03, to reverse which plaintiffs prosecute error.
    Theodore H. Wunderlich, for plaintiffs in error; John H. Kane, of counsel.
    Morse Ives, for defendant in error.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

2. Municipal Court of Chicago, § 8 —when action based on a book account. Where the plaintiffs in an action for the recovery of a certain sum of money relied upon a book account kept by them, the action may properly be considered as an action on book account permitting an accounting in a fourth-class action in the Municipal Court.

3. Landlord and tenant, § 463*'—what is effect of forfeiture., Where the lessors first broke the agreement with the lessee, by compelling her to vacate the premises at the end of the eleventh month, they cannot demand a forfeiture of her right under the agreement because she failed to pay a rental for the twelfth month.


text:
    William E. Schofield, Plaintiff in Error, v. William H. Zinn and Frank G. Warden, Defendants in Error.
    Gen. No. 19,601.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action in the Municipal Court by William E. Schofield in an attachment against William H. Zinn, wherein Frank Gr. Warden was summoned as garnishee, to recover $825 alleged to be due the plaintiff as a brokerage commission for procuring the sale of certain shares of stock by said Zinn to said Warden. A trial by the court resulted in a finding in favor of the defendant Zinn, and a further finding that the garnishee was indebted to Zinn in the sum of $16,125. To reverse a judgment entered in favor of the defendant Zinn, the plaintiff brings error.
    Abstract of the Decision.
    Beokers, § 57

      —when broker not entitled to commission. Where a commission agreement is referable to an option contract of a certain date, in the' absence of any evidence tending to show a want of good faith on the part of the vendor and vendee of such option contract in failing to consummate the same, for the purpose of depriving the broker procuring such contract of his commissions, the latter cannot predicate a right to recover commissions under such commission agreement merely upon the ground that at some subsequent time the same parties actually entered into and consummated a contract for the purchase and sale of a portion of the same shares of stock mentioned in such option contract.
    Duncombe & Behan, for plaintiff in error; S. G. Hamblen, of counsel.
    Judah, Willard, Wolf & Reichmann, for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.