author: Mr. Justice Smith

text:
    Julia A. Murray, Defendant in Error, v. Stella Werner and Charles A. Werner, Plaintiffs in Error.
    Gen. No. 19,688.
    1. False imprisonment, § 20

      —when declaration sufficient.

    Averments of declaration examined and held to lay foundation for the recovery of damages for malice and oppressiveness in acts of defendants and for exemplary damages.
    2. Trial interrogatories error. In an action for false imprisonment against a husband and wife it is error to refuse to submit interrogatories as follows:
    1. “Question: In any acts that you may find the defendant [husband] did, were those acts done by him maliciously, oppressively, or with wanton disregard of the rights of the plaintiff?”
    2. “Question: In any acts that you may find the defendant [wife] did, were those acts done by her maliciously, oppressively, or with a wanton disregard of the rights of the plaintiff?”
    3. Trial, § 268*—when refusal to submit special interrogatory error. In an action for false imprisonment, where the evidence raises the question as to whether the officer arrested plaintiff on his own accord in his official capacity as a police officer, it is error to refuse to submit an interrogatory covering that question, even though an interrogatory was submitted as to whether defendant •directed, ordered, requested or induced the officer to take plaintiff into custody.
    4. Witnesses, § 224*—when exclusion of question on cross-examination tending to impeach testimony error. Exclusion, on cross-examination, of certain questions showing that on a specified occasion the witness had made statements contrary to his testimony in the case, held error.
    Error to the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 11, 1915.
    Samuel J. Andalman, for plaintiff in error Charles A. Werner; Jacob Cohen, of counsel.
    McArdle & McArdle, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.

An action was brought in the Superior Court of Coolc county against Stella Werner and Charles A. Werner, defendants, by Julia A. Murray for false imprisonment on September 3, 1909. The case went to trial upon a general issue filed by each of the defendants below, resulting in a general verdict finding the defendants guilty and assessing the plaintiff’s damages in the sum of fifteen hundred dollars. Two special findings were also returned by the jury. This writ of error is prosecuted by Charles A. Werner to reverse the judgment.

Plaintiff below, Julia A. Murray, a woman of about forty-eight years of age, was engaged in general housework. On September 3, 1909, she was employed to work at the house of Mrs. Werner and a Mrs. Florsheim on Vincennes avenue near Forty-third street in Chicago. About the time that the plaintiff quit work and went home, Mrs. Werner discovered that a diamond ring belonging to her had been taken from where she last placed it, and it could not be found. She thereupon telephoned to a police station that a larceny had been committed, and Brown, a police officer, was sent from the police station to the Drexel Café at Thirty-ninth street and Cottage Grove avenue to see defendants in relation to the larceny. The officer met the defendants in the café and Mrs. Werner told him that her ring had disappeared, and the facts in connection with its disappearance, and that she wished to recover it, and he said he would go and see Miss Murray, plaintiff below, and try to get the ring.

Officer Brown testified that he found the plaintiff at Cottage Grove avenue and Twenty-ninth street, and, • being unable to get the ring from her, took her to Thirty-ninth street and Cottage Grove avenue, and, leaving her in charge of another officer, went into the café and had a second interview with the defendants, in which he told them that he had been unable to recover the ring, and that he had plaintiff outside of the café, and wanted to know what he should do with her; and, according to his testimony, the defendants thereupon fold him to take her to the station and lock her up. Officer Brown, after taking the plaintiff to the house where she had been working and from which it was claimed she took the missing ring, and, after giving the plaintiff an opportunity to search for the ring in the house, took her to the police station, where she was confined until the nest morning. :

The declaration avers that the defendants with force and arms assaulted the plaintiff and seized and laid hold of her while she was clothed in wet garments and with great force and violence pulled and dragged the plaintiff and forced and compelled her in such garments to go from and out of a certain dwelling house into and along certain public streets to a street car and then forced her to leave the street car and stand in her wet garments on the street for a long space of time, and then forced her to enter another street car and ride to a police station and there imprisoned her for an hour, and then forced and compelled her to go to the residence of the defendants and forcibly detained her therein for two hours, and abused, maligned and maltreated her therein, and then forced and compelled her to go forth from said residence and to enter a patrol wagon in which they forcibly carried her to a police station and thrust her into a vile and loathsome cell then occupied by a drunken colored woman, and unlawfully and with force and against her will detained her in said cell until the next day, and on the said next day compelled her to go to a branch of the Municipal Court of Chicago and then charged her with the crime of larceny of a diamond ring valued at one hundred and fifty dollars.

Clearly the averments of the declaration lay a foundation for the recovery of damages for malice and oppressiveness in the acts of the defendants and for punitive or exemplary damages. The trial court so construed the declaration and submitted that question to the jury in its instructions to them, and yet refused to submit the two following interrogatories, requested by plaintiff in error, to the jury:

1. “Question: In any acts that you may find the defendant, Charles A. Werner, did,-were those acts done by him maliciously, oppressively, or with wanton disregard of the rights of the plaintiff?”

2. “Question: In any acts that you may find the defendant, Stella Werner, did, were those acts done by her maliciously, oppressively, or with a wanton disregard of the rights of the plaintiff?”

In refusing to submit these interrogatories, we think the court erred, for if there had been an affirmative answer to one question and a negative answer to the other question, the jury could not assess punitive damages against both defendants, as they evidently did. McCarthy v. De Armit, 99 Pa. St. 63; Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101-107; Pardridge v. Brady, 7 Ill. App. 639; Wanner v. Winters, 33 Ill. App. 149,150; Titcomb v. James, 57 Ill. App. 296-307; Douglas v. Hoffman, 72 Ill. App. 110-113; Levin v. Cazier, 146 Ill. App. 188.

The evidence in the case clearly raises the question as to whether Officer Brown arrested the plaintiff on his own accord in his official capacity as a police officer of the city of Chicago. The trial judge correctly regarded this question as in the case, and submitted it to the jury in the twentieth instruction given. It was a vital and material question for the defense. But the court refused to submit to the jury the following-special interrogatory on that question:

‘ ‘ Question: Did the witness Brown arrest the plaintiff on his own accord in his official capacity as a police officer of the city of Chicago?”

This question relates to an ultimate and controlling fact in the case. If answered in the affirmative, it would control a general verdict in favor of the plaintiff. The question was not covered by or embraced in the question submitted, namely:

“Question: Did the defendant, Charles A. Werner, direct, order, request or induce the witness Brown to take the plaintiff in custody?”

The latter question was in the alternative and though answered in the affirmative, as it was by the jury, the answer did not negative the question whether Brown arrested the plaintiff on his own accord in his official capacity as a police officer of the city of Chicago. Although the plaintiff in error did direct, order, request or induce Brown to take the plaintiff in custody, Brown was not in law bound to obey the direction, order or request of plaintiff in error, having no warrant, and may have acted on his own judgment and for himself in his official capacity.

It was reversible error to refuse to submit the above questions to the jury.

Brown testified on direct examination that at the second interview between him and ^'e defendants in the Drexel Café both defendants told. u to take the plaintiff to the station. On cross-exam, \tion he said that he had seen plaintiff in error sever. I times since the arrest, and in the month of September 1911, he called at Werner’s house at his request. In responsé to questions, he denied making several statements in the conversation had there at that time, and was then asked:

“Didn’t you at that time in the presence of Mr., and Mrs. Werner and Mrs. Mandel, then say to Mr. Werner, I don’t see why they should sue you. If there is anybody she can sue in the matter she ought to sue me. I am the one who made the arrest?”

The court sustained an objection to this question. We think this was error. If the witness made such a statement, it tended to. impeach his testimony that both defendants ordered him to take the plaintiff to the station. The court had just prior to this ruling properly .allowed the defendant to cross-examine Brown about other parts of the conversation which occurred between him and the plaintiff in error at this interview. It is always proper cross-examination to ask a witness if on a specified occasion he made a statement contrary to his testimony in the case. This was particularly pertinent and important in this case where the contention of the plaintiff was that the witness Brown arrested the plaintiff at the behest of the defendant, plaintiff in error, without any warrant.

Other rulings on evidence are claimed to be erroneous, but it is unnecessary for us to pass upon them.

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Desplaines Safety Deposit Company, Defendant in Error, v. Charles J. Bour et al., Plaintiffs in Error.
    Gen. No. 20,446.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Action by Desplaines Safety Deposit Company, a corporation, plaintiff, against C. C. Fairman, F. B. Harriman and Charles J. Bour, defendants, to recover rent under the terms of a lease.
    The lease bears date of April 10,1913, and was made and executed by the plaintiff as lessor to the Acme Brass & Aluminum Foundry Company, lessee, demis-ing premises known and described as the fourth and fifth floors of a building known as No. 617-619 Fulton street in the city of Chicago, to be occupied for machine shop and brass and aluminum foundry and nickel-plating plant, for the term commencing May 1, 1913, and ending April 30, 1914. The lessee, in consideration of the demise, covenants and agrees to pay as rent for the premises the sum of $1,380 in monthly instalments of $115 each, in advance, upon the first day of each and every month of said term. The lease was signed by the lessor by its president and was signed by the Acme Brass & Aluminum Foundry Company by C. C. Fairman, president, C. C. Fairman, F. B. Harriman and Charles J. Bour.
    The evidence shows that the Acme Brass & Aluminum Foundry Company was, at the time of the execution of the lease in question, in process of organization as a corporation under the laws of the State of Illinois. A certificate of complete organization was is-| sued on May 3, 1913, by the Secretary of State of the State of Illinois, and was filed for record in the recorder’s office of Cook county, Illinois, the county in which the principal office of the corporation was located, on October 21,1913.
    The defendant, C. C. Fairman, failed to file an amended affidavit of merits as ordered by the court and" judgment was entered against him by default, and he has not joined in the assignment of errors. Service of summons was never had upon the defendant Harriman, and he has never appeared in the proceedings either in this court or in the Municipal Court. The- defendant Charles J. Bour was served with summons, appeared and defended the suit in the Municipal Court, where, at the conclusion of the trial, the jury were instructed to find the issues for the plaintiff and assess the plaintiff’s damages at the sum of $315, and judgment was thereupon rendered upon the vérdict for $315 against the defendants Bour and Fairman. To reverse this judgment, defendant Bour alone prosecutes this writ of error.
    There was no controversy as to the facts, but an agreed statement of facts was made in the court below and read to the jury. There was further offered the evidence of J. Harley Bradley and Charles J. Bour. The testimony of neither witness was controverted.
    The principal ground urged for reversal was the question that the lease sued on was ultra vires, and that the plaintiff had no power under its certificate of incorporation or under the law to own the premises in question or to make a lease thereof, and that such alleged want of power can be pleaded as a defense to the action for rent.
    The facts upon which it is sought to reverse the judgment are that the plaintiff is a corporation organized under the laws of the State of Illinois to erect, maintain, operate and manage safety deposit vaults; that the premises demised in the lease are two floors of the building owned by the plaintiff and fronting on Fulton street. This building constitutes an L of the plaintiff’s main building which fronts on North Desplaines street. At about the time of the purchase the plaintiff bricked up certain archways in the wall between the main building and the L fronting on Fulton street, thus making a solid wall between the sections of the building, and that condition continued up to the time of the execution of the lease in question and during the term thereof. The plaintiff, since acquiring the building, has occupied a portion thereof fronting on North Desplaines street for its corporate business, but has never occupied any part of the building fronting on Fulton street. It has always leased to tenants for warehouse and factory purposes the Fulton street L. The building is six stories high and the vaults used by the plaintiff extend through three stories of the building.

      Abstract of the Decision.
    1. Corporations, § 344

      —when defense of ultra vires not available in action by corporation. In an action by a corporation to recover rent for a portion of its premises leased by it, the abuse of the power of the corporation in making the lease cannot be availed of as a defense.
    2. Corporations, § 26*—when officers and stockholders of corporation liable for lease executed before incorporation. The proposed officers and stockholders of a corporation in the process of organization who execute a lease in the name of the corporation are bound to see that the corporate organization is complete, or they assume a personal and individual liability.
    3. Corporations, § 3*—when Corporation Act not strictly construed. In an action to hold the proposed officers and stockholders of a corporation" in the process of organization personally liable on rent owed under a lease executed by them in the name of the corporation, section IS of the Corporation Act (J. & A. If 2435) is not to be construed strictly and as defeating the action.
    4. Landlord and tenant, § 296*—when liability under lease incurred. In an action to recover rent under a lease for a term of one year which provides that the rent shall be payable monthly in advance, it cannot be contended that the liability created by the lease was not created on the execution of the lease, but only arose when the monthly instalments of rent became due.
    5. Landlord and tenant, § 35*—when signer of lease personally liable. Where the name of the lessee stated in the lease is such that it may indicate the lessee to be either a partnership or a corporation, and it is executed in the name of the lessee by individuals who were doing business in that name, they are bound thereby, though they are not named in the lease.
    6. Trial, § 198*—when direction of verdict proper. Where there is no issue of fact to be submitted to the jury, the court may exercise its power to decide questions of law by directing the verdict.
    Church, Shepard & Day, for plaintiff in error Charles J. Bour.
    Rothschild & Schaffner, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Henry L. Newhouse, Defendant in Error, v. Jake Levanos, Plaintiff in Error.
    Gen. No. 20,453.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Court-net, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Action of forcible entry and detainer by Henry L. Newhouse, plaintiff, against Jake Lévanos and Jos. Chamales, defendants, to recover possession of certain premises for nonpayment of rent.
    The summons was served on defendant Lévanos only.
    The evidence shows that the first attempt made by the defendants or either of them to pay the rent was on March 9th, eight days after defendants had defaulted in this respect under the terms of the lease. On that date, the defendants, lessees, through one Charles Lévanos, a brother of defendant Lévanos, offered the lessor less than one-third of the amount due, which he refused to accept, and informed Charles Lévanos that negotiations with reference to the March rent were in the hands of his attorney, J. E. Klawans. After this conversation with plaintiff, Charles Lévanos called on plaintiff’s attorney and asked for further time to pay the rent. This was refused and immediate payment was insisted upon. The rent was not paid and the action above mentioned for possession of the premises was thereupon started.
    The lease between the parties appearing in the record contains the following clause:
    “It is expressly agreed between the parties hereto that if default be made in the payment of the rent above reserved or any part thereof, or in any of the covenants and agreements herein contained, to be kept by the party of the second part, it shall be lawful for the party of the first part or the legal representatives of said party at any time thereafter, at the election of said first party or the legal representatives thereof, without notice to declare said term ended and to reenter said demised premises or any part thereof either with or without process of law, * * * said party of the second part hereby expressly waiving all right to any notice or demand under any statute of this state relating to forcible entry and detainer.”
    The lease also contained the following provisions: “Nor shall the receipt of said rent or any part thereof or any other- act in apparent affirmance of the tenancy operate as a waiver of a right to forfeit this lease and the term hereby granted for the period still unexpired for any breach of any of the covenants herein.”
    After suit was started the defendants through their attorney tendered the rent in open court with court costs. This tender was refused. The money tendered was not paid into court. After hearing the evidence the court below found the defendant, Jake Lévanos, guilty of unlawfully withholding' possession of the premises in question from the plaintiff, and entered judgment on the finding.
    To reverse this judgment, defendant Lévanos prosecutes this writ of error.
    The reversal is asked upon three grounds: (1) That the court permitted the plaintiff to introduce in evidence a lease over defendant’s objection that it did not appear that it was signed by the plaintiff or any one authorized by him; (2) that the record does not show any evidence of any notice of any kind prior to the commencement of the suit; and (3) that the rent due March 1st was tendered on March 12th.
    Beauregard F. Moseley, for plaintiff in error.
    Adler & Lederer, for defendant in error,

      Abstract of the Decision.
    1. Forcible entry and detainee, § 79

      —when lease not signed by landlord admissible in evidence. In an action of forcible entry and detainer against a tenant, the admission of the lease in evidence is not error, though it did not appear that it was signed by plaintiff or any one authorized by him, where it was introduced without objection from defendant until an adjourned hearing of the case was in progress, and there was no denial in the record of the execution of the lease and the evidence showed that defendant entered and paid rent under the lease.
    2. Fobcible bntby and detainee, § 30*—when want of notice and demand not ground for reversal. In an action of forcible entry and detainer against a tenant, lack of notice and demand is not ground for reversal, where they are expressly waived by the lease, and the questions of notice or demand were not drawn in issue in the trial court.
    3. Landlokd and tenant, § 494*—when tender of rent insufficient. In an action against a tenant for forcible entry and detainer, a tender of a portion of the rent nine days after it was due, which was refused, and a subsequent tender after suit was begun, which was also refused and was not kept good by a deposit in court, and a further offer to pay the rent and court costs, do not constitute such tender as will defeat the action.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Mark F. Madden and Michael S. Madden, copartners, trading as Madden Brothers, Defendants in Error, v. Maud R. Davis, Plaintiff in Error.
    Gen. No. 20,489.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.

      Statement of the Case.
    Action by Mark F. Madden and Michael S. Madden, copartners, trading as Madden Brothers, plaintiffs, against Mand R. Davis, defendant, for one thousand dollars commissions on the exchange of real estate between defendant and one E. L. Wells.
    To reverse a judgment for plaintiffs for four hundred dollars, defendant prosecutes this writ of error.
    One of the controverted questions was whether the defendant knew that the plaintiffs were acting as agents for Wells as well as for the defendant. Plaintiffs testified that they so informed the defendant. Defendant claimed that she did not know that the plaintiffs were the agents for Wells. The contract of the defendant with Wells contained the following agreement:
    “It is further mutually agreed that brokerage fees or commissions shall be paid to Madden Brothers by party (1st part, $1000), (2nd part, $1250), by the respective parties hereto as heretofore agreed above.”
    As another ground for reversal it is urged that plaintiffs misrepresented to the defendant the depth of the property on Langley avenue, Chicago, which they were proposing to have the defendant take in exchange. There was evidence tending to show that the plaintiffs represented to the defendant that the Langley avenue property was 125 feet' deep. The property was so noted in the plaintiffs’ memoranda kept in their office, and it appeared that the maps in use showed the property to be 125 feet deep. The original plat showed that the property was 125 feet deep, but it appeared from the evidence that six feet off the front of the property had been dedicated to widen Langley avenue many.years before the transaction, so that the lots were really six feet less in depth than the defendant was led to suppose. The evidence showed that the plaintiffs gave the defendant full description of the property as it was written on their filing card, and that they went to their real estate atlas to ascertain the correctness of the description and found that the card tallied with the atlas. The plat in the recorder’s office did not show the exact dimensions of the property.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim sufficient. In an action to recover commissions on an exchange of real estate, where the statement of claim sets forth a cause of action and apprises defendant of the nature of the claim, the fact that it refers to and sets up a written contract between the defendant and the person with whom the property was exchanged does not convert the action into one upon such contract.
    2. Principal and agent, § 41*—when agent may serve for vendor and purchaser. The rule that an agent cannot maintain an action against his principal for commissions, where he was also acting as agent for the purchaser, does not apply where both parties had notice of his dual capacity.
    3. Principal and agent, § 41*—when evidence sufficient to show notice to principal that his agent represented other party also. Evidence in action for commissions on exchange of property examined and held to show that defendant had notice that plaintiff was representing both parties.
    4. Brokers, § 88*—when evidence insufficient to show misrepresentation. Evidence in action for commissions for exchange of real estate examined and held not to show misrepresentation by plaintiff as to dimensions of property for which exchange was made.
    Alden, Latham & Young, for plaintiff in error; Charles Martin, of counsel.
    Edward R. Hartigan, for defendants in error; Frank S. Righeimer, of counsel.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Charles B. Ensign, Plaintiff in Error, v. John Lehmann and Lena Lehmann, Defendants in Error.
    Gen. No. 20,549.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and judgment here with finding of fact.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Action by Charles B. Ensign, plaintiff, against John Lehmann and Lena Lehmann, defendants, to recover on a promissory note for two hundred dollars, payable to E. C. Martin.
    The record shows that judgment was confessed on the note which subsequently, on motion, was set aside and defendants were permitted to defend.
    The issues were tried by the court without a jury, which found against plaintiff and entered judgment on the finding.
    To reverse the judgment, plaintiff sues out this writ of error.
    The affidavit of merits filed by defendants set up that the note was obtained by Martin, the payee, by fraud and circumvention practiced by him upon the defendants, and that the defendants were induced to sign the note by trickery, artifice and deceit and by fraudulent representations and false promises made by Martin; that the consideration for the note wholly failed.
    The evidence' produced on the trial showed that plaintiff was, at the time of the trial and had been for some fifteen years, a banker and note broker in the city of Chicago, his business consisting principally in buying and selling commercial paper. Early in the summer of 1912 one Dr. Martin, with whom he had never had any business dealings but who had been referred to the plaintiff by some friend, requested the plaintiff to purchase various notes which Martin then held. At the second meeting between plaintiff and Dr. Martin a list of notes was left with the plaintiff and, after investigation, notes which the plaintiff felt were unquestionably good were purchased. The note sued on was purchased by the plaintiff, as the evidence tended to show, after investigation by the plaintiff as to the financial standing of the defendants. It was indorsed by Dr. Martin to the plaintiff and the plaintiff paid him therefor by cash or by check about five months before the note matured.
    The evidence further tended to show that when the note was purchased by the plaintiff he knew of no facts which would put him on guard, or suggest to him that there was anything wrong with the note, and that it came to him in the ordinary course of his business. The note was given for professional services rendered to the Lehmanns by Dr. Martin.
    Examination of the attorney for the defendants showed that he had written several letters to the plaintiff, the first of which was dated February 20, 1913, six months after the plaintiff had purchased the note. In this letter an extension of time was requested of the plaintiff and a promise was made that payment would be made on March 15th. The letter was to the effect that the defendants understood that they had no defense against the plaintiff Ensign, and that they would be ready to meet their debt just as soon as circumstances would permit. A further extension of time was asked in a letter dated March 20, 1913.
    The only evidence on the part of the defendants material to the question of fraud and circumvention in the execution of the note is the testimony of defendant, Mrs. Lehmann, that she did not see the warrant of attorney contained in the note because of Dr. Martin’s action in keeping a blotter over the face of the note. She testified, however, that Martin removed the blotter so that she could see the face of the note, and she, as well as her husband, admitted on cross-examination that they knew they were signing a note for two hundred dollars, payable at the First National Bank of Chicago in six months, with interest at seven per cent, per annum after maturity.
    Abstract of the Decision.
    1. Bills and notes, § 61

      —when fraud and circumvention not sufficiently shown. If a promissory note signed by the makers is not prejudicially different in legal effect from the instrument they were willing to sign and thought they were signing, there is no fraud or circumvention.
    2. Bills and notes, § 61*—when evidence insufficient to establish fraud or circumvention. Evidence examined and held insufficient to show fraud or circumvention in the inception of the note or as against a holder in due course. ' .
    3. Bills and notes, § 60*—when failure of maker to acquaint himself with terms of note not a defense. The fact that the maker of a promissory note containing a warrant of attorney signed it without knowing that it contained the warrant of attorney, owing to the face of the note being covered with a blotter when it was signed, is not a defense where the fact that it was a judgment note could have been ascertained by him by reading the note.
    4. Bills and notes, § 61*—when ignorance of maker that note is judgment note not a defence. The fact that the maker of a note did not know, at the time of signing it, that it was a judgment note is not -a defense where the judgment confessed thereon was vacated and a trial on the merits given.
    5. Fraud, § 5*—what essential elements of misrepresentation. To establish a misrepresentation in law there must be proved a statement of fact which was untrue and which was known by the maker of the statement to be untrue.
    Felsenthal & Wilson, for plaintiff in error; David Levinson, of counsel.
    Henry Kneller, for defendants in error.

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

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

   Mr. Justice Smith

delivered the opinion of the court.

6. Fraud, § 19 —when representations of physician are not fraud and misrepresentation. In an action to recover on a note given a physician for medical services, statements of the payee that he was a specialist and cured chronic diseases, that the makers of the note were ill and had certain ailments and he could cure them, are not fraud and misrepresentation which will constitute a defense to the note in the hands of a third person, a holder in due course, even though the payee had no intention of performing his promise.

7. Fraud, § 19*—when promise to do an act without intention of performing not misrepresentation. An agreement to do an act without the intention of doing it is not a misrepresentation of an existing fact.

8. Bills and notes, § 443*—when defense of failure of consideration not established. The allegation in the affidavit of merits in an action to recover on a note given for medical services, that there was a failure of consideration, is not sustained where no evidence is introduced in support thereof.

9. Bills and notes, § 259*—when indorsee a holder in due course. Evidence examined and held to show that plaintiff was a holder in due course of the notes in suit, and took them free from the defenses of fraud and failure of consideration.


text:
      Annie Dell et al., Defendants in Error, v. Ernest L. J. Brogren et al., Plaintiffs in Error.
    Gen. No. 20,577.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Rehearing denied May 25, 1915.
    Statement of the Case.
    Bill by Annie Dell, complainant, against Ernest L. J. Brogren, J. A. Ferguson and S. C. Ferguson, defendants, to quiet title to certain property purchased by complainant from Charles B. Wakeley.

      To reverse a judgment for complainant, defendants prosecute this writ of error.
    The defendants were served with summons and appeared. Defendant Brog’ren answered the bill on June 28, 1910. The two Fergusons demurred to the' bill. Defendant Brogren filed a cross-bill against Dell and the two Fergusons and Charles R. Wakeley. Wakeley answered the cross-bill.
    On March 13, 1911, the demurrers of the Fergusons to the bill were sustained and complainant Dell was given ten days to amend. April 15, 1911, after the time to amend had passed, the solicitor for defendants Fergusons appeared in court and, without notice to opposing counsel, obtained an order dismissing the original bill as to themselves. Six days later an amendment to the bill was filed, the only purpose of which was to change the word “warranty” to “quitclaim” and bring into the bill copies of certain deeds as exhibits.
    On November 23,1911, the solicitors for complainant Dell gave notice of a motion to vacate the order dismissing the bill as to the Fergusons, to be heard when the cause should be reached for trial. The Fergusons were then in the case as defendants to the cross-bill of defendant Brogren, and remained in said case as such defendants until the final decree.
    On the day on which the cause was reached for trial, as appears by the final decree, the cross-complainant below, defendant Brogren, failed to appear and the cause was heard and the decree of June 25, 1912, was entered.
    Subsequently, on July 1, 1912, defendant Brogren, and the Fergusons as defendants to the cross-bill, moved to vacate the decree. This motion was denied on July 6th. Later the court granted leave to the same parties to file a motion for rehearing and to vacate the decree. This motion was also denied.
    Assignments of error Nos, 1, 2, 12 and 15 seek to raise the question as to the jurisdiction of the Honorable Jesse A. Baldwin, one of the judges of the Circuit Court, to hear and determine the cause, growing out of what is alleged to be the fact in the briefs that the cause was regularly on the trial calendar of Honorable Kickham Scanlan, who was regularly assigned to hear chancery cases in the Circuit Court, and that without any order or proceeding entered of record, the cause was put upon a trial calendar to be heard and determined by his Honor, Judge Baldwin. In support of the position that Judge Baldwin had no right to hear and decide the cause and enter the decree in question, the rules of the Circuit Court of Cook county were cited.
    Abstract of the Decision.
    1. Appeal and error, § 863

      —when certificate of evidence insufficient. A certificate of evidence which contains no affidavits or proof of any kind hut merely a recitation of some proceedings in the lower court, a list of cases in which contested motions were to be heard and a recitation of certain contested motions involved in the appealed case is insufficient.
    2. Appeal and ebbob, § 1034*—when judicial notice not taken of Circuit Court rules in Appellate Court. On appeal to the Appellate Court, judicial notice cannot be taken of rules of the Circuit Court referred to in argument in support of assignments of error where such rules are not contained in the record.
    3. Equity, § 360*—when dismissal of original Mil does not oust jurisdiction. The fact that the original bill is dismissed a£ the instance of certain defendants does not deprive the court of jurisdiction of such defendants where they are still in court as defendants to a cross-bill filed by another defendant.

      It was also urged that the trial court acted without jurisdiction of the defendants as to whom the original bill had been dismissed.
    Weldon Webster, for plaintiffs in error.
    Louis J. Pierson, for defendants in error.

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

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

   Mr. Justice Smith

delivered the opinion of the court.

4. Equity, § 479 —when decree not in excess of relief sought. Evidence examined and held that the decree sought to be reversed was not in excess of the relief sought.

5. Appeal and -error, § 726*—when reversal not allowed on facts not appearing in record. A decree will not be reversed on facts alleged as ground therefor but not shown by the record where the contrary of such alleged facts appears on the face of the decree.

6. Appeal and error, § 365*—when ground for reversal not properly preserved. Where, on a writ of error, the claim that the cause was’forced to trial in the lower court out of its order is not properly preserved for review, it is not a ground for reversal.

7. Appeal and error, § 760*—when facts in affidavits not a part of record not considered. Facts contained in affidavits which were not made a part of the record by the certificate of evidence cannot be considered.


text:
    Joseph H. Hedmark, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 20,607.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Action by Joseph H. Hedmark, plaintiff, against Chicago Railways Company, a corporation, defendant, for damages alleged to have been sustained by defendant’s negligence.
    On motion of defendant at close of plaintiff’s evidence, the court instructed the jury to return a verdict . for defendant and entered judgment thereon.

      To reverse the judgment plaintiff prosecutes this writ of error.
    The evidence showed that plaintiff was driving an automobile owned by him east on Monroe street in the city of Chicago, the automobile being entirely closed, front and sides. It had a mohair top and side curtains of cloth and isinglass, and, according to plaintiff’s testimony, three-fourths at least of the side curtains was of isinglass, and it was possible to see through it.
    Monroe street runs east and west and Fortieth avenue runs north and south. The accident occurred at the intersection of these streets. On the northwest corner of the streets was a vacant lot, which had a fifty foot frontage on Monroe street and it extended back sixty feet on Fortieth avenue. North of this vacant lot and sixty feet from the Monroe street building line there was a building. On the southwest corner there was a building which was back thirty-five or thirty-six feet from the curbstone on Monroe street, and the width of the sidewalk nine or ten feet from the curbstone on Fortieth avenue.
    Plaintiff testified that when he was a block west of Fortieth avenue he was going about fourteen miles an hour and slackened up a little, and that when he got somewhere in the neighborhood, perhaps a little west of the vacant lot, he looked north to see if there was a car coming and did not see any; that then he let his machine coast along and looked towards the south to see if a car was coming from that direction, and as he “straightened up, the street car was right on to me,—nearly.” He testified that when he first saw the car he was not on the car track, but was very close to it and the car was .between eight to ten feet from him; that he then reached for his reverse lever, but before he could reach it the street car hit the left side of the front end of the automobile, throwing it southwest, The plaintiff further stated that when be was five feet from the street car track he was going probably eight or ten miles an hour, and that going at that speed he could have stopped his automobile within three or four feet in an emergency. There were three other witnesses to the accident besides the plaintiff. There was no controversy in the evidence offered on behalf of the plaintiff.
    It was urged in behalf of the plaintiff as a ground of reversal that the question of contributory negligence was one of fact and should have been submitted to the jury.
    One of plaintiff’s witnesses, Sullivan, who was a pedestrian crossing Monroe street at Fortieth avenue at the time of the accident, first saw the automobile when it was about fifty feet west of Fortieth avenue. The machine was then slowed down, and, after running ten feet or a little further, it was started up' again, being at that time about thirty-five or forty feet from the point of collision. He testified “as he started up, I ‘hollered’ at him, but do not know whether he heard me or not. I saw that he could not make it across the street before he was hit by the street car which I saw coming from the north.” He further testified that when he saw the car it was about seventy-five or eighty feet from the point of collision. When he was asked as to the speed of "the car, he said: “Well, just as I designated to you before,' I had not the rate of the street car nor automobile. I could not tell you what rate they were going, but I should judge, —well, it was going at pretty fair speed, as I said before.”
    Another witness, who was with Sullivan at the time, testified that he heard Sullivan “holler, ’ ’ and he looked up and saw an automobile approaching from the west and a street car coming from the north, “both of them going at a pretty fair rate of speed,—in just about twenty seconds the street car struck the automobile.”
    He further stated that the 'automobile was about thirty-five or forty feet west of the point of collision, and the car about seventy-five to eighty feet north of it when he first saw them. On cross-examination the witnesses said that the street car was in front of the vacant lot when the automobile was thirty or forty feet west of the place of collision.
    Abstract of the Decision.
    1. Street railroads, § 83

      —what are rights of car and vehicle at street intersection. While street cars and other vehicles have equal rights at street intersections, a vehicle is not equally entitled to cross at the same moment the car is crossing without regard to the speed at which the car is running.

      A third witness, an electrician, was climbing a pole at the southeast corner of Monroe street and Fortieth avenue, testified, “when Sullivan ‘hollered’ look out, I stopped and looked, and I saw the automobile * * * and car and could see what he ‘hollered’ for then, and I waited for the collision.” This witness agrees with the other witnesses that when he first saw the automobile it was thirty-five or forty feet west of Fortieth avenue, and the car was about eighty feet north of the place of the accident.
    Plaintiff testified that “When I got somewhere in the neighborhood of that vacant lot, I looked up to see if there was a car coming, and did not see any;” and, later on in his testimony he said: “When I looked north first I might have been a little west of the vacant lot. I might have been ten feet west of the line.”
    Brown, Ewen & Pruitt, for plaintiff in error.
    Edward C. Stearns and Frank L. Kriete, for defendant in error; W. W. Gurley and J. R. Guilliams, of counsel.

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

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

   Mr. Justice Smith

delivered the opinion of the court.

2. Negligence, § 198 —when contributory negligence a matter of law. Where the facts are admitted and all reasonable minds will agree that the injury was the result of plaintiffs negligence, the court may, as a matter of law, find there was such contributory negligence on plaintiffs part as to defeat a recovery and give the jury a peremptory instruction to that effect.

3. Street railroads, § 97*—when driver of automobile guilty of contributory negligence as matter of law. One who attempts to drive an automobile at a street intersection across a car track in front of a rapidly approaching street car, his view of. which was not obstructed, is guilty of negligence as a matter of law.

4. Street railroads, § 73*—when failure to give signal at street crossing does not overcome contributory negligence. In an action-against a street car "company .to recover for damages caused by the collision of an automobile and a street car at a street crossing, even if the defendant car company did not give the ordinary signals, if plaintiff, by exercising ordinary care, could have avoided the collision and failed to do so, he was guilty of contributory negligence preventing a recovery.

5. Street railroads, § 64*—what insufficient exercise of care in crossing trade at‘Street intersection. In an action against a street railroad company to recover for damage caused by a collision with plaintiffs automobile at a street intersection, a lookout .by plaintiff at a point where he could not have seen for more than sixty feet is not sufficient to establish his exercise of care, but the question of his care depends upon his precautioh when he was at such a distance from the track that he could control his automobile and avoid the danger of the approaching car.

6. Street railroads, § 131*-—when evidence shows contributory negligence in action for damage by collision at street intersection. Evidence in action against a street car company for damage caused by collision at street intersection, examined and held to show plaintiff guilty -of such contributory negligence as to bar recovery.


author: Mr. Presiding Justice Baume

text:
    Peterson & Kimball Company, Defendant in Error, v. William A. Thompson et al., Defendants. Edward H. Marhoefer, Plaintiff in Error.
    Gen. No. 19,074.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Tuknbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 12, 1915.
    Rehearing denied June 1, 1915.
    Statement of the Case.
    Action by Peterson & Kimball Company, a corporation, plaintiff, against William A. Thompson, Edward H. Marhoefer and Wellington T. Stewart, defendants, to recover $199.55 on an account stated. Service was had npon Thompson who defaulted and judgment was. rendered against him for the amount claimed. Thereafter scire facias was issued and served upon the other defendants and a trial resulted in a finding and judgment against them.. A writ of error was sued out to reverse said judgment and a brief and argument were filed by defendant Marhoefer.
    The evidence shows that in July and August, 1911, defendant Thompson was engaged in the theatrical business in the city of Chicago, doing business as the Thompson Opera Company. Defendant Stewart became associated with him in the business on or about •August 1, 1911, at which time some preliminary steps were taken for the organization of a corporation to be known as the “Col. W. A. Thompson Co., Inc.” The organization of this corporation was never completed. On September 1, 1911, defendant Marhoefer was induced to take an interest in the business, and Thompspn, Stewart and Marhoefer then entered into a written contract by which Thompson became president and manager.

      Abstract of the Decision.
    1. Corporations, § 28

      —when members liable as partners. A company which is not a corporate body is a partnership, composed not merely of the directors, but of all the subscribers to the articles of association.
    2. Partnership, § 269*—when partner liable for act prior to membership ratified thereafter. Even though an order for goods was given before a person became a member of a partnership Where, after he became such, the partner ordering the goods agreed that the items of the account were correct and impliedly agreed to pay therefor, such subsequent partner becomes liable thereon.
    On August 29th, preceding, Thompson gave to plaintiff an order to print certain programs, slips, cuts, etc., for use in the business of the company, which order was filled and delivered by plaintiff on September 5th, and further orders for like work were filled and delivered by plaintiff on September 9th, 18th, 23rd and 30th. The total amount of the bill for said work was $199.55, and upon the presentation of said bill to Thompson, he made an indorsement thereon, as follows: “O. K. Col. W. A. Thompson Co. (Not inc.) by W. A. Thompson, Mgr.” This constituted the account stated which is sued upon.
    Bunge, Harbour & Chadwick, for plaintiff in error.
    William M. Lawton, 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.


text:
    R. Reisner & Company, Defendant in Error, v. Thomas Gordon, Plaintiff in Error.
    Gen. No. 19,392.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1-913.
    Affirmed.
    Opinion filed May 12, 1915.
    Statement of the Case.
    Action by B. Beisner & Company, plaintiff, against Thomas Gordon, defendant, to recover an alleged balance of $244.78 due for goods sold and delivered by plaintiff to defendant.
    The cause was tried by the court without a jury and resulted in a finding and judgment for the plaintiff for $244.78.
    To reverse the judgment, defendant prosecutes this writ of error.
    The evidence showed that from 1893 to 1897 defendant conducted a grocery for which he made daily purchases of bread from plaintiff, who, either in person or by his servant, delivered the bread to defendant at his place of business. . The account between the parties was kept as follows: Defendant had a book to which plaintiff had access, wherein was written, by the person making the delivery, the amount of bread delivered and the price thereof, and also the payments made therefor upon account. The book was not produced at the trial and there was no satisfactory evidence tending to show what became of it. In the usual course of business the book was retained by defendant. Defendant conceded that there was a balance due plaintiff when the parties ceased doing business in 1897. Proof offered by plaintiff tended to show that the amount of said balance was $360.05. Defendant was unable to state the amount of the balance. From June 12, 1902, to July 12, 1905, defendant made seven payments of $10 each to apply upon the balance due, and he also testified to a further payment of $45.30 on July 18, 1904. Plaintiff testified that the latter payment was made on July 18, 1907. The date upon receipt given for such payment appeared to have been changed. It was conceded that the payment of $45.30 was the last payment made by defendant. Two payments of $10 each were made by him in May and July, 1905.
    Abstract of the Decision.
    Account stated, § 25

      —when evidence sufficient to support judgment. Evidence in action of account examined and held sufficient to support judgment for plaintiff.
    It was claimed by defendant that at the time of the payment of $45.30, the amount of the balance due plaintiff was in dispute between the parties, and that said payment was made and received as in full settlement of the claim which was then in dispute. The payment was made by a check of the Illinois Steel Company,, which defendant had acquired from the original payee, and was the only available fund which defendant had on his person when demand for payment was made. The receipt then given by plaintiff was on account, not in full. Defendant offered no explanation as to why this was so.
    L. W. Carpenter, for plaintiff in error.
    Frank Foster, 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.


text:
    John F. Devine, Administrator, Appellee, v. Joseph C. Ficklin et al., Appellants.
    Gen. No. 20,358.
    (Not to he reported in full.)
    Appeal from Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed May 12, 1915.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Anna S. Keenan, deceased, against Joseph C. Ficklin and others, defendants, to recover damages for the death of plaintiff’s intestate alleged to have been caused by defendants’ negligence.
    From a verdict and judgment for plaintiff for $400, defendants appeal.
    The first count of the complaint alleged that on August 17, 1910, and prior thereto, the defendants were the owners and agents of and were in possession and control of a lot improved with a two-story frame building known as number 5238 Aberdeen street, Chicago, Illinois; that plaintiff’s intestate resided in one of the flats with her parents as one of the family, while other apartments were occupied by other tenants; that two lavatories or water-closets for the joint use of the tenants were on the ground adjoining the'rear part of said building; that at or near to said building was a certain garden or vegetable patch in which were growing different kinds of vegetables jointly used by and supplying food and nourishment to said tenants; that the defendants negligently allowed the water closets to become and remain in an unsanitary condition and allowed the pipes, drains and sewers to become and remain in an old, worn out and rotten and broken condition, thereby causing sewerage and fecal matter to leak from said lavatories in the ground and close to said vegetable patch, which leakage was liable to infect said vegetables with disease, was dangerous to the health and lives of persons eating said vegetables and inhabiting said apartments and constituted a nuisance there; that defendants had or should have had notice thereof; that said vegetable patch and ground became infected with a germ of infections disease known as typhoid fever, and that plaintiff’s intestate while exercising ordinary care for her own safety and welfare, ate of said vegetables and contracted said infectious disease, known as typhoid fever, which resulted in her death.
    The second count was substantially like the first with the additional allegation that the conditions therein mentioned existed prior to the renting of said premises by the parents of the deceased, and were known to defendants and unknown to the deceased.
    The third count charged a violation by defendants of the provisions of section 1061, entitled “Leasing-Unsanitary Buildings,” and also section 1065, entitled “Unsanitary Building Nuisance,” of article VII of the Municipal Code, and the seventh count charged a violation by defendants of section. 1225 of said Municipal Code, entitled “Adequate Water-Closets-Cases:’’■ and each of said third and seventh counts alleged that plaintiff’s intestate contracted said disease of typhoid fever by eating said vegetables which were infected with the germs of said disease.
    The evidence established the following facts: That the plumbing- in the water closets, provided by defendants for the use of the tenants in the building, was permitted to become and to remain out of repair; that by reason thereof said water closets were in an unsanitary and filthy condition; that fecal matter overran said closets into the basement of the tenements and upon the small tract of ground adjoining, in which vegetables were cultivated and grown; that the father of plaintiff’s intestate, while living in the building; contracted typhoid fever and that he used one of said water-closets, while he was ill with said disease; that shortly thereafter plaintiff’s intestate ate some of said vegetables, following which, she contracted said disease and died therefrom.
    Abstract of the Decision.
    1. Landlord and tenant, § 226

      —when evidence insufficient to show that negligence of landlord was proximate cause of death of tenant’s child. In an action against a landlord by an administrator to recover for the death of a tenant’s child, alleged to have been caused by defendants’ negligence as to sanitary arrangements whereby fecal matter infected with typhoid germs leaked fronr the drain pipes and infected "vegetables in a garden used by the tenants, which were eaten by plaintiff’s intestate who thereby contracted typhoid fever which caused her death, the evidence examined and held not sufficient to show that such negligence was the proximate cause of the death.

      There was no direct proof tending to show that the vegetables which were grown in said tract of ground were infected with typhoid fever germs, nor that plaintiff’s intestate contracted typhoid fever from eating said vegetables. The evidence showed that fecal matter discharged by a typhoid fever patient usually contained the germs of said disease; that when such fecal matter in the ground comes in contact with growing vegetables, it is possible that any typhoid fever germs in said fecal matter may lodge upon and adhere to said vegetables; that a person eating vegetables which are thus infected with said germs may thereby contract typhoid fever.
    Benjamin F. J. Odell, for appellants.
    Richard J. Finn, for appellee; George H. Foster, of counsel.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

2. Presumptions, § 23 —when presumption without foundation. A presumption cannot be based upon a presumption.


text:
    Anna Maher, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 20,365.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenimoke Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914. Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed May 12, 1915.
    Rehearing denied May 26, 1915.
    Statement of the Case.
    Action by Anna Maher, plaintiff, against Chicago Railways Company, a corporation, defendant, to recover damages for personal injuries.
    Plaintiff’s evidence tended to show that at about eleven o’clock on the night of March 24, 191Í, she became a passenger upon one of defendant’s northbound street cars, operated on Robey street, whereon it maintained double tracks up to a point a short distance south of Harrison street, at which point the double tracks converged into a single track which proceeded across Harrison street; that the convergence of the tracks at the point indicated necessitated a curve in the northbound track on Robey street, the radius of which curve was about seventy feet; that plaintiff purposed leaving the car when it stopped at Harrison street to take a westbound car on said street; that the conductor called out Harrison street before the car had reached the point of convergence to the single track, and plaintiff thereupon walked to the rear platform for the purpose of alighting from the car when it came to a stop; that the car was then running at a speed of from ten to twelve miles an hour, and was running at that rate of speed when it took the switch on the curve at the said point of convergence; that as the car took the switch and went onto the curve at said rate of speed, it gave such a sudden jolt or violent side motion that plaintiff was thrown thereby from the platform of the car upon the street pavement and injured.
    There was a verdict and judgment for plaintiff for five thousand five hundred dollars, from which defendant appeals.
    The substantive grounds relied upon by defendant for a reversal of the judgment are, first, the refusal of the court to give to the jury the twenty-fifth instruction tendered by defendant; and, second, that the damages awarded by the jury are grossly excessive.
    The refused instruction was as follows:
    “Ton are instructed that while the law permits the plaintiff in the case to testify in her own behalf, nevertheless you have the right in weighing her evidence, to determine how much credence is to be given to it, and to take into consideration that she is the plaintiff and interested in the result of the suit.”
    It is conceded by plaintiff that this instruction is an accurate statement of the law, but she contends that the refusal of the instruction does not constitute prejudicial error, because the fifth instruction given at her instance sufficiently informed the jury upon that subject.
    The fifth instruction given at the instance of plaintiff is as follows:
    “Ton are further instructed that you are the sole judges of the credit to be given to the evidence of all witnesses; and in determining the weight you should attach to the testimony of any witness, you may take into consideration, the interest of such witness, if. any, as shown by the evidence—his or her frankness and candor or lack of frankness and candor in testifying, his or her intelligence, or lack of intelligence, and the opportunity of such witness of knowing the matters and things about which he or she testified—and from all such circumstances—as well as from the other facts and circumstances in evidence, you should determine the credit you should give to the testimony of each witness appearing upon either side of the case.” Plaintiff, at the time of her injury, was forty-nine years of age. The evidence for plaintiff tends to show that she was rendered unconscious by the fall for a very short period; that she was conveyed to the County Hospital on the night of her injury, and remained there until ten o’clock the following morning, when she was taken to the University Hospital, where she remained about two weeks; that she sustained superficial bruises on her breast, on the left side of her head, on her left hip and her right knee; that she sustained a more severe bruise about and above her left eye which developed a slight scar above her eye; that her malar or cheek bone was slightly depressed, or possibly fractured, with some resulting injury to the facial nerves; that she developed some symptoms of neurasthenia, which her own physicians were unable to testify was referable to the injuries sustained by her; that she suffered considerable pain, and has had occasional attacks of headache; that her sight is somewhat impaired, but whether such impairment of her sight was occasioned by her injuries was not disclosed by the evidence; that one of her teeth was broken and she had discharges of offensive matter from her nasal passages into her mouth; that she has “a numb feeling” on the left side of her face; that she was confined to her home for three months, during which time she was unable to do any housework; that up to the time of the trial she had been unable to do any washing or ironing.

      Abstract of the Decision.
    1. Appeal and error, § 1411

      —when judgment not disturbed where evidence conflicting. In an action against a street railway company for injuries to a passenger while waiting on the platform to alight, where the evidence as to negligence is conflicting, a judgment for plaintiff will not he disturbed on appeal.
    2. Appeal and error, § 1537*—when refusal to give instruction not error. Where an instruction previously given has covered the ground, it is not error to refuse another instruction in regard to the same matter.
    3. Damages, § 110*—when verdict excessive. Evidence in action against street railway company for personal injuries, examined and held to show that a verdict for five thousand five hundred dollars was excessive and remittitur of two thousand five hundred dollars ordered.
    After the accident and before the trial plaintiff sustained a severe mental and nervous shock following the sudden death of her husband, and the evidence tended to show that at least some of the symptoms of which she complained were occasioned by her sorrow and sense of bereavement in consequence of the death of her husband.
    Weymouth Kirkland, William H. Symmes and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Charles J. Trainor, for appellees.

      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:
    Fred S. Loomis, Defendant in Error, v. Ellsworth M. Board, Plaintiff in Error.
    Gen. No. 19,541.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Court-net, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 20, 1915.
    Statement of the Case.
    Action by Fred S. Loomis, plaintiff, against Ells-worth. M. Board, defendant, to recover compensation for legal services. There was judgment for plaintiff for three hundred and fifty dollars, to reverse which defendant prosecutes this writ of error.
    The evidence showed that J. L. Board, a brother of defendant, was at one time the owner of a number of shares of the capital stock of the American Can Company, all of which he had in fact sold and transferred to other parties, but that certificates for two hundred shares of said stock had never been transferred upon the books of the company, and still. appeared on said books as belonging to him; that continuing to receive notices from the company, said Board concluded that he had not sold all of the shares of stock formerly owned by him, and that he was still the owner of two hundred shares, the certificates for which were either lost or destroyed by fire; that acting, presumably in good faith on that belief, he entered into some arrangement with his former wife, Mrs. Howie, whereby she claimed to have acquired some interest, the precise nature of which is not disclosed, in said shares of stock, and said Board also assigned said shares of stock to defendant as security for a loan of four hundred dollars; that one Garrison, who roomed at the home of Mrs. Howie, was informed by her of her interest in said shares of stock, and that the certificate for said shares had been destroyed by fire, and she then consulted him with reference to the propriety of taking some steps to procure the issuance by the corporation of other certificates in lieu of those supposed to have been destroyed by fire; that she then proposed to Garrison that she would give him five hundred dollars if he could procure such other certificates to be issued, and could effect a sale of the shares; that after some correspondence with the officers of the corporation, and before he was informed that defendant held an assignment of the -shares of stock, Garrison interviewed plaintiff relative to the subject, and sought the advice of plaintiff as to the proper procedure to be adopted in procuring the issuance of new certificates; that shortly thereafter, when Garrison and plaintiff ascertained that defendant held an assignment of the shares of stock, the latter was called into conference and the situation discussed; that plaintiff, after an examination of the authorities bearing upon the question, advised defendant that a proceeding in equity might properly be instituted in Cook county to compel the corporation to issue to defendant new certificates of stock; that plaintiff was not then advised that the assignment to defendant was held merely as collateral "accruity for a loan to his brother, but assumed that defendant was the actual owner of the shares of stock; that thereafter, with the authority and approval of defendant, plaintiff prepared and filed in the Superior Court a bill in equity, wherein defendant was made complainant and the American Can Company and J. L. Board were made defendants, to compel the issuance of certificates for said two hundred shares of stock to defendant Board; that defendant then paid to plaintiff thirty dollars to cover the preliminary costs of the. proceeding; that thereafter plaintiff entered into negotiations with the attorney of record for the American Can Company, which resulted in a plan satisfactory to defendant and the American Can Company, and involving the filing by plaintiff for defendant of a petition in the Circuit Court of Hudson county, New Jersey, under the laws of which State the corporation was organized, to effect the same purpose sought to be effected by the bill in equity filed in the Superior Court of Cook county; that during the pendency of these proceedings frequent conferences were had between plaintiff and defendant, in which defendant was fully informed regarding the various steps taken, and wherein he participated; that during the pendency of said proceeding in New Jersey, and before any final order or decree was entered, the true owners and holders of the two certificates of stock, each for one hundred shares of the capital stock of the American Can Company, to whom J. L. Board had sold and assigned said certificates, applied to said corporation to have said certificates properly transferred to them upon the books of said corporation; that upon the disclosure to the parties of the true facts, the proceedings heretofore mentioned necessarily finally terminated unsuccessfully.
    There is evidence tending to show that some time prior to the transactions here involved, J. L. Board had been adjudged a bankrupt, and that the decision to institute the proceedings in the name of defendant was influenced in part by that fact. The evidence showed that when it was ascertained that defendant held an assignment of the shares of stock from his brother, it was recognized by all concerned that the proceedings should properly be instituted in the name of defendant. Defendant contends that he was acting for other parties and not on his own behalf, when he availed himself of the services of plaintiff. There was some evidence tending to show that in the event of the favorable outcome of the proceedings instituted by defendant it was understood that the rights and interests of the other parties in the shares of stock would be adjusted with them by defendant.

      Abstract of the Decision.
    1. Attorney and client, § 135

      —when evidence sufficient to establish right to recover for services. Evidence examined in action by attorney to recover for legal services, and held sufficient to support judgment for plaintiff.
    2. Evidence, § 222*—when conversation with third person inadmissible. Evidence of conversations between defendant and a third person out of the presence and hearing of plaintiff are inadmissible.
    Plaintiff testified that in one of the interviews regarding the method of procedure to be adopted, defendant proposed that plaintiff take the suit upon a contingent fee and that he refused to do so. Defendant denied that he made any such proposition to plaintiff, but admitted that something was said by him with reference to the propriety of plaintiff contingently advancing the amount necessary to cover the expense of a trip to New York and New Jersey.
    Samuel Shaw Parks, 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,

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    M. A. Riman, Defendant in Error, v. David H. Daskal, Plaintiff in Error.
    Gen. No. 20,094.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed May 20, 1915.

      Statement of the Case.
    Action by M. A. Biman, plaintiff, against David H. Daskal, defendant, to recover two hundred dollars as commission for services in effecting an exchange of real estate between defendant and one G-oldstein.
    To reverse a judgment for plaintiff for two hundred dollars, defendant prosecutes this writ of error.
    It was conceded upon the trial that plaintiff at the time of the transaction, had not procured a license to engage in the business or act in the capacity of a broker, within the city of Chicago, as provided in paragraph 192, chapter XV of the Municipal Code.
    As grounds for the reversal of said judgment, it was claimed that the evidence showed that plaintiff was engaged in the business of a real estate broker when he negotiated the exchange and that the evidence showed that plaintiff, without the knowledge and consent of defendant acted as the agent of both parties.
    Plaintiff admitted that he had acted in the capacity of a real estate broker in connection with a firm until March, 1913. The execution of the written contract between the parties making the exchange involved in this action was on July 26, 1913, plaintiff testified that he was first consulted by defendant as to his property in March, 1913. Witnesses for defendant testified that during the time following March, 1913, and while plaintiff was negotiating for the sale or exchange of the property of defendant, he represented himself as being engaged in the real estate business, and that he then had and distributed his business cards whereon he designated his business as “Beal Estate, Loans and Insurance,” that plaintiff sought to effect an exchange of the property of defendant for other properties. Plaintiff denied that he had been engaged in the business of a real estate broker since March, 1913, or that he had represented himself as a real estate agent or that he had any business cards whereon he designated himself as a real estate agent, but he did not deny that he had sought to effect an exchange of the property owned "by defendant for property other than that owned by Goldstein.
    Abstract of the Decision.
    Brokers, § 28

      —when want of license defense to action for commissions. Evidence examined in action to recover commissions for services in effecting exchange of real estate, and held to show that plaintiff was engaged in the business of brokerage as an occupation, without having procured a license and that therefore he was not entitled to recover.
    Jonas O. Hoover, for plaintiff in error.
    Francis J. Sullivan, 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.


author: Mr. Presiding Justice Barnes

text:
    H. W. Sisson, trading as H. W. Sisson & Company, Plaintiff in Error, v. I. V. Whiting, Administrator, Defendant in Error.
    Gen. No. 20,750.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 25, 1915.
    Statement of the Case.
    Action by H. "W. Sisson, trading' as H. "W. Sisson & Company, plaintiff, against I. V. Whiting, administrator of the estate of Charles Whiting, deceased, defendant, for commissions as real estate broker in bringing about an exchange of properties between Charles Whiting and one Hecht.
    The claim was presented on the theory of either an express or an implied contract.
    Whiting died during the pendency of the suit and neither his nor Sisson’s versions of any personal interviews or arrangements they may have had in connection with the deal on which the latter claimed commissions could be shown.
    Plaintiff’s proof consisted of (1) correspondence between thé parties relative to a previous transaction had prior to the negotiations in question; (2) proof' as to the time when Whiting and Hecht listed their respective properties with plaintiff; and (3) the testimony of Hecht as to certain conversations with Whiting in the nature of admissions.
    By such correspondence plaintiff sought to show that Whiting* paid him a commission on the previous transaction and knew of Sisson’s custom to charge commissions to both parties in such a transaction. Defendant ’ urged that such correspondence was not only irrelevant, but that it showed that Whiting* disputed Sisson’s right to a commission on said previous transaction and that he never paid him one. He also urged that whatever it might show as to Sisson’s custom .to charge double commissions in such transactions, it did hot establish proof of a custom as known in.law.
    As to the listing* of the properties of Whiting and Hecht with plaintiff, the testimony was indefinite. There was no direct evidence as to the terms upon or the purpose for which Whiting’s property was listed, Russell, Sisson’s employee, said he noted Whiting’s property on a card about December 20, 1909. Hecht said he listed his property for exchange with Sisson about February 1,1910. A letter in evidence from Whiting* to Sisson, dated December 9, 1909, and purporting to be a reply to a letter from Sisson relative to the properties, indicated that the exchange of said properties was the subject of consideration before that time. Neither said letter nor any other evidence indicated what were the precise relations between the parties to the transaction in question, either before or subsequent to that time,—whether Sisson was acting as agent for Hecht or for Whiting, or as a broker to bring them together. The letter was consistent with any one of these relations. While Bussell testified that he listed Whiting’s property, he stated that he did so on information obtained from Sisson, and that he heard no conversation between the latter and Whiting.
    The only other relevant evidence bearing on the subject was a conversation with Whiting testified to by Hecht, who testified that in the course of negotiations Whiting offered him three houses and that when Hecht said he wanted four, Whiting replied, “I am going to . turn the other one over to Mr. Sisson as his commission,” and that Sisson then laughed and said he did not want real estate- but would have to have cash for his commission; and that when the deal was closed, Whiting said to him, “I will have to pay 5% commission on my end of this deal.”
    The case was heard by the court without a jury and judgment was rendered in favor of defendant.
    To reverse this judgment, plaintiff prosecutes this writ of error.
    Arthur C. Bachrach and Oscar Blumenthal, for plaintiff in error.
    Cavender, Kaiser & Wermuth, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 91 —when evidence of previous transactions insufficient to show right to double commissions. In an action to recover commissions as broker on an exchange of properties, correspondence between the parties relative to a previous transaction prior to the one in suit is irrelevant and insufficient to establish proof of a custom known in law to entitle plaintiff to double commissions, where it tends to show that defendant disputed plaintiff’s right to a commission on such previous transaction.

2. Brokers, § 7*—when evidence insufficient to show listing. Evidence in an action by a broker for commissions on the exchange of real estate, examined and held insufficient to show a listing <?f the property with plaintiff.

3. Brokers, § 27*—when commissions may be collected from both parties. The rule that a broker may collect a commission from both parties to a real estate transaction where he is not called upon to exercise his judgment or discretion, but is employed merely to find a purchaser on his employer’s terms and to bring the parties together on such terms, cannot be applied in an action for commissions in the absence of proof in the record to disclose the nature of the agreement or character of the relation between plaintiff and defendant.


text:
    Nunzio Russo v. Ignatia Russo. Ignatia Russo, Appellee, v. Nunzio Russo, Appellant.
    Gen. No. 20,764.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 25, 1915.
    Statement of the Case.
    Bill by Nunzio Busso against Ignatia Russo for divorce. Defendant interposed a cross-bill charging desertion, and adulterous practices, as a result of which he communicated to defendant a venereal disease. The chancellor held that neither the charge of adultery nor the communication of a venereal disease was sustained, but found that complainant had deserted defendant and entered a decree in her favor on the cross-bill, from which complainant appeals.
    Abstract of the Decision.
    Husband and wife, § 264

      —when evidence sustains separate maintenance decree. Evidence on cross-bill for separate maintenance held to sustain wife’s claim that she was living separate and apart from her husband without her fault.
    Donald L. Morrill, for appellant; Robert W. Millar, of counsel.
    ' Bauer & Donoghue, for appellee; Lester L. Bauer, of counsel.

      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:
    Tom Kilovas, Defendant in Error, v. Nick Kilovas, Plaintiff in Error.
    Gen. No. 20,781.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 25, 1915.

      Abstract of the Decision.
    Master and servant, § 84

      —when evidence insufficient to sustain claim, for wages. In an action to recover a balance claimed to be due for wages, where under the terms of the employment plaintiff was charged with certain accounts which defendant claimed were unpaid and for which plaintiff admitted his responsibility, claiming they had been paid, but introducing no proof beyond his mere assertion of collection, the persons owing them not having been called, and there being no evidence shown by whom they were collected or that the money collected was paid over to defendant, the evidence was held insufficient to sustain a judgment in favor of plaintiff.
    Statement of the Case.
    Action by Tom Kilovas against Nick Kilovas to recover a balance of $190 claimed to be due as wages and as ascertained upon an accounting between them October 13, 1911. Defendant admitted an accounting was had, but claimed it was on November 30,1911, and that another was had at a still later date. His book of account was received in evidence to show that the account as it stood November 30th was assented to by plaintiff’s putting his signature thereto, when it showed a balance in plaintiff’s favor of $46.73. After-wards there was charged to plaintiff $187.70, representing some unpaid accounts made in the course of his employment for which he seems to have been responsible, and for which he admitted his liability, and which, with other credits and debits unquestioned, changed the account to a balance against him of $142.21. From a judgment for plaintiff, defendant brings error.
    Stedman & Soelke, for plaintiff in error.
    Gteobge M. Weichelt, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Knight Light Company, Appellee, v. Jesse K. Farley and Farley Candy Company, Appellants.
    Gen. No. 21,485.
    Abstract of the Decision.
    1. Appeal and error, § 340

      —when party not mentioned in order affected thereby. On a bill by the lessee" of premises against the lessor and a corporation alleged to be controlled by him to restrain interference with his possession, or interference with the furnishing of water, heat and electricity by such corporation, a joint appeal by both defendants is proper from an order restraining the lessor from such interference although the order does not specifically mention the corporation, the latter being a party of record and affected hy the order, the theory of the bill being that though the lease contained, no provision for the furnishing of electricity and the agreement therefor was made with the corporation, the latter was under the control of the lessor and acted merely as its agent in the matter.

      (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, 1915.
    Reversed.
    Opinion filed May 25, 1915.
    Statement of the Case.
    Suit by Knight Light Company against Jesse K. Farley and Farley Candy Company, a corporation, to restrain interference with the possession or use of premises occupied by complainant as a tenant of Farley, or interference with the furnishing of water, heat and electricity. From an order restraining defendant Farley and his agents from such interference, both defendants appeal.
    Moses, Rosenthal & Kennedy, for appellants; Joseph W. Moses and Walter Bachrach, of counsel.
    Joseph P. Mahoney, 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 Barnes

delivered the opinion of the court.

2. Appeal and error, § 340*—when party hound hy order as agent may appeal. Where a bill sought to enjoin a corporation on the theory that it acted merely as the agent of its codefendant who controlled and directed, such corporation may join in an appeal from an interlocutory order restraining its codefendant and his agents, although it is not specifically mentioned in the order.

3. Equity, § 255*—when original hill superseded hy amendment. An interlocutory order restraining the lessor of certain premises from interfering with the lessee’s possession or use in any way, and interfering with the furnishing of water, heat and electric light and power thereto, which purports to rest on the original and amended bill, must stand, if at all, on the latter as it superseded the former.

4. Landlord and tenant, § 26*—what does not amount to an extension of lease. An agreement extending from July, 1914, until August, 1915, is not shown by averments that the lessor stated that the lessee might remain in the premises until August, 1915, and until needed for his use, and that they agreed that the exact date need not be definitely determined at that time “but if either of said parties changed his plans he would notify the other party thereof,” as it contains no actual or' mutual promises, states no terms, does not adopt the terms of the written lease, and is incomplete and uncertain.

5. Specific performance, § 44*—when agreement to extend lease not enforced. A lessor’s statement that he would not need premises occupied by his lessee until a certain date, and the latter’s statement that he would not vacate until that date, held not such an agreement to extend an existing lease as would be specifically enforced in equity.

6. Specific performance, § 44*—when contract not aided hy self-serving declarations. Where the agreement as pleaded lacks the material elements of a contract, a self-serving declaration by one of the parties subsequent thereto referring to it as an agreement to extend the lease to a certain date cannot aid the same, so as to permit of its specific enforcement.

7. Injunction, § 75*—what is character of suit to enjoin breach of contract. A suit to enjoin the breach of a contract seeks a negative specific enforcement of it, and in this State is governed by the same rules as a suit for specific performance.

8. Specific performance, § 44*—when agreement to extend lease lacks elements of certainty and mutuality. A court of equity will not enforce an alleged agreement to extend a lease where the parties at the time of the supposed agreement stated that the exact date for the termination of the lease which they proposed to extend was not to be definitely determined, and it was further understood that if either party changed his mind with reference to plans with respect to the same that he would notify the other party, since it lacks certainty and mutuality.

9. Landlord and tenant, § 26*—when lessee claims inconvenience or estoppel as basis for extension. Where a bill in equity sets up an alleged contract which is not sufficient to constitute an agreement because it contains no actual promises, states no terms and is indefinite and uncertain, the lessee cannot complain of the inconvenience that he would suffer by reason of his understanding that there was such an agreement, nor can the doctrine of estoppel be invoked.