text:
    Mike Polionos by Peter Polionos, Appellee, v. Fred A,. Benner, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.

      Abstract of the Decision.
    1. Physicians and surgeons, § 22

      —when evidence shows unskilful treatment. Where a fourteen-year-old boy was injured by an iron radiator falling on his leg, and the greater weight of evidence was that a reliable diagnosis of the injury could not be made without an X-ray picture, and that a surgeon made an erroneous diagnosis by mere manipulation, and gave the limb such treatment that a surgical operation was thereafter necessary, a verdict against such surgeon was not against the manifest weight of the evidence.
    2. Physicians and surgeons, § 21*—what evidence admissible in action for negligent treatment. In an action against a surgeon for damages occasioned by unskilful treatment of an injured boy, evidence of what the plaintiff’s father said and did when he learned of the accident to his boy was properly excluded.
    3. Trial, § 274*—when irregularity in verdict immaterial. Where a jury after agreeing on a verdict used a form given, them by the court and simply wrote in such form for defendant the words, “two hundred dollars,” and signed their names and were then discharged, the verdict being received in court on the following Monday, the intention of the jury to render a verdict for the plaintiff was obvious, and the irregularity would not warrant a reversal of the judgment thereon.
    Statement of the Case.
    Action on the case by Mike Polionos, by his next friend, Peter Polionos against Fred A. Benner, a surgeon, to recover for damages alleged to have been sustained in consequence of the unskilled and negligent manner in which he treated a fracture of the bone in the right leg. A jury returned a verdict in favor of the plaintiff for two hundred dollars, on which judgment was rendered and the defendant appealed.
    Clarence E. Pope, Edward C. Knotts and Peebles & Peebles, for appellant; Robert J. Folonie, of counsel.
    Rinaker & Rinaker, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Bliss C. White, Appellee, v. Charles Libro, Appellant.
    (Zot to be reported in full.)
    Appeal from the County Court of Macoupin county; the Hon. Truman A. Snell, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Suit to recover rent by Bliss C. White against Charles Libro. An appeal was taken from the judgment of a justice of the peace to the County Court where the case was tried by the court without a jury. The evidence showed that James E. Colvin executed a bond for a deed whereby he agreed to convey real estate to Ercole Libro, a brother of the defendant, provided that he paid a mortgage of $900 to an improvement association in monthly payments of $11.64, and a further sum of $535 to Colvin, to be paid $100 in cash and the balance in monthly payments of $2.61 per month with interest at six per cent, per annum, payable monthly, and all taxes. Ercole Libro was furnished with a pass book and nine shares of stock in the association, such pass book showed sixty-two payments in accordance with the contract, payments being made down to within thirty days of the bringing of this suit. It appeared, however, that Ercole Libro went to Europe after putting his brother in possession of the premises, and that payments were thereafter made by Charles Libro, and entered in the pass book of Ercole Libro.
    At the conclusion of the trial, judgment was rendered in favor of plaintiff for $128.25, and the defendant appealed.
    Peebles & Peebles, for appellant.
    Alfred A. Isaacs, for appellee.

      Abstract of the Decision.
    Landlord and tenant, § 487*-—when suit for rent will not lie. Under the Landlord and Tenant Act, § 1, par. 3, (J. & A. f 7039), providing that rent may be recovered when possession has been obtained under an agreement for the purchase of premises and before deed is given, where the right to possession is terminated by forfeiture or noncompliance with the agreement, and possession is wrongfully refused to be given upon demand in writing by the party entitled thereto, such action for rent will not lie where there is no proof of a demand for possession made in writing.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    Elizabeth Burke, Administratrix, Appellee, v. Toledo, Peoria & Western Railway Company, Appellant.
    1. Master and servant, § 298

      —when station agent and brahe man not fellow-servants. A station agent and a brakeman on a freight train are not fellow-servants.
    2. Master and servant, § 350*—when risk of another servant’s negligence not assumed. The negligence of a station agent in placing baggage and express on the station platform in such close proximity to the tracks as to strike a brakeman riding on the step or stirrup of a box car, while engaged in his duties in connection with switching cars, is not' a risk assumed by such brakeman.
    3. Master and servant, § 753*—when contributory negligence a question for jury. In an action to recover for the death of a brakeman caused by his being struck by baggage and express trucks standing on the station platform while he was riding on the stirrup or step of a passing box car engaged in his duties in connection with switching cars, where there is no evidence tending to show that deceased had any knowledge that the trucks were on the platform, or that they were too close to permit him to pass, the question of his contributory negligence is for the jury.
    4. Master and servant, § 485*—how rule of railroad to be construed. Where a railroad company’s rule provides that “an inferior train must keep at least five minutes off the time of a superior train in the same direction, and must be clear at the time the superior train is due to leave the last station in the rear where time is shown,” the word “time” cannot be construed as meaning the schedule time named in the time cards for the arrival and departure of trains, but as referring to the actual time when the trains arrive and depart.
    5. Masteb and sebvant, § 757

      —when contributory negligence a question for jury. In an action to recover for the death of a railroad brakeman while employed by defendant railroad company, where defendant contends that deceased was guilty of contributory negligence as a matter -of law in violating its rule requiring the tracks to be cleared for trains having the right of way, the burden of showing the violation is on defendant, and where the evidence in regard to the violation is conflicting, the question is one for the jury under proper instructions.
    6. Masteb and sebvant, § 805*—when instruction defining assumption of risle not erroneous. In an action to recover for the death of a brakeman killed by being struck by a truck near the track while in the performance of his duties in the employ of defendant Railroad Company, it is not error to instruct that the servant does not assume “risks of the master’s own negligence,” in an instruction defining the risks which a servant assumes, where there is no evidence that deceased knew that the truck had been placed on the platform, nor that it had been placed so near the track as to menace his safety, and where it cannot be said as a matter of law that he had equal opportunity with the master of knowing its position, but his knowledge and of the danger therefrom are denied in the declaration and the jury are instructed to find defendant not guilty if they believe from the evidence that the truck was in plain view and could have been seen by deceased in the exercise of ordinary care and caution, or if he had an equal opportunity with defendant of ascertaining the location of the truck.
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodobe N. Gbeen, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1914.
    Rehearing denied November 6, 1914.

      Certiorari allowed by Supreme Court.
    Stevens, Miller & Elliott and George C. Rider, for appellant.
    Jesse Black, Jr., for appellee.

      See lUinois Notes Digest, Vols. XI to XY, 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 Eldredge

delivered the opinion of the court.

Appellee recovered a judgment against appellant for seventy-five hundred dollars in an action on the case for damages for the death of her intestate by reason of the negligence of appellant. The declaration consists of two counts which are substantially the same. They aver, in substance, that on April 15,19.12, appellee’s intestate was employed as a brakeman by defendant on a freight train; that it was the duty of defendant to furnish him with a reasonably safe place in which to work; that while he, under the direction of defendant, was doing his work of switching ku the town of Gridley, the defendant, through its servants, recklessly, carelessly and negligently placed a certain truck loaded with merchandise on its platform at the station in close proximity to the railroad track where plaintiff was engaged in switching; that appellee’s intestate had no notice or knowledge of said truck so negligently placed by defendant as aforesaid; that the placing of said truck in said position created a condition of great danger to plaintiff’s intestate; that the placing of said truck as aforesaid created a risk and danger of employment which plaintiff’s intestate did not assume; that by reason thereof appellee’s intestate was struck by said truck and thrown from the side of a freight car and killed.

The tracks of appellant run through Gridley in an easterly and westerly direction. The station at Gridley is on the north side of the main track. East of the station a switch track branches off from the main track and runs in a northeasterly direction. This track is called the “new” or “passing” track. East of the station there is also another switch track branching off from the main track which runs in a southwesterly direction, and from this switch track another switch track branches off running also in a southwesterly direction. South of the depot and a little east therefrom is an elevator. The freig'ht train on which appellee was employed as brakeman was known as “Number 23” and arrived at the station of G-ridley between 11:45 A. M. and noon. It pulled up in front of the depot and unloaded freight consigned to that station. The deceased was known as the “swing” brakeman. After the conductor receives the switching orders he delivers them to the “swing” brakeman who directs the switching in accordance therewith. A passenger train known as “Number 7” coming from the east was due at Gridley at 12:19 P. M. The freight train did some switching west of the depot and then proceeded eastward onto the passing track east of the station. The switch crew then cut out four cars which were to be delivered to the elevator, and while this was being done the station agent and his assistant wheeled out onto the platform two trucks, one of which was loaded with egg cases. These trucks were placed within a few inches of the edge of the platform for the purpose of delivering express and baggage to the passenger train and to receive the express and bag-g'age to be delivered therefrom at said station. There is evidence tending to show that a flagman was sent east along the main track and that thereupon deceased and another brakeman with the engine and four cars proceeded westward onto the main track for the purpose of delivering the cars to the elevator, which was located on the switch track south of the depot. The deceased, after turning the switch connecting the passing track with the main track, jumped on the side of the last of the four cars, which was a box car, and stood with his feet in the iron step or stirrup and grasping the handle bars. He was hanging on the side of the car which was towards the depot platform on which the trucks were standing. The passenger train at this time could be seen as it was about leaving Meadows, the first station east of Gridley and about four miles distant. The evidence tends to show that deceased was looking towards the approaching passenger train, and also that the smoke and cinders from his engine were blowing in his direction from the west. There was evidence tending to show that the freight cars were running westward about twelve miles an hour when the car on which plaintiff was riding approached the depot platform. His body struck the trucks standing thereon and he was hurled from the car and killed.

The main contentions of appellant are that the deceased assumed the risk of striking the trucks because their dangerous proximity to the tracks was open and obvious and could readily have been seen by him, and that he was guilty of contributory negligence in failing to see said trucks, and for the violation of a certain rule of appellant.

The station agent and deceased were not fellow-servants, and the negligence of the station agent in placing said trucks in the manner described was not a risk and hazard assumed by deceased. Illinois Third Vein Coal Co. v. Cioni, 215 Ill. 583; McCoy v. Chicago & A. R. Co., 188 Ill. App. 103. There is no evidence tending to show that he had any knowledge that these trucks were on the platform, or that they were too close to the rails to permit him to pass them without injury. Whether he was guilty of contributory negligence in failing to see the trucks or in riding on the car in the position he took, under all the facts and circumstances shown by the evidence, was a question of fact for the jury to determine.

It remains to be determined whether he was guilty of contributory negligence as a matter of law on account of violating the rule of the Company. Buie 89 is as follows:

“89. At meeting points between trains of different classes, the inferior train must take the siding and clear the superior train at least five minutes, and must pull into the siding when practicable. If necessary to back in, the train must first be protected as prescribed by Enle 99, unless otherwise provided.
“An inferior train must keep at least five minutes off the time of a superior train in' the same direction, and must be clear at the time the superior train is due to leave the last station in the rear where time is shown.”

It is contended that the proper construction of rule 89 is that the word “time” used therein means “schedule” time and that schedule time means the time named in the time cards for the arrival and departure of trains. There was evidence tending to show that when a superior train was late an inferior train kept on with its work until it was necessary to clear the track for the superior train. In our opinion such custom is in accord with a reasonable construction of said rule, otherwise, to suggest a not uncommon occurrence, if the superior train should be an hour or several hours late the inferior train would have to take the siding five minutes before the schedule time for the arrival of the superior train and wait there inactive all that length of time until the superior train should have departed. We cannot seriously believe that any such construction has been observed or followed by the railroads in this country and there is no evidence to sustain it. We do not think this rule requires any construction, but means just what it says, that an inferior train must keep at least five minutes off the time of the superior train, and that the time of the superior train is the actual time when it arrives and departs from the given station. The evidence, moreover, does not conclusively show that the accident happened within five minutes of the arrival of the passenger train. The schedule time of the passenger train for its arrival at Gridley was 12 ;19. The station agent testifies that it was eight minutes late, though there is no certain evidence of the actual time when it did arrive. There was evidence tending to show that the deceased was informed that the passenger train was eight minutes late. The evidence of the time when the accident happened varies according to different witnesses from 12:20 to 12:30. Whether deceased and his train could have proceeded westward the few hundred feet necessary to hack in on the elevator siding five minutes before the actual arrival of the passenger train is not shown. The burden of proving the violation of the rule by deceased was upon appellant. We cannot say that the clear manifest weight of the evidence shows that the rule was violated by him. The agent knew that deceased was engaged in switching cars. He also knew that the four cars in question were to be placed on the elevator siding, as he himself had received the orders for the placing of said cars and delivered them to the conductor of the freight train. The question of fact as to whether the deceased was violating these rules at the time of his death was directly submitted to the jury by the fifth, sixth, seventh and eighth instructions given for appellant. Each one of these instructions direct the jury to find appellant not guilty if they should bell we from the evidence that he was killed in consequence of his violation of this rule.

The errors assigned to the giving of instructions on behalf of appellee are most seriously argued with reference to instruction number 9. This instruction attempts to define what risks were assumed by deceased, and, among other things, says: “And you are further instructed that the law is .that the servant does not assume risks that are unreasonable or extraordinary, nor risks that are extrinsic to the employment, nor risks of the master’s own negligence.” The rule stated in the instruction that a servant does not assume the risks arising from the master’s negligence has been sustained in many cases, and the same rule has been condemned in several cases. In the case of Klofski v. Railroad Supply Co. 235 Ill. 146, the Court points out the distinction in the application of this abstract rule in the two classes of cases and holds:

“The distinction between the two classes of cases is readily discernible when the cases themselves are carefully studied and analyzed. It will be found that the cases which exclude from the risks assumed by the servant such dangers as arise from the master’s negligence are cases involving’ a consideration of the usual and ordinary hazards of the employment which are assumed by the original contract of hiring, and that the other line of cases which hold that the servant may assume dangers arising from the master’s negligence are cases where the assumption of the danger depended not upon the contract of hiring but upon the knowledge of the servant of the existence of the danger. If the servant has, or by the exercise of reasonable care would have, knowledge of the existence of a particular danger and continues in the employment without complaint he will be deemed to have assumed the danger; and in respect to such dangers it is wholly immaterial whether they arise from the negligence of the master or from other causes. * * # The master’s negligence is not an ordinary and usual risk of the employment, hence the servant does not assume dangers arising therefrom by his contract of hiring, but the servant knowing of such negligence may assume the risk, and in such case he assumes it because he knows of it, and not because it has become an ordinary one.”

There is no evidence in the case at bar that the deceased knew the truck had been placed upon the platform, nor that it had been placed so close to the rails as to make it a menace to his safety in the performance of his duties. It cannot be said as a matter of law that he had an equal opportunity with the master of knowing its position. In the Klofski case, supra, the Court further said:

“If appellant negligently employed an incompetent servant and set him to-work with appellee, thereby exposing appellee to danger from the incompetency of ■such servant, such a danger is not one of the ordinary and usual hazards of the employment which appellee assumed by his contract of hiring. If he assumed such danger at all, it would only be upon the supposition that he knew of such incompetency, and voluntarily, without protest, continued in such employment. Whether he had such knowledge or ought to have had such knowledge was a question of fact for the jury. Appellee’s contention was that he had no such knowledge and had not sufficient opportunity to acquire it. Upon the assumption that the jury would adopt appellee’s theory of the facts, he was entitled to have them instructed as to the rule of law applicable to his theory of the case.”

In the case at bar the declaration alleged that deceased had no knowledge of the position of this truck on the platform nor the danger arising therefrom, and that he did not assume the risk thereof. In the KlofsJci case the Court continues:

“If on the other hand, as appellant contends, appellee had knowledge of the incompetency of his co-employee, or if, under the circumstances, by the exercise of ordinary care he ought to have had such knowledge, then appellant was entitled to have the jury instructed that appellee would assume the dangers arising from the known incompetency of the employee Scotty. The law as applicable to appellant’s theory of the facts was fully presented to the jury by instructions 18, 19, 20 and 21 given on behalf of appellant. By these several instructions the jury were told, in various forms of language, that the servant assumed not only the ordinary and usual risks connected with his work, but also all extraordinary and unusual risks and dangers of which he had knowledge or by the exercise of reasonable care ought to have had. The instruction under consideration, when read in connection with the other instructions of a series, was not erroneous or misleading.”

In the case under consideration, the third, fourth, twelfth and thirteenth instructions given on behalf of appellant directed the jury to find appellant not guilty if they believed from the evidence that the truck was in plain view and could have been seen by deceased had he been in the exercise of ordinary care and caution for his own .safety, or if he had an equal opportunity with appellant of ascertaining the location of the truck in question. These questions of fact were all properly submitted to the jury. Considering these instructions as a series the jury could not have been misled as to the application of the rule of assumed risk.

The criticisms of the first, second, fifth, seventh, eighth and twelfth instructions given on behalf of appellee we do not think are well founded. Twenty-four instructions were given on behalf of appellant and there was no error in the refusal of the two refused instructions offered by it.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Thomas Cooper, Defendant in Error, v. Robert Burgess & Son, Plaintiffs in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Pulton county; the Hon. Geobge W. Thompson, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action in assumpsit by Thomas Cooper against Bobert Burgess & Son.
    Plaintiff sued to recover damages by failure of defendants to deliver to him a pure bred Perdieron stallion as they had contracted to do, and delivering him instead a worthless and inferior stallion.

      Abstract of the Decision.
    1. Evidence, § 356

      —when witness qualified to give opinion. In an action in assumpsit for damages alleged to have been caused by failure of defendants to perform their contract to sell plaintiff a pure bred Percheron stallion and by their having substituted therefor a French draft stallion, witnesses, mostly farmers residing in the same county as plaintiff who had owned and handled stallions, are competent to testify that while they had little or no knowledge of the value of French draft stallions, yet such stallions would be of little or no value for breeding purposes in that county by reason of the scarcity of French draft mares there, and the weight of their testimony is a question for the jury.
    2. Witnesses, § 298*—when refusal to admit evidence as to veracity harmless. While evidence that the reputation for truth and veracity of a witness to an oral contract was bad at a period four years before the making of the contract is not too remote, refusal to admit it is not reversible error where the evidence was merely cumulative.
    3. Witnesses, § 298*—when evidence as to reputation for veracity inadmissible. Objection to evidence to prove the general reputation for truth and veracity of a witness to an oral contract in a certain vicinity is properly sustained where there was no evidence that he had ever lived in that vicinity, but the evidence showed that, during the period to which the character evidence related the witness had lived elsewhere.
    4. Tbial, § 99*—when objection to admission of evidence made too late. Objection to the admissibility, in an action in assumpsit, of the proof of value, at a specified time and place, of the stallion to which the action related comes too late when first urged on appeal.
    The trial resulted in a.judgment in favor of the plaintiff and against defendants for seven hundred dollars and costs. To reverse the judgment, defendants prosecute error.
    Barnes & Magoon, for plaintiffs in error; J. D. Breckenridge, of counsel.
    Chiperfield & Chiperfield, for defendant in error.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

5. Instructions, § 151*—when refusal to instruct as to principle already covered proper. Where the principle of law embodied in a refused instruction is fully covered by other instructions, its refusal is not harmful error.

Thompson, P. J., took no part in the consideration of this case.


text:
    The People of the State of Illinois, Defendant in Error, v. Perry McKinzie, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trespass, § 49

      —when evidence sufficient to shoio. Where land was rented under an agreement that a part thereof should he kept in hay, the rental of such part to he fixed each year by the price of hay in the vicinity, and a controversy arose between the lessee and the lessor’s agent about the price for the hay while a part of the tract was in hay, and the agent sold the hay to others and went on the field with them to measure it after the lessee had warned him off and had also posted trespass notices and locked the gates, held such agent was guilty of a violation of Hurd’s R. S„ c. 38, § 266, J. & A. 1 3958.

      Error to the Circuit Court of Pulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Perry McKinzie on a charge of trespass. From a judgment of a justice of the peace, defendant appealed to the Circuit Court. To reverse the judgment of the Circuit Court he prosecutes error.
    Chiperfield & Chiperfield, for plaintiff in error.
    M. P. Rice, for defendant in error.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

2. Criminal law, § 93 —when arraignment and plea unnecessary on appeal to Circuit Court. On an appeal to the Circuit Court from the judgment of a justice finding a defendant guilty of a misdemeanor, it is not necessary, under Hurd’s R. S., c. 79, art. XVIII, §§ 9, 72, J. & A. Tilf 7033, 7038 n, p. 3841 that plaintiff in error be arraigned and a plea of not guilty be entered in the Circuit Court.

Thompson, P. J., took no part in the consideration of this case.


text:
    Shandrow & Kern, Appellees, v. Rust, Swift & Company, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court oí Calhoun county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Shandrow & Kern, as partners, against Bust, Swift & Company, partners, to recover an account for goods sold. The action was originally brought before a justice of the peace, and on an appeal to the Circuit Court the trial resulted in a verdict for plaintiffs and judgment was entered thereon. From this judgment, defendant appeals.
    The only question involved is whether or not the evidence is sufficient to establish that the goods were sold to defendants, or to another.
    Evidence for plaintiffs tended to show that the contract was that of defendants and their contention was supported by the testimony of the third person. Defendants’ evidence tended to show that they had no connection with the contract, but that it was the contract of such third person.
    Abstract of the Decision.
    Contracts, § 389*—toben execution a question for jury. Evidence as to whether contract tor purchase of goods was made by defendants or by a third person, examined and held that question was for the jury and that a verdict was not manifestly against the weight, of evidence.
    John J. Brenholt, for appellants.
    Charles J. Macauley and T. J. Selby, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Romeo A. Owings, Executor, Appellee, v. Lewis L. Lehman, Appellant.
    1. Contracts, § 65

      —when agreement as to price sufficiently certain. A contract.for the sale of bank stock which provides that it shall be “at $230.00 per share with any additions there may have been made to the contingent or surplus fund since the date of this agreement,” is not void for uncertainty in its terms as to the price to be paid for the stock.
    2. Contracts, § 143*—when option contract not in violation of Statute of Wills. An - option contract for the sale of bank stock which confers on one party a priority of privilege to purchase, in the event that the other desires to sell, at any time within ten years from its date, and makes it binding upon the latter’s heirs, executors or administrators and directs that in case of such latter’s death before the expiration of the option period, her executor or administrator shall deliver the stock at the agreed price, is not invalid as an attempted testamentary disposition of the stock without compliance with the Statute of Wills.

      3. Contracts, § 135

      —when agreement to give priority of privilege to repurchase stoclc valid. An agreement whereby the buyer of stock in a national hank gives the seller the priority of privilege to purchase, should the buyer wish to sell for a period of ten years, at an agreed price per share with any additions there may have made to the contingent or surplus fund after the date of the agreement, is not unreasonable nor contrary to public policy.
    Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Vause & Hughes, for appellant.
    Henley & Douglas, for appellee.
    Fred A. Kinzel, for all minor defendants.

      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 Eldredge

delivered the opinion of the court.

On the eleventh day of October, 1910, Cora R. Moore, an aged widow, owned ten shares of the capital stock of the Mattoon National Bank and on that day executed her last will and testament and disposed of said stock therein by certain specific legacies. In the spring of 1911 the bank went into voluntary liquidation and the ten shares of stock owned by Mrs. Moore participated in the distribution of the assets of the bank and in due course were fully liquidated. During the process of liquidation of said bank, appellant, Lehman, and others organized the National Bank of Mattoon and appellant became a large subscriber of the capital stock thereof. Mrs. Moore was not a subscriber to the capital stock of the new bank and did not in any manner participate in its organization.

After the organization of the National Bank of Mattoon appellant sold portions of the capital stock subscribed by him and had some contracts for the repurchase of the stock printed for his own personal use. This form was as follows:

“In consideration of the sale of.......... shares of the capital stock of the NATIONAL BANK OF MATTOON to me by Lewis L. Lehman, I hereby agree in the event that I desire to sell the same at any time within ten years, that I will give said Lehman or his heirs or assigns the priority of privilege to purchase the same at his option for ten days. This option to be binding and obligatory upon my heirs, executors or administrators. ’ ’

On July 24, .1911, Mrs. Moore and appellant negotiated for the sale to her of ten shares of the stock of the new bank. At this time Mrs. Moore was a very old lady, and as a result of these negotiations appellant added to the printed form with pen and ink the following clause:

“And in case of my prior death, I hereby direct my executor or administrator to deliver to the said Lewis L. Lehman the said ten shares of stock at $230 per share with any additions there may have been made to the contingent or surplus fund since the date of the agreement.”

Mrs. Moore executed the contract and delivered the same to appellant and received a certificate for ten shares of the stock in the National Bank of Mattoon. Mrs. Moore died on the eighth day of February, 1913. Her executor filed his bill in the City Court in the city of Mattoon for a construction of this contract, and averred therein that owing to the happening of events subsequent to the execution of Mrs. Moore’s last will it was impossible to carry out the provisions of the will, and prays that said will may also be construed and that he be advised in regard to his duties thereunder. Appellant filed an answer to the bill, which by order of the court was ordered to stand as a cross-bill, admitting the principal facts in regard to the execution of the will by Mrs. Moore, the liquidation of the stock of the Mattoon National Bank, the organization of the National Bank of Mattoon, the sale of the ten shares of stock in the latter bank by him to Mrs. Moore, and avers the validity of the contract of repurchase and that he is entitled to receive from the executor the said ten shares of stock in the latter bank upon the payment by him of $2,450, the same being the value of said stock at $230 per share, with the additions that have been made to the contingent or surplus fund since the date of the sale, which amount he tenders in open court to be paid to the said complainant upon the assignment and delivery to him of the certificate for said stock. The answers of the various other defendants aver that the contract is void on two grounds: First, that it is too uncertain in its terms as to the price to be paid for the stock; and second, that it is an attempted testamentary disposition of the same and void because not properly executed under the provisions of the Statute of Wills. The chancellor held that the contract was uncertain and ambiguous and not binding upon the estate of Mrs. Moore and that the answer of appellant, in so far as the same stands as a cross-bill, should be dismissed for want of equity.

We do not think the holding of the chancellor that the contract is void for uncertainty can be sustained. The price to be paid for the stock -was $230 per share with any additions that might have been made to the contingent or surplus fund since the date of the agreement. This was readily ascertainable. In the case of Hayes v. O’Brien, 149 Ill. 403, where there was a provision in a lease of certain land whereby the lessor reserved the right to sell the land at any time, but covenanted that no sale of the land should be made by bim without first giving the lessee the privilege of purchasing upon such terms and at the same price per acre as any other person or purchaser might have offered therefor, the Supreme Court held: ‘ ‘ This language is plain, and unambiguous, and admits of no construction, other than that the terms and price per acre at which the lessee might purchase were the same as offered by any other person or purchaser, and which the lessor was willing to accept. * * * In most of the reported cases there has been an offer to sell or an option to purchase at a fixed price named in the written contract. But this is not necessary where the written instrument fixes a definite mode of its ascertainment.”

The price to be paid for the stock as fixed by the contract in this case can be much more definitely determined than the price for the land in the case cited; in fact, it is absolutely ascertainable.

In order to determine whether the contract is void as being an attempted testamentary disposition of the stock without the formality of the execution of the contract in accordance with the Statute of Wills, it is necessary to ascertain, if possible, what was the intention of the parties. The fundamental theory of a will is that the disposition of property made therein by devise or bequest is in the nature of a gift. Beatty’s Estate v. Western College of Toledo, 177 Ill. 280. The contract in question in this case does not contain any elements in the nature of a gift, but on the contrary contains those of an option contract. In attempting to arrive at the intention of the parties to such a contract it is pertinent to consider the conditions surrounding the parties at the time. The new bank was organized by appellant and others and appellant had subscribed for a large portion of the stock. It is not unreasonable to presume that in disposing of some of this stock he would sell it only to individuals whom he cared to have connected with the bank and that he did not want to have the stock get beyond his control, and with that object in view made each purchaser of the stock sign the printed option contract which he had prepared for that purpose, giving him the privilege of rebuying the stock of the bank if the purchaser desired to sell. Mrs. Moore had owned ten shares of stock in the Mattoon National Bank, which went into liquidation, and it is evident she desired to invest the money derived from this stock in the new bank organized by appellant. She was advanced in years, her life expectancy was short, and with this condition in mind the written portion of the contract was added to the printed contract and executed by her. The consideration for the stock was the money price thereof at the time of the sale and the privilege of appellant to repurchase the same at. a certain price in the event she desired to sell the same, or, in case she should die, the privilege of repurchasing the same at a certain price from her executor or administrator. That the incorporators and stockholders of a national bank should seek to control the stock of such an institution or to choose to whom the stock should be sold is not unreasonable nor contrary to public policy. The success of such "an institution may largely depend upon the harmony that prevails among the stockholders thereof, and it is certainly for the public interest that such institutions should be operated with success. We fail’to see anything unreasonable or obnoxious or uncertain in the terms of this contract, nor do we think it can be held to be an attempted testamentary disposition of the stock and void under the Statute of Wills. The decree of the City Court of the city of Mattoon must therefore be reversed and the cause remanded with directions to enter a decree in accordance with the opinion herein expressed.

Reversed and remanded with directions.


text:
    Frank Sparks, Appellee, v. Robert G. Rayburn et al., trading as the Home Bank, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Champaign county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action of assumpsit by Frank Sparks against Robert Gr. Rayburn, W. O. Dale, J. N. Black and F. B. Vennum, partners as the Home Bank, to recover a balance of deposits made by plaintiff in a bank operated by defendants.
    The bank never furnished plaintiff a pass book.
    Defendants contended that no formal demand was made, while testimony for plaintiff tended to show demand had been made and refused. The testimony also tended to show that defendants had denied that any balance was due plaintiff.
    The errors assigned were the refusal to admit in evidence the ledger of the bank and in giving certain instructions requested by plaintiff.
    The jury found the issues in favor of plaintiff and returned a verdict in his favor in the sum of thirteen hundred and fifty dollars, which figure was reached either by a mistake in adding items or by allowing interest which had not been claimed.
    To reverse the judgment entered on the verdict, defendants appeal.
    Dobbins & Dobbins, Asa S. Chapman and C. R. Iungerich, for appellants.

      Abstract of the Decision.
    1. Action, § 15

      —when demand not prerequisite. In an action to recover a balance of a bank deposit alleged to be due, where the evidence tends to show that defendants refused plaintiff’s request for a pass book, statement of his account or return of his checks and that they denied that any balance .was due him, proof of a formal demand for the deposits is not necessary.
    2. Evidence, § 259*—when books not of original entry inadmissible. A ledger of a bank which is not a book of original entry, but is made up in part of entries from books of original entry, is inadmissible in evidence.
    3. Evidence, § 259*—when book containing summary from book of original entry inadmissible. In an action by a bank depositor to recover the balance of his deposit, certificates of deposit issued by the bank are prima facie evidence of deposits, and a ledger which does not contain the original entries but is made up of entries from other books, and the entries in which show, in many instances, not the true amounts of the transactions but their net results, is inadmissible.
    4. Damages, § 246*—when remittitur proper. Where the verdict of the jury shows that either they made a mistake in the addition of the items claimed or included interest which was not claimed, a remittitur will be entered for the excess.
    5. Appeal and ebbob, § 1523*—when error in giving instruction harmless where objection applies to those for both sides. Where the instructions given on behalf of defendant are open to the same objection as those given on behalf of plaintiff, defendant cannot be heard to complain thereof.
    Green & Palmer, for appellee; Oris Barth, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Horace DeFratis, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 722

      —when record insufficient. Where the record does not show that any bill of exceptions was filed in the court below and made a part of the record, a writ of error will be dismissed.
    2. Appeal and error, §• 864*—failure to print and file abstract. Where no abstract has been printed and filed in accordance with the rules of the Appellate Court, the writ of error will be dismissed.
    3. Appeal and error, § 1094*—when brief and argument insufficient. Where in the brief and argument of plaintiff in error no ex- . ceptions to any of the rulings on the evidence complained of are shown and no instructions are set out, the writ of error will be dismissed.
    Appeal from the County Court of Morgan county; the Hon. Edward P. Brockhouse, Judge, presiding. Heard in this court at the April term, 1914.
    Dismissed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by The People of the State of Illinois against Horace DeFratis.
    To review a judgment entered in favor of plaintiff, defendant sues out a writ of error.
    Thomas F. Smith, for plaintiff in error.
    Robert Tilton, for defendant in error.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    John McMasters, Administrator, Plaintiff in Error, v. Madison Coal Corporation, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 814

      —when hiTl of exceptions insufficient. Where the hill of exceptions does not show that any peremptory instruction was given by the trial court to the jury and contains no instructions, the Appellate Court will not, on a writ of error, review the action of the trial court in directing a verdict.
    Error to the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action on the case by John McMasters, administrator of the estate of Henry McMasters, deceased, against Madison Coal Corporation.
    To review a judgment rendered in favor of defendant, plaintiff prosecutes a writ of error.
    Johh E. Hogan and George T. Wallace, for plaintiff in error.
    Graham & Graham, for defendant in error.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    L. E. Thompson, Appellee, v. The Security Insurance Company of New Haven, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 661

      —when evidence sufficient to prove oral contract. In an action to recover on an oral contract of fire insurance, where plaintiff testifies to the terms of the contract and its making with defendant’s agent and is more or less corroborated by his son and by a minor employee who were present, while the making of the contract is denied by defendant’s agent, a verdict for plaintiff is not contrary to the manifest weight of the evidence.
    2. Instructions, § 151*—when error in giving harmless. Where an instruction, though objectionable, could not, when read together with all the other instructions, have misled the jury, it is not reversible error.
    Scholfield, J., took no part of the consideration of this case.
    Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action of assumpsit by L. E. Thompson against the Security Insurance Company of New Haven on an oral contract of insurance.
    The plaintiff recovered a verdict for six hundred and ninety dollars, on which a judgment was entered. From this judgment defendant appeals, assigning as error that the making of the contract was not proved by a preponderance of the evidence and that the giving of certain instructions was error.
    H. A. Neal, for appellant.
    Albert C. Anderson, for appellee

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    F. B. Sherfy, Appellant, v. W. A. lachenmyer, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    Gaming, § 18

      —when renewal note in hands of innocent purchaser void.. A renewal note is void, though in the hands of an innocent purchaser, where the consideration of the first note was a gambling debt.
    Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbkick, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by F. B. Sherfy against W. A. Lachenmyer on a promissory note executed by plaintiff to his own order and indorsed on the back by him.
    Defendant executed a note payable to one Matheny in payment of money lost to the latter in gambling at cards in a gambling room run by the latter. The note came into the hands of the First National Bank for collection. Defendant informed the cashier of the bank that he was unable to pay the note at that time, that it was for money lost at gambling, and executed in renewal thereof the note on which this action brought. The court directed a verdict for defendant and from the judgment thereon, plaintiff appeals.
    Walter B. Riley and Fred B. Hamill, for appellant.
    Green & Palmer and Acton & Acton, for appellee; Oris Barth, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Mary R. Frankenberg, Appellant, v. Carl V. Frankenberg, Appellee.
    1. Divorce, § 9

      —when decree for desertion proper. Where a husband deserts his wife for more than two years because she refuses to pay his debts she is entitled to a decree for divorce on the grounds of desertion.
    2. Divorce, § 39*—when evidence as to prior marriage and divorce incompetent. In a suit for divorce the admission of evidence that plaintiff had been married and had been divorced from her former husband and that there were no children of that marriage and the husband was dead is error.
    3. Divorce, § 53*—when refusal to permit plaintiff to dismiss Mil not error. After a verdict has been rendered in a suit for divorce and a motion to set aside the verdict and .for a new trial has been overruled, it is not error to refuse to permit plaintiff to dismiss her bill.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Bellatti & Bellatti, for appellant.
    M. T. Layman, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant filed her bill for divorce from appellee, in which she alleged that they were married February 15, 1894, and that two children were born of said marriage, both of whom are now over sixteen years of age, and that on May 16, 1911, appellee wilfully and without any reasonable cause absented himself from her for more than two years. The answer of appellee admits the marriage and the birth of the children, but denies that he deserted the complainant as charged in her bill. The issue was heard before a jury which rendered a verdict in favor of appellee. A motion to set aside the verdict and for a new trial was made by-appellant and overruled. Appellant then made a motion for leave to dismiss her bill, which was overruled. Thereupon the chancellor, instead of dismissing the bill for want of equity, entered a judgment against appellant in bar of the action.

Three assignments of error are urged in this court: First, that the chancellor should have granted a new trial on the ground that the verdict is contrary to the evidence; second, that the court erred in permitting certain evidence to be introduced on behalf of appellee ; and third, that the court erred in denying the right of appellant to dismiss her bill after the motion for a new trial was overruled.

Appellee is a tailor in the city of Jacksonville and had no income except what he derived from his business. He had been married to appellant about eighteen years. They lived in a house owned by appellant’s mother. During the early part of their married life appellee was engaged in selling skirts. These skirts were made by appellant on machines in the house. Subsequently appellee opened a tailor shop and appellant helped him more or less in that business. The evidence clearly shows without contradiction that appellant had always been a true and faithful wife to appellee and had helped him more or less in his work from the time they were married. It appears from the evidence that appellant received some property on the death of her father and that appellee was persistent in asking appellant for money, as he claimed, to pay his debts. Appellee’s own testimony shows no legal ground for his desertion. In substance it is as follows: “It was probably six or seven weeks previous to leaving that I did not furnish the family with everything. I was in debt and wanted to pay my indebtedness before I ■ went further in debt. When some bills became due, especially gas bills, in order to get the discount I told her that I was unable to pay my bills. She made no reply. I knew that she had money. I went out and borrowed to pay for these things, only I could not pay very long as hard up as I was. As to what was said and done about my not furnishing the family with anything, when I asked her if she did not expect to help me out in any way she said she would do nothing. Well, I said that I would do nothing either. We will just quit where we are. This was said the day before I left the house. I never asked her for half of what she had or anything like that. I never asked her to deed me half of the property her father had left her. I supported my family to the best of my ability. It was about 8:30 the morning that I left the house. I told my wife there was no use trying to live like we were, and that the best thing I could do was to go and let her enjoy her money. My little daughter then came up and I told her it was useless for me to stay there under the circumstances. She cried and asked, ‘What will I do?’ I said, ‘Do the best you can—get along the best you can—if you cannot get along here, come to me. I will always take care of you. ’ That made her sob and cry more. Then my wife got vexed at this and she said to me, ‘You dirty dog, you go on and get your things and get out of here.’ I said, ‘I will go when I get ready,’ and my little girl still hung to me and cried. My wife said, ‘You brute, you go and let her alone. Don’t work on the sympathy of your child. Take your things and get out of here.’ I said, ‘I will go in a few minutes and bother you no more.’ She said, ‘Bring your trunk out, as I want to lock the door and go down town.’ I took my trunk and moved it outside. The reason I left was that they did everything to provoke me and wanted me to leave. My wife would stay away with the children for more than a week at a time and never write to me. The morning that I left I offered to kiss my wife, but she would not let me, so I told her it was useless to try to live together—we could be friends just the same—I had no ill feeling towards her. If she felt that greed should hold her to it, all right. I would get along by myself. By greed I mean her refusal to give me money.” The conversation with the wife as above testified to by appellee is denied by her and the daughter. Admitting all the facts to be true, as testified to by appellee, they fall far short of showing that the desertion was for a reasonable cause. It has been held that the reasonable cause which justifies a husband’s desertion and abandonment of his wife must be such as would entitle him to a divorce. Fritz v. Fritz, 138 Ill. 436; Walton v. Walton, 114 Ill. App. 116. The fact that a wife will not pay the debts of her husband has not yet been declared to be a ground for divorce on his part. The evidence clearly shows that appellee had deserted and abandoned his wife for more than two years without reasonable cause and that she was entitled to a decree for divorce. The chancellor erred in not setting aside the verdict and granting a new trial.

On the cross-examination of appellant the court permitted counsel for appellee, over objection, to show that she had been married once before and had been divorced from her husband, that there were no children born of said marriage and that her former husband was nów dead. This was clearly incompetent. It had nothing to do with the issues in this case. The only purpose such evidence could serve would be to possibly prejudice the jury against appellant. In the argument of counsel for appellee to the jury, over objection, be made these remarks: “Mrs. Frankenberg had been divorced before. Well, there was a divorce. Didn’t I get that right? All right—which ever way you want that—she is divorced before, whether she got it or her husband got it—I don’t care—but the fact is she is not new in a court room on divorce— she is not a stranger to it—she has been divorced before—either she or her husband—I don’t know—I don’t care. They objected. I told her not to answer until they objected. They objected and the court said it was competent evidence. That was right. I want you to consider that fact together with all the other facts and circumstances.” The court erred in allowing this evidence to be given and in permitting counsel to make said argument to the jury thereon. It might be possible that in some cases under some circumstances evidence of a prior marriage and divorce would be competent, but in the present case there was nothing whatever that could make such evidence competent.

The court did not err in refusing to permit appellant to dismiss her bill after the verdict was 'rendered and the motion to set aside the verdict and for a new trial had been overruled. Under the statute either party has a right to have the issues in a bill for divorce determined by a jury, and the trial has all the incidents of a trial at common law and the verdict has the same force and effect as a verdict in an action at law. It is not merely advisory as in an ordinary chancery suit. Garrett v. Garrett, 252 Ill. 318; Biggerstaff v. Bigger-staff, 180 Ill. 407. The general rule of chancery practice, that in the absence of a cross-bill a complainant has a right to dismiss the bill at any time before the decree is entered, does not apply to such chancery cases, the issues wherein the statute has provided may be determined by a jury. Gifford v. Gifford, 154 Ill. App. 416. To grant a motion to dismiss a bill in such a case after a verdict has been rendered by a jury would be equivalent to permitting the complainant to suffer a nonsuit. The Practice Act provides that every person desirous of suffering a nonsuit shall be barred therefrom unless he do so before the jury retire from the bar. In a chancery case where the statute gives either party the right to have the issues determined by a jury, a motion to dismiss the bill without prejudice comes too late after the jury has retired to consider its verdict.

For the reasons indicated the judgment of the Circuit Court will be reversed and the cause remanded with directions to set aside the judgment and to set aside the verdict and grant a new trial.

Reversed and remanded with directions.


text:
    Shellebarger Elevator Company, Appellant, v. Jens Jenson, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Ford county; the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.
    Statement of the Case.
    Action of assumpsit by Jens Jenson against Shellebarger Elevator Company to recover for corn sold defendant.
    Plaintiff contended and introduced evidence to show that he had sold certain corn to defendant. Defendant introduced evidence showing that there was no contract of sale but that the grain was received by it in storage only. The elevator and the grain were destroyed by fire about two years and a half after the date the sale was claimed to have been made.
    The declaration contained only the common counts, but defendant filed in addition to the general issue a special plea alleging that at the time it was operating a class B elevator and received grain on storage only. Issue was joined on this plea by general replication.
    The trial resulted in a verdict by the jury for the plaintiff and judgment was entered thereon. From this judgment, defendant appeals.

      Abstract of the Decision.
    1. Instructions, § 114

      —when not olear. In an action to recover for grain which plaintiff claimed was sold to defendant and defendant claimed was received on storage and destroyed by fire, where the defendant filed, in addition to the general issue a special plea on which issue was joined by a general replication, an instruction that “unless the defendant has shown by the greater weight of the evidence that at the time of the fire in question, it, the defendant, had stored in the elevator as much corn as of good quality and grade as that delivered to the defendant by the plaintiff, as it was then chargeable, for to all other parties who had corn of that character stored in the elevator, it will be your duty to find for the plaintiff on that issue,” is improper in that it does not state to what issue it has reference.
    2. Instructions, § 114*—when order of findings not properly stated. In an action to recover for grain which plaintiff claims was sold to defendant and defendant claims was received for storage in its elevator and burned without its fault, an instruction to the jury to consider how much grain the defendant had in the elevator at the time it was burned, which does not direct that they shall first find whether the contract was one df storage or of sale,- is improper.
    3. Instructions, § 114*—when not conforming to issues. Where, in an action to recover for grain, plaintiff claims that the grain was sold to defendant and defendant claims that it was received by it for storage in its elevator and while so stored was burned without its fault, it is error to instruct that, “the' defendant has pleaded as one of his defenses that the corn in question was stored in the elevator and not sold as claimed by the plaintiff; before you will be justified under the law to find for the defendant on that issue, you must believe from the greater weight of the evidence that defendant has shown that it, the defendant, used .reasonable care and diligence to protect the corn from loss by fire.”
    A. L. Phillips and J. R. Fitzgerald, for appellant.
    Schneider & Schneider, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mb. Justice Eldredge

text:
    Charles Razor, Appellee, v. Bloomington & Normal Railway and Light Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.
    Statement of the Case.
    Action on the case by Charles Razor against the Bloomington & Normal Railway and Light Company for personal injuries.
    Plaintiff was struck by one of defendant’s street cars at a crossing at the intersection of two streets where cars coming from the west on one street turned the corner and ran north on the other. The accident happened between eight and nine o’clock on a November evening. It was raining and plaintiff was carrying an umbrella. He charged negligence on defendant’s part as follows: (1) Mismanagement and unskilfulness in running the car; (2) not sounding a gong or ringing a hell; (3) wilfully and negligently driving the car against him; (4) failure to have car equipped with a fender and proper guard; (5) running the car at a dangerous rate of speed and contrary to the ordinance fixing the limit at five miles an hour; (6) carelessly, improperly and negligently driving and managing the car, whereby plaintiff was injured. The evidence on the question of the speed of the car and the sounding of the gong was conflicting.
    The jury found the issues for the plaintiff and assessed his damages at seven hundred dollars. From the judgment entered on the verdict, defendant appeals.

      Abstract of the Decision.
    1. Street railroads, § 133

      —when negligence in speed of car question for jury in action for injury to pedestrian. In an action by a pedestrian to recover for injuries by being struck by a street car, where plaintiffs evidence shows that the car was running at a minimum speed of eight miles an hour, while defendant’s evidence shows that the speed did not exceed two miles an hour, the question as to whether defendant was negligent in the rate of speed at which it operated its car is for the jury.
    2. Street railroads, § 135*—when contributory negligence question for jury in action for personal injuries. Where the evidence is conflicting, in an action by a pedestrian to recover for personal injuries from a street ear, the question of contributory negligence is for the jury.
    3. Evidence, § 399*—when opinion of medical expert inadmissible in answer to hypothetical question. A medical expert, in answering a hypothetical question, cannot give his opinion on the fact which the jury is to determine.
    4. Appeal and error, § 1499*—when improper admission of evidence harmless error. The admission of improper evidence as to the extent of a plaintiffs injuries, in an action for personal injuries, is not reversible error where defendant offered no evidence in regard thereto, and the verdict was not excessive if the injuries were of the extent which plaintiff’s evidence tended to show they were.
    5. Instructions, § 83*—when not improper. Certain instructions in an action for injuries by being struck by a street car, held not misleading or improper.
    6. Appeal and error, § 1531*—when instruction not misleading. In an action to recover for personal injuries by being struck by a street car, an instruction which assumes that the car struck plaintiff, while defendant contends that plaintiff walked into and struck the car, is not misleading.
    7. Pleading, § 431*—when proof not at variance with declarer tion. In an action for personal injuries by being struck by a street car, held that there was no variance between the declaration and the proof.
    Livingston & Bach, for appellant; Sigmund Livingston, of counsel.
    Light & Light, for appellee.

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

   Mb. Justice Eldredge

delivered the opinion of the court.


text:
    J. Walter Dunsworth, Appellee, v. W. D. Chemical Company, Appellant.
    Replevin, § 7

      —when not proper to recover note. Where the ‘ execution of a note was not secured through fraud or deceit, and it was supported 6y a good consideration when executed and it was delivered by the maker to the payees, thé maker cannot, on the grounds of his right to rescind, breach of contract and failure of consideration, recover" possession of the note by replevin.
    Appeal from the County Court of Hancock county; the.Hon. J. Arthur Baird, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed.
    Opinion filed October 16, 1914.
    Rehearing denied November 6, 1914.
    O’Harra, O’Harra, Wood & Walker, for appellant.
    Hartzell, Cavanagh & Babcook, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

On the sixth day of March, 1913, appellant and appellee entered into a written contract in which it was provided that in consideration of the right of appellee to sell the goods that day ordered of appellant in Hancock county during the period of mutual satisfaction, appellee agreed to sell said goods at certain prices; that appellant agreed to send one of their men before the expiration of sixty days to canvass with and assist appellee in selling of the goods without any charge for the services of the assistant, and that said assistant should turn over to appellee the entire proceeds of all sales made by him; that in case of the failure of appellant to send said assistant within sixty days, appellant agreed at the expiration of that time to take charge of all unsold gods and credit the same to appellee’s separate covenants covering the goods that day ordered by him; that appellant agreed to send to appellee literature free of charge to he distributed to the stock raisers for advertising purposes.

The goods mentioned in the contract were stock powders. On said day appellee ordered 6,000 pounds of. these stock powders called “Protection Stock Powders,” and executed his note for the principal sum of three hundred and sixty dollars, payable to the order of appellant ninety days after date. The evidence shows that these stock powders were to be delivered to appellee at the price of six cents per pound and that appellee was to sell them for higher prices and was to retain the difference. Three thousand pounds of the stock powders were shipped to appellee and at the time of the trial were stored on his premises, the remaining 3,000 pounds were afterwards shipped to appellee and he refused to receive the same. None of the stock powders were sold by appellee. The note became due and appellee requested appellant by letter to send the note to the Hancock National Bank at Carthage. Appellant did so, and as soon as the bank re7 ceived it appellee demanded possession of the note, which, being refused, he brought this action in replevin to recover the possession of the note. The jury found the issues for appellee, and from the judgment on that verdict this appeal is prosecuted.

It is contended by appellee that the contract running-only during a period of mutual satisfaction he had a right to rescind it at any time he saw fit, and he never having sold any of the powders, the consideration of the note has failed and he is entitled to the return of the note to his possession. It is also urged that appellant breached the contract by failing to send a man within sixty days to assist him in the sale of the goods. The evidence shows that a man was sent to him within the sixty days, but appellee claims he was prevented from taking advantage of it at that time on account of the illness of his wife and that appellant should have again sent a, man for that purpose, and first notify appellee of the time when he would arrive so that he would be prepared to go out with him for the purpose of selling the goods.

We cannot agree with counsel for appellee that an action of replevin is a proper remedy under such circumstances, and we have been unable to find any authority to sustain such a procedure. The execution of the note' was not procured through fraud or deceit, so far as this record shows, and at the time of its execution it was supported by a good consideration. The title to the note passed to appellants when it was delivered to them by appellee, and if there are any defenses to it they can be availed of. by appellee when an action is brought to recover thereon.

It is unnecessary to pass upon the other propositions advanced by counsel in this case. The judgment will be reversed.

Reversed.


text:
    John B. Sutton, Appellant, v. Findlay Cemetery Association, Appellee.
    1. Waters and water courses, § 23

      —when pollution By cemetery enjoined. On a suit to enjoin defendant from selling or attempting to sell lots in its premises for burial purposes or to enter bodies therein or to permit them to be interred, where plaintiff introduces a number of expert witnesses who substantiate the allegations of his bill that a water course used by him to water his stock will be contaminated by bacteria and poisonous exudations from the decomposition of human bodies in the cemetery, and defendant introduces three local physicians, who do not qualify as experts, but testify that in their opinion no deleterious effects will be produced, an injunction will be granted.
    2. Waters and water courses, § 23*—when fact of previous pollution By another not ground for denial of injunction. In a suit to enjoin a cemetery company from polluting a water course, the fact that the waters have already been 'polluted by the deposit of sewage from a village is not ground for denial of the injunction.
    Scholfield, J., dissents.
    Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.

      Certiorari allowed by Supreme Court.
    Dove & Dove, for appellant.
    E. A. Richardson and Whitaker, Ward & Pugh, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is a suit in chancery, the purpose of which is to procure an injunction restraining appellee from selling or attempting to sell any lot or lots in its premises for burial purposes and from interring or permitting to be interred any bodies therein. The bill as amended, in substance, avers that appellee is a corporation and is the owner of ten acres of land adjoining appellant’s land on the west; that said tract of land has been surveyed and platted preliminary to laying out a cemetery therein; that it is close to the corporate limits of the village of Findlay, having a population of about one thousand people; that the village of Findlay has no cemetery or burial ground, but that the nearest one is a country graveyard three miles distant, that the purpose of appellee is to sell lots to the public and to use said land as a public cemetery; that in said premises and near the west line of the land owned by appellee is the head of a natural water course which is known as the west fork of the “Everman Branch”; that said natural water course continues in an easterly direction through the premises of appellee and through the land of appellant and gradually widens as it continues eastward and eventually empties into the Okaw River-; that the natural drainage of all the lands of appellant and appellee is towards this branch, and that said cemetery is low and flat with but a slight fall towards the branch; that during eight or nine months of each year there is considerable water in said branch and it is a running stream during that portion of the year; that for at least that length of time said branch contains water sufficient in quantity and of sufficient purity to furnish drink for cattle, horses, hogs and other domestic stock kept by appellant; that appellant has resided on his land for more than ten years and makes his home thereon; that during all that time that portion of his land adjoining said water course on both sides has been used for pasturing purposes and for watering his stock; that appellee is constructing a tile ditch by means of which it is proposed to drain, and under drain its cemetery; that the outlet for said tile drain is to be in said natural water course; that by reason of said cemetery being used for burial purposes the discharge from said tile drain would carry contamination and the waters therefrom would be unhealthy and unfit for drinking purposes for cattle, horses, hogs and all kinds of stock, and that the lands of appellant through which said water course runs and into which the drainage of said cemetery would empty would, by reason of said discharge from said drain, be rendered unfit for dairy purposes and stock raising, and said discharge from said drain would cause noxious odors to spread over the farm of appellant and about his place of residence, thereby rendering the same unhealthy and uncomfortable as a place to live, and irreparable damage would be caused and a nuisance would thereby be created; that during several months of each year said land, is so water-logged that in order to render said premises suitable for burial purposes it is necessary to properly drain and under-drain the same; that in the event said premises are so drained the discharge from said drain after interment of human bodies therein would contain bacteria and poisonous exudations from decomposing human bodies, which discharge would be emptied into said natural water course and so carried upon the lands and premises of appellant; that injurious products of decomposition would emanate from said bodies; that water percolating through the soil would take up these emanations and such waters would thereby be rendered poisonous and contaminated, and would percolate into and upon the land of appellant and also into said natural water course and would be carried into and upon the lands of appellant, by reason whereof the lands and stock of appellant would be greatly depreciated in value and the milk and cream of cows pasturing upon the land of appellant and butter therefrom would be decreased in value, if not rendered wholly unsalable.

The answer admits the ownership of the cemetery and the purpose thereof as alleged in thé bill and that the natural drainage óf the lands of both appellant and appellee is towards said water course and that a tile drain has been constructed by means of which it is proposed to drain and underdrain said cemetery, and that the outlet of said drain is in said natural water course; it denies that the cemetery is low and flat and that said water course is a running stream eight or nine months in the year and that it contains water sufficient in quantity for cattle, horses and hogs during that time, and that appellant has been accustomed to use said water course for watering his stock; that by reason of said cemetery being used for burial purposes the discharge of said tile drain would carry contamination and would be unhealthy and unfit for drinking purposes for all kinds of stock, and that the land of appellant will Le rendered unfit for dairy purposes and that they will be rendered unhealthy and uncomfortable as a place in which to live. The answer avers that said cemetery consists of a clay subsoil; that all the tiles and drains which appellee put in said premises are for the purpose of carrying off surface water from the premises and that the tiles and drains constituting the underdrainage are made in the center of the driveways; that no grave will be closer than eighteen feet to the tile and that the tile will be but a little lower than the bottom of the graves; that it will be impossible for any portion of the decomposed bodies to reach said tile or to go on to the premises of appellant ; that no noxious gases can enter into said tile, etc. The answer further avers that all the drainage from the village of Findlay is carried into said water course and that appellant never made any complaint to appellee until after appellee had spent several thousand dollars in purchasing and improving these grounds.

Appellant introduced the testimony of a number of expert bacteriologists whose testimony substantially sustained the averments of the bill as to the contention of the water in the water course being contaminated by bacteria and poisonous exudations from the decomposition of human bodies in the cemetery. Appellee introduced the testimony of three local physicians, who did not qualify as experts, but who testified that in their opinion no such deleterious effects would be produced. The pleadings and facts in this case are substantially analogous to those in the case of Barrett v. Mt. Greenwood Cemetery Ass’n, 159 Ill. 385. In that ease it was held that an injunction should issue, and we feel bound by the rule therein announced. One expert witness who testified in the case at bar also testified in that case. The claim that the waters in this stream have already been polluted by drainage from the village of Findlay, and therefore an injunction would be unavailing, cannot be sustained. The same contention was made in the Barrett case, supra, and the Supreme Court held: “But we know of no rule of law that sanctions one wrong because another has preceded it.” We are constrained to hold upon the authority of the Barrett case, that the chancellor erred in dismissing the bill for want of equity, and the decree must be reversed and cause remanded with directions to enter a decree granting the injunction prayed for.

Reversed and remanded with directions.

Mr. Justice Scholfield dissents.


text:
    Frances E. Arrowsmith, Appellee, v. Old Colony Life Insurance Company, Appellant.
    1. Appeal and ebbob, § 1725

      —when judgment on former appeal conclusive. Where a third appeal involves no issue which might not have been presented on the former appeals, every question which might have been presented in the former actions and appeals is res adjudicata.

      2. Appeal and ebbob, § 1733*—when exception to rule of res adjudicata not allowed. On a third appeal, the negligence of a litigant in failing to discover facts practically wholly within his own means of ascertainment is not a ground for setting aside the rule of res adjudicata.

    3. Insubance, § 122*—when application for original life policy a part of reinsurance. Where a life insurance policy, reinsuring one who held a policy in another company, makes the application to such other company a part of the reinsurance policy, but makes no reference to the original policy, the original application and the reinsurance policy constitute the entire contract between the policy holder and the reinsurer.
    4. Insubance, § 122*—when terms of original application for life insurance control reinsurance policy. A policy reinsuring one who held a policy in another company made his original application a part of the reinsurance policy. The application provided that .suicide within two years from its date was not a risk assumed by the original insurer. The reinsurance policy provided that in case of suicide within two years from its date, the reinsurer would repay the premiums with five per cent, interest, but should not otherwise be liable. The insured committed suicide more than two years after the date of the original application, but less than two years after the date of the reinsurance policy. It was held that the policy would be construed most favorably to the insured and that the incontestability period would run from the date fixed by the application, and recovery was allowed.
    . Appeal from the Circuit Court of McLean county; the Ho.n. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.
    DeMange, Gillespie & DeMange, for appellant.
    Livingston & Bach, for appellee

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is the third appeal from judgments entered in the trial court against appellant in actions by appellee to recover instalments due on a life insurance policy issued to John L. Arrowsmith. The present judgment is for the sum of $975 and costs.

On the ninth day of September, 1907, John L. Arrow-smith made an application to the Provident Annuity Life Association of Illinois for a policy of insurance in the sum of $5,000. The application was accepted- and a policy for said amount was issued to him. Subsequently the Provident Association ceased to do business and the Old Colony Life Insurance Company, appellant in this case, reinsured the policy holders in the former Company and issued the insurance policy, on which this action is based, to John L. Arrowsmith on March 17, 1909. The policy issued by appellant contains this provision; “This insurance is granted in consideration of an application made to the Provident Annuity Life Association of Illinois, a copy of which is endorsed on or attached to and made a part hereof, and of the payment in advance of three and 79/100 dollars and of the payment thereafter of the same sum on or before the first day of each month in every year during the continuance of this policy.” The application to the Provident Association contained this clause:

“7th. That self-destruction or death in violation of law, sane or insane, within two years from the date hereof, are risks not assumed by the Association in the contract, but in such case, the Association will return the amount of the premiums paid. ’ ’

The policy issued by appellant contained a provision:

“If within two years from date hereof, death results either from self-destruction, whether sane or insane, voluntary or involuntary, * * * the Company will repay premiums paid, with interest at five per cent, and shall not be otherwise liable.”

John L. Arrowsmith committed suicide on October 6, 1909, Appellant denied liability upon this policy on the ground that the suicide took place within two years from March 17, 1909, the date of appellant’s policy. Appellee brought an action in assumpsit on said policy for a past due instalment and the trial court sustained a demurrer to appellee’s declaration. On appeal to this court it was held that the demurrer should have been overruled and the cause remanded with directions to overrule the demurrer. Arrowsmith v. Old Colony Life Ins. Co., 164 Ill. App. 44. Subsequently on a trial a judgment was recovered against appellant in that action, from which judgment another appeal was taken to this court, but we held: “The argument on this appeal is only a reargument of the questions heretofore determined by this court. It is unnecessary to repeat what was said in our former opinion. It has been repeatedly held by this court and the Supreme Court that questions determined by a former appeal become res adjudicate/, upon a second appeal.” Arrow-smith v. Old Colony Life Ins. Co., 181 Ill. App. 163.

The only questions raised on this appeal are such as relate to the liability of appellant on said policy. The former judgments of this court are res adjudícala and conclusive as to all matters of defense which existed prior to the former suit and which might have been presented therein. The present appeal involves no issue which might not have been presented on the former appeals, and every question which might have been presented in the former actions and appeals is res adjudicatei. Louisville, N. A. & C. Ry. Co. v. Carson, 169 Ill. 247; Bennitt v. Wilmington Star Min. Co., 119 Ill. 9; Marshall v. Grosse Clothing Co., 184 Ill. 421; City of Chicago v. Partridge, 248 Ill. 442.

However, as appellant claims to have discovered new facts in relation to the application and policy made to and issued by the Provident Association, which facts were set up in a special plea, to which a demurrer was sustained by the trial court, and which, it is claimed, precludes a recovery on this policy, under the holding of this court in its opinion rendered on the first appeal, we are disposed to consider appellant’s contention as now made. In the opinion on the first appeal (164 Ill. App. 44) it is said;;

‘1 The question for determination is whether the provision of defendant’s policy as to self-destruction shall relate to the date of defendant’s policy or to the date of the policy of the Provident Life Insurance Company.
“Where an intent to make the application a part of the policy appears, the court, no matter what the phraseology may be, will read the application into the policy of insurance. * * *
“The application in this case having been made by the defendant a part of its policy, requires us to construe the policy in connection with the application and considering the application and the policy together the period of incontestability in case of suicide is rendered uncertain, and in view of the foregoing authorities the policy should receive liberal construction and one most favorable to the insured. By so doing the period of incontestability would run from the date of the policy of the Provident Life Insurance Company, which will he considered of same date as the application, where there is no other averment of its date, it being unnecessary to make such averment.”

The plea in the case at bar avers that the policy issued by the Provident Association was in fact, dated November 1, 1907, and that the application provided that the policy to be issued by the Provident Association should be dated November 1, 1907. On the first appeal no such facts appeared and all parties assumed that the policy of the Provident Association bore the same date as the application, and this court assumed such to be the fact. Counsel for appellant now contend that because the policy of the Provident Association was, in fact, dated November 1, 1907, and because this court by using the language, “By so doing the period of incontestability would run from the date of the policy of the Provident Life Insurance Company, which will he considered of same date as the applicationthe court should have overruled the demurrer to said plea. Presumably the original policy of the Provident Association was surrendered to appellant when appellant issued its policy, and that appellant was fully conversant with the fact that the Provident Association policy was dated November 1, 1907. It could have at least easily ascertained that fact, and its excuse averred in the plea for not presenting such fact in the first suit is that it was mislead by the statements of opposing counsel and for that reason the doctrine of res adjudicaia should not be applied. We know of no rule of law which holds that a litigant can avoid the doctrine of res adjudicaia by pleading his own negligence in failing to discover facts which are practically wholly within his own means of ascertainment.

But the merits of the case could not be affected thereby in any event. Appellant’s policy does not make the other policy a part thereof, nor does it refer to it in any way. Appellant’s policy makes the application to the Provident Association a part of its policy, therefore said application and appellant’s policy complete the contract between the appellant and the insured and they must be considered together. Treat v. Merchants’ Life Ass’n, 198 Ill. 431. The application dated September 9, 1907, provided that self-destruction within two years from the date thereof was a risk not assumed by the Association. The policy issued by appellant dated March 17, 1909, provided that if within two years from the date thereof death should result from self-destruction, the Company would repay the premiums with five per cent, interest, but should not otherwise be liable. These provisions are inconsistent and the date of incontestability in case of suicide is rendered uncertain, and, as we held in our former opinion, the contract must receive that construction which is most favorable to the insured. The suicide was not committed within two years from the date of the application, and the liability of -appellant cannot be avoided on the ground that it was committed within two years from the date of its policy.

The court did not err in sustaining the demurrer to the plea and the judgment will be affirmed.

Affirmed.


text:
    Maywood Stock Farm Importing Company, Appellant, v. Edward Huffman, Appellee.
    Sales, § 396

      —when averment of performance of conditions necessary where defendant alleges breach of warranty. Where an action is brought on promissory notes and defendant pleads the general issue and special pleas, averring a total and partial failure of consideration, in that there was a breach of warranties by plaintiff, and plaintiff files a replication setting forth the warranties and averring that defendant failed to perform the conditions therein contained, to which defendant filed a rejoinder, a demurrer should be sustained to the rejoinder where it fails to aver a performance of the conditions imposed on defendant under the terms of the warranties.
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBkide, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    McQuigg & Dowell, for appellant.
    George T. Wallace, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant brought suit in assumpsit against appellee to recover on two promissory notes, one for six hundred dollars and one for three hundred dollars. To the declaration appellee filed the plea of general issue and three special pleas, averring, in substance, a total and partial failure of consideration, in that the consideration of said notes was the purchase price of two stallions and that appellant, as a part of the contract, guarantied that they should be satisfactory sure breeders, in which respect the guaranties failed.

To these special pleas appellant filed a replication to the effect that said guaranties were written guaranties, and the first is as follows:

‘1 Guarantee.
“We have this day sold the imported Shire stallion
March Blue Jacket No........to Edward G. Huffman of Pana, 111. and we guarantee the said stallion to be a satisfactory sure breeder, provided the said stallion keeps in as sound and healthy condition as he now is, and has proper care and exercise.
“If the said stallion should fail to be a satisfactory sure breeder with the above treatment we agree to take the said stallion back, and the said Edward 0. Huffman agrees to accept another imported Shire stallion of equal value in his place, the said stallion March Blue Jacket No.........to be returned to us at Indianapolis, Indiana, in as sound and healthy condition as he now is by May 15th, 1912.
(Signed) Maywood Stock Farm: Imptg. Co.,
By W. B. Mount, Treas.
Accepted, Edward C. Huffman.
“Dated at Springfield, 111., this 7th day of October, 1910.
“Hoof No. 35.”

The second-is substantially the same:

“For and in consideration of the sum to be paid as aforesaid, the party of the first part guarantees the said stallion to be a sure breeder, provided the said stallion is kept in as sound and healthy condition as he now is, and has proper care and exercise. If the said stallion should fail to be a satisfactory breeder with the above treatment, the -party of the first part agrees to take back said stallion, and the party of the second part agrees to accept another imported Perdieron stallion of equal value, in his place. The said stallion to be selected by the party of the second part, and delivered to him at the Maywood Stock Farm Importing Company, near Indianapolis, Indiana. The said stallion Illiers No. 78625 to be delivered to the party of the first part at the Maywood Stock Farm .Importing Company, near Indianapolis, Indiana, free of any and all charges -to the party of the first part, in as sound and healthy condition as he now is, between January 1,1913, and April 1, 1913.”

The replication further avers that appellee did not elect to return either of said stallions or to accept, in lieu of either of both of said stallions, other stallions of equal value within the time or at the places in said guaranties fixed and provided, by reason whereof said guaranties have long since expired and terminated.

To this replication appellee filed a rejoinder, averring that he advised appellant that said stallions were not satisfactory sure breeders, and that notwithstanding such advice and notice appellant did not take said stallions back, or offer to do so.

Appellant demurred to this rejoinder. The demurrer was overruled and appellant electing to stand by its demurrer, judgment was entered against it on said rejoinder.

The contracts referred to as guaranties are in fact warranties, and while formerly these words meant the same thing and are now sometimes used indiscriminately, yet to contracts as to title, quantity or quality of a thing sold, modern usage applies the term “warranty. ’ ’

It is the contention of appellant that the rejoinder is bad because it does not aver that appellee returned or offered to return the stallions, while appellee insists that the warranty was for his benefit and that the' contract did not require him to return the stallions in case of the breach of the warranty, but simply gave him an option so to do, and cites Kemp v. Freeman, 42 Ill. App. 500, as sustaining this view. The contracts in the case at bar are clearly distinguishable from that in the Kemp case. The first contract under consideration provided that if the stallion should fail to be a satisfactory sure breeder, “the party of the second part agrees- to accept another imported Shire stallion of equal value in his place, the said stallion March Blue Jacket No.........to be returned to us at Indianapolis, Indiana, in as sound and healthy condition as he now is by May 15th, 1912.” This contract was signed “Accepted, Edward C. Huffman.”

The fact that appellant agreed to take back the stallion in such case does not destroy the obligation on the part of appellee to return it. His agreement to return it 'if it should not fulfil the warranty is just as binding as appellant’s agreement to take it back and deliver another one in lieu thereof.

What we have said applies equally to the second contract of warranty. The rejoinder is bad in that it does not aver a performance of the conditions imposed upon appellee under the terms of the warranties.

The judgment is reversed and cause remanded with directions to sustain the demurrer to the rejoinder.

Reversed and remanded with directions.