text:
    The People of the State of Illinois, Defendant in Error, v. David Garfinkle, Plaintiff in Error.
    Gen. No. 16,721.
    1. Informations—what offenses may he prosecuted hy. All capital crimes and all other felonies must be prosecuted by indictment, but the lesser offenses, called misdemeanors, may be prosecuted either by indictment or upon information.
    2. Informations—when charging pandering sufficient after verdict. Notwithstanding an information may be inartifieially drawn, if no motion to quash it or for a bill of particulars was made, it is sufficient after verdict if it apprised the defendant of the "crime with which he was charged.
    Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 19, 1912.
    W. G. Anderson, for plaintiff in error; G. H. Sugrue, of counsel.

      John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error had a jury trial in the Municipal Court of Chicago upon a criminal information, charging in three several counts, acts which constituted the crime of pandering. No objection, by way of a motion to quash or otherwise, was made to the information. The jury found him guilty, and he was sentenced to serve six months in the House of Correction, and to pay a fine of $300 and costs. A reversal is sought upon several alleged grounds: (1) The Municipal Court had no power to impose both a fine and imprisonment. (2) The information is materially and substantially defective. (3) The law under which he was prosecuted is unconstitutional and void. (4) The pandering act was never legally adopted by the legislature.

The claim that the Municipal Court had no power to impose both a fine and imprisonment is based upon section 27 of the Municipal Court Act, which provides: “That all criminal cases in the Municipal Court in which punishment is by fine or imprisonment, otherwise than in the penitentiary, may be prosecuted by information,” etc., and the case of Dada v. People, 141 Ill. App. 557, is cited as bearing out the construction contended for. On the other hand, the jurisdiction of the Municipal Court in criminal cases is conferred in the following language:

‘ ‘ Third. Cases, * * * which shall include all criminal cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary, and all other criminal cases, which the laws in force from time to time may permit to be prosecuted otherwise than on indictment by a grand jury.” Hurd’s Revised Statutes, 1909, Chap. 37, Sec. 265.

Under the law of Illinois all capital crimes and all other felonies must be prosecuted by indictment, but the lesser offenses, called misdemeanors, may be prosecuted either by indictment or upon information. Illinois Statutes, Chap. 38, Sections 456 and 457; People v. Baits, 123 Ill. 428; People v. Brewster, 183 Ill. 143.

A first offense of pandering, of which plaintiff in error was convicted, is punishable by fine and imprisonment in the county jail or house of correction for not exceeding one year, and it is, therefore, a misdemeanor which may be tried upon an information. Our Supreme Court has held distinctly that the Municipal Court of Chicago has jurisdiction to try upon information all violations of criminal laws punishable by fine or imprisonment otherwise than in the penitentiary, or by both such fine and imprisonment. If the offense is one that may be punished either by fine or by imprisonment in the penitentiary, or both by fine and such imprisonment, then it can be prosecuted only under an indictment. People v. Glowacki, 236 Ill. 612; Paulsen v. People, 195 Ill. 507.

The validity of the pandering act was attacked by the counsel for plaintiff in error in the case at bar in People v. Braun, 245 Ill. 428, where substantially the same contentions were made against its validity as are made here. The court sustained the validity of the law, and, with respect to the contention made in that case and in the one at bar, that the pandering act had not been properly adopted by the Legislature, said:

“Whatever may be the rulings in other jurisdictions, it is settled law in this state that it is not the province of this court at the suggestion and request of counsel to undertake to explore the journals of the legislature for the purpose of ascertaining the manner in which a law went through the legislature. (Illinois Central R. R. Co. v. Wren, 43 Ill. 77; Grob v. Cushman, 45 Ill. 119; Cantrell v. Seaverns, 168 Ill. 165.)”

As to the claim that the information is materially defective,—the information charges in the first count that in the County of Cook and State of Illinois, on July 6, 1909, plaintiff in error did then and there by certain promises and by a certain device and scheme caused, induced, persuaded and encouraged one Emma Wilson, alias Frankie Davis, a female person, to become an inmate of a house of prostitution in Chicago, etc. In the second count,—that he did unlawfully and wilfully receive the sum of twenty dollars for procuring Emma Wilson, alias Frankie Davis, a female person to become an inmate of a house of ill fame in Chicago, etc. In the third count,—that he did by certain promises and by a device or scheme cause, induce, persuade and encourage Emma Wilson, alias Frankie Davis, then an inmate of a house of prostitution in Chicago, to remain therein as such inmate of a house of prostitution, etc.

Section 2, of the pandering act of 1909, provides that “any person * * * who, by promises, threats' violence, or any device or scheme, shall induce, persuade or encourage a female person to become an inmate of a house of prostitution, * * * 0r * * * who shall by promises, threats, violence or by any device or scheme, cause, induce, persuade or encourage an inmate of a house of prostitution to remain therein as such inmate; or * * * who shall receive * * * any money * * * for procuring * * * any female person to become an inmate of a house of ill fame, * * * shall be guilty of pandering. ’ ’

As to the sufficiency of indictments, it is provided in Section 408, Chap. 38, Hurd’s Revised Statutes, 1909, as follows:

“Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.”

With reference to this statute, the courts have said in substance:

“Where the language of the indictment is sufficient to inform the defendant with what crime he is charged and to enable the court to ascertain from an inspection thereof that it charges that the offense created by the statute has been committed it is sufficient.” People v. Brown, 150 Ill. App. 365; Gallagher v. People, 211 Ill. 158.

While the information was inartificially drawn, yet no motion to quash it or for a bill of particulars was made. In the light of the statute, and of the undoubted trend of judicial decisions away from strict technicalities, where the reason for their formal observance has long since ceased, we do not think the claims of plaintiff in error tenable. There is no doubt that plaintiff in error was sufficiently apprised by the information of the particulars of the crime with which he was charged, and of which he does not even contend that he was innocent.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baldwin

license: Public Domain

text:
    Inter Ocean Cabinet Co. et al., Defendants in Error, v. Robert J. McLaughlin, Plaintiff in Error.
    Gen. No. 16,836.
    1. Res judicata—what application for judgment in mechanic’s lien proceeding not. If upon denial of a lien a motion for a judgment at law is made and denied such proceeding is not res judicata of a subsequent action at law inasmuch as the Supreme Court has held that the provision of the statute providing for rendition of judgment after denial of lien is void.
    2. Municipal Court—effect of variance between statement of claim and evidence in actions of the fourth class. In the Municipal Court no pleadings are essential and if the court has jurisdiction of the parties and of the subject-matter it may proceed to adjudicate between the parties regardless of the manner in which the claim or defense is-asserted.
    3. Municipal Court—when judgment not disturbed. A judgment rendered by the Municipal Court will not be set aside on review if it appears that substantial justice between the parties has been done.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Foster, Paine, Reynolds & Sass, for plaintiff in error; Lyman M. Paine, of counsel.
    John A. McKeown, for defendants in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Upon this writ of error we are asked to reverse a judgment for $1,000 entered in the Municipal Court of Chicago against plaintiff in error, in an action of the fourth class.

It appears that defendants in error claimed to have made and installed certain drug store fixtures for McLaughlin, under a written contract, in which it was provided that payment of the $1,400, which was to be paid for the making and installing of “certain drug fixtures,” should be made upon certificate of the architect. The architect certified to a total of $1,501, of which $700 had been previously paid.

Plaintiff in error contends that the evidence did not warrant the judgment; that the contract was void for uncertainty and the architect’s certificate void for want of authority; and that certain proceedings theretofore had in the Circuit Court between the parties constituted a bar to the action.

It appears that prior to the beginning of this suit in the Municipal Court, defendants in error had prosecuted a bill for a mechanic’s lien against plaintiff in error in the Circuit Court of Cook county, upon the same contract sued upon here. After a hearing, the court below dismissed the bill for want of equity; whereupon defendants in error moved the court to modify the decree by eliminating the portion dismissing the bill for want of equity and by rendering a decree or judgment as at law for the amount found due, even though the prayer for a lien was denied. This motion, coming on to be heard, was denied, and it is contended in the case at bar that such action constitutes a bar to this suit. Section 13 of the Statutes, Mechanic’s Lien Law, provides that “in event that the court shall find in any proceeding in chancery that no right to a lien exists, the contractor shall be entitled to recover against the owner as at law, and the court shall render judgment as at law for the amount which the contractor is entitled to, together with costs, in the discretion of the court.” However, the Supreme Court of Illinois has just held that this provision of the Mechanic’s Lien Law is unconstitutional, because it.is special legislation, and for the further reason that it deprives a defendant of the right to a trial by jury. Turnes v. Brenckle, 249 Ill. 394.

It is now well settled that in actions of the fourth class in the Municipal Court, no pleadings are essential, and if the court has jurisdiction of the parties and of the subject-matter, it may proceed to adjudicate between the parties regardless of the manner in which the claim or defense is asserted.

Notwithstanding the uncertainties of the contract as to just what it included, and without regard to the architect’s certificate, which may not have been binding, it does clearly appear that some work and material were furnished to plaintiff in error, in excess of that paid for by the $700 credited; that for such additional work and material a bill claiming $700 balance on contract and $150 for extras, was furnished him and that concerning the matter McLaughlin himself testified that he made or had no objection or question either as to the contract price, or as to the extras,— and that, in fact, he did specifically order certain of the extras sued for. The question as to how much he owed defendants in error was, therefore, one of fact,— and upon this the jury and the judge below had the advantage of seeing the witnesses and hearing them testify. Under the statutes, it is expressly made our duty to affirm the judgment of the court below in cases of this class, if we find that substantial justice has been done. Being of the opinion that the judgment of the court below resulted in substantial justice between the parties, it should be affirmed.

Judgment affirmed.


author: Mr. Justice F. A. Smith Per Curiam.

text:
    Manufacturers Mercantile Company, Appellee, v. Monarch Refrigerating Company, Appellant.
    Gen. No. 15,650.
    1. Trover—what essential to maintain action. In order to maintain an action of trover the plaintiff has the burden to prove three things: first, its title to the property in question; second, its right to the immediate possession thereof, and, third, the wrongful withholding of such possession.
    2. Trover—what essential to maintenance against warehousemen. In order successfully to maintain trover against a warehouseman a tender to such warehouseman of his proper and legitimate charges or else a payment thereof must be shown.
    3. Warehousemen—what defense to action of trover against. If the property stored has been taken from the possession of the warehouseman pursuant to a writ duly issued in an attachment suit in which the warehouseman was joined as garnishee such warehouseman cannot be held liable for a conversion at the instance of the owner or of one who has loaned money upon the faith of the warehouse receipts, if such warehouseman as garnishee has set up by answer all the facts in its possession.
    4. Warehousemen-—nature of warehouse receipts. Warehouse receipts are not negotiable in a legal sense so as to enable the person holding them to transfer a greater right or title to the property mentioned in them than he himself had.
    5. Warehousemen—what essential to protect assignee of receipts. If the assignee of warehouse receipts would protect himself as against the world he must give prompt notice of the assignment thereof to him and failure to do so, though it does not destroy his right, exposes him to the danger of assignment to another or to the rights of an attaching creditor of the assignor.
    Trover. Appeal from the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 19, 1912, on rehearing.
    Gentzel & Crane and Mencha & Guggemeir, for appellant.

      West, Eckhart & Taylor, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

From about the 19th day of August, 1907, to October 2, 1907, Fred C. Lamont, representing the Lamont Desiccated Egg Company, placed at different times in the warehouse of the defendant, Monarch Refrigerating Company, appellant, for the purpose of storage, 46 packages or drums of what are known as desiccated eggs. For the 46 packages or drums of desiccated eggs, the defendant Monarch Refrigerating Company issued ten warehouse receipts acknowledging the receipt of the goods specified from the Lamont Desiccated Egg Company. The receipts show that the first of the eggs were placed in the warehouse on the 19th day of August, 1907, and the last eggs on October 2, 1907.

The plaintiff below, Manufacturers Mercantile Company, appellee, purchased the warehouse receipts from Lamont about the time of their respective dates.

On October 23, 1907, an attachment suit was brought in the Municipal Court of Chicago by one M. Shier against Fred C. Lamont, doing business as the Lamont Desiccated Egg Company. In that suit the defendant Monarch Refrigerating Company, appellant here, was made a party as garnishee. Personal service was had on Lamont, and a default judgment was rendered against him for the sum of $911.80. The appellant, garnishee in the attachment suit, filed its answer in that suit under oath by one of its officers, setting up that it had in its possession 46 packages of eggs placed there by Fred C. Lamont at various times since August 16,1907, in the name of the Lamont Desiccated Egg Company, and the warehouse receipts were issued to the Lamont Desiccated Egg Company, which warehouse receipts for the goods the defendant upon information and belief stated had been placed in the hands of parties unknown to said Monarch Refrigerating Company as a pledge for money loaned, and that said Monarch Refrigerating Company has a lien on the goods for warehouse charges amounting to $22.17.

On the trial of that suit on December 3, 1907, a judgment was entered against the Monarch Refrigerating Company, garnishee, appellant here, for 46 packages of eggs subject to the lien of appellant of $22.17 on appellant’s answers, and thereupon the court ordered a special execution and order of sale.

December 5, 1907, a special execution was issued out of the Municipal Court under and by virtue of which the officer of the Court on the 16th day of December, 1907, took the 46 packages of desiccated eggs from the possession of the Monarch Refrigerating Company and delivered them to M. Shier, plaintiff in the attachment suit, on the plaintiff’s execution.

In March, 1908, Mr. Killmore, one of the officers of appellee, spoke to Frederick Espert, secretary and treasurer of the Monarch Refrigerating Company, and asked for samples of the desiccated eggs from each of the packages or drums represented by the warehouse receipts. Mr. Espert thereupon stated that the goods were not there; that they had been taken from the defendant company by an officer of the Municipal Court under and by virtue of a writ. Thereupon this action in trover was brought by the Manufacturers Mercantile Company against the Monarch Refrigerating Company for the desiccated eggs in question, the plaintiff claiming that the defendant had converted the 46 packages of desiccated eggs to its own use while they were stored with appellant, a public warehouseman.

In addition to the above facts proof was made that the market value of the desiccated eggs was from 40 to 50 cents per pound, according to the terms of delivery.

At the close of the plaintiff’s case the defendant moved the court to direct a verdict for the defendant on the ground that the plaintiff had failed to prove a demand and had showed no title to the goods or the warehouse receipts, and that no act of conversion on the part of the defendant was shown by any evidence offered on behalf of the plaintiff. Thereupon the plaintiff, by permission of the court, introduced evidence of the assignments of the warehouse receipts. No notice of the assignments was ever given, according to the proof, to the Monarch Refrigerating Company or its officers, who never saw the assignments on the back of the warehouse receipts until the day of the trial.

The defendant introduced and read in evidence the affidavit of attachment, the attachment writ, the answer, and amended answer of the Monarch Refrigerating Company, as garnishee, and all orders and the judgment in the case of Shier v. Lamont, showing a trial and finding of the Municipal Court under whose orders and directions the goods were taken from the Monarch Refrigerating Company, appellant here, and that the goods were taken out of the warehouse of the appellant by an officer of the Municipal Court under and by virtue of a certain writ, which the officer presented at the time.

At the close of the evidence the plaintiff moved the court to strike out all the testimony, oral or documentary, introduced by the defendant in reference to what occurred in the case of Shier v. Lamont, which motion was sustained by the court and the evidence was stricken out. The court then refused to permit counsel for appellant to address the jury on the question of liability, and also refused to instruct the jury on the various questions as requested by the defendant, appellant, and peremptorily directed the jury to find the issues joined in favor of the plaintiff and assess the plaintiff’s damages at such sum as they might believe the goods were worth in the market on December 16, 1907. Following the court’s directions the jury returned a verdict finding the issues for the plaintiff and assessing plaintiff’s damages at the sum of $1,636.12.

After overruling the defendant’s motion for a new trial the court entered judgment against the defendant for the amount of the verdict and costs. This appeal is prosecuted from that judgment.

In order to maintain this action in trover against appellant, appellee had the burden of proving affirmatively three things: First, its title to the property in question second, its right to the immediate possession thereof, and third, the wrongful withholding of ■said possession or conversion by the appellant. The failure to prove any one of these three substantive facts by the plaintiff would be fatal to its right to recover.

Assuming that the transfer to the plaintiff below of the warehouse receipts was sufficient proof of title in the plaintiff we think the evidence fails to show that the plaintiff had the right of immediate possession, for there is no proof in the record that the defendant’s legitimate and proper warehouse charges were either tendered or paid to the defendant by the plaintiff. We think also that the evidence fails to show that the defendant, appellant, wrongfully withheld possession of the property from the plaintiff or did any act which amounted in law to a conversion of the plaintiff’s, property.

The court erred in excluding the evidence from the jury of what took place in the case of Shier v: Lament. That evidence, in our opinion, was competent and tended to show that the property was taken under legal proceedings from the appellant by an officer of the Municipal Court. When appellant set up in its answer in that proceeding the facts and all the facts of which it had any knowledge it had done all that the law reqnired of it, and all that it could do in reason in the safekeeping and storage and care of the property, and tended to prove that the appellant was not guilty of any act of dominion actual or constructive over the property which was in any wise inconsistent with or in exclusion of the rights of appellee, and that the appellant had not converted the property in question to its own use.

The plaintiff had not informed the defendant of its ownership of the property by the purchase of the warehouse receipts and the assignment thereof to the plaintiff, and hence the appellant was unable to disclose in its answer the real owner of the property in question which had been placed in its warehouse. The evidence so excluded by the court under the plea of not guilty was entirely competent and proper as tending to show an excuse for failing to redeliver the property to the plaintiff upon its surrender of the warehouse receipts held by it. The defendant had no notice or knowledge, according to the proof, of any title or claim of the plaintiff to the property in question. Warehouse receipts are not negotiable in a legal sense so as to enable the person holding them to transfer a greater right or title to the property mentioned in them than he himself had. Their only office is to stand in the place of the property itself so far as the questions involved in this case are concerned for the convenience of the parties interested in the property. The transfer of warehouse receipts did not operate in legal effect in the same manner and to the same, extent as the transfer of negotiable paper, and if warehouse receipts are to be made negotiable in the sense that negotiable instruments are transferable it is for the Legislature to make the rule and not for the court. Burton v. Curyea, 40 Ill. 320. Our statute with reference to the transfer of warehouse receipts for property in nowise makes warehouse receipts negotiable, but simply makes them assignable by endorsement and therefore subject to all the defenses which may be asserted against the assignor unless notice of such assignment is given to the warehouseman or bailee. Canadian Bank v. McCrea, 106 Ill. 281; Shaw v. Railroad Company, 101 U. S. 557.

If the assignee of the warehouse receipts, such as those shown in evidence in this case, would protect himself as against the world he must give prompt notice of the assignment thereof to him, and failure to do so, though it does not destroy his right, exposes him to the danger of being overreached by subsequent assignment to another or to the rights of an attaching creditor of the assignor. As said in Morris v. Cheney, 51 Ill. 451, “It is no doubt true that such an assignee, in order to prove his title against the debtor, must give immediate and prompt notice of assignment to him, still if he does not give such notice it does not destroy his right, but exposes it to be overreached by subsequent assignment to another. ’ ’

Appellant having never been notified of appellee’s claim of title to the property was summoned as garnishee in the Municipal Court, and required to make answer under oath in regard to the property in question, and this it did faithfully and clearly, and having-answered and shown all the facts within its knowledge in regard to the ownership of the property it discharged its full duty with reference thereto, and its action in so doing cannot be regarded as tending- to prove a conversion of the property. The taking of the property under the writ of attachment was a full justification, and a good legal excuse for' its failure to deliver the property taken from it by legal proceeding to the owner of the warehouse receipts, who had failed to notify it of its title to the property. If it had known and had been able to answer that the plaintiff was the real owner of the property at the time of the service of the garnishment writ, it could have set up such fact, and could have notified plaintiff of the proceedings in the Municipal Court whereby it was sought to subject the property to the payment of the debt of Lament. This would have been a complete answer to the process of garnishment, and must have resulted legally in a judgment in favor of the garnishee. Hurd’s Revised Statutes, chap. 62, sec. 16; Sandburg v. Papineau, 81 Ill. 446; Story on Bailments, Sec. 442.

In our opinion the court erred in excluding the evidence of the witness Espert, secretary and treasurer of appellant, as to whether or not any notice was ever given to appellant by plaintiff of its ownership of the property in question. We think the-evidence was material and competent.

We think the trial court for the reasons stated erred in directing a verdict, for there were questions of fact in the case which should have been passed upon by the jury.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Per Curiam.

This cause was not tried in the Court below with any reference to the Act of 1907, entitled an Act in regard to warehouse receipts, and nothing was said in the briefs and arguments in regard to that act or its provisions, although the receipts in question were issued shortly after the act went into effect. On the petition for a rehearing in this court it is urged for the first time that the receipts are negotiable under that act. In our opinion the receipts in question do not contain all the necessary elements which that act provided warehouse receipts must embody in order to make them negotiable. They are therefore not negotiable under the terms and provisions of the act.

Reversed and remanded.


author: Mr. Justice F. A. Smith

text:
    Claudia Smith, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 16,206.
    1. Passenger and carrier—what does not preclude right of recovery for personal injuries. A carrier may not negligently place a passenger in a situation where the passenger is bound to choose between two courses at her peril and then interpose the defense that the act of the passenger was the intervening cause of the injury.
    2. Instructions—when summing up the facts constituting negligence not erroneous. Held, that the instruction in question in this cause was not erroneous where reference to certain facts was made—the jury, however, being required before rendering a verdict in favor of the plaintiff to find that the plaintiff "was injured in manner and form as charged in her statement of claim.”
    3. Instructions—when upon damages in personal injury case erroneous. An instruction is erroneous which authorizes a recovery of damages for pain in the future upon the belief by the' jury in a mere possibility that future pain and suffering may be caused by the injury. Held, however, that the instruction in this case was not likely to have been so understood by the jury and that no prejudice could reasonably be said to have resulted therefrom.
    4. Municipal Court—what essential to justify reversal of judgment of. No order or judgment of the Municipal Court will be reversed on review unless the reviewing court shall be satisfied from the record that such order or judgment is contrary to the law and the evidence, or that such order pr judgment resulted from substantial errors of the Municipal Court directly affecting the matters at issue between the parties.
    5. Evidence—when system of receiving reports of accidents not competent. If the defendant had notice of an accident the day after its occurrence it is not error to refuse to permit it to show its system of receiving reports from its employes and the fact that it had received no report of the accident in question.
    Tort. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912, on rehearing.
    Charles J. Gould and C. Le Roy Brown, for plaintiff in error.
    Edward H. Morris, for defendant in error; Martin J. Isaacs, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendant in error, Claudia Smith, hereinafter called plaintiff, recovered in the Municipal Court of Chicago a judgment for $1,000 in an action of the fourth class against the Chicago City Railway Company, plaintiff in error, hereinafter called the defendant.

The action was in tort to recover damages for an injury to her person received on or about March 28, 1908, in State street, near Thirty-fourth street, in the city of Chicago, caused by the negligent and sudden 'starting of the defendant’s car when the plaintiff was a passenger on the car, and was in the act of alighting therefrom. The trial in the court below resulted in a verdict in favor of the plaintiff, and a judgment thereon for $1,000.

The defendant prosecutes this writ of error and urges three grounds for a reversal of the judgment: First, the evidence is insufficient to establish liability; second, the court erroneously instructed the jury at the request of the plaintiff both on the issue of liability and on the issue of damage; and third, the court erred in rejecting evidence offered by the defendant.

In support of the first ground for reversal it is urged that the action of the defendant’s servants in starting the car was not the proximate cause of the injury, and that plaintiff’s negligence contributed thereto.

The evidence shows without controversy that Mrs. Smith with her little boy four years old, and a Mrs. Warren boarded a south bound State street car at Twenty-seventh and State streets. When the car was between Thirty-third and Thirty-fourth streets Mrs. Smith asked the conductor to let her off the car at Thirty-fourth street. Her little boy was at that time sitting in her lap. Mrs. Smith and the little boy and Mrs. Warren went to the rear platform of the car, which had stopped when Mrs. Smith left.her seat in the car. On the platform were two persons. The car stopped at the south side of Thirty-fourth street and these two passengers alighted first. Mrs. Smith with her right hand held the left hand of her little boy and attended to his exit from the car, and while she was in the act of leaving the car, with one foot on the step and the other on the platform of the car, and while the boy was still clinging to Mrs. Smith’s hand, Mrs. Smith with her left hand was grasping the upright hand rail. At this point the conductor- gave the signal for starting the car, and the car started while the plaintiff was in the position indicated. The evidence shows that the boy was clinging to plaintiff’s hand, and after the car started was being dragged along. Thereupon Mrs. Smith of' her own volition jumped from the car to the ground. As she did so the boy fell to the pavement. Mrs. Smith was whirled around by the movement of the car but did not fall. She received injuries as appears by the evidence. Mrs. Warren remained on the car until it stopped at Thirty-fifth street.

At the time that Mrs. Smith requested the conductor to let her off the car at Thirty-fourth street, he was passing from the rear end of the car to the front end, and was between the middle of the car and the front end of the car when he gave the bell to start the car.

There is no substantial controversy over these facts. It is urged that the negligence of the defendant in starting the car was not the proximate cause of the injury; that the act of the plaintiff in jumping from the car intervened between the negligence averred and the injury; that she was in a place of safety after the car started, and her own act in jumping from the car when it was in motion occasioned the injuries.

We are of the opinion that this contention is not sound. There existed a situation at the time the car started. The plaintiff had seen to it that her boy was upon the ground, and was herself in the act of alighting. Naturally the child clung to its mother and the mother to the child. To have shaken herself loose from the child after the car started and remained upon the car would have been to subject her child, in all probability, to injury. She was by the starting of the car under the circumstances placed in a position of being compelled to choose between two alternatives, subjecting her child to injury, or running the risk of injury to herself in attempting to alight from the car after it had been negligently started. She chose to alight and save her child. In so doing we think she acted reasonably and without negligence. In starting the car under the circumstances, the defendant was clearly negligent. A carrier may not negligently place a passenger in a situation where the passenger is bound to choose between two courses at her peril, and then interpose the defense that the act of the passenger was the intervening cause of the injury.

Upon the evidence we are of the opinion that the jury were justified in finding that the defendant was negligent, and that its negligence caused the injury to the plaintiff; and that the plaintiff was not guilty of contributory negligence.

We may notice before leaving this point the contention of the defendant that Mrs. Smith was slow in leaving the car and that she was apparently stooping down as if to attend to some portion of her raiment, and that this action on her part caused the conductor of the car to think or infer that she did not intend to leave the car at this time. The testimony, however, affords no basis for any such contention. Mrs. Smith had told the conductor that she wished to leave the car at Thirty-fourth street. The testimony is that she followed close upon the people who wére in front of her, and that she was attempting to alight from the car with all reasonable speed. Mrs. Warren was unable to leave the car and was compelled to ride to Thirty-fifth stret.

It is urged that the court committed error in giving the plaintiff’s instruction four, which is as follows:

“If the jury believe from the evidence in this case that the car of the defendant company came to a stop at Thirty-fourth street to let passengers alight; and if the jury further believe from the evidence in this case that Claudia Smith was a passenger on said car and while said car was at a standstill attempted with all due care and diligence to alight from said car; and if the jury further believe from the evidence in tins case that while said Claudia Smith was in such act of alighting from said car said car was started by the servant of the company, (if you believe said car was started) and that thereby Claudia Smith was injured in manner and form as charged in her statement of claim and that at the time of and just prior to said occurrence the said plaintiff was in the exercise of due and ordinary care and diligence for her own safety, then the jury should find the defendant guilty in the suit brought by Claudia. Smith.”

It is contended that this instruction directs the jury to return a verdict for the plaintiff if from the evidence they believe the facts therein mentioned, and that such an instruction must include all the elements necessary to make the plaintiff’s case; that the instruction was therefore erroneous in several respects; first, it was not based upon the evidence; second, the instruction was erroneous because the facts outlined in it did not necessarily charge the defendant with negligence; and third, that the instruction was inadequate in its requirement of belief of the exercise of ordinary care by the plaintiff.

It is to be conceded without question that if the acts of the defendant mentioned in the instruction did not necessarily constitute negligence, the instruction would he erroneous. The real question for the jury was whether or not the defendant was negligent. But the instruction in addition to the facts named therein, which the jury were to find, also states, “and that thereby Claudia Smith was injured in manner and form as charged in her statement of claim.” However much we may regret that a reference to the declaration or statement of claim in an instruction has been approved by our Supreme Court, it is nevertheless an established practice and we must recognize it. The statement of claim in this case is as follows: “Plaintiff’s claim is for an injury to her person received on or about March 28th, 1908, in State street near Thirty-fourth street; caused by the sudden starting of defendant’s car through defendant’s negligence,” etc. Thus the question of negligence, in our opinion, was embodied in the instruction by referring to the statement of claim, and the question whether the facts stated in the instruction, together with those stated in the claim, constituted negligence, was submitted to the jury. This clause in the instruction was the equivalent of repeating the manner in which the injury was occasioned, as set out in the statement, and included with the clause above quoted the allegation that the defendant before the plaintiff could get off the car started the car and plaintiff was dragging her boy and had to jump and was injured. In our opinion the giving of the instruction was not reversible error.

It is next urged that the court erred in giving to the jury the first instruction requested by the plaintiff, which reads as follows:

‘ ‘ The jury are instructed by the court that if from all the evidence in this case and under the instructions of the court you find the defendant guilty, then in such event the plaintiff is entitled to recover such sum as will reasonably compensate her for all bodily pain and suffering, if any, as the evidence may show, if it shows any, which she has.suffered in the past by reason of her injuries, and for such bodily pain and suffering, if any, as the evidence may show, if it shows any, as she may suffer in the future by reason of such injuries if the jury believe from the evidence in this case that she may suffer bodily pain as the direct result of her injuries.” . .

It is urged that the instruction authorized compensation for merely possible future pain and suffering, not what the jury believed she will suffer, and authorities are cited and quoted to the effect that instructions given upon such a theory are erroneous upon the ground that they authorize purely speculative future damages.

The serious criticism made to the instruction is that it does not require the jury to believe from the evidence that the plaintiff will sustain suffering in the future; and that this omission together with the use of the words “may suffer, ’’ occurring twice in the instruction, makes the instruction erroneous and misleading in that it permits the jury to award damages for future suffering merely upon the belief by the jury that the plaintiff “may suffer” pain in the future.

When the instruction is subjected to the close legal scrutiny applied to it by the learned counsel for plaintiff in error, it is not free from criticism. It is erroneous, and cannot be approved as a precise and accur-rate statement of law, for it authorizes a recovery of damages for pain in the future upon the belief by the jury in a mere possibility that future pain and suffering may be caused by the injury, which is not sufficient to warrant an assessment of damages. Amann v. Consolidated T. Co., 243 Ill. 263. Strictly and technically construed the instruction does not require proof of a reasonable certainty, or belief on the part of the jury, that pain will be endured in the future. We do not think, however, that the jury in reading the instruction and applying it to the facts in this case so read it or construed it. The evidence showed that at the time of the trial the plaintiff had not recovered from her injuries, and it necessarily followed that there would be future pain and suffering; and the jury would naturally consider the instruction as authorizing them to assess damages therefor.

The action was of the fourth class in the Municipal Court of Chicago. The act creating that court expressly provides that no order or judgment of that court shall be reversed on review unless the reviewing court shall be satisfied from the record that such action or judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of the Municipal Court directly affecting the matters at issue between the parties. We do not think the jury was misled by the instruction, or that its verdict would have been any different if the instruction had been more accurately phrased.

It is urged that the court erred in excluding evidence offered by the defendant to prove its system of receiving reports of accidents and to show that no report was received from any train man that such an accident as the one here complained of took place, and also the evidence of the conductor of the car bearing the number which Mrs. Warren designated as the number of the car in connection with which plaintiff was hurt, and that if the accident had happened he would have made a report of it.

The record shows that the defendant had the benefit of the proof of the fact that no report was made to it by any conductor of an accident at Thirty-fourth street on the line in question. The company knew about the accident the day after it occurred, for Dr. Smith, the husband of the plaintiff, wrote the company a letter shortly after the accident happened, which the defendant received. The letter complained of the negligence of the conductor and also spoke of a sprain to the arm of the boy, and the injury to the plaintiff. This letter was introduced in evidence by the company as having been received by it on the morning following the accident. The company therefore had information of the accident, and it was immaterial to the case that it should be permitted to make proof of its system of receiving reports of accidents, and that no report was received from any train man.

The court did not commit reversible error in excluding this evidence. The judgment is affirmed.

Affirmed.


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    Sullivan & Langston Co. et al., Appellants, v. William A. Richardson et al., Appellees.
    Gen. No. 16,453.
    1. Mechanic’s liens—against whom may he awarded. A lien may properly be awarded against the owner of land who authorizes and knowingly permits his lessee to make alterations therein.
    2. Mechanic’s liens—when claim need not he filed within four months. As against lessees and an owner who has authorized and knowingly permitted such lessees to make alterations a lien claimant is entitled to enforce his claim if he has filed the same within two years of the completion of his work.

      Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Akthub H. Chetlain, Judge,, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed April 19, 1912.
    J. A. Coleman, for appellants.
    Charles A. Ward, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The main question presented by the record and briefs is whether or not the court erred in dismissing the bill of complainants for mechanic’s liens as to TJ. G-rant Dailey, a defendant, for want of equity. The decree is in other respects claimed to be erroneous by the fifth assignment of error.

Defendants below, William A. Richardson and TJ. Grant Dailey, leased from Israel and Eva Topper, defendants to the bill, the premises known as No. 3230 State street, Chicago. The lease was in writing, and it authorized the lessees to remove the front of the b.uilding and make any other alterations in the building they desired. The defendants, Richardson and Dailey, were jointly interested in the lease and the business of conducting a five-cent theatre in the premises covered thereby as co-partners, although the formal written .articles of co-partnership were not prepared and signed by them until after the lease was taken, and work on the alterations and improvements of the building had been commenced. Richardson, acting for the firm, made contracts for the improvements with The Illinois Metal Ceiling & Supply Company and the Sullivan & Langston Co. for different parts of the work necessary to adapt the building to a theatre. The work was done to his satisfaction but was not paid for. The Illinois Metal Ceiling & Supply Co. completed its work June 22, 1908, and filed its claim for lien August 22, 1908. The Sullivan & Langston Co. completed its work July 11, 1908, and filed its claim for lien November 10, 1908. The claims were filed against Bichardson, Israel Topper and Eva Topper, without naming IT. G. Dailey therein. On October 30, 1909, each claimant filed an amended claim naming Dailey as one of the parties against whom it was filed.

Appellants filed their bill to enforce their mechanic’s liens, making William A. Bichardson, U. Grant Dailey, Israel Topper and Eva Topper defendants. The defendant, U. Grant Dailey, answered and replications were filed. The cause was referred to a master in chancery. On consideration of the master’s report and exceptions to it filed by the defendant Dailey the court overruled the exceptions' in its decree except as to this: “The court finds that neither of the said complainants filing a claim for lien as to the said defendant, U. Grant Dailey, within four months after the completion by them respectively of the furnishing of the material and doing of the work under their respective contracts; that the said defendant, U. Grant Dailey, is not an owner within the purview of the statute in such cases made and provided, and for these reasons, and these reasons only, that said respective complainants are not entitled to recover as to said defendant, U. Grant Dailey, either in equity or as at law, and therefore orders that the joint and several bill of complaint of the complainants be dismissed as to said defendant, IT. Grant Dailey, for want of equity, and at the costs of said complainants.”

The record is in a jumbled condition. The above decree was entered on January 15,1910. December 14, 1909, the court ordered that the exceptions of Dailey to the master’s report be sustained. On January 13, 1910, the court ordered and decreed that the petition for mechanic’s lien filed by the complainants be dismissed as to defendant U. Grant Dailey at the costs of the petitioners. Dailey was therefore out of court by the record when the decree appealed from was entered. He, however, follows this appeal and enters his appearance in this court in this appeal, and files a brief. No appeal was prayed for or allowed from the order of January 13, 1910, and no assignment of error is made on that order.

The tenth clause of the lease from Israel Topper to Richardson and Dailey provided:

“It is further covenanted and agreed that said second parties shall be allowed to remove the front of said building and make any other alterations they see fit,” etc.

Under this clause of the lease the evidence shows that Richardson & Dailey through Wiliam A. Richardson entered into contracts with the complainants respectively for the labor and materials set out in the respective claims of the complainants, and in their bill of complaint set forth, and that Israel Topper and Eva Topper, his wife, were the joint owners of the real estate described in the lien claims and the bill of complaint on April 20, 1908, the date of the lease; and that they authorized and knowingly permitted the defendants Richardson and Dailey to enter into the contracts with the complainants for the labor and materials for the removal of the front of the building and other alterations therein.

The complainants perfected their liens under the act of 1903 by filing their claims for liens within two years of the completion of their contracts respectively. (Sec. 7 of the Act.) Richardson was one of the several owners within the meaning and purview of the law, Dailey, Israel Topper and Eva Topper being the other owners. Sorg v. Crandall, 233 Ill. 79. It follows that the decree was erroneous in declaring that the complainants were not entitled to liens as against the defendant U. Grant Dailey, for the reason that they had not filed their claims for liens naming him as an owner within four months after the completion of their contracts respectively. The decree is accordingly reversed and the cause is remanded with directions to the court below to take such proceedings not inconsistent with the views herein expressed as it may deem proper. No decree should be entered against U. Grant Dailey, however, until he is again brought into the case.

Reversed and remanded with directions.


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    Hans A. Leafgreen et al., Appellants, v. John H. Telford et al., Appellees.
    Gen. No. 16,490.
    Accord and satisfaction-—when settlement made with joint creditor binding. If an honest dispute exists a settlement made by the debtor with one partner is binding upon all partners regardless of lack of knowledge and of participation in the settlement by the other partner or partners.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Statement by the Court. Appellees, as Telford and McWade, were the builders who constructed the Pattington, a large apartment building in Chicago, as general contractors. Appellants under the firm name of Leafgreen Brothers entered into a subcontract with appellees to do the masonwork of the building for $49,-250. Various changes were made in the plans after the contract was made, on account of which appellants contended that they were entitled to receive extra pay. Appellees on the other hand' contended that large amounts should be deducted from the sum otherwise

      due under the contract hy reason of these changes. It was also contended that there had been great delay, and that a large sum was due under a clause of the contract which provided for the payment of $50 a day for every day that the work was delayed or remained unfinished after a specified time.
    About $47,000 was paid on the contract; and a controversy having arisen between the parties, appellants sought to enforce a mechanic’s lien for the amount which they claimed to be due, in the Circuit Court of Cook county. That proceeding resulted adversely to them, and the matters in controversy as between appellants and appellees were submitted to an arbitrator under a written agreement for arbitration. It recited the amounts that were agreed upon, ahd provided that the remaining matters in controversy should be submitted to the award, order and final determination of George Beaumont, architect, of the City of Chicago, and that he should determine what sums, if any, were due from appellees to appellants for a number of items of extras, naming them. The agreement then further provided that the arbitrator should determine what amount, if any, should be deducted from the amounts otherwise due the appellants because of the following deductions which the parties of the second part, appellees, claimed should be made therefrom, because of material omitted in the change of plans for the work improperly done or not done that should have been done by appellants, naming a list of items. The agreement then provided that the arbitrator should determine what amount, if any, should be deducted from the amounts otherwise due appellants because of the changes in plans for the building of the boiler house, so-called, constructed in connection with the main building, and that the arbitrator should determine what sum, if any, should be allowed or paid to appellees by appellants because of their delay in completing the

      work within the time specified in the original contractor’s agreement, whereby $50 a day for every day snch work might be delayed or remain unfinished was to be charged against appellants. In and by the agreement it was further provided that the arbitrator should determine which of the parties should bear the expense of $22 for the inspection of the work done under the contract between them, dated September 15, 1902, in pursuance of which appellees did the electric light and motor wiring in the Journal Building for the American Medical Association. And it was further agreed that the arbitration was made pursuant to Section 16, Chapter 10 of the Bevised Statutes of the State of Illinois, and that the arbitrator should have all the powers vested in such arbitrator by the statute, and he should make his award in writing, and that if either of the parties should not pay to the other party the sum so found by the arbitrator within sixty days from the date of his award, then that judgment might be entered in favor of the party to whom the same should be paid, in the Superior Court of Cook county, as provided by the statute.
    The arbitrator, George Beaumont, made his written report or award in which he stated that Leafgreen Brothers were indebted to Telford and McWade in the sum of $361, “being the balance in full of all claims.” Appellants then contended that although the award stated that there was $361 due to appellees as the balance in full of all' claims that this sum was not the balance of all claims but was the balance merely of the particular claims that were disputed, and that there was still due to appellants the difference between the amounts not in dispute of about $4,000 and the sum so found due by the arbitrator. Appellees, on the other hand, contended that there was $361 due them on the award, as stated therein.
    About eighteen months after the award was rendered, appellants as Leafgreen Brothers brought suit

      against appellees to recover the amount they claimed due from appellees. The latter relied upon the award as a defense, and pleaded as a set-off the award for the amount of which they asked judgment against appellants. In October, 1906, when the suit was still pending, appellees, who had dissolved their partnership and set aside a portion of their partnership funds to discharge their outstanding debts, arranged a settlement of the suit with Benjamin A. Leafgreen, one of the firm of Leafgreen Brothers, and one of the plaintiffs in the then pending suit, and paid to him the sum of $1750 and took a receipt signed in the names of both partners and in the partnership name, reciting that the sum received was in full settlement of all claims or demands of every nature. At the same time a stipulation was entered into which recited that the matters involved in the above entitled cause had been settled, and that the suit be dismissed without costs. This stipulation was signed by all the attorneys for the plaintiffs in the case, Harry L. Irwin and Lee, Lee & 'Schuchardt. At that time Lee, Lee & Schuchardt, now Lee & Lee, the attorneys for appellants in this case, particularly represented Benjamin A. Leafgreen, the partner with whom the settlement was made, and who received the money; and H. L. Irwin, who also signed the stipulation, reciting that a settlement had been effected, then specially represented Hans A. Leafgreen, who is now the particular client of Messrs. Lee & Lee. The other appellant, Benjamin A. Leafgreen, though named as a plaintiff in the present suit, testified in this case that he did not bring this suit nor have anything to do with its being brought.
    The trial of the cause before the Municipal Court resulted in a finding for the defendants below, appellees here, and a judgment upon the finding.
    Lee & Lee, for appellants.-

      Arnott Stubblefield and Chauncey W. Mabtyn, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The principal ground upon which appellants ask a reversal of the judgment is based upon the rule of law that the payment of a part of a debt or liquidated damages is not a satisfaction of the whole demand. The application of the rule to the case at bar is made by the assertion that at the time the payment of $1,750 was made the claim amounted to $3,646.03. This amount was arrived at by taking the sum that was agreed upon, in the contract of arbitration as due from appellees to appellants, $4,007.03, and subtracting therefrom the sum of $361 found by the arbitrator to he due from appellants to appellees. It is urged that $3,646.03, with the interest accrued thereon, was a liquidated amount and that the payment of $1,750 by appellees was not an accord and satisfaction of the indebtedness but that appellees are only entitled to have that credited upon the liquidated amount due with interest, notwithstanding the settlement that was made and the receipt given which provided that the said $1,750 was'“in full of all claims and demands of every kind and nature down to the date hereof. ’ ’

It is further urged that a release of a liquidated indebtedness, executed by one of the partners after the dissolution' of a partnership, of the whole of the indebtedness upon a payment of a part, is not a valid release, and that therefore appellees are only entitled to a credit of $1,750 upon the liquidated indebtedness.

On the other hand the contention of counsel for appellees is that there was an honest controversy between the parties at the time the settlement was made, and that a settlement of matters in dispute for a less sum than that which may be in fact actually due as a matter of law, and the payment and acceptance of the amount agreed upon in such settlement is a good accord and satisfaction. It is further contended that an accord and satisfaction with one of several joint creditors works a complete extinction of the claim, and is a good accord and satisfaction without showing that the one who made the settlement had authority from the other to make it.

In our opinion there was a controversy between the parties, appellants and appellees, which was involved in a lawsuit, and there is no question but that while the lawsuit was pending appellees paid the $1,750 to one of the co-partners, plaintiffs in the action, and took from the co-partner with whom the settlement was made a receipt dated October 4,1906, as follows: “Received of Messrs. Telford & McWade through Edwy Logan Reeves and Chauncey W. Martyn, trustee, $1,-750.00, in full settlement of all claims and demands of every nature down to date. ’ ’ At the same time appellees took a stipulation from the plaintiffs in the action showing that the matters involved in the cause had been settled, and that the suit should be dismissed without costs.

In 2nd Parsons on Contracts, page 618, the learned author says:

“It has been said the payment of a part of a debt, or of liquidated damages is no satisfaction of the whole debt, even where the creditor agrees to receive a part for the whole and gives a receipt for the whole demand; and a plea of payment of a small sum in satisfaction of a larger is bad, even after verdict, but this rule must be so far qualified as not to include the common case of a payment of a debt by a fair and well understood compromise carried faithfully into effect, even though there were no release under seal.”

In 1st Cyc. 329, it is said: “Where a claim is unliquidated or in dispute, payment and acceptance of a less sum than claimed, in satisfaction, operates as an accord and satisfaction, as the rule that the receiving of a part of the debt under an agreement that the same shall be in full satisfaction, is no bar to an action to recover the balance, does not apply while the plaintiff’s claim is disputed or unliquidated. * * *. The fact * * * that the amount accepted was much less than the creditor was entitled to receive and would have recovered, had he brought action, does not in any way affect the rule. ’ ’

The rule as to the parties between whom a good accord and satisfaction may be made with respect to joint creditors or plaintiffs, as stated in 1st Cyc. 318 is: ‘‘Accord and satisfaction with one of several plaintiffs or joint creditors is a complete extinction of the claim and is a good accord and satisfaction without showing that the one who made the settlement had authority from the others to do so.”

This doctrine is supported by State v. Story, 57 Miss. 738, and cases there cited.

In Austin v. Hall, 13 Johns. 286, in an action in trespass by tenants in common for being expelled from their land where there was a plea interposed to the effect that two of the plaintiffs in consideration of the sum of six cents had released all cause of action that they, or either of them, or any other person or persons had against the defendants on account of such trespass, it was held that the action is strictly a personal one and the plaintiffs were bound to join in it, and the release by two of the plaintiffs is a bar to the action and the defendant is entitled to judgment.

Weston v. Weston, 35 Maine, 360, was a suit upon a promissory note which had become the property of two administrators by their charging themselves with it in their account as administrators. One of the administrators thereafter executed an instrument acknowledging payment and discharge by her intestate. It was held in a subsequent action on the note that by being so charged in the administrators’ account the note became the property of both administrators, and either of them could receive payment of it or discharge it.

The same rule is announced in 2 Chitty on Contracts, 1132.

In onr opinion the discharge on settlement made at the time of the payment of $1,750 by appellees was valid and binding upon both appellants, and the court did not err in its finding and judgment for appellees. The judgment is therefore affirmed.

Affirmed.


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    John Masek, Appellee, v. Anastazie Chmelik, Appellant.
    Gen. No. 16,502.
    1. Contracts—when arehiteet’s certificate not essential to recovery. Where the refusal of the owner to pay was based on other ground than the failure to produce a written certificate the certificate is deemed to have been waived.
    2. Contracts—when architect’s certificate waived. If issuance of the certificate was refused because the owner directed its non-issuance it will be deemed to have been waived as a prerequisite to recovery against such owner.
    3. Appeals and errors—when findings by master not disturbed. The findings of fact by a master approved by the court will not be disturbed on appeal unless clear mistake or fraud is shown.
    Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Novak & Pollock, for appellant.
    Dunn & Hayes, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The bill in this case was filed by John Masek, appellee, against the appellant, Anastazie Ohmelik, and sets forth that Masek was a carpenter, and on the 30th day of March, 1905, he entered into a written contract to furnish certain portions of the work and materials in and about the construction of a two-story and basement building, for which he was to be paid the sum of $3550, on certificates of Otto Kerner, superintendent; that he went forward under the contract and completed the building in a good and workmanlike manner; that he performed extra work at the request of the appellant ; and that the value of said extra work was $148.82, and alleges a balance due him of $283.32.

Appellee also filed an amendment .to his bill, in which he alleges that Kerner, the superintendent, in refusing to issue certificates fraudulently combined with the defendant, appellant, so to do for the wrongful purpose of defeating the claim of appellee without just cause.

Appellant filed her answer to the bill, in which she admits making the contract alleged but denies that appellee furnished material and did all the work and completed the building as set out in the contract and specifications; she denies that the work was done in a workmanlike manner, and charges the contrary to be the fact, and sets forth particular items in which appellee has deviated from the plans and specifications; she denies that there is anything due under said contract, and that she accepted the building as finished and completed; denies that the building was completed on October 21, 1905, and alleges that appellee failed to follow the superintendent’s instructions, and that the superintendent was dissatisfied with the work and refused to issue a certificate; alleges that appellee failed to get a certificate from the superintendent, certifying that the work was properly done, and alleges that there is nothing due under the contract.

The cause was referred to a master to take proofs and report the same together with his conclusions to the court.

The master made his report and recommendations, finding that the contract was made as alleged in the bill; that all the material and labor contracted for was substantially performed, and the work fully completed on or before July 31, 1905; and the master also finds in his report the various items for extras claimed by the complainant, appellee, and recommends that a decree be entered in favor of appellee for $271.82.

The court overruled exceptions to the master’s report on hearing and entered a decree confirming the master’s finding for the amount recommended in his report.

The chief ground urged in the briefs of appellant for a reversal of the decree is that the proof fails to show that appellee obtained the superintendent’s certificate for the final payment on the building; and it is urged that by the contract the decision of the superintendent should be binding upon the parties, and that ■therefore nothing was due to the appellee until he obtained the certificate of the superintendent for the amount due him under the contract for work done.

The evidence shows that no certificates were required during the progress of the work from the superintendent, but payments were made without regard to written certificates. The evidence clearly affords a ground for the conclusion that the requirements of the contract to the effect that payments were to be made upon certificates of the superintendent, were waived by the parties.

It further appears that several letters were written by the superintendent to appellee informing him that appellant would not pay the amount due to him, or any sum whatever, for the reason that he had not performed the contract and denying that any sum was due him. Under such circumstances, where the refusal of the appellant to pay was based upon other grounds than the failure to produce' a written certificate, the certificate is deemed to have been waived. Andrew Lohr Bottling Co. v. Ferguson, 122 Ill. App. 270, affirmed, 223 Ill. 88; Fitzgerald v. Benner, 120 Ill. App. 447, affirmed, 219 Ill. 485.

In our opinion, no certificate of the superintendent was necessary to a recovery here; indeed, if we are to look only to the abstract, as we are entitled to do, there is no contract abstracted which requires such a certificate as a condition precedent to payment. Appellant, the owner, waived a written certificate of the superintendent by refusing to pay on other grounds. It is evident from the record that the certificate was withheld because the owner had directed the superintendent not to issue it. Under such circumstances it would be deemed waived. Fitzgerald v. Benner, supra.

In our opinion, the decree of the court is supported by the evidence. The findings of the master in chancery who saw and heard the witnesses, and whose report has been confirmed "by the chancellor and the decree entered in accordance therewith, will not be disturbed on appeal unless clear mistake or fraud is shown. This does not appear in the case at bar. Siegel v. A. H. Andrews Co., 181 Ill. 350; Kohlsaat v. Bank, 102 Ill. App. 110. The decree is affirmed.

Affirmed.


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    Anna Malloy, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,521.
    1. Instructions—when upon damages in personal injury action slightly inaccurate. An instruction upon this subject instead of allowing the jury to predicate their estimate upon the “facts and circumstances in proof” may better limit the jury “to the consideration of the facts and circumstances attending the injury.”
    2. Verdicts—when not excessive. A verdict reduced by remittitur from $2,000 to $1,250 is not excessive where it appears that as a result of the accident there was a stiffening of the right hip joint which had not passed away even at the time of the trial, and that the plaintiff suffered and continued to suffer considerable pain.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Edward J. Brundage and John R. Caverly, for appellant; Edward C. Fitch, of counsel.
    John C. King and James D. Power, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This is an appeal by the City of Chicago from a judgment rendered against it in favor of Anna Malloy, appellee, a minor, in the Superior Court of Cook county, in an action to recover damages for personal injuries.

The declaration avers in substance that appellant negligently permitted one of its sidewalks, on the south side of Thirty-fifth street between Wallace street and Parnell avenue, to be and remain in an unsafe and dangerous condition by reason of dangerous holes and missing and rotten planks in the sidewalk, and that appellee, a child of five years, using all due care for her own safety, stepped into a hole in the sidewalk and fell whereby she sustained various injuries.

The jury returned a verdict for appellee, assessing her damages at $2000. Upon the motion for a new trial, appellee entered a remittitur of $750, and thereupon the court overruled the motion for a new trial and entered judgment for $1250.

The principal contention of appellant is that the court erred in giving to the jury instruction number 3 requested by appellee, which was as follows:

"If from the evidence of the case and under the instructions of the court the jury shall find the issue for the plaintiff and that the plaintiff has sustained damages as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it. is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience in the business affairs of life.”

It is urged that the instruction did not limit the jury to facts and circumstances bearing upon the condition of appellee, her pain and suffering, the extent of her injuries, or whether temporary or permanent; and it did not limit them in their estimate to such damages as they might consider a fair compensation to her for her injuries, but left the jury free to take into consideration any facts or circumstances in proof which they might see fit to include in making their estimate.

This instruction was substantially approved in Chicago City Ry. Co. v. Gemmill, 209 Ill. 638, where substantially the same objection was made to the instruction as is now urged for our consideration. Substantially the same instruction was sustained also in Richardson v. Nelson, 221 Ill. 254.

Doubtless the instruction would have been more accurate, as was said in Chicago City Ry. Co. v. Gemmill, supra, had it limited the jury to the consideration of the facts and circumstances attending the injury, as was done in the case of Gartside Coal Company v. Turk, 147 Ill. 120, but, we are of the opinion that the jury was not misled by the instruction.

It is also urged that the damages assessed by the verdict are so excessive that the verdict shows that the jury acted under the influence of sympathy and prejudice, or a misconception of the evidence, and that such a verdict cannot be cured by a remittitur, and also that the judgment after the remittitur is excessive.

The verdict in this case was for $2000, as above stated. The entering of the remittitur and giving judgment upon the balance of the verdict is a practice which has obtained in this state and which has been sustained by the Supreme Court in Libby, McNeil & Libby v. Scherman, 146 Ill. 540, and many other cases; and we think the practice cannot now be questioned.

In view of the testimony in the record we are not prepared to say that the judgment for $1250 is excessive for the injury which the plaintiff received. The liability is not questioned, and that the parties had a fair trial is very clear. No rulings of the court during the progress of the trial are questioned and no complaint is directed against counsel, and no error is claimed to have been committed by the trial judge except in giving the above instruction. There appear not to have been present any elements or conditions during the trial of the case which would in any wise affect improperly the minds of the jurors or produce any bias or prejudice in their minds.

The evidence shows that the injury to the plaintiff was severe and painful, and that even after the lapse of more than two years it continued painful. The evidence tends to show that there was a stiffening of the right hip joint as a result of the injury which had not passed away even at the time of the trial. We cannot say that the judgment is excessive, upon a careful consideration of the evidence.

The judgment must be affirmed.

Affirmed.


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    Vina Blais, Defendant in Error, v. United Brotherhood of Carpenters & Joiners of America, Plaintiff in Error.
    Gen. No. 16,541.
    1. Appeals and errors—effect of imperfect abstract. The Appellate Court may affirm if the abstract filed on review is incomplete, imperfect and inadequate.
    2. Fraternal benefit societies-—when membership exists. If the arrearages of dues have been made good prior to the death of a member and it appears that the local lodge of which the deceased was a member considered him to be a member in good standing at and before his decease and so treated him, recovery by his beneficiary upon the certificate issued to him may be had.
    3. Fraternal benefit societies—-how forfeiture or suspension may be waived. A local lodge has power to waive the by-laws of the order and a forfeiture or suspension resulting from failure promptly to pay dues and assessments.
    Error to the Municipal Court of Chicago; the Hon. W. H. Dietrich, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    John D. Farrell, for plaintiff in error.
    John Frederick Haas, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The plaintiff in error, the United Brotherhood of Carpenters and Joiners of America, seeks by this proceeding to reverse a judgment of the Municipal Court of Chicago in favor of Vina Blais for $200 for death benefit on the death of her husband, Theophile Blais, who it was alleged was a member of the plaintiff in error in good standing at his death.

The plaintiff in error is a labor union with general offices in Indianapolis, Indiana, local lodges and district councils existing in Chicago and various other cities throughout the United States and Canada. The Brotherhood is governed by regularly and legally adopted constitution and by-laws.

A reversal of the judgment is urged on the ground that under the constitution and by-laws Theophile Blais was not a member of the Brotherhood in good standing prior to and at the time of his death, and his widow, the plaintiff below, defendant in error here, is therefore not entitled to the benefit recovered in the judgment under review.

Section 106 of the constitution and by-laws of plaintiff in error is as follows:

“When a member owes a sum equal to three months’ dues he is not in good standing and is thereby suspended from all benefits in the interim, and will not again be in benefit until three months after all his arrears are paid in full including the current month.”

Section 111 of the constitution and by-laws is as follows :

“Each beneficial member shall be entitled to the following benefits under the conditions herein described in this constitution, provided he is over six months a contributory or financial member in good standing; and when three months in arrears he shall be debarred from all benefits until three months after all his arrearages are paid in full.”

The testimony of the Financial Secretary of Local 434, of which deceased was a member, was as follows:

“Q. Was he in arrears at the time of his death? A. He was in arrears as much as death benefits are concerned, according to our constitution.

Q. When did he first become in arrears ? A. May 31, 1908,

Q. How much was he in arrears May 31st, 1908? A. Three 'months.

Q. Did he pay his dues from that time, May 31st, 1908, until the time of his death? A. Within one month.

Q. Do you know whether he was in arrears from May 31st, 1908, until the time of his death? A. I do.

Q. Was he in arrears? A. Yes, sir, his due-book shows that he was in arrears from May 31st, 1908, until his death.”

Theophile Blais died on February 14, 1909. The record shows that upon his death the claim of his wife, defendant in error, was rejected by the Brotherhood upon the contention that at the time of his death he w'as in arrears in dues in the sum of seventy-five cents. The evidence further shows that for several weeks preceding his death, and during* his illness, he was the recipient of five dollars per week, which money was paid to him under Section 4 of the by-laws of the local union, to the effect that beneficial members in good standing shall, in addition to the benefits prescribed by the constitution of the United Brotherhood, receive the benefits as defined in the by-laws. The bylaws provided that beneficial members would be entitled to sick benefits as follows: “Five dollars per week, but not exceeding sixty dollars in any year, dating from the beginning of the first illness.” The evidencé shows this money was paid to the widow by an officer of the union, John De Young, and her receipts were duly taken therefor.

It further appears from the evidence that the deceased was in receipt of a quarterly working card for the months of January, February and March of the year 1909. This card bore the stamp of Ferdinand G-agnon, Financial Secretary. It was issued under Section 41 of the by-laws of the District Council, which provides that the District Council shall issue a quarterly working card to the local union for each member of the United Brotherhood in good standing in the district, for which there shall be a charge of twenty-five cents.

It also appeared by the testimony of the defendant in error, which was not contradicted, that three days before the death of her husband she went to Gagnon, Financial Secretary of the local union, and whose duty it was to forward a per capita tax of twenty-five cents per month to the United Brotherhood at Indianapolis and ten cents per capita tax per month to the District Council, and asked him what amount was necessary to square her husband to date, and he told her seventy-five cents, and at that time entered the amount in her husband’s due-book, which appears in evidence. She further testified that Gagnon brought her a paper after the death of her husband, saying that she could not have her insurance, and that it was very singular, because he was all paid up; that the per capita tax was all sent to the Brotherhood.

John McGrath, president of the local union, testified that he presided at the meetings of the union; that he knew the deceased in his lifetime, and that sick benefits were paid to him for seven weeks in the sum of $5.00 per week; that Ferdinand Gagnon was the Financial Secretary and was present at the meetings of the local union when the reports of the committee came in as to sick benefits and the payment of benefits to the deceased were voted; and that motions were made that the deceased be paid his benefits, which benefits would not have been paid had the deceased not been a member in good standing; that he signed the vouchers for the payment of the money and that Gagnon, who was present at all the meetings and whose business it was to report members not in good standing, never notified the union at any of these meetings that the deceased was not in good standing.

The only testimony offered by the defendant, plaintiff in error, on the trial was the testimony of Gagnon above quoted. He did not attempt to deny the testimony of either the widow, defendant in error, or the president of the union, McGrath, but attempted to show by the due-book kept by himself that the deceased was in arrears in the sum of seventy-five cents.

The abstract filed by the plaintiff in error is incomplete, imperfect and inadequate, and we might under ■the rules affirm the judgment because of its imperfect condition; but upon a consideration of all the evidence in the case we are of the opinion that the local union, of which the deceased, Blais, was'.a member, considered him to be a member in good standing at and before his death and so treated him.

In Jones v. Knights of Honor, 236 Ill. 113, a motion was made by the appellant in the trial court for a peremptory instruction to find for the defendant on the ground that the record showed that Jones, in whose favor the certificate was issued, had failed to pay an assessment required by the law of the Knights of Honor, and that he had been thereby suspended and was never reinstated prior to his death. In discussing this contention the court held that the subordinate lodge or council of a fraternal benefit society is the agent of the supreme lodge or council, and that such subordinate lodge may waive forfeiture or suspension by reason of failure to pay assessments and dues promptly.

In our opinion, the local lodge of which Blais was a member waived the by-laws in regard to his failure to pay dues, and waived the forfeiture or suspension upon any such failure to pay dues promptly, and under the above authorities and the cases there cited the local lodge or council had authority to make such waiver.

The issue as to whether-Blais was in good standing as a member of plaintiff in error at and prior to the time of Ms death was submitted to the jury, and was substantially the sole question at issue before the court and jury on the trial. The jury upon the evidence before them might well find, and doubtless did find, that the local lodge or council considered and treated the deceased as a member in good standing, and intended to and did waive any forfeiture or suspension of Blais for failure to pay his dues promptly. The evidence justifies such a conclusion of the jury and of the court.

In our opinion the judgment is not erroneous and it is accordingly affirmed.

Affirmed.


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    Robert Furman et al., Appellees, v. Helen Wells Hunt, Appellant.
    Gen. No. 16,552.
    1. Wills—when aei giving jurisdiction to Probate Court to construe does not apply. This act has no application to a case where the jurisdiction of the circuit court has attached prior to its going into effect.
    2. Wills—what intention of testator governs. The rule is inflexible that the object of the construction of wills is to ascertain the intention expressed by the testator and the intention sought is not that which by inference may be presumed to have existed in the mind of the testator but that which by the words used in the will he has expressed.
    3. Wills—the word “children” construed. A grandchild of a person named in a will to whose children and issue bequest is made does not take where the parent of such grandchild was dead at the time of the making of the will, especially where such grandchild was specially provided for by the terms of the will.
    Bill in chancery. Appeal from the Oireuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.

      Robert A. Childs and Lester C. Childs, for appellant.
    Daniel S. Wentworth, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Bobert Wilson, a citizen of Chicago, died on or about October 22, 1906. By his will he made certain specific legacies and appointed the Chicago Title & Trust Company executor and also trustee with power to sell real estate, and to distribute the proceeds as directed.

In the fifth clause of his will, after giving appellant a specific legacy, he made the following provision:

“All the remainder of my estate shall be divided into two equal parts, one of said, parts to be distributed among the children of my deceased sister, Margaret Furman, share and share alike, and if any of said children should die before distribution of my estate, then the share' which said deceased child would have been entitled to if living shall belong to and be paid over to the heirs at law of said deceased child.”

The will was proved and admitted to probate, and the Chicago Title & Trust Company qualified as executor and trustee thereunder and proceeded to administer the estate.

On July 10, 1908, while the estate was in process of administration, this bill in chancery was filed in the Circuit Court of Cook County by Bobert Furman, William Furman, by Daniel S. Wentworth, assignee, and five other complainants, as legatees under the will of Bobert Wilson, against the Chicago Title & Trust Company as executor and trustee under the will, Daniel Furman and Helen Wells Hunt, appellants. The complainants are the children of Margaret Furman, deceased, a sister of testator, Daniel Furman, a defendant, being also a child of the said Margaret Furman, deceased. Helen Wells Hunt, appellant, is the daughter of Margaret Furman Clark, a daughter of said Margaret Furman, sister of deceased.

The bill seeks a construction of the will, and particularly of that part of clause 5 quoted, with the purpose of excluding appellant, Helen Wells Hunt, from participating as residuary legatee under the said fifth clause of the will.

The Chicago Title & Trust Company filed its answer admitting responsibility as executor and trustee and asking for proofs as to who the children and heirs at law of Margaret Furman may be, and the answer avers that the defendant is not advised as to the proper construction of said fifth clause and asks for direction by order of the court.

Appellant answered the bill admitting that the will was proved and admitted to probate; that the Chicago Title & Trust Company took charge of the estate as executor and trustee, and it had paid to her a special legacy of $300 provided for her in the fifth clause of the will. It admits that she is the daughter and only child of Margaret Furman Clark, who was the daughter of Margaret Furman, the sister of testator. Appellant’s answer denies that she is not entitled to share in the distribution under the fifth clause of the will, and asserts that she is entitled to the share of her mother, Margaret Furman Clark. Her answer denies that there is any ambiguity in the will or any necessity for any construction thereof, and prays the bill may be dismissed for want of equity. Daniel Furman, the other defendant, answered demanding strict proof of the substantial allegations of the bill. Replications were filed and issues joined and the cause came on for hearing. William Furman, who was a party complainant, testified that Margaret Furman was a sister of testator, and died prior to the date of the will; that Margaret Furman Clark, a daughter of said Margaret Furman, and mother of Helen Wells Hunt, appellant, died prior to the death of Margaret Furman. A copy of the will and inventory attached to the bill were admitted in evidence by stipulation, and it was admitted that the names of the children born to Margaret Fur-man were correctly set forth in the bill of complaint.

On January 27, 1910, the court entered a decree which after making various findings ordered, adjudged and decreed that Robert Wilson, deceased, by the words, “All the remainder of my estate shall be divided into two equal parts, one of said parts to be distributed among the children of my deceased sister, Margaret Furman, share and share alike, and if any of said children should die before distribution of my estate, then the share which said deceased child would have been entitled to, if living, shall belong to and be paid over to the heirs at law of such deceased child/ ’ as used in the fifth clause of the last will and testament of Robert Wilson, deceased, did order and direct the Chicago Title & Trust Company, as trustee, to distribute from the residuary estate of the said Robert Wilson, deceased, a one-sixteenth portion to each of the following persons, naming them, and that the said Helen Wells Hunt, appellant, does not under said last will and testament participate in said residue estate.

It is urged first, that the Circuit Court of Cook county was without jurisdiction to construe the will on the pleadings in the cause, and that the intention of the testator must govern in construing a will; and in construing a will the court may consider the relations of the parties, and nature and situation of the subject-matter, the purpose of the instrument and the motives that would influence the testator, and that this will cannot be legally construed to deprive the appellant of her share as the heir of her mother in the residuum of the estate devised by the will.

Upon the question of the jurisdiction of the Circuit Court to entertain and determine the bill of complaint and the matters therein set forth, the act of the Legislature of June 14, 1909, extending the jurisdiction of the Probate Courts and of the County Courts in counties where qo Probate Coqrts are established, to supervise and control all testamentary trusts created by original wills of deceased persons proved and admitted to probate is relied upon. In our opinion that act does not apply to this case inasmuch as the bill of complaint was filed more than one year before the law was enacted. So that if the Probate Court was by that act given jurisdiction to construe the will in question it was not so vested with that jurisdiction until after the Circuit Court had acquired jurisdiction of the parties and the subject-matter. It is unnecessary for us therefore to decide the question not presented on this record, whether the effect of the act of 1909 is to oust Circuit Courts of jurisdiction in the first instance in the matter of construing wills. In our opinion, the Circuit Court had jurisdiction to hear and determine this cause.

It is not questioned that the intention of the testator must govern in construing wills, and that a court may consider under certain circumstances, the motives that would influence the testator in making his will; but the rule is inflexible that the object of the construction of wills is to ascertain the intention expressed by the testator, and the intention sought is not that which by inference may be presumed to have existed in the mind of the testator, but that which by the words used in the will he has expressed. Bond v. Moore, 236 Ill. 576, 579.

In our opinion, in order that appellant, Helen Wells Hunt, should take under the fifth clause of the will, it would be necessary for appellant’s mother, Margaret Furman Clark, to have been living at the time the testator made the will, or at the time of his death; but inasmuch as said Margaret Furman Clark died long prior to the making of the will, and two years prior to the death of said “deceased sister, Margaret Fur-man,” appellant does not come within the classification of “children of my deceased sister Margaret Fur-man. ’ ’

Inasmuch as she did not come within that classification, it is clear from a reading of the will that the testator had appellant in mind and had that fact in mind; and in order that she might participate -in his estate he gave her a special legacy of $300 in the same clause and a few lines before he provides for the residuary legacies.

It is also evident, we think, - from the provision the testator made in connection with the residuary legacies, that he had the contingency of the death of some of the then living children of his deceased sister, Margaret Furman, in mind and provided for their heirs in case of their demise before his death; and he likewise provided by special legacy for appellant.

In the clause of the will under consideration the residue of the estate is in part divided among the "children of my deceased sister, Margaret Furman.” As the defendant, Helen Wells Hunt, is a grandchild of Margaret Furman she cannot claim under that clause unless the word “children” includes grandchildren.

No Illinois authorities are cited to maintain the contention that appellant Helen Wells Hunt, the granddaughter, takes under the word “children.”

We think that Arnold v. Alden, 173 Ill. 229; Martin v. Modern Woodmen, 253 Id. 400, are in point upon this question, and that by the use of the word “children” the testator evidently intended to limit the residuary legacies to the children of his deceased sister, and did not intend that appellant should have the specific legacy of $300 given her in the fifth clause of his will, and that she should also participate in what he'termed, “All the remainder of my estate,” which he disposes of in the same clause. If it had been his intention to give appellant the specific legacy in addition to a share in the remainder, or to give her a share in the remainder in addition to the specific legacy, he would have expressed such intention in appropriate language. In our opinion the testator’s intention, as gathered from the words and terms used in the will (Bond v. Moore, 236 Ill. 576), was that appellant should have from his estate the specific legacy mentioned in the will and no more. In our opinion the decree is correct in holding that appellant, a grandchild of the deceased sister of the testator, does not participate as a residuary legatee in the estate of Robert Wilson, the testator, and it is accordingly affirmed.

Affirmed.


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    P. W. Sullivan, Defendant in Error, v. Joseph Miller et al., Plaintiffs in Error.
    Gen. No. 16,582.

      Evidence—when boolcs of account competent to refresh recollection. Books of account regularly kept by the plaintiff in his own handwriting in the ordinary course of business if testified to as true and correct and as containing entries contemporaneous with the facts sought to be established and known to be correct when made may be employed for the purpose of refreshing recollection.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Leo Koretz, for plaintiffs in error.
    P: E. O’Neil and P. W. Sullivan, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

An action was brought by the defendant in error, P. W. Sullivan, in the Municipal Court of Chicago for legal services against Joseph Miller and Lizzie B. Miller, plaintiffs in error, who are husband and wife, and were engaged in the teaming and express business in Chicago. The itemized statement of claim sued upon included five notes executed by plaintiffs in error and given for other legal services. On the trial the court entered judgment against the plaintiffs in error for $190.58.

It is urged as to some of the items contained in the statement of claim the defendant in error had been paid. As to other items it is claimed the proof is insufficient to sustain the judgment; and as to other items the plaintiff in error Mrs. Miller is not liable jointly with her husband, and that as to still other items plaintiff in error Miller is not jointly liable with his wife.As to the largest item of $100 for services rendered in the suit of Lizzie B. Miller v. Thomas M. Hunter, it is urged that the case was prosecuted by defendant in error on a contingency basis and that Mrs. Miller was-not to pay him anything except the costs unless a recovery was had.

Upon a consideration of the evidence and the briefs and arguments of counsel we are of the opinion that the evidence sustains the finding of the court.

It is urged that the trial court erred in permitting defendant in error to prove his case by reading the various items of his claim from his books of account which were introduced in evidence. The testimony shows that the books were a regular set of books of account kept by the defendant in error in his own handwriting in the ordinary course of his business, and that they were just and true. The witness knew that the facts were recorded at the time or when they were fresh in his memory. There was no error in permitting the witness to refresh his memory therefrom. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338. We find no reversible error in the rulings of the court with regard to evidence.

The judgment is affirmed.

Affirmed.