author: Mr. Justice McDonald Mr. Presiding Justice Barnes

text:
    Emma J. Purinton, Administratrix, Appellee, v. Belt Railway Company of Chicago, Appellant.
    Gen. No. 21,905.
    1. Railroads, § 465

      —applicability of ordinance requiring lights at night on head of moving train to yard employees. An ordinance of the City of Chicago requiring that moving trains on any track in the city, in the nighttime, should keep and have a brilliant and conspicuous light on the end thereof in the direction towards which the train is moving, held applicable to railroad yards in favor of employees as well as of the public.
    2. Appeal and error, § 1236*—when defendant cannot complain of alleged erroneous introduction of evidence. Where the defendant objected to certain portions of a written instrument introduced in evidence as incompetent, and for the purpose of preserving his point read such portions into the record in the presence of the jury and introduced evidence based expressly upon such instrument, and the plaintiff offered thereupon to strike out the portions objected to before reading the instrument in evidence, and the jury were instructed to disregard such portions, held that the defendant would not be in position to thereafter complain of such portions of the instrument.
    3. Master and servant, § 448*—when railroad switchman has right to assume compliance with ordinance. A railroad switchman is not bound to anticipate negligence on the part of the operator of a moving train as to such operator’s duty to maintain lights thereon, but has a right to assume that the operator had complied with an ordinance requiring such lights.
    4. Master and servant, § 760*—when question whether violation of ordinance as proximate cause of death of switchman is for jury. Whether a violation by the operator of a moving train of an ordinance requiring lights on such trains was the proximate cause of a switchman’s death, held to be a question for the jury in an action to recover damages for such death.
    5. Master and servant, § 704*—when evidence is sufficient to sustain finding that violation of ordinance was proximate cause of death of switchman. In an action for the death of a railroad switch-man, held that the finding that the defendant’s violation of an ordinance requiring lights on moving trains was the proximate cause of the death of plaintiff’s intestate was not against the manifest weight of the evidence.

      6. Master and servant, § 699

      —When evidence sufficient to show exercise of due care by deceased switchman. Evidence from which due care on the part of plaintiff’s intestate, a switchman, at the time he was killed by defendant’s negligence in operating its train might be inferred, held to be sufficient to sustain a finding in favor of the plaintiff.
    7. Death, § 67*—when verdict is not excessive. A verdict for $10,000, held not to be excessive, in an action to recover damages for death from negligence.
    8. Torts, § 31*—when instruction in action against railroad company for death of employee is not erroneous. An instruction in an action against one of two railroad companies to recover damages for the death of an employee that the defendant would not be entitled to the benefit of any moneys paid by the other company to the plaintiff on account of the same death in the event of a judgment for the plaintiff, held not erroneous in the absence of any evidence tending to show that the two companies were joint tort feasors.
    9. Accord and satisfaction, § 11*—when instruction on effect of covenant not to sue one party is not erroneous. Where an instrument introduced in evidence recited that it was a covenant by the plaintiff not to sue and was not an accord and satisfaction of any claims the plaintiff might have against the other party to such instrument, and there was no evidence to dispute such recital, held that an instruction that a covenant not to sue one party on account of a certain injury or death would not he a bar or defense to a suit brought against another and different party on account of such injury or death was proper, in an action to recover damages for a certain death against one party wherein such instrument as to another party was introduced in evidence.
    10. Appeal and error, § 1514*—when court of review .will not determine Whose conduct of opposing counsel is less reprehensible. It is not the province of a court of review to scrutinize a record with a view to determining whose conduct of opposing counsel in a case engaging in personal clashes and altercations is the less reprehensible, or who scored the greater number of points.
    Barnes, P. J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 20, 1917.

      C. G. Austin, Jr., James G. Condon and Beverly W. Howe, for appellant; C. G. Austin, Jr., of counsel.
    James C. McShane, for appellee.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

Plaintiff, as administratrix, brought an action on the case for the alleged wrongful death of Claude P. Purinton, hereinafter referred to as the deceased, who was run over and instantly killed by a train of freight cars operated by defendant over the tracks of another road, on the night of February 4, 1913. The jury found the defendant guilty as charged in the declaration, assessing plaintiff’s damages in the sum of $10,-000, for which amount and costs the judgment herein complained of was rendered.

The declaration, which consisted of three counts, alleged that the deceased at the time of the fatality was a switchman in the employ of the Chicago, West Pullman & Southern Railway Company; that on the night in question, the train in connection with which the deceased was employed (hereinafter designated as the West Pullman train) occupied a track owned by and in possession of the Chicago, Rock Island & Pacific Railway Company, otherwise known as the Rock Island; that as the deceased was crossing another track, and while in the exercise of due care for his own safety, he was run over by a train of freight cars which defendant was pushing' by means of a locomotive, in a westerly direction along the track which the deceased was then in the act of crossing.

The gravamen of the charge is, that defendant operated its said locomotive and train of cars negligently and in violation of the city ordinance, which provided, in substance, that every locomotive, engine, car or train while running on any track in the City of Chicago in the nighttime shall have and keep a brilliant and conspicuous light on the forward end thereof if moving in a forward direction, or on the rear end if backing, the said ordinance being fully set forth in the declaration.

The Bock Island tracks run east and west at a place in the City of Chicago known as Pullman Junction, the scene of the accident, the north track being used for westbound and the south track for eastbound traffic. Just south of these tracks lies a track known as the “Pullman lead,” which parallels the said Bock Island tracks. About ten feet south of the said “Pullman lead” is the Bock Island switch shanty, consisting of a dismantled freight car, where the crews of freight trains usually stop to obtain information relative to the operation of their trains.

On the night in question the West Pullman train, on which the deceased was employed, occupied the north or westbound Bock Island track, the engine thereof being attached to the head or west end, but facing east. It proceeded westward to a point where the Bock Island tracks are traversed at right angles by the New York, Chicago & St. Louis Railway Company’s tracks, which run north and south. This intersection was referred to by several witnesses as the Nickel Plate crossing.

When the West Pullman train approached this crossing, the north and southbound traffic had been given the right of way, and consequently the West Pullman train came to a full stop just east of the intersection, awaiting the signal to proceed.

In the meantime, the deceased, who was the “head” man of his train, alighted from the engine on which he had been riding, and walked southwest for a distance of about three hundred feet, to the Bock Island switch shanty, where he talked with one Kennedy. In order to reach this shanty, the deceased had to cross the aforesaid “Pullman lead” track.

The deceased remained in the shanty for about five minutes, during which time his train cleared the Nickel Plate crossing, and as it passed the shanty, the deceased started in the direction of the head end of his train. In order to reach it, he had to recross the “Pullman lead” track; and just as he stepped thereon, he was struck by defendant’s train, consisting of some seventeen freight cars, being pushed in a westerly direction on the said “Pullman lead” track.

The evidence shows that there was a flat car about forty feet long and about four feet in height, at the west end of defendant’s train, i. e., the end nearest to the deceased at the time he was struck; that next following and attached thereto was a box ear which was considerably higher, neither of which carried any light whatsoever; and that defendant’s train was moving along at the rate of three or four miles per hour at the time of the accident.

Defendant contends, first, that the aforesaid ordinance relating to lights on moving trains is inapplicable to employees working in railroad yards, the said ordinance being intended solely for the benefit of the public, and that the court therefore erred in admitting proof thereof. This very question was presented in Pridmore v. Chicago, R. I. & P. Ry. Co., 275 Ill. 386, and decided adversely to defendant’s contention here.

Defendant also urges that the court committed reversible error in admitting in evidence a certain agreement dated April 12,1913, which purports to be a covenant not to sue, entered into by and between the West Pullman railroad and plaintiff. It contained, among others, the following provision:

“Whereas, the said Claude P. Purinton was killed * * * while employed by the party' of the first part as a switchman but not through the negligence or fault of the party of the first part, but through the negligence and fault of the Belt Railway Company of Chi cago; and deceased left him surviving the said Emma J. Purinton, his widow, and several children as his next of kin.”

The agreement fixes a certain sum ($3,500) to be paid to plaintiff in regular instalments, and recites further that, in making such agreement, the company was actuated by a desire “to contribute to deceased’s said widow and children.”

The objection is directed solely to the italicized portions of the foregoing clauses, and underlying it is the contention of defendant that the recital ascribing the death of the said Purinton to the negligence of defendant is self-serving and therefore clearly incompetent ; and that inasmuch as the children referred to are stepchildren of the deceased, this recital should not have been admitted in evidence. And defendant argues vigorously that it was greatly prejudiced by the admission of this evidence into the record, notwithstanding the jury were afterwards instructed to disregard it.

It appears from the evidence that as part of its case defendant introduced numerous vouchers for payments made by the West Pullman railway to plaintiff, under the aforesaid agreement, each of which recited that the payment therein described was made “as per agreement of April 12, 1913,” etc. The testimony of defendant’s witness was to the effect that these payments were all made pursuant to the said agreement, which he also identified.

Considerable discussion by counsel preceded the introduction of the said agreement in evidence. Counsel for defendant objected to the italicized portions thereof, and for the purpose of preserving the point he read the same into the record, whereupon counsel for plaintiff offered to strike out the objectionable recitals therefrom before reading the agreement to the jury. Counsel for defendant then stated: “I have just read it myself out loud, if the court please, to the stenographers, in the presence of the jury, so, of course, now, after I have done that, he is willing that it be stricken out.”

All of the foregoing took place in the presence and hearing of the jury. The agreement was afterwards read in evidence, subject, however, to the objection of the defendant.

In view of the fact that counsel for defendant introduced the aforesaid receipts in evidence, which expressly referred to this document, and later on read the objectionable portions in the presence of the jury, and plaintiff having offered to strike out the objectionable portions as indicated by counsel for the defendant, before reading the agreement to the jury, and the jury having been afterwards instructed to disregard the objectionable portions, we fail to see how defendant is now in a position to complain.

It is further contended by defendant that the verdict was clearly and manifestly against the weight of the evidence.

Various questions are involved in the determination of that issue.

Defendant argues that from Kennedy’s testimony it is shown that the deceased was warned of the approach of defendant’s train just as he was leaving the switch shanty. Whether or not the deceased heard this warning can be determined only by inference. The evidence shows that the deceased made no response to Kennedy after the latter had called to him. His train was passing the shanty a short distance away, and the defendant’s train was also approaching the shanty, so it is fair to presume that the deceased was in a noisy environment when the warning was given him by Kennedy. At any rate, we believe it was a question for the jury to determine whether or not the deceased heard the warning.

The only person who saw the deceased at the precise moment of the accident was one Quiggle, who was the conductor of defendant’s train which struck the deceased, and who at the time of the accident stood on the “Pullman lead” track, about eighty-five feet west of the Eock Island shanty and facing east. He testified: * ‘ There was no light on the forward car of that train at the time this man was killed. There was no light on either the first or second car of that train. The first car was a flat car. * * * There was no man with a lantern or without a lantern riding on the forward car of the train, or on the second car of the train. * * * "When he (deceased) came out of the door he crossed right over the track. He was struck either by the front end of the flat car or the draw bar, I don’t know which. I couldn’t see the man. The man was a mere shadow to me. All I could see was the light, but I will say he didn’t lose a lot of time coming out. It is only a few feet from the shanty to the track. Eight straight across the track was the direction he took. * * * It was all dark. The flat car and the west truck of the box car both passed over him. * * * Indications were he was dragged some six or seven feet. When I seen the light go up in the air, I gave the stop signal immediately. * * * At the time he came out of the shanty I couldn’t see the flat car.”

That defendant was negligent in failing to have a light on the flat ear in question, as required by the city ordinance, was conclusively established. Therefore, even had the deceased looked, he would not have seen any light to warn him of the approaching train, for the evidence shows there was none.

The flat car at the foremost end of the approaching train was only four feet in height, but it was about forty feet long; next to it was a box car, considerably higher than the flat car to which it was attached; the night was dark. Under such circumstances, it is highly probable that a person with normal vision, coming out of a lighted room, as did the deceased, might not have seen the flat ear though he had looked, and seeing’ the box car silhouetted against the sky, might reasonably have been misled and supposed the box car to be the foremost one of the approaching train. Such inference finds support in the testimony of Quiggle, who testified that at the time of the fatality he saw the box car but could not see the flat car, although he was the conductor of this train and must have known the flat car was there. It must also be borne in mind that the deceased was not in duty bound to anticipate negligence on the part of the defendant, but, on the contrary, he had a right to assume that defendant had complied with the ordinance by placing a light on the flat car. Chicago City Ry. Co. v. Fennimore, 199 Ill. 9.

In view of all the foregoing facts and circumstances shown by the evidence, it was a question of fact for the jury to determine whether or not the violation of the ordinance was the proximate cause of the fatality. The jury by their verdict determined that question in favor of the plaintiff, and we are not prepared to say that such finding was clearly and manifestly against the weight of the evidence.

Defendant also contends that there is no proof of the exercise of due care on the part of the deceased at. and just prior to the time of the accident. There is evidence in the record from which due care may be inferred. That is sufficient. Elgin, J. & E. Ry. Co. v. Headley, 220 Ill. 462.

Defendant next complains that the verdict is excessive. No argument is advanced in support thereof, save that the damages were greatly enhanced by the admission of improper evidence and by the alleged misconduct of opposing counsel. However, we are unable to say from an examination of the record that such amount is excessive, although it is the maximum allowance fixed by the statute.

Defendant further contends that the court erred in the giving of instructions on behalf of plaintiff, and in the rejecting of others offered on behalf of the defendant.

Instruction No. 4, given at the instance of plaintiff, told the jury, in effect, that if they found the issues in favor of the plaintiff, then, in estimating her damages, they need not allow defendant any reduction or set-off on account of any payments which the West Pullman railroad company made to plaintiff in accordance with the agreement entered into between said company and plaintiff.

The point made by defendant in assailing this instruction is that it was entitled to the benefit of any moneys paid plaintiff by the West Pullman railroad. Underlying this argument is the theory of defendant that the said West Pullman railroad was a joint tort feasor. But the record is barren of any evidence in any way tending to establish that fact. Therefore, in our opinion, defendant’s position is untenable.

Instruction No. 5, given on behalf of the plaintiff, informed the jury that a covenant not to sue a certain party or parties for or on account of an injury or death is not a bar or defense to a suit brought against another and different party or parties for or on account of such injury or death. The chief objection thereto is that it conveys the assumption that the aforementioned agreement' entered into between the plaintiff and the West Pullman railroad was a covenant not to sue.

The aforementioned agreement recites on its face that it is a covenant not to sue, and not an accord and satisfaction of any claims which the plaintiff might have against the said West Pullman railroad, arising out of the accident in question. There is no evidence in the record which tends to dispute these recitals. We are therefore of the opinion that instruction No. 5 was proper.

Instructions Nos. 1, 2 and 7, offered on behalf of the defendant, were properly refused, because they presupposed that the West Pullman railroad was guilty of negligence in connection with the death of Purinton, whereas there is no evidence in the record to sustain such contention.

Defendant finally makes bitter complaint of the alleged misconduct of opposing counsel throughout the trial below.

An examination of the record reveals that this charge is not without foundation. Similar charges are contained in plaintiff’s brief which we also find are not entirely groundless. In fact, the record is replete with altercations of counsel, wherein they rebuked each other with considerable acrimony; and the record discloses that these clashes occurred with lamentable frequency. The following excerpt from the record is typical of what transpired throughout this long trial:

Mr. McShane : You áre only hired to try one of these eases here and there for your peculiar kind of work.

Mr. Condon: My peculiar kind of work! Gentlemen- of the jury, it is not following the corpse of dead men.

Mr. McShane: Trying to beat poor widows.

Mr. Condon : Yes sir, you refer to my peculiar kind of work. I tell you, Mr. McShane, I, nor anybody in my office, has followed the corpse of dead men.

Mr. McShane: Nobody ever did that in my office since I started practicing.

Mr. Condon : You talked to me, and I answered you.

Mr. McShane : I say it is not true if you intimate that I have ever solicited a case directly or indirectly in my life.

Mr. Condon: I am willing to open the case, Mr. McShane, and if you will go back on the stand and testify under oath there will be some facts shown to the jury, provided you do not claim your God given constitutional right. Now, we will proceed, with reference to this contract.

This court is now asked to assume the singular role of umpire in a series of personal word-bouts between counsel, which have no place in the trial of any lawsuit, in addition to making a review of the questions properly before us. It is not the province of this court, nor of any other reviewing court, to scrutinize a record with a view to determining whose conduct is the less reprehensible, or who scored the greater number of points in these personal squabbles; that question must be relegated to a more appropriate forum.

After a most careful examination of the record, we are of the opinion that the judgment should be affirmed.

Affirmed.

Mr. Presiding Justice Barnes

dissenting.

I am compelled to dissent on the ground that the record discloses no evidence of any facts or circumstances from which the jury could infer the exercise of due care on the part of the deceased for his own safety at the time of or just prior to the accident, namely, while walking from the shanty to the tracks. Where there is no eyewitness plaintiff must make the highest proof on the subject of which the case is capable, and it may be supplied by proof of the habits of the deceased as to sobriety, prudence and the exercise of care and caution in the ordinary affairs of life. Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505. An eyewitness, however, must be one “who not only saw the deceased just at the instant of the injury but who can describe the conduct of the deceased just prior to the accident.” Cook v. Chicago, R. I. & P. Ry. Co., 153 Ill. App. 596. The so-called eyewitness in this case was unable to give any such description. The logic of the situation, therefore; required such proof. All he saw was a “mere shadow” and a “motion of the light” carried by the deceased, indicating a somewhat quick movement from the shanty to the tracks. It was in the interval of making that movement that the deceased was bound to exercise due care, which involved looking where he was going, else a light on the car would have been of no avail. No one could tell which way he looked, whether away from the backing train or towards it. The evidence supports two inferences, either that he was hurrying to catch his own train that was moving in the same direction further away and did not look towards the train with which he collided and which he had just been told was moving in on the tracks, or, not seeing the flat car and thinking the box car was the end of the train, he attempted to pass in front of it in order to reach his own train. But neither hypothesis nor the evidence on which it is based warrants the additional inference that he exercised due care for his own safety, and hence such care will not be presumed in the absence of proof of his habits in that respect. And this was evidently the view of appellee’s own counsel for he started to make such proof but withdrew the only question designed to call it forth when it was objected to. He now argues that by reason of such objection, although he requested no ruling thereon and prevented one by withdrawing his question, whether objectionable or not, appellant is estopped from urging the necessity of such proof. It is difficult to see how a party can lie relieved from proving an essential element of his cause of action by the adverse party’s objection.to a question relating thereto upon which a ruling of the court was not invoked but avoided.

Furthermore, a judgment should not be permitted to stand where the record, like the one here, discloses so many unchecked prejudicial remarks and unseemly colloquies in the presence of the jury.


source: Caselaw Access Project

author: Mr. Justice McDonald

license: Public Domain

text:
    Hannibal Trust Company of Hannibal, Missouri, Appellee, v. N. Lang and Ida Lang, Appellants.
    Gen. No. 22,020.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by Hannibal Trust Company of Hannibal, Missouri, a corporation, plaintiff, against N. Lang and Ida Lang, defendants, to recover upon two promissory notes. From a judgment for plaintiff on a directed verdict, defendants appeal.
    The notes were executed by the defendants to the World Manufacturing & Specialty Company, a corporation engaged in the manufacture of stamp vending machines, as in part payment for such machines. They were purchased by the plaintiff prior to maturity under an agreement between it and the payee made about four months prior to the purchase whereby the plaintiff agreed to purchase such notes taken on such sales by the payee at a certain discount to the amount of $10,000, the payee to refund to the plaintiff such moneys paid for such notes in case the makers should fail to pay same at maturity or a dispute arise from any claim of the makers, collateral security being given to indemnify plaintiff against loss under the agreement. The defendant pleaded a breach of warranty, failure of and fraud in the consideration, that plaintiff held the notes only for collection and was not the real owner, and that plaintiff was not a holder in due course under section 52 of the Negotiable Instruments Act (J. & A. 7691).

      Abstract of the Decision.
    1. Bills and notes, § 248

      —when 6ona fide holder of note will he protected. The policy of the law is to protect the bona fide holder of a note transferred before maturity, although he may have received it under circumstances which would tend to arouse suspicion in an ordinarily prudent person, and even gross negligence or anything short of bad faith will not defeat his title.
    2. Bills and notes, § 460*—what is question for jury. The question whether the holder of a note by transfer is a holder in good faith is one for the jury and not for the court.
    3. Bills and notes, § 371*—what evidence is admissible under issue whether transferee of note is holder in good faith. Evidence to show failure of consideration of a note or that it was obtained through fraud or misrepresentation, held admissible under an issue as to whether the transferee of such note was a holder in good faith.
    Ryan, Condon & Livingston, for appellants.
    Musgrave, Oppenheim & Lee, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Adolph J. Sabath and Harry Levinson, trading as Sabath & Levinson, Plaintiffs in Error, v. Barbara Vacek et al., Defendants in Error.
    Gen. No. 22,043.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by Adolph J. Sabath and Harry Levinson, trading as Sabath & Levinson, plaintiffs, against Barbara Vacek, Anna Vacek and Hattie Vacek, defendants, to recover the balance claimed due under a certain written contract for legal services. From a judgment for defendants, plaintiffs bring error.
    Abstract of the Decision.
    1. Attorney and client, § 60

      —when attorney may not delegate personal trust. The employment of an attorney involves a personal trust which cannot be delegated, without the special consent of the client.
    2. Attorney and client, . § 53*—when evidence is sufficient to show no assent to or knowledge of performance of services by other attorneys or employees. The evidence held to show no assent, express or implied, by the defendants that certain of the legal services for which plaintiffs were employed by them should be performed by other members or employees of plaintiffs, or that the defendants had knowledge that such services were being so performed, in an action to recover for such services.
    3. Attorney and client, § 107*—when attorneys may not maintain action for services performed by employees or other attorneys. An action cannot be maintained by attorneys for legal services for which they were employed, but which were in fact performed by others or by their employees, without showing the client’s assent to such performance of such services.
    4. Judgment, § 200*—necessity of recovery against ail on joint obligation. Where an obligation is joint, recovery must be against all or none.
    Sabath, Stafford & Sabath, for plaintiffs in error.
    Q. J. Chott and Frank H. Culver, for defendants in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Omar H. Wright and Oliver L. Watson, Trustee, et al., Defendants in Error, v. Thomas H. Matters and Marguerite L. Matters et al., Plaintiffs in Error.
    Gen. No. 22,054.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mortgages, § 610

      —what is right of purchaser at foreclosure sale as to rents, issues and profits during redemption period. The person entitled to a deed under a certificate of foreclosure sale has no rights to the rents, issues and profits collected from the premises during the redemption period, as he does not derive his title from the trust deed but solely from the statute.
    2. Mortgages, § 85*—what is effect of invalid provision in trust deed as to disposal of rents, issues and profits during redemption period on provision for receiver. Where a certain trust deed conveyed as security for the debt certain premises and the rents, issues and profits thereof, and provided that a receiver might be appointed upon bill to foreclose to collect such rents, issues and profits and pay the proceeds thereof to the person entitled to a deed under the certificate of sale, held that the fact that such person has no right to such money during the redemption period would affect the disposition of only such surplus proceeds and would not impair the validity of such provision as to a receiver.

      Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the April term, 1917.
    Affirmed.
    Opinion filed March 20, 1917.
    Rehearing denied March 30, 1917.
    Statement of the Case.
    Suit by Omar H. "Wright and Oliver L. Watson, trustee, et al., complainants, against Thomas H. Matters and Marguerite L. Matters, his wife, et al., defendants, to foreclose a trust deed. From an order appointing a receiver and a deficiency decree against the defendant Thomas H. Matters, defendants bring error.
    Henry & Robinson, for plaintiffs in error.
    Meagher, Whitney, Ricks & Sullivan, for defendants in error.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

3. Mortgages, § 653 —when defendant may not complain of error in entry of deficiency decree. The contention that the court erred in entering a deficiency decree against a defendant in a foreclosure suit cannot be raised for the first time on review after his approval of such decree.

4. Words and phrases—“O. K.” defined. The abbreviation "O. K.” has a well-defined meaning and signifies “all right,” "correct," its effect being determined from the circumstances of the situation.

5. Equity, § 451*—what constitutes consent of counsel to decree. Where a decree contained a notation “O. K.” with signature of counsel, and no objection was anywhere made to the entry of such decree, held that such notation indicated counsel’s unqualified assent to such decree both as to form and propriety of its entry.


text:
    Valentine Woods, Defendant in Error, v. Norman McCrimmin, Plaintiff in Error.
    Gen. No. 22,081.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William- N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by Valentine Woods, plaintiff, against Norman McCrimmin, defendant, to recover damages for the alleged wrongful death of plaintiff’s horse. From a judgment for plaintiff for two hundred dollars, defendant brings error.

      Abstract of the Decision.
    1. Limitation of actions, § 108

      —necessity of pleading statute. The Statute of Limitations is an affirmative defense and must be specially pleaded in order to be availed of.
    2. Municipal Coubt of Chicago, § 27*—when rules of must he in hill of exceptions. Questions based upon the rules of the Municipal Court of Chicago cannot be passed upon by the Appellate Court in the absence of a preservation of the rules in the bill of exceptions, as the Appellate Court will not take judicial notice of such rules.
    3. Municipal Coubt of Chicago, § 28*—when objection to verdict is too late. Where no instruction was asked to eliminate a charge of malice from a tort claim, nor objection made in the trial court to the form of a verdict against the defendant on the ground that it could not be determined from such verdict whether the defendant was found guilty of a tort as charged in the original statement of the claim, or of malice as charged in an amendment thereto, held that such objection came too late when first made on review.
    William T. Baird, for plaintiff in error.
    Albert Hassell, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    H. L. Cavender and William E. Kaiser, trading as Cavender & Kaiser, Plaintiffs in Error, v. William J. Fox, Defendant in Error.
    Gen. No. 22,098.
    (Not to be reported in full.)
    Abstract of the Decision.
    Attorney and client—what constitutes prima facie case of fraud in action by attorneys for services. Where the plaintiffs’ evidence was to the effect that the defendant had represented to them that he had seen all of the parties defendant in a certain case then pending and that all of said parties had agreed to have plaintiffs act for them as associate counsel in such case and to compensate them for such services, and that relying upon such representations plaintiffs had performed such services, and thereafter learned that defendant had no authority to engage them on behalf of said parties, and that such services were of a certain reasonable value, held that a prima facie case of fraud and deceit was made out and that the court erred in directing a verdict for the defendant.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by H. L. Cavender and William E. Kaiser, trading as Cavender & Kaiser, plaintiffs, against William J. Fox, defendant, for fraud and deceit. From a judgment for defendant on a directed verdict at the close of plaintiffs’ case, plaintiffs bring error.
    F. W. Balcomb, for plaintiffs in error.
    Christopher King, for defendant in error.
   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Willard C. Howe, Defendant in Error, v. Charles C. O’Neill and John J. O’Neill, copartners, trading as American Storage Furniture & Express Company, Plaintiffs in Error.
    Gen. No. 22,104.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Warehousemen, § 27

      —when evidence is sufficient to show that damage to goods resulted from negligence of warehouseman. In an action against a warehouseman for damages for negligence in caring for stored goods, evidence held sufficient to sustain a finding that the damage alleged resulted from the negligence of defendant.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed on remittitur.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by Willard C. Howe, plaintiff, against Charles C. O’Neill and John J. O’Neill, copartners, trading as American Storage Furniture and Express Company, defendants, to recover damages alleged to have been caused by defendants’ negligence in regard to certain furniture, books and other household effects intrusted to defendants for storage and safekeeping. From a judgment for plaintiff for six hundred and fifty dollars, defendants bring error.
    Grover C. Niemeyer, for plaintiffs in error.
    Lipson & Levy, for defendant in error.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

2. Warehousemen, § 25 —When provision in contract of storage for repair or replacement of injured goods is cumulative remedy. Where a contract for the storage and safekeeping by defendants of certain goods of plaintiff’s provided that in case of breakage or marring of such goods the defendants would repair same, if possible, and, if not, replace them with new goods of same value, held that such provision was not mandatory but afforded plaintiff a cumulative remedy to be availed of or not as he saw fit.

3. Damages, § 151*—when excessive for injury to goods stored with warehouseman. Damages for six hundred fifty dollars held excessive, where the evidence showed that the cost of repairing plaintiff’s furniture damaged by defendants’ negligence was three hundred fifty dollars, and there was no evidence as to the actual amount of other damages shown, in an action against a warehouseman to recover damages for injuries to a quantity of household goods.


text:
    Antonio Mennella, for use of Joe Mennella, Defendant in Error, v. Michael Bottigliero, Plaintiff in Error.
    Gen. No. 22,117.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action in garnishment by Antonio Mennella, for use of Joe Mennella, plaintiff, against Michael Bottigliero, defendant, to recover a debt. From a judgment for plaintiff, defendant brings error.
    The decision of the court on a former appeal appears in Mennella v. Bottigliero, 191 Ill. App. 574.
    Morgan & McFarland, for plaintiff in error.
    Blum & Blum, for defendant in error.

      Abstract of the Decision.
    1. Fraud, § 131

      —when evidence is sufficient to support instruction on. Evidence held sufficient to support an instruction on the question of fraud, in garnishment proceedings to recover a debt.
    2. Garnishment, § 100*—when evidence is sufficient to sustain verdict for plaintiff. Evidence held sufficient to sustain a verdict for the plaintiff, in garnishment proceedings to recover a debt.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    L. N. LaBouy and Jacob Wersching, copartners, trading as LaBouy & Wersching, Defendants in Error, v. August Marten and Marie Marten, Plaintiffs in Error.
    Gen. No. 22,133.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by L. N. LaBouy and Jacob Wersching, partners, trading as LaBouy & Wersching, plaintiffs, against August Marten and Marie Marten, his wife, defendants, to recover commissions as real estate brokers arising out of a certain real estate transaction. From a judgment for plaintiffs, defendants bring error.
    John V. Clinnin, for plaintiffs in error.
    Lyman, Adams & Bishop, for defendants in error; Spencer L. Adams, of counsel.

      Abstract of the Decision.
    Brokers, § 90

      —when evidence is insufficient to show procurement of purchaser. In an action to recover a real estate broker’s commission, evidence 'held insufficient to show plaintiffs procured a purchaser for defendants’ property who was ready, willing ai4 able to buy same, the prospective purchaser testifying that he was dependent upon another party furnishing the funds for such par-chase and there being no evidence as to such other party’s ability or willingness to furnish such funds.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Max Cohn et al., Defendants in Error, v. Morris Cohen, Plaintiff in Error.
    Gen. No. 22,151.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by Max Cohn and others, plaintiffs, against Morris Cohen, defendant, to recover for services rendered in moving defendant’s furniture, in which defendant’s affidavit of merits charged plaintiffs with negligence in such moving and damages resulting therefrom to a certain amount, and a mutual agreement of settlement of all claims by release and discharge arising out of the transaction. From a judgment for plaintiffs, defendant brings error.

      Abstract of the Decision.
    1. Contracts, § 385

      —when evidence is insufficient to sustain verdict for plaintiffs in action to recover for services rendered. In the absence of any evidence offered by the plaintiffs in support of their action, and upon the uncontradicted evidence offered by the defendant in support of his defense, held that a judgment for the plaintiffs was erroneous in an action to recover for services rendered in moving furniture.
    2. Contracts, § 70*—what is valid consideration for promise. A promise constitutes a valid consideration for a promise.
    B. M. Shaffner, for plaintiff in error.
    Isidore Fried, for defendants in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Washingtonian Home of Chicago, Appellee, v. City of Chicago, Appellant.
    Gen. No. 23,025.
    (Not to be reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Suit by Washingtonian Home of Chicago, a corporation, complainant, against the City of Chicago, defendant, to enjoin the enforcement against complainant of a certain ordinance of the defendant requiring the installation in ndnfireproof buildings more than two stories in height of certain fire apparatus. From an interlocutory order of injunction against the defendant, defendant appeals.
    Abstract of the Decision.
    1. Injunction, § 190

      —when bill insufficiently alleges financial inability of complainant to comply with ordinance as to fire apparatus in building. The allegations in complainant’s bill held to be insufficient to show complainant’s financial inability to comply with defendant’s ordinance requiring certain fire apparatus in certain buildings of the class to which complainant’s building belonged.
    2. Injunction, § 185*—what allegations of irreparable damage are necessary. General allegations only of irreparable damage as a basis for an injunction are insufficient; the bill should recite facts and circumstances from which it clearly appears irreparable injury will follow unless the injunction is granted.
    3. Injunction, § 185*—when averment in bill does not ipso facto imply irretrievable damage. The averment in a bill for an injunction that the defendant has threatened and continues to threaten to close complainant’s building if a certain ordinance applicable to such building is not complied with by complainant, does not ipso facto imply irretrievable damage.
    Samuel A. Ettelson, for appellant; Morton S. Cresst, Daniel Webster and Wilbur F. Hartman, of counsel.
    A. W. Martin and Edward H. S. Martin, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


author: Mr. Justice McGoorty

text:
    Estelle Bloomer, Plaintiff in Error, v. Louis H. Verrick and Anton J. Cermak, Bailiff, Defendants in Error.
    Gen. No. 21,549.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Execution, § 127

      —when evidence is sufficient to show that property levied upon was copartnership property. The evidence held to sustain, the finding that certain property levied upon was the copartnership property of the plaintiff and her husband, in an action for trial of the right to such property.
    2. Execution, § 128*—what does not constitute a determination that property belongs to defendant in execution. On a trial of right of property, a finding that the property levied upon is partnership property does not determine that the property belongs to an individual partner, the defendant in execution.
    Error to the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by Estelle Bloomer, plaintiff, against Louis H. Verrick and Anton J. Cermak, bailiff of the Municipal Court of Chicago, defendants, for trial of right of property taken on execution issued upon a judgment in favor of Verrick against Matthew Bloomer. From a judgment for defendants, plaintiff brings error.
    Francis E. Croarkin, for plaintiff in error.
    William F. Ader, for defendants in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Frank S. Kahlo, Plaintiff in Error, v. Lucy A. Kahlo, Defendant in Error.
    Gen. No. 21,809.
    1. Marriage, § 1

      —what constitutes marriage within one year of time of granting of divorce. Where the defendant was granted a decree of divorce during the forenoon of June 6, 1913, and was married to the complainant at 5 o’clock p. m., June 6, 1914, held that such marriage was within the provision of the statute prohibiting marriage “within one year from the time” a decree of divorce from a prior marriage was granted, in a suit for annulment of marriage under such provision, as the first day should be excluded, and the last included.
    2. Time, § 1*—how computed in statutes. The general rule for the computation of time under a statute is to exclude the first day and include the last day.
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed March 20, 1917.
    Joseph E. Burees, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.

In this case the parties hereto were married at 5 p. m., June 6, 1914. Defendant in error was previously granted a decree of divorce from a certain Eoy P. Wilcox during the forenoon of June 6, 1913. Plaintiff in error (hereafter called complainant) filed a bill seeking to annul said marriage, on the ground that same had been performed within the period prohibited by statute, viz., “within one year from the time the decree was granted.” Defendant in her answer admits that she was divorced and subsequently married on the respective dates aforesaid but contends that such marriage was not within the prohibited time. She also filed her cross-bill, alleging cruelty, and seeking separate maintenance. A decree was entered dismissing complainant’s bill and granting defendant separate maintenance in accordance with the relief prayed for in her cross-bill. The main question presented for determination is, did defendant marry complainant within one year from the time the decree of divorce was granted? We construe the statute as requiring computation of time in accordance with the general rule which excludes the first and includes the last day of the period, and that the one year must be computed from the date of the entry of decree. Ewing v. Bailey, 5 Ill. (4 Scam.) 420; Waterman v. Jones, 28 Ill. 54; White v. Jones, 38 Ill. 159; Bowman v. Wood, 41 Ill. 203; Protection Life Ins. Co. v. Palmer, 81 Ill. 88; Bigelow v. Willson, 1 Pick. (Mass.) 494; Bemis v. Leonard, 118 Mass. 502; Cornell v. Moulton, 3 Denio (N. Y.) 12; Sheets v. Selden’s Lessee, 2 Wall. (U. S.) 177,189; Cummins v. Holmes, 11 Ill. App. 158.

In Seward v. Hayden, 150 Mass. 158, 5 L. E. A. 844, the court said:

“In computing time under statutes and contracts, the law disregards fractions of a day, unless, on account of the subject-matter or for other important reasons, justice requires that they should be regarded. * * *

“In reckoning from a day or a date the rule gen- ' erally adopted excludes the day from which the reckoning runs. Many early cases stated a distinction between computations from a day or a date and computations from an act done or from an event. But this distinction does not rest upon a sound principle, and in most jurisdictions it is no longer recognized. The tendency of recent decisions is very strongly towards the adoption of a general rule which excludes the day at the terminus a quo in such cases. But this rule is not inflexible, and in the interpretation of a statute or contract it yields to a manifest purpose or intention •in conflict with it.”

In Judd v. Fulton, 10 Barb. (N. Y.) 117, it was held that where one is prohibited from doing an act until after the expiration of a designated time, as thirty days, he cannot do it until the next day after the whole thirty days have expired. Under such rule for computation of time, which is supported by the greater weight of authority, defendant was married within one year from the time the decree was granted and therefore married contrary to the statute in question.

We are of opinion that the court erred in dismissing complainant’s bill, and in granting defendant relief upon her cross-bill. The decree of the Superior Court is reversed and the cause remanded with directions for further proceedings in conformity with this opinion.

Reversed and remanded with directions.


text:
    John M. Glenn, Appellant, v. Andrew M. Lawrence and Roy D. Keehn, Appellees.
    Gen. No. 21,853.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by John M. Glenn, plaintiff, against Andrew M. Lawrence and Boy D. Keehn, defendants, for malicious prosecution. From a judgment for defendants on a directed verdict at the close of plaintiff’s evidence, plaintiff appeals.
    Abstract of the Decision.
    1. Malicious pbosecution, § 74

      —what plaintiff must prove. To maintain an action for malicious prosecution, the plaintiff must show that the defendants acted from malicious motives in prosecuting him and that the defendants had no sufficient reason to believe him guilty, and the action must fail if either of these elements is wanting.
    2. Malicious pbosecution, § 75*—how want of probable cause must be proved. The want of probable cause, though negative in character, must be proved by the plaintiff by some affirmative evidence, in an action for malicious prosecution.
    3. Malicious pbosecution, § 75*—what evidence is sufficient to establish want of probable cause. Slight evidence will usually suffice in establishing a want of probable cause, in an action for malicious prosecution.
    4. Malicious pbosecution, § 7*—what constitutes probable cause. Probable cause which will relieve a prosecution from liability consists in the party’s belief in the guilt of the accused based on circumstances sufficiently strong to evidence such belief in the mind of a reasonable and cautious man.
    5. Malicious pbosecution, § 75*—when evidence tends to show that defendants acted upon probable cause in swearing to complaint for criminal libel. In an action for malicious prosecution, where the evidence tended to show that the defendants had sworn to a complaint against the plaintiff charging the latter with criminal libel after the State’s Attorney had caused his assistant to examine the alleged libelous publication and report thereon, and that the judge of the court to whom such complaint was presented had indorsed thereon that he had examined the complaint and was satisfied there was probable cause for filing the same, and that upon dismissal of such complaint a further complaint was presented on the same charges to another judge and later to the grand jury, held that such facts tended to show the defendants had acted upon probable cause in swearing to said complaint.

      Zane, Morse & McKinney, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellees.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

6. Malicious prosecution—what is issue in action for in prose-outing for criminal libel. The question to be tried in an action for malicious prosecution for criminal libel is not whether the plaintiff was guilty of criminal libel but whether the defendants had reasonable grounds to believe and did actually believe the plaintiff guilty.

7. Malicious prosecution, § 75 —what is not evidence of want of probable cause in instituting a criminal prosecution. The voluntary dismissal of a criminal prosecution is not evidence of want of probable cause in instituting it, in an action for malicious prosecution, even though such dismissal was at the instance of the prosecuting witness.

8. Malicious prosecution, § 75*—what is not prima facie evidence of want of probable cause in arraignment of accused. The discharge of the accused by an examining magistrate is not prima facie evidence, in an action for malicious prosecution, of a want of probable cause in his arraignment.

9. Malicious prosecution, § 75*—what is not evidence of want of probable cause in presentment of indictment. The return of a “no bill” by a grand jury is not evidence of want of probable cause in the presentment to it of an indictment, in an action for malicious prosecution.

McDonald, J., concurring specially.


text:
    Mary Hoffman, by Apolonia Hoffman, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,026.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1410

      —when verdict not disturbed as against weight of evidence. The verdict in favor of the plaintiff in an action against a street railroad to recover damages for personal injuries, held not to be against the manifest weight of the evidence, as the jury were in better position than the Appellate Court to determine from the age, intelligence and experience of the plaintiff, together with the other facts and circumstances in evidence, whether plaintiff was in the exercise of ordinary care, and whether the defendant’s servants in the operation of the car which caused plaintiff’s injuries were negligent at and before the time in question.

      Appeal from the Superior Court of Cook county; the Hon. Frank E. Shopen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 20, 1917.
    Rehearing denied April 2, 1917.
    Statement of the Case.
    Action by Mary Hoffman, a minor, by Apolonia Hoffman, her next friend, plaintiff, against Chicago Railways Company, a corporation, defendant, to recover damages for injuries received by plaintiff while walking across a public highway by being struck by a street car owned and operated by defendant. From a judgment for plaintiff for $1,500, defendant appeals.
    Thomas J. Symmes and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    James D. Power, for appellee.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

2. Damages, § 205 —when instruction referring to declaration is not reversibly erroneous. In an action to recover damages for personal injuries, where the declaration alleged such injuries would disable the plaintiff for the rest of her life from attending to her affairs and business, but no attempt was made to establish a basis for damages except for suffering, and the plaintiff’s attending physician testified there was no permanent injury, held that there was no reversible error in giving an instruction as to estimating the amount of damages if the jury should find that the plaintiff had sustained damages “as charged in the declaration.”

3. Damages, § 129*—when verdict for personal injuries is not excessive. In an action to recover damages for personal injuries, where the plaintiff received a fracture of the neck of the right humerus, with, a union of the fragments of the bone at the point of fracture, and there was three years later, at the time of trial, some limitation of motion, held that a verdict for $1,500 damages was not excessive.


text:
    Gustave A. Oehler, Plaintiff in Error, v. Charles Brand, Defendant in Error.
    Gen. No. 22,046.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action of replevin by Gustave A. Oehler, plaintiff, against Charles Brand, defendant, to recover certain chattels. From a judgment for defendant upon a directed verdict at the close of plaintiff’s evidence, plaintiff brings error.
    Defendant executed to plaintiff a mortgage upon the goods sought to he replevied as security for payment of defendant’s promissory note to plaintiff for three hundred and sixty dollars. The note and mortgage were placed in escrow with a certain party who was to deliver same to plaintiff when so directed by both plaintiff and defendant. He delivered same to plaintiff without defendant’s knowledge, direction or consent.
    Abstract of the Decision.
    1. Escrows, § 13

      —when delivery 'of note and mortgage held in escrow is ineffectual to pass title. Delivery of a note and chattel mortgage, held in escrow by a party, to the payee and grantee, contrary to the condition upon which such party held same, is ineffectual to pass title to such note and chattel mortgage to such payee and grantee.
    2. Escrows, § 7*—when chattel mortgage held in escrow becomes operative. A chattel mortgage held in escrow cannot become operative until all the conditions of the escrow agreement are complied with.
    Litzinger, McGurn & Reid, for plaintiff in error.
    Harry C. Levinson, for defendant in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Louis Goldstein, Defendant in Error, v. Domonick Marubio and James L. Morris, Plaintiffs in Error.
    Gen. No. 22,058.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 91

      —What constitutes rescission of sale and acquiescence therein. In an action of replevin against two defendants for possession of a certain wagon which one defendant had sold to the plaintiff, and upon plaintiff’s failure to complete payment for same had taken possession thereof, and nine or ten months later had sold and delivered the wagon to his codefendant, who had no knowledge of any claim thereto by the plaintiff, held that there was a rescission of the sale to plaintiff in which he acquiesced, and that he was consequently not entitled to maintain the action.
    Error to the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action of replevin by Louis Goldstein, plaintiff, against Domonick Marubio and James L. Morris, defendants, to recover a certain wagon. From a judgment for plaintiff, defendants bring error.
    D. K. Cochrane, for plaintiffs in error.
    Morris Kompel, for defendant in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Philip K. Russell, Defendant in Error, v. George S. Cochran, Plaintiff in Error.
    Gen. No. 22,087.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 8

      —what is jurisdiction of in cases of fourth class. In cases of the fourth class, the Municipal Court of Chicago has jurisdiction in actions in debt as well as in contract.
    2. Municipal Court of Chicago, § 29*—when presumed that trial court acted in accordance with rules of in entering judgment. In the absence of the rules of the Municipal Court of Chicago properly before the Appellate Court, it will be presumed that the trial court acted regularly and in accordance with its rules in entering judgment upon the claim before it.
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Rehearing denied March 30, 1917.
    Statement of the Case.
    Action by Philip K. Bussell, plaintiff, against George S. Cochran, defendant, upon a foreign judgment for the recovery of money. From a judgment by-default for plaintiff for $962.33, and denial of a motion to vacate the judgment and for leave to defend, defendant brings error.
    Carl W. Kellman, for plaintiff in error.
    Albert H. Meads and Victor B. Scott, for defendant in error.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

3. Judgment, § 132 —when trial court does not abuse its discretion in refusing to set aside default and vacate judgment. Where an affidavit filed in support of a motion to vacate a default judgment failed to show any diligence or any reason why the party did not appear in court when summoned, held that the court did not abuse its discretion in refusing to set aside the default and vacate the judgment, even though such party may have had a meritorious defense.


author: Mr. Presiding Justice McSurely

text:
    Herman Hollatz et al., Appellants, v. Frederick H. Gerberding et al., Appellees.
    Gen. No. 22,702.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Suit by Herman Hollatz and others, complainants, against Frederick H. Gerberding and others, defendants, to enjoin the building of a certain garage contrary to a certain city ordinance as to location of garages. From a decree dismissing the bill for want of equity, complainants appeal.
    Robert C. Bennett and Wentworth, Cavender & Kaiser, for appellants; Daniel S. Wentworth, Harvey L. Cavender and C. A. Coolidge, of counsel.
    Miller, Gorham & Wales, for appellees.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Building restrictions and regulations, § 1 —when building not used for business purposes. A flat building should not be considered as used for business within a building ordinance, because a physician, occupying one of the apartments, received and treated patients therein, or had his name in the window.

2. Building restrictions and regulations, § 1*—when building fronts on street. A building located upon a corner of a block with an entrance upon one street only should properly be considered as fronting upon both streets, within a building ordinance.

3. Building restrictions and regulations, § 1*—how ordinance construed as to consent of majority of property owners and as to residential character of buildings. Where an ordinance prohibited garages in blocks, wherein two-thirds of the buildings on both sides of the street were used exclusively for residence purposes or within one hundred feet of any such street, without the consent of a majority of the property owners on both sides of such street according to the frontage, and provided that a building fronting upon another street and located upon a corner lot should not be considered in determining such two-thirds of the residence buildings, held that buildings on corner lots should not be considered in determining the residential character of buildings but should be in obtaining the consents of owners.

.


text:
    H. Kalven, Appellee, v. Isaac Stein, Appellant.
    Gen. No. 22,729.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 373

      —when evidence is sufficient to show sale of goods to he paid for after delivery and checking. Evidence held sufficient to warrant the finding that defendant agreed to sell to plaintiff a certain quantity of goods at a certain price per dozen, to be paid for when delivered and “checked up,” in an action to recover damages for breach of such agreement.
    2. Sales, § 160*—when tender of payment must he made. Where defendant agreed to sell plaintiff a certain quantity of goods at a certain price per dozen, to be paid for when delivered and counted, held that plaintiff was not bound to make tender of payment until the goods were delivered and counted. .
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by H. Kalven, plaintiff, against Isaac Stein, defendant, to recover damages for breach of defendant’s contract to sell plaintiff a quantity of men’s underwear. From a judgment for plaintiff for $148.75, defendant appeals.
    Delbert A. Clithero, for appellant.
    M. L. Carmody, for appelleee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    David B. Jones, Appellant, v. Renault Selling Branch, Appellee.
    Gen. No. 22,732.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 367

      —when instruction on burden of proof in action to recover payment made on purchase price of automobile is erroneous. In an action to recover money paid on the purchase of a new automobile, where the plaintiff claimed that the chassis of the car delivered was not new, held that an instruction that the plaintiff had the burden of showing that the chassis was “a used and second-hand chassis,” and that unless he so showed he could not recover, was erroneous, as from the evidence the jury could reasonably understand that “a used and second-hand chassis” was one that had been sold or used by a purchaser, which was not the charge made, and as such instruction omitted the important elements of age and wear.

      Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by David B. Jones, plaintiff, against Renault Selling Branch, a corporation, defendant, to recover a deposit of $1,500 made on a contract for the purchase of an automobile which, after inspection, plaintiff refused to accept. From a judgment for defendant, plaintiff appeals.
    Kelly, Hale, Dammann & Coolidge, for appellant; J. F. Dammann, Jr., of counsel.
    Burry, Johnstone & Peters, for appellee; G. M. Peters, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Sales, § 114 —what does not constitute performance of contract for sate of a new automobile. Where defendant agreed to sell plaintiff a new automobile, held that he could not avoid his obligation by furnishing a car worn by showing it to prospective purchasers or moving it from place to place for providing equipment “and similar purposes,” as such use alone might so wear a car as to materially impair its operation.

3. Sales, § 357*—when instruction on right of recovery in action to recover money paid on purchase of new automobilé is erroneous. In an action to recover money paid on the purchase of a new automobile based upon a claim that the car furnished was, from age and wear, from whatever cause, not new, held that an instruction that even if the uses wore the automobile to the breaking point the plaintiff could not recover was erroneous, as if the jury should believe that the use and wear had been shown to be more than reasonably should be in a new car of the kind and price, plaintiff would be entitled to recover.

4. Pleading, § 1*—what time governs as to determination of rights of parties. Where no supplemental pleadings are filed, the rights of the parties must be determined according to the facts existing at the time the action was commenced.


text:
    John Yangas, Appellant, v. Max Weinschenk et al., Appellees.
    Gen. No. 22,736.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Partnership—when evidence is sufficient to show termination of. Evidence held sufficient to warrant the finding that the co-partnership formerly existing between certain three defendants was terminated prior to the recovery of a pertain judgment against one of them, and that such one had thereafter no interest in the copartnership or in its funds except as an employee.

      Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Creditor’s bill by John .Yangas, complainant, against Max Weinschenk, John Shuerger, John I. Bartley and the North Side State Savings Bank, defendants, on a judgment recovered by complainant against the defendant Weinschenk. From a decree dismissing the bill; complainant appeals.
    Weinschenk was alleged to be the owner of an undivided one-third interest in the Dearborn Baking Company, which kept its bank account with the defendant bank, and the bank admitted a deposit to the credit of that company. The other defendants denied that Weinschenk was a copartner in the company, which was a copartnership. The suit was referred to a master, who recommended dismissal of the bill, and exceptions to his report were overruled and the bill dismissed for want of equity.
    Edwin White Moore, for appellant.
    Landon & Holt and Albert A. Kraft, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Partnership, § 259*—when evidence is sufficient to show- that partnership was not indebted to retiring partner. On a creditor’s bill on a judgment against a retiring member of a partnership, evidence held sufficient to show that the partnership was not indebted to the partner at the time of the commencement of the suit


text:
    James C. Benes, Appellee, v. Bankers Life Insurance Company of Nebraska, Appellant.
    Gen. No. 33,739.
    1. Insurance, § 583

      —when special plea alleging lapse of life policy is bad. In an action to recover on a life insurance policy, a special plea alleging that the policy had lapsed by failure to pay a premium due on a certain date, held bad on demurrer, because for aught appearing therein such premium was not due until after the insured’s death, and also because the forfeiture was conditioned in the policy upon “failure to pay premiums.”
    2. Insurance, § 583*-—what is better practice in presenting issue of forfeiture. The better practice in presenting an issue of forfeiture of an insurance policy is by a special plea.
    3. Insurance, § 583*—when immaterial whether special plea of forfeiture is good or bad. Unless the court rejects evidence of a special plea of forfeiture of a life insurance policy, when offered under the general issue, it is not material whether the plea is good or bad.
    4. Insurance, § 611*—what premiums plaintiff must prove payment of. In an action to recover on a life insurance policy, the plaintiff is not bound to prove the payment of- all premiums but only that of the first, in some form.
    5. Insurance, § 659*—what constitutes prima facie proof of payment of first premium. Delivery of a life insurance policy and its possession by the insured is prima facie proof of payment of the first premium.

      6. Insurance, § 611

      —when insurer must prove default in payment of premiums. Default in payment of a life insurance premium after the first which avoids or forfeits the policy is a defense which must be proved by the insurer.
    7. Evidence, § 34*—when continuance of existence of subject-matter or relation presumed. Where the existence of a particular subject-matter or relation has once been proved its continuance is presumed until proof is given to the contrary.
    8. Insurance, § 384*—when formal objections by insurer deemed waived. Where an insurance company after a loss places its refusal to pay upon some ground not affecting the merits of the case, as want of proper notice, all other formal objections, as proof of death, not then complained of or pointed out will be regarded as waived.
    9. Insurance, § 582*—when plea insufficient. In an action by the party holding the legal title to recover on an insurance policy, a plea that some other person had the equitable title, held not to state a sufficient defense.
    10. Insurance, § 660*—what constitutes prima facie case in action on life policy. In an action to recover on a life insurance policy, introduction of the policy and evidence of waiver of proofs .of death, held to make a prima facie case.
    11. Evidence, § 165*—what constitute self-serving statements. In an action on an insurance policy, held that letters of the defendant tending to show nonpayment of a premium could not be availed of by him, as they were self-serving statements.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    E. I. Frankhauser, for appellant; C, Petrus Peterson and Richard H. Colby, of counsel.
    D. Ryan Twomey, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is a suit upon an insurance policy on the life of Edward J. Benes, brought by his brother, the only surviving heir. Upon trial by the'court plaintiff had judgment for $1,270.84, from which defendant appeals.

Defendant filed the plea of general issue and a number of special pleas. By one of these it was asserted that the policy had lapsed by reason of the failure of Edward Benes, the insured, to pay a premium due January 12, 1911. To this a demurrer was filed and sustained. We hold that the demurrer was properly sustained for the reason that (1) for aught that appears in the plea the premium which it was alleged had not been paid was not due "until after the death of the insured, and (2) a forfeiture of the policy is conditioned upon “failure to pay premiums.” Construing this strictly, as we must, the nonpayment of one premium would not be sufficient ground for forfeiture.

It is argued by defendant’s counsel that the only manner in which the issue of forfeiture can be presented is by special plea; this has been the practice in this State; and we are inclined to think it is the better practice, although we are referred to no authority holding definitely that a forfeiture for failure to pay premiums may not be proven under the plea of general issue. However, defendant did not offer any evidence of forfeiture upon the trial. It has been held that unless the court rejected evidence of the defendant’s plea when offered under the general issue, it is not material whether the special plea was good or bad. Travelers’ Preferred Acc. Ass’n v. Moore, 58 Ill. App. 634, and cases therein cited.

Upon the trial defendant seems to have proceeded upon the theory, which is urged upon us, that as plaintiff failed to prove the payment of all premiums upon the policy accruing before the death of the insured the claim must fall. We do not agree with this contention, and the cases cited in support thereof do not so decide. This court is in accord with the concurring opinion of Mr. Justice Brown and Mr. Justice Adams appearing in Globe Mut. Life Ins. Ass’n v. March, 118 Ill. App. 261. It was there said, in substance, that payment of the first premium must be proven in some form by the plaintiff, but the delivery of the policy by the insurer and its possession by the insured is prima facie proof of this payment, and that default in subsequent payments which avoids or forfeits the policy is a defense which must be proven by the insurer. We see no reason to depart from the general rule that the burden of proving any forfeiture of a contract once entered into is upon the party claiming it, for it is a general rule that when the existence of a particular subject-matter or relation has once been proved its continuance is presumed until proof be given to the contrary. Schroeder v. Trade Ins. Co. of Camden, 109 Ill. 157, 163.

The defense of failure of proof of death is without merit, for the reason that the defendant based its refusal to pay solely upon the ground of a lapse in the policy, and by so doing waiVed formal proofs of death. “It is well settled, that where an insurance company, after a loss has occurred, places its refusal to pay upon some ground not affecting the merits of the case, as, for instance, want of proper notice, all other formal objections not then complained of or pointed out will be regarded as waived.” Continental Life Ins. Co. v. Rogers, 119 Ill. 474, 487; also Supreme Lodge C. M. P. v. Meister, 204 Ill. 527.

The plea that some other person had the equitable title did not state a sufficient defense; plaintiff had the legal title, which permitted him to bring the suit. Illinois Conference v. Plagge, 177 Ill. 431.

Plaintiff made out a prima facie case by the introduction of the policy and evidence of waiver of proofs of death. Statements in the letters of the defendant tending to show the nonpayment of a premium cannot be availed of by the defendant, as these are self-serving statements.

No evidence was offered in defense, and the court was justified in its finding and judgment. The judgment is affirmed.

Affirmed.


text:
    A. H. Baker, Appellant, v. William R. Morrison, Appellee.
    Gen. No. 22,745.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Physicians and stjegeons, § 29

      —when evidence sufficient to sustain claim, of recoupment. In an action by a veterinarian for services, evidence held sufficient to sustain defendant’s claim of recoupment, tending to show loss of a number of defendant’s horses from lack of attention by plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    Statement of the Case.
    Action by A. H. Baker, plaintiff, against William B. Morrison, defendant, to recover a balance claimed to be due for professional services as a veterinary surgeon rendered to horses belonging to defendant, pursuant to a contract. From a judgment for plaintiff for one dollar, plaintiff appeals.
    Defendant claimed in defense that plaintiff had negligently failed to perform the contract, thereby causing defendant’s horses to suffer and die, with resultant damages.
    Samuel B. Hill and William Scott Stewart, for appellant.
    George L. Turnbull, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Appeal and error, § 1327 —when propriety of judgment is presumed. Where the abstract failed to show whether a defendant’s claim was in set-off or recoupment, held that the propriety of the judgment for plaintiff for one dollar would be presumed.

3. Appeal and error, § 1575*—when judgment not reversibly erroneous. A judgment for so small an amount as one dollar held not reversible for a technical error.


text:
    City Engineering Construction Company, Appellant, v. Frank Loeffler and William E. McCarthy, Appellees.
    Gen. No. 22,750.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. P. C. Walters, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by City Engineering Construction Company, a corporation, plaintiff, against Frank Loeffler and William E. McCarthy, defendants, to recover damages for alleged breach of a building contract. From a judgment for defendants, plaintiff appeals.
    Walter H. Eckert, for appellant.
    F. F. Tollkuehn, for appellees.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Building and construction contracts, § 85 —what is bar to recovery by contractor. Where the plaintiff by contract agreed to erect for the defendants certain buildings and to procure building loans therefor, held that his failure to procure such loans would be a bar to his recovery for a breach of the contract by the defendants.

2. Building and construction contracts, § 103*—when evidence is sufficient to show failure of contractor to procure loans. In an action by a contractor to recover for alleged breach of a building contract, evidence held sufficient to sustain the finding that plaintiff had failed to prove its readiness and ability to procure certain loans which it had contracted with defendants to procure.


text:
    Standard Brewery, Appellee, v. Patrick I. Creedon, Appellant.
    Gen. No. 22,753.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Suit by the Standard Brewery, a corporation, complainant, against Patrick I. Creedon, defendant, for reformation or cancellation of complainant’s alleged guaranty of the covenants of a certain lease, and to enjoin the prosecution of a certain action at law thereon brought by the defendant, to which defendant filed his cross-bill praying for damages under the guaranty. From a decree that the guaranty be canceled and complainant discharged from all obligations thereunder and defendant be perpetually enjoined from the prosecution of the pending action or any other on the guaranty, defendant appeals.

      Abstract of the Decision,
    Landlord and tenant, § 437

      —when lessee continuing in possession after expiration of term is not trespasser. Where the tenant under a lease remained in possession after the expiration of the lease for a term of years according to its provisions pending the fixing by appraisers of the amount of rental to be paid for a subsequent period, in accordance with the provisions of a written agreement entered into between the lessor and lessee prior to the original lease, and the lessor received payment on account of rents for such subsequent period and brought suit to enforce security given for the payment of such rents, held that such lessee was not a trespasser in continuing in possession of the premises but was a tenant.
    Joseph P. Mahoney, for appellant; J. Kentner Elliott, of counsel.
    Castle, Williams, Long & Castle, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.