text:
    Mary L. Peasler, Appellee, v. Edith Tenley Norton, Appellant.
    Gen. No. 20,196.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Action in assumpsit by Mary L. Peasler against Edith Tenley Norton to recover the sum of $790 claimed to be due for services rendered. The following bill of particulars was filed in the case:
    “Bill of particulars: This action is brought to recover, viz: To services performed by plaintiff for defendant, at her request:

      1909 ) Fifteen (15) trips to Mr. Trainor’s 1910 ) office at Five Dollars ($5.00) per 1911 ) trip ,$ 75.00
    Dec. ) Six (6) days at "Galesburg, Illinois 1910 ) at request of defendant, at Twenty-five dollars ($25.00) per day 150.00
    Feb. ) Fifteen (15) days at Galesburg, Illi1911 ) nois, at request of defendant, at ) Twenty-five Dollars ($25.00 per day 375.00
    May ) Six (6) days at Janesville, Wiscon 1911 ) sin, at request of defendant, at ) Twenty-five Dollars ($25.00) per day 150.00
    Mar. ) Twenty (20) professional calls Apr. ) 1911) at request of defendant, at May ) Two Dollars ($2.00) per call 40.00
    $790.00”
    On the trial the plaintiff introduced evidence only as ' to the following items of the bill of particulars:
    “Ten (10) trips to Mr. Trainor’s office at Five Dollars ($5.00) per trip $ 50.00
    Sixteen (16) days at Galesburg, Illinois, at request of defendant, at Twenty-five ($25.00) per day. 400.00
    Four (4) days at Janesville, Wisconsin, at request of defendant, at Twenty-five ($25.00) per day. 100.00
    Fifteen (15) professional calls at request of defendant, at Two Dollars ($2.00) per call. 30.00
    $580.00”

      Abstract of the Decision.
    1.' New trial., § 115

      —when denial on remittitur proper. Where, upon a motion for a new trial after a verdict for plaintiff for somewhat less than the amount of her claim, the trial court held that an item of plaintiff’s claim had been improperly submitted to the jury, its action in permitting the plaintiff to remit the amount of the objectionable items and thereupon deny a new trial, upon the assumption that the jury allowed an item properly submitted as well as the improper item, was not erroneous, where from the items of plaintiff’s claim and the amount of the verdict the court was able to determine with reasonable certainty what items were included in the verdict.

      All of the above items of the plaintiff’s claim were submitted to the jury, although the defendant contended that it was improper to submit the “Gales-burg claim” item to the jury for the reason that the alleged contract relating to the same was against public policy and void. On the motion for a new trial, the trial court assumed that the jury by its verdict of $500 allowed the plaintiff $400 for the “Galesburg claim” item and $100 for the “Janesville claim” item and disallowed the other two items of the plaintiff’s claim, and the court held that it was error to submit the “Galesburg claim” item to the jury for the reason that the alleged contract between the plaintiff and defendant in reference to the “Galesburg claim” was against public policy and void, and the court stated that if the plaintiff wonld remit $400 from the amount of the verdict, he would overrule the defendant’s motion for a new trial and enter judgment for $100, and over the objection of the defendant, the plaintiff was allowed to enter a remittitur for $400 and thereupon the motion for a new trial was overruled and judgment was entered in favor of the plaintiff for $100, from which defendant appeals.
    Charles J. Trainor, for appellant.
    No appearance 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 Scanlan

delivered the opinion of the court.

2. Contracts, § 384 —when verdict not against weight of evidence. In an action for services claimed to have been performed under an express contract, a judgment allowing one of the items of plaintiff’s claim held not against the weight of evidence.


source: Caselaw Access Project

author: Mr. Justice Scahlah delivered

license: Public Domain

text:
    G. Dette, Defendant in Error, v. Millie Pope, Plaintiff in Error.
    Gen. No. 20,247.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBut, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and judgment here with finding of facts.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Action by Gr. Dette against Millie Pope to recover the sum of $137.50 claimed to be due the plaintiff as commission for the sale of certain property owned by defendant. Prom a judgment for plaintiff for $91.67, defendant brings error. Plaintiff also assigns cross-error upon the action of the court in entering judgment for but $91.67 instead of the full' amount claimed, in view of the fact that there was no dispute as to the amount, if the plaintiff was entitled to recover at all.
    Saltiel & Rossen, for plaintiff in error.
    Jones, Kerner & Posvic, for defendant in error; DeWitt C. Jones, of counsel.

      Abstract of the Decision.
    1. Judgment, § 205

      —conformity to evidence in amount. Where in an action by a real estate broker to recover commission for the sale of property owned by defendant, the plaintiff made out a clear prima facie case, and the amount he was entitled to recover, if he was entitled to recover at all, was not disputed, the action of the court in entering judgment for less than that amount on the strength of an offer which plaintiff had made to settle for less than the amount claimed, which offer had not been accepted by defendant, was erroneous.
    2. Appeal and error, § 1810*—when judgment entered in Appellate Court. Where on a writ of error by defendant from a judgment against him plaintiff’s cross-errors complained of the action of the court in entering judgment for less than the amount which the undisputed evidence showed he was entitled to recover, if entitled to recover at all, the Appellate Court on finding that plaintiff was entitled to recover the full amount claimed will enter judgment for the proper amount without remanding.

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

   Mr. Justice Scahlah delivered

the opinion of the court.


author: Mr. Justice Pam

text:
    Simon Sleph et al., trading as Sleph, Sandrowitz & Goldblatt, Plaintiffs in Error, v. E. Grossman et al., trading as Grossman Brothers, Defendants in Error.
    Gen. No. 20,114.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Pbindivilhe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 12, 1915.

      Statement of the Case.
    Attachment suit instituted in the Municipal Court of Chicago by Simon Sleph, Jacob Sandrowitz and Abe Goldblatt, copartners trading as Sleph, Sandrowitz & Goldblatt, against F. Grossman, Joe Grossman and B. Weinberg, trading as Grossman Brothers. The affidavit for attachment upon which the writ was issued was filed on the 27th day of May, 1913, the ground for attachment being nonresidence of the defendants. On the same day plaintiffs caused to be served as garnishees the Goodrich Transportation Company, which filed its answer on June 7th, stating that it had certain property in its possession belonging to the defendants. Thereafter steps were taken to obtain service on the defendants by publication. On June 17th defendants entered a special appearance by their attorneys, solely for the purpose of moving to quash the writ of attachment, which motion, however, was overruled; and on the same day leave was granted plaintiffs to filé an amended affidavit of attachment instanter, which was done and an order entered upon the defendants to file an affidavit of merits within ten days. This amended affidavit of attachment stated that the defendants were indebted to the plaintiffs in the sum of $545.18, being an overpayment on a draft drawn by defendants upon the plaintiffs; and attached to said affidavit, and made a part thereof, was a detailed statement showing how this amount was arrived at.
    On July 29th defendants filed an affidavit of merits and claim of set-off. This affidavit was sworn to by Frank Grossman, a member of the defendant firm. Therein he denied that the defendants were in any wise indebted to the plaintiffs, and furthermore set forth affirmatively that the plaintiffs had promised to pay the defendants the sum of $1,857.82, and that after allowing plaintiffs credit for the payment made there was a balance still due of $160.79. By leave of court, this affidavit was withdrawn and an amended affidavit of merits and claim of set-off was filed, which simply went into greater detail regarding the transactions between the parties.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 8

      —when action commenced by attachment not for unliquidated damages. An action to recover an alleged overpayment on a purchase by plaintiff commenced by attachment is improperly dismissed by the Municipal Court as being an action to recover unliquidated damages, where the matter in dispute was not the value of material purchased by plaintiff from defendant but whether it was of the character described in the contract between the parties, the basis for determining the value being undisputed.

      To this amended affidavit of counterclaim and set-off plaintiffs were ordered to file an affidavit of merits, which they did on August 22,1913. On the trial of the ease before the court without a jury, on September 24th, evidence was introduced by the plaintiffs tending to support their statement of claim. At the conclusion of plaintiffs’ case, among the motions made by the defendants was one to quash the attachment on the ground that the plaintiffs’ testimony showed that their claim rested in unliquidated damages and consequently could not be made the basis of original attachment proceedings; which motion was overruled by the court. Defendants then proceeded to put in evidence in denial of plaintiffs’ claim and in support of their affidavit of merits and claim of set-off.
    On November 22nd the court, after having had the case under advisement since September 30th, dismissed the suit for want of jurisdiction of the subject-matter at plaintiffs’ costs, ordered the garnishee discharged, and entered judgment against the plaintiffs for costs, from which judgment plaintiffs have sued out this writ of error.
    Saltiel & Rosses, for plaintiffs in error.
    Cassoday, Butler, Lamb & Foster, for defendants in error; Ernest O. Best, of counsel.

      See Illinois Notes Digest, Vols. XX 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 Pam

delivered the opinion of the court.

2. Municipal Court of Chicago, § 8 —when action commenced hy attachment not for unliquidated damages. An action to recover an alleged overpayment on a purchase by plaintiff, commenced by attachment in the Municipal Court, is improperly dismissed as being an action to recover unliquidated damages, where the question in dispute was the amount of material shipped to plaintiff by defendant and not its value.

3. Appearance, § 8*—what constitutes general. The filing of an affidavit of merits and claim of set-off constitutes a general appearance, conferring jurisdiction over the parties.

4. Appeal and error, § 551*—when exceptions unnecessary. An adverse ruling under Practice Act, sec. 81 (J. & A. If 8618) may be reviewed on appeal or error without a formal exception.

5. Trial, § 290*—when propositions of law unnecessary. The purpose subserved by propositions of law is to determine whether the trial judge entertains correct views of the principles of law involved in the proceeding, and, hence, they are unnecessary where the ruling of the court itself showed the principles of law which the court applied to the facts.


author: Mr. Presiding Justice Brown

text:
    Louis J. Blum et al., Defendants in Error, v. Joseph Brown & Company, Plaintiff in Error.
    Gen. No. 21,124.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1915.

      Abstract of the Decision.
    1. Appeal and error, § 951

      —when statement of facts stricken. A statement of facts will be stricken from the record where it appears that the time for the presentment and signing of same expired January 1st and same was presented, signed and sealed on January 2nd.
    2. Holidays,—when Hew Year’s Bay not a holiday. The fact that New Year’s Day is a holiday under the Negotiable Instruments Act does not excuse failure to present and have properly authenticated a statement of facts, the last day for the presentment and signing of which expired on that day.
    3. Costs, § 67*-—when damages not allowed for writ of error sued out for delay. Where the statement of facts is stricken from the record as not signed in time, damages cannot be assessed, since the court cannot assume that the writ of error was sued out for delay.
    Statement of the Case.
    Motion to strike from the record an alleged statement of facts and bill of exceptions on the ground that same had not been presented in time. The time for the presentation of the statement of facts expired January 1, 1915, but it was not actually presented and certified to until January 2, 1915.
    A. L. Weber, for plaintiff in error.
    Blum & Blum, for defendants in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    Elbridge Hanecy, Defendant in Error, v. Cree Publishing Company, Plaintiff in Error.
    Gen. No. 19,405.
    Abstract of the Decision.
    1. Appeal and error, § 906

      —when report of evidence not received as part of record. Where on an appeal from the Municipal Court of Chicago the record is in two parts, one certified to as the transcript of the record and the other certified to on a later date as an additional record, the latter being in loose form and containing two documents, one certified to by the trial judge as “additional report of proceedings subsequent to the entry of judgment” and the other certified to by him as a correct stenographic report of the evidence introduced and proceedings in the cause, which purports to have been presented, signed and sealed two days after the additional record was certified to by the clerk of the court, but there is nothing to indicate that' such stenographic report became a part of the record below or that it was an actual part of the additional transcript when the latter was certified to by the clerk, a motion to strike such stenographic report from the record will be granted.

      (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Action on account stated by Elbridge Hanecy, plaintiff, against Cree Publishing Company, defendant.
    ■ To reverse a judgment for plaintiff for one thousand dollars, defendant prosecutes this writ of error.
    Bryan, McCormick & Wilber, for plaintiff in error; H. H. McCormick, of counsel.
    William A. Rogan, for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Appeal and error, § 1751 —when judgment affirmed because of insufficient record. On a writ of error, where the errors relied upon by plaintiff in error are predicated on proceedings of which no record is duly preserved and no error appears on the face of the record, the judgment will he affirmed.


text:
    Joseph Podlesak, Appellee, v. Royal Neighbors of America, Appellant.
    Gen. No. 19,875.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Statement of the Case.
    Action by Joseph Podlesak, plaintiff, against Boyal Neighbors of America, a corporation, defendant, on a benefit certificate issued by defendant to the wife of plaintiff.
    Defendant contended that the insured was guilty of material misrepresentation in her answers to questions in her- application wherein she stated that she had not consulted a physician for personal ailments within seven years and had not had pneumonia. To support its contention defendant introduced evidence showing that the insured had pneumonia four months before the date of the application and was treated for it by a physician. The evidence also showed that she died of pulmonary tuberculosis. From a judgment for plaintiff for one thousand dollars, defendant appeals.

      Abstract of the Decision.
    Insurance, § 753*—when false answer in application a material misrepresentation. Where an applicant for insurance states in her application, in answering a question therein, that she had not consulted a physician within the preceding seven years and had never had pneumonia, while the evidence shows that four months before the date of the application a physician had treated her for pneumonia and that she had pneumonia, such false answers are material misrepresentations which render the policy void,
    U. A. Screechfield and A. W. Fulton, for appellant.
    Jones, Kerner & Posvic, for appellee; DeWitt C. Jones, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Abbie R. Newcomb, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,957.
    1. Instructions, § 89

      —when instruction as to preponderance of evidence erroneous. In an action for breach of contract, where the number of witnesses is uneven, it is prejudicial error to instruct the jury that “the evidence of the smaller number cannot be taken by the jury in preference to that of a larger number unless the jury can say under their oaths that it is more reasonable, more truthful, more disinterested and more creditable,” even though they are told elsewhere in the instruction that they should consider the element of numbers with other elements enumerated therein.
    2. Evidence, § 444*—when improper to base opinion upon subjective conditions. The admission of opinion evidence of experts which is based upon subjective and not objective conditions is prejudicial error.
    3. Damages, § 250

      -—when error not cured by remittitur. Prejudicial error in admitting expert testimony as to an element of damage upon which great, stress was laid is not cured by a remittitur of three thousand dollars from a verdict for ten thousand dollars.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 23, 1915.
    Charles LeRoy Brown, for appellant; Leonard A. Busby, of counsel.
    Alden, Latham & Young, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The judgment appealed from herein rests upon a claim of breach of contract implied from the relationship of passeng-er and common carrier that existed between plaintiff and the defendant Company. The verdict was for $10,000, and after remittitur of $3,000 judgment for $7,000 was entered for plaintiff.

Plaintiff contended that while she was attempting to alight from the car on which she was a passenger, it suddenly started causing her to fall and be injured. Defendant contended that she stepped off the car while it was in motion. Both the manner of the accident and the extent of her resultant injuries were sharply controverted. On both issues defendant had the lesser number of witnesses, and complains that the jury were erroneously instructed as to the weight to be given their testimony.

The instructions were oral and that part relating to the preponderance of evidence was as follows:

“The court instructs the jury that the preponderance of the evidence in the case is not alone determined by the number of witnesses testifying to a particular fact or set of facts, but the element of numbers should be considered with all the other'elements hereinafter stated; for it is in the judgment of the jury what a particular element is worth, and the evidence of the smaller number cannot be taken by the jury in ■preference to that of a larger number unless the jury can say wider their oaths that it is more reasonable, more truthful, more disinterested and more creditable (credible). •

“The court further instructs the jury in determining upon such preponderance of the evidence it should take into consideration the opportunities the several witnesses had of seeing and knowing the facts about which they testified, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements, and, in fact, all the other- evidence, facts and circumstances proved on the trial, and from all these circumstances determine on which side is the weight or preponderance of the evidence.”

The error assigned is to the italicised part' of the instruction. In support of it appellee cites Gage v. Eddy, 179 Ill. 492, where an instruction containing the same language was held not to be misleading. In so holding, however, the court specifically referred to the fact that the complaining party had the greater number of witnesses. Here the situation was reversed, and it is manifest that the instruction could be prejudicial only to the party having the lesser number of witnesses. It must, therefore, be considered with reference to that situation to which the Gage decision cannot be held to apply; for it does not reasonably follow that because in one case an instruction has no tendency to mislead the jury or injure the complaining party, it will not have such effect when applied to another situation or an entirely different state of facts.

In the present case, we think, giving the italicised part of the instruction constituted prejudicial error. Without it the instruction was in the approved form on the subject of preponderance of evidence, telling the jury the various elements they may consider in determining where it lies, including that of the number of witnesses testifying to a particular fact of set of facts, and that that element could not be considered alone. But the italicised part is inconsistent therewith. It tells the jury, in effect, that applying a certain test they may after all decide the case on that element alone. The test is that they cannot take the testimony of the smaller number unless it possesses all of four characteristics; in other words, if any of the four is lacking, then the jury must find according to the greater number of witnesses, for the instruction tells them, in effect, that in such a case they cannot take the testimony of the smaller number.

In this form the instruction violates several fundamental principles. It invades the province of the jury. It conflicts with the doctrine of the burden of proof. It practically directs a verdict upon incomplete elements of the case, and it requires the application of an incorrect test.

As to said test, it is not true that before a jury can accept the testimony of the smaller number of witnesses they must find it is the more “disinterested.” Applying that test, the jury may have concluded that because one of the defendant’s witnesses to the accident was its conductor, and another, called as an expert on the question of injuries, had testified for it off and on in that capacity for nearly twenty years, it could not find their testimony was the more “disinterested,” and, therefore, could not decide for defendant on either of the main issues on which they testified. It frequently happens that interested witnesses had a better opportunity to know the facts about which they testified; that as to physical facts they were in a better position to hear or see, and for determining a scientific fact they had superior education, greater intelligence and larger esperience. But under the test furnished in this instruction, even though their testimony appeared more reasonable, truthful and credible than that of a greater number testifying differently, yet the jury could not accept it in preference to the latter unless they could’ also say it was more “disinterested.”

Nor is this objection cured by the fact that elsewhere in the instruction the jury were told they should consider the element of numbers with other elements enumerated therein. The italicised part of the instruction is so phrased that they may decide the case upon that alone.

Besides, in its peremptory form, it encroaches on the province of the jury to determine for themselves the weight that should be given to the testimony, a privilege the court should not interfere with (Chicago & A. R. Co. v. Robinson, 106 Ill. 142), and with respect to which no artificial rule can be laid down. Clevenger v. Curry, 81 Ill. 432. We think it was calculated to impress the jury with the idea that in this case the element of numbers was of superior and controlling importance.

But it also conflicts with the rule as to the burden of proof. The jury were properly told that if the weight of the evidence was evenly balanced between plaintiff and defendant on the material issues, plaintiff could not recover and the jury should find for defendant. But that part of the instruction under consideration told the jury that they could not find for defendant unless they found the testimony of its witnesses was more truthful, more credible, etc., than that of plaintiff’s, whereas, if their testimony was of equal weight, defendant, under the rule of the burden of proof, was entitled to the verdict.

But this was not the only prejudicial error in the case. Two physicians, called as experts by plaintiff on the question of damages, were permitted to express opinions manifestly based upon subjective conditions. One of the alleged injuries from the accident was its effect upon plaintiff’s mind, particularly her power of memory. One of said experts testified that from his examination he found ‘ ‘ there was a lack of mental and physical confidence, a lack of memory.” But it is evident that he based such conclusion on plaintiff’s conversation. Testifying he said: “The woman in her conversation showed,” and was interrupted by objection from defendant’s counsel on the ground that she could control her conversation. Plaintiff’s counsel then suggested a rule of guidance in such a matter in the following language: “Supposing a person is telling the truth in their conversation, that is an objective symptom. Doctor, you are to limit this entirely to objectiye symptoms.” The court evidently adopting this suggestion as a correct criterion, overruled the objection, and thereupon the doctor answered as above.

The other physician, while testifying as to her condition found by his examination, was, over defendant’s objection, permitted to say: “While in conversation with Mrs. Newcomb, it was evident that she had not regained her normal condition as I previously knew her.” He was then asked to state her mental condition at that time and said that, compared with the normal individual, he would say that she was “twenty-five per cent, minus.” The motion to strike out this answer was overruled.

It is apparent that the examination relied upon by each physician was made with a view to testifying as an expert, and it is settled law that an expert witness called under such circumstances must base his opinion upon objective and not subjective conditions, and that self-serving statements made by the injured party at such a time are incompetent. Greinke v. Chicago City Ry. Co., 234 Ill. 564; Shaughnessy v. Holt, 236 Ill. 485. What statements she made in such conversations were not given to the jury, but they might just as well have been if the experts were permitted to draw their inferences therefrom. One’s conversation is usually under his control, and it was in the power of appellee to make statements from which alone the physicians might draw such inference. We think this evidence is not only inadmissible but prejudicial, for as said in the Shaughnessy case, supra: “Appellee was allowed to enhance her damages by proof of her own incompetent, self-serving statements, to what extent it is impossible to judge.” On the question of damages much stress was laid upon appellee’s mental condition. The verdict was so large that her counsel found it advisable to enter a remittitur, but, in view of the stress laid in the case upon this one element of damages and the importance the jury might give to the testimony of experts on the subject, we are not prepared to say that the remittitur cured the error. Lyons v. Chicago City Ry. Co., 258 Ill. 75.

Other errors are assigned and argued, but we need not consider them as they are not likely to arise in another trial. Upon those considered, we think the judgment should be reversed and the cause remanded for a new trial.

Reversed, and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Christian H. Schaeffer, Plaintiff in Error.
    Gen. No. 20,035.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.

      Abstract of the Decision.
    1. Adultery, § 4

      —when information sufficient. It is not necessary that an information charging adultery charge that the parties were not married to one another.
    2. Adultery, § 5*—when evidence sufficient. On an information for adultery, where the evidence shows that each of the parties was married and knew the other was; that defendant was living separate and apart from his wife, and the woman from her husband; that defendant had rented rooms in different parts of Chicago at different times and occupied them with her and that in some of the places she took his name; that in one of the places there was only one bed; that both of them were seen in the room in their night clothes; that the place in which they lived when the information was filed and during the trial was rented in their joint names and was occupied by both of them, it is sufficient to warrant a conviction of adultery, even though they deny illicit relationship and that they occupied the same room.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Christian H. Schaeffer, defendant, charging him with living in adultery with one May Armstrong.
    To reverse a judgment of conviction defendant prosecutes this writ of error.
    A. L. Williams, for plaintiff in error; George H. Sugrue, of counsel.
    Maclay Hoyne and Edward E. Wilson, for defendant in error; Malcolm B. Sterrett, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. May Armstrong, Plaintiff in Error.
    Gen. No. 20,039.
    Abstract of the Decision.
    Fornication, § 1

      ■—when evidence insufficient. On an information charging fornication and alleging defendant to be unmarried where the evidence shows that defendant was married, a judgment of conviction will be reversed.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Information by the People of the State of Illinois charging May Armstrong with living with one Christian H. Schaeffer in an open state of fornication.
    To reverse a judgment of conviction defendant prosecutes this writ of error.
    A. L. Williams, for plaintiff in error; George H. Sugrue, of counsel.
    Maclay Hoyne and Edward E. Wilson, for defendant in error; Malcolm B. Sterrett, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr.. Presiding Justice Barnes

text:
    William J. Bligh, Defendant in Error, v. The People’s Packing Company, Plaintiff in Error.
    Gen. No. 29,119.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Action by William J. Bligh, plaintiff, against The People’s Packing Company, a corporation, defendant, to recover a balance of salary as secretary of defendant.
    The evidence showed that plaintiff had been voted by the stockholders a salary of $50 a week by a resolution which did not specify his duties and had not been rescinded. It also appeared that plaintiff performed extra services for defendant, which was engaged in packing hogs, in buying hogs for it.
    From July until December, 1912, defendant temporarily suspended active operations and plaintiff performed no extra services.
    To reverse a judgment for plaintiff for $348.68, defendant prosecutes this writ of error.
    Shepard, McCormick, Thomason & Patterson, for plaintiff in error; Mellen C. Martin, of counsel.
    Walter T. Stanton, for defendant in error; Frank J. Core and F. Philip Young, of counsel.

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

   Mr.. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Corporations, § 284 —when officer’s salary not suspended. Where the records of a corporation show that its secretary’s salary was voted him as an officer of the corporation and not for the performance of extra services outside of the regular duties of his office, the fact that the corporation temporarily suspends active operation and thus dispenses with the necessity of the extra services which he had been performing does not affect his right to the salary.

2. Corporations, § 296*—when evidence insufficient to show agreement by officer to waive salary. In an action to recover compensation as secretary of a corporation, where defendant claims that plaintiff agreed to suspend his salary during a period in which the corporation was not in active operation, where the only evidence directly bearing on the subject is that a conversation was had between plaintiff and defendant’s president, the latter testifying that it was to the effect that salaries were to cease until operations were resumed, while the former claims that it was that salaries were to be credited but not paid until operations were resumed, and the plaintiff’s contention is corroborated by the fact that he was credited with his salary on the corporation’s books with the knowledge of the president who gave no orders to the contrary, it is sufficient to support a judgment for plaintiff.


text:
    A. L. Berry Coal Company, Defendant in Error, v. R. B. Harder, Plaintiff in Error.
    Gen. No. 20,248.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Action by A. L. Berry Coal Company, a corporation, plaintiff, against R. B. Harder, defendant, on a promissory note made by defendant payable to the order of A. L. Berry. The note had been negotiated by the payee, thereafter was renegotiated to him, whereupon he erased the intervening indorsements and negotiated it to plaintiff.
    Abstract of the Decision.
    1. Bills and notes, § 322

      —when payee may erase indorsements and renegotiate note. Where a note which has been negotiated by the payee is negotiated back to him, he may erase the intervening indorsements and renegotiate the note, and it is no defense, in an action against the maker, that one of the intervening indorsees was a foreign corporation not licensed to do business in the State.
    2. Bills and notes, § 443*—when evidence insufficient to show want of consideration, etc. Evidence examined and held insufficient to establish want of legal title, want of consideration and fraudulent organization of plaintiff.
    To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Edward R. Hartigan, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Arthur W. Meyer and Samuel S. Hess, trading as Meyer, Hess & Company, Defendants in Error, v. Wakem & McLaughlin, Inc., Plaintiff in Error.
    Gen. No. 20,317.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBut, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed March 23, 1915.

      Statement of tlie Case.
    Action by Arthur W. Meyer and Samuel S. Hess copartners trading as Meyer, Hess & Company, plaintiffs, against Wakem & McLaughlin, Inc., a corporation, defendant, to recover the value of certain articles alleged to have been contained in packing cases delivered to defendant as warehouseman and lost through its negligence.
    Testimony was given by plaintiffs’ employee, who .packed one of the cases, that he unpacked it when it was returned and found that certain articles he had put into it were missing; that the box was broken and appeared to have been tampered with. The latter part of his testimony was corroborated by one of plaintiffs. There was no testimony covering the period of time intervening the delivery of the case to plaintiffs’ teamster and its delivery to plaintiffs. Another of plaintiffs’ teamsters received the other case and delivered it to another firm. One of the latter’s clerks testified that he checked its contents with plaintiffs’ invoice and that some of the articles were missing, The invoice was not produced nor was competent proof made of the contents of the box. A memorandum, purporting to be a copy made by the witness from plaintiffs’ books, of a list of the articles packed in the box was received as evidence of its contents over defendant’s objection. The books themselves were not produced nor the correctness of their entries shown by any competent evidence.
    Defendant’s foreman testified that he personally received the cases for storage and superintended the piling of them away; that he personally delivered each to plaintiffs ’ respective teamsters, taking their receipts therefor, which stated the goods were received by them in good order; that he personally knew they were in the same condition when delivered to said teamsters as when received by defendant; that he had personal charge of the warehouse while it was open, and knew of no theft committed therein. Plaintiffs admitted that four of defendant’s employees who helped to pile the cases would, if present, testify that they worked around the warehouse and that the cases were not tampered with in any way and were in the same condition when delivered as when received by defendant.
    Abstract of the Decision.
    Warehousemen, § 27

      —when evidence insufficient to show negligence. Evidence examined and held insufficient to show negligence on the part of a warehouseman.
    To reverse a judgment for plaintiffs for $51.75, defendant prosecutes this writ of error.
    Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.
    Sonnenschein, Berkson & Fishell, for defendants in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Joseph Betti, Plaintiff in Error.
    Gen. No. 20,402.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Keabjsts, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.

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

      —when record on writ of error insufficient. “Statement of facts” examined and held insufficient.
    2. Municipal Court of Chicago, § 26*—when abstract of evidence necessary on writ of error. On a writ of error to the Municipal Court of Chicago, the evidence sought to be preserved should be abstracted.
    3. Appeal and error, § 365*—when point not raised below not reviewed,. On a writ of error, a question as to the passage of an ordinance not raised below will not be reviewed.
    4. Evidence, § 224*—when witness’ testimony as to his age not hearsay. The testimony of a witness as to his age is not incompetent as hearsay.
    5. Criminal law, § 160*—when production of evidence not required. On a suit for a penalty for selling tobacco to minors, the production of the tobacco sold is not required.
    Statement of the Case.
    Action by the City of Chicago, plaintiff, against Joseph Betti, defendant, to recover a penalty for the violation of a city ordinance prohibiting the sale of tobacco to minors.
    To reverse a judgment for plaintiff, defendant sues out this writ of error.
    Cairoli Gigliotti, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error; Ulysses S. Schwartz, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Consumers Market House Company, Defendant in Error, v. L. Walter Powers, Plaintiff in Error.
    Gen. No. 20,448.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Action by Consumers Market House Company, plaintiff, against L. Walter Powers, defendant, for rent.
    Defendant sublet certain premises from plaintiff under a sublease providing that he should occupy the premises “for a bakery store for the sale of bakery goods only and for no other purpose whatever.” Defendant’s lease also provided that if he abandoned or vacated the premises they should be relet by plaintiff “for such rent and upon such terms” as it should see fit.
    The premises were abandoned by defendant, but before any further rent accrued he tendered plaintiff a tenant who offered to lease the premises as an office for a cleaning and dyeing establishment, but plaintiff refused to accept him.
    To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Everett & McGonigle, for plaintiff in error; John C. Everett, of counsel.
    Silber, Isaacs, Silber & Woley, for defendant in error; Frederick D. Silber, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 310 —when reletting of premises on vacation not required. Where a sublessee vacates the premises and abandons his lease, the sublessor is not required to relet the premises to another person procured by the tenant, where such other person desires to use the premises for a different purpose from that to which the sublease restricted the use of the premises.

2. Landlord and tenant, § 310*—when tender of new tenant by tenant abandoning sublease not a defense to action for rent. The fact that a sublessee vacating the premises and abandoning his lease tenders a new tenant is no defense .to an action for rent, where the business which the new tenant desires to conduct is not permitted by the terms of the lease.

3. Landlord and tenant, § 81*—who bound by restrictive covenants. A covenant in a lease restricting the use of the premises for certain specified purposes, is binding upon the lessees and subtenants.


author: Mr. Justice Gridley

text:
    Grossfeld & Roe Company, Defendant in Error, v. Emanuel Zuckerman, Plaintiff in Error.
    Gen. No. 19,756.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Statement of the Case.
    Action commenced August 8, 1911, by Grossfeld & Eoe Company, a corporation, plaintiff, ag*ainst Emanuel Zuckerman, defendant, for money due upon an instrument in writing'.
    The instrument is in part as follows:

      “Chicago, March 14,1903.
    The Grossfeld & Eoe Co.,
    Chicago.
    Gentlemen:
    I hereby confess that I have in the past several months made collections from various customers that I have not turned over. I will, to the best of my knowledge, give you below the names and amounts of the various people that I have collected from, asking’ your kind indulgence in giving me one more chance to make a man of myself and again gain your valued confidence. 1 will try my utmost to repay and be a valuable man to your house if given this one chance.
    Again begging you for your kind indulgence, I remain,
    Sincerely yours,
    Emanuel Zuckerman.”
    Below the signature are given the names of twenty-nine persons and opposite each name there is written certain figures, and underneath the column of figures is written the total sum, “$1,689.60,” and underneath this total sum is again “Emanuel Zuckerman.” It is further alleged in the statement of claim in which the instrument is set out that‘1 said writing was given to • evidence an indebtedness created by the false embezzlement, misappropriation and defalcation of the said Zuckerman while acting in a fiduciary capacity, to-wit: as agent and collector in the employ of the plaintiff.”
    In a second count plaintiff claimed an additional sum of $316.09.
    On August 28, 1911, on motion of defendant, the court ordered that the plaintiff file an amended statement of claim within ten days, and that defendant file an affidavit of merits within ten days thereafter. On September 13, 1911, plaintiff moved that this order be vacated and set aside, and the court ordered that said motion be entered, to be taken up on notice. On January 13, 1912, the court overruled plaintiff’s motion, but ordered that “leave be given to plaintiff to file an amended second count to statement of claim within thirty days,” and that defendant file an affidavit of merits thereto within thirty days thereafter. Plaintiff never filed an amended second count, nor made any attempt at the trial to sustain by proof its said additional claim of $316.09. Before the time had expired for plaintiff to file said amended second count, defendant filed an affidavit of merits, in which he alleged: (1) That plaintiff’s cause of action as stated in its statement of claim did not accrue to the plaintiff within five years before the commencement of the action; and (2) that “when the paper, a copy of which is set out in the plaintiff’s statement of claim, was signedhe was in plaintiff’s office and was falsely charged by representatives of plaintiff with having embezzled money from plaintiff and threatened with arrest unless he signed the paper; that he was there promised by plaintiff’s representatives that upon an accounting being had he would be credited with certain commissions, to which he was entitled, but that no accounting was ever had, and that ‘1 at the time of the signing of the said paper” he was in fact not indebted to plaintiff in any sum whatsoever.
    On February 5, 1913, defendant filed an amended affidavit of merits in which he made the same allegations as in his original affidavit of merits, and further alleged, by way of set-off to plaintiff’s claim, that there was due him from plaintiff, a balance for commissions earned by him from May 1, 1901, to March 14, 1903, and that from March 14, 1903, until June 17, 1903, he rendered services for plaintiff and was entitled to receive therefor a sum in excess of $1,000, but that during said time plaintiff deducted and kept from his weekly advancements the sum of $140, and also kept the advancement of $40 due defendant for the last week of his employment, as well as all of defendant’s commissions, amounting for the last named period to a sum in excess of $1,000, and that there was due defendant from plaintiff, at the time of the commencement of this suit, a sum in excess of $3,000, over and above any claim of plaintiff. And defendant further alleged, in substance, that while he was not in fact guilty of any embezzlement, yet he signed the paper, not for the reason that he was indebted to plaintiff, but because of the threats on the part of plaintiff’s representatives to arrest him, and that thereafter plaintiff refused to credit him with the commissions due him, and proceeded to prosecute him criminally for embezzlement, relying on said writing to procure defendant’s conviction, which conviction plaintiff unjustly procured. To this amended affidavit of merits plaintiff filed a replication, alleging that the several items of set-off therein claimed by defendant did not accrue within five years, etc.
    On the trial defendant was called as a witness for plaintiff under section 33 of the Municipal Court Act (J. & A. ft 3345), and he admitted that he signed and swore to the amended affidavit of merits filed in the cause. A copy of the instrument in writing was introduced in evidence, it appearing that the original thereof had been lost since the time it was introduced in evidence on the trial of the ease of People v. Zuckerman in the Criminal Court of Cook county in the year 1904. The defendant was the only witness called in his behalf and gave certain testimony regarding his alleged claim of set-off, but practically all of his testimony relative thereto was subsequently stricken from the record by the court, with the exception of that tending to show that during the fourteen weeks he remained in plaintiff’s employ after March 14, 1903, certain deductions were made from his salary, amounting in all to about $180, under an agreement between the parties that the deductions should be applied as a credit on said sum of $1,689.60. The plaintiff in rebuttal offered testimony tending to show that no such deductions or agreement were made, and the court finally gave to the jury the following instructions: “The jury are instructed that the only question for you to decide is whether or not subsequent to March 14, 1903, any deductions were made from the defendant’s salary which were by agreement between the parties to be applied upon defendant’s indebtedness to plaintiff, admitted by writing of March 14, 1903; that if you believe from the evidence that there was no agreement that deductions should so apply, your verdict should be for the sum of $2,523.93, but at all events your verdict should be for $2,223.93.”
    During the trial, at the request of attorney for defendant, it was stipulated that the Supreme Court opinion (Zuckerman v. People, 213 Ill. 114) might be introduced and read as a part of the evidence in the cause. From this opinion it appears that a jury had found Zuckerman guilty of larceny by embezzlement and found the amount taken to be $285.09; that he was sentenced by the Criminal Court of Cook county in accordance with the verdict, and that in December, 1904, the Supreme Court affirmed the judgment of said Criminal Court. Other facts, as disclosed from said opinion, are as follows:
    “The plaintiff in error was employed by the Grossfeld & Roe Company, a corporation engaged in selling groceries at wholesale in Chicago, as an outside salesman, taking orders and collecting money from customers. He made collections from various customers which he did not account for or turn over to his employer, and on March 14, 1903, he furnished to the officers of the corporation a list of such customers and the amounts collected from them, aggregating $1,689.60, and signed two written statements confessing that he had collected said sums from customers of the corporation without accounting for them or paying the same over after demand and without the knowledge of the corporation. He was continued in the employ of the corporation afterward and collected from customers and retained other sums up to June 17, 1903, when he told the officers of the corporation that he had collected money amounting to about $300 which he had not turned over. He was then arrested and was subsequently indicted for larceny and embezzlement. On his trial under the indictment he admitted the collection of $316.09, specified in sundry receipts, which he had not paid to his employer. The only controversy as to matter of fact was whether he was authorized by his contract of employment to retain the sums of money collected and not turned over.”
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim sufficient to support judgment. In an action in the Municipal Court of Chicago, plaintiff’s statement of claim consisted of two counts, claiming two distinct indebtednesses. On motion of defendant, plaintiff was ordered to file an amended statement of claim, but the record did not show that the first count of the statement was stricken from the record. By a later order, plaintiff was given leave to file an amended second count to its statement of claim, but never did so. Before the time had expired in which plaintiff might file it, defendant filed an affidavit of merits and later filed an amended affidavit of merits to said first count. It was held that the statement of claim was not stricken from the record and by filing its affidavit of merits, defendant joined issue on the first count.
    2. Evidence, § 289*—when sufficient to show execution of instrument. In an action on a written instrument, where defendant, in his original and amended affidavits, signed and sworn to by him, admits that he signed the instrument and likewise admits on the trial that he signed it, the fact of his having signed it is sufficiently shown.

      To reverse a judgment for $2,223.93 rendered against him, defendant prosecutes this writ of error.
    Jonas O. Hoover, for plaintiff in error.
    J. G. Grossberg, 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 Gridley

delivered the opinion of the court.

3. Limitation of actions, § 11 —when writing an evidence of indebtedness to which ten-year limitation applicable. An instrument in writing addressed to one party and signed by another wherein the signer, in substance, acknowledges that he, during several preceding months, collected various sums of money, aggregating a named amount, belonging to the addressee which he had not turned over to the addressee and wherein the signer also states that “he will try his utmost to repay,” is an evidence of indebtedness in writing to which the ten-year limitation provided by section 16 of the Limitations Act (J. & A. If 7211) applies.

4. Limitation of actions, § 19*—when claim of set-off on written evidence of indebtedness barred. In an action on a written evidence of indebtedness commenced more than five years after its date, set-offs to which defendant claims to have been entitled at the date the instrument was executed are barred.

5. Evidence, § 319*—when parol evidence inadmissible to contradict and vary written instrument. In an action on a written instrument of indebtedness, evidence of defendant that he was entitled to have set off certain commissions earned before the date of the instrument are inadmissible.


text:
    M. D. Kern et al., Appellees, v. Western Life Indemnity Company, Appellant.
    Gen. No. 19,823.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Statement of the Case.
    Action of the first class by M. D. Kern, N. H. Kern and Katie Ottinger, plaintiffs, against Western Life Indemnity Company, a corporation, defendant.

      The action was based on the following instrument in writing, a copy of which was filed with the original declaration :
    “Knights Templars and Masons Life Indemnity Company,
    Chicago, Illinois.
    THIS CERTIFIES, That the amount which may he payable at the death of the insured, under and by virtue of a certain policy, No. 13551, upon the life of Peter Kern issued or assumed by the Life Insurance Company of Pennsylvania, will he assumed by the Knights Templars and Masons Life Indemnity Company, when a premium payment shall have been made on said policy to said Knights Templars and Masons Life Indemnity Company, and said premium shall have been duly acknowledged by a receipt signed by the General Manager of said Knights Templars and Masons Lifé Indemnity Company.
    Executed at the home office of the Company at Chicago, Hlinois, this 20th day of April, 1905.
    E. S. Rosenfeld, General Manager.”
    The original declaration consisted of two special counts and the common counts. On May 6, 1909, the two special counts were superseded by an “amended” count and an “additional” count filed by leave of court.
    The amended count alleges, in substance, that on October 20,1900, the I. O. O. F. Mutual Life Insurance Society of Pennsylvania by its policy of insurance, No. 21,732, insured the life of Peter Kern in the sum of $4,000, and that this policy was issued in consideration of the surrender of policy No. 14,897 (issued by the same Society and dated May 10, 1899) and in consideration of the payment of a premium of $10.68 each month in advance on or before noon of the 20th day of each calendar month during the continuance of the policy, and subject to the terms and conditions of the policy which were set out. It further alleges that on April 22, 1901, the plaintiffs were made beneficiaries under said policy; that thereafter, on October 23, 1903, the Mutual Life Insurance Company of Pennsylvania, by a certificate or policy, No. 13,551, assumed the liability of said Society under certain conditions which were set out; that thereafter, on April 20, 1905, the defendant, then known as the Knights Templars, etc., Company, in consideration of the premises, made and delivered its certain certificate, whereby, in consideration that said Peter Kern should make a premium payment on said policy, No. 13,551, to said Knights Templars, etc., Company, and cause said payment to be acknowledged by a receipt signed by its general manager, it “assumed and agreed to pay the amount which might be payable at the death of said Peter Kern under and by virtue of said policy, No. 13, 551”; that said premium payment was duly made and duly acknowledged by the general manager of the defendant company, and that afterwards the defendant changed its corporate name and continued to do business as, and is now known as, the Western Life Indemnity Company. Full performance of the conditions of all of said policies, including the payment of all premiums due down to and including June 19, 1906 was averred. It is further alleged that, on June 19, 1906, during the lifetime of Peter Kern, and three years’ full premiums having been paid on said policy and the same being still in full force and effect, said Peter Kern tendered the said policies, and each and all of them, to the defendant Company, and 16 elected to surrender the same and receive therefor extended life insurance for the face value of said contract, or policy, for the number of years and months specified in the table therein contained, to-wit, for the full time of 1 year and 360 days; ’ ’ that within said period of one year and three hundred and sixty days, to wit, on October 28, 1907, said Peter Kern died at Knoxville, Tennessee, at the age of seventy-two years; that proof of death was furnished in due time to the defendant Company and suit brought within one year from his death; and that Peter ICern during his lifetime performed and complied with, and plaintiffs since his death have performed and fulfilled, each and all of the conditions, promises and stípula-, tions in said policies and the agreement contained; yet the defendant has refused to pay said sum of $4,000, or any part thereof, to the damage of plaintiffs of $4,000, etc.
    In the additional count it was alleged, in substance, that before the making of the promises by the defendant hereinafter set forth, the said I. O. O. F. Society of Pennsylvania did insure the life of said Peter Kern, and by its policy did provide for extended insurance in case of lapse after the payment of three full years ’ premiums; and that before the making of said promises by the defendant, the said last mentioned policy was assumed by said Mutual Insurance Company of Pennsylvania; and that thereupon, in consideration of the premises and that said Kern should make a certain premium payment to the defendant on said last mentioned policy, the defendant, then doing business as the Knights Templars, etc., Company, entered into a certain agreement with said Kern, for the benefit of plaintiffs which is the instrument set out above. And it is further alleged that said premium payment was made and the defendant’s general manager acknowledged said payment by his receipt; and that said insurance was made payable to plaintiffs as beneficiaries; and that said Knights Templars, etc., Company afterwards changed its name, etc.; and that said Peter Kern paid all premiums on or before the 20th day of each calendar month “until and including the 19th day of June, 1906;” and that on said June 19, 1906, said Peter Kern, having paid three full years’ premiums on said policies, tendered the policies to defendant and elected to have said extended insurance for said term of one year and three hundred and sixty days; and that on October 28,1907, and within said extended insurance term, said Peter Kern died at Knoxville, Tennessee; and that proofs of death were in due time made, and that Peter Kern and the plaintiffs had at .all times performed all the conditions of the policies, etc; to the damage of plaintiffs of $4,000, etc.
    A general and special demurrer to the amended and additional counts were filed by defendant June 4,1909, but on October 11, 1909, by stipulation, it was ordered that said demurrer be withdrawn, and defendant filed a plea of the general issue to said counts, and also a plea to the effect that it was beyond the powers of defendant to grant said Peter Kern the extended insurance for the number of years and months in said counts mentioned. To this plea of ultra vires plaintiffs filed a replication, to which defendant demurred. On April 30, 1910, the court carried the demurrer back to defendant’s plea of ultra vires and sustained the demurrer to said plea. Subsequently defendant withdrew its plea of general issue and filed an amended plea of ultra vires, to which plaintiffs replied; defendant demurred to the replication; and on July 27, 1911, said demurrer was again carried back and sustained to the plea. Subsequently defendant filed another amended plea of ultra vires, to which plaintiffs demurred, and on May 28, 1912, this demurrer was sustained. Subsequently defendant, having obtained leave, filed a plea of general issue to plaintiffs’ declaration and each count thereof.
    By leave of court the plaintiffs on February 25, 1913, amended their “additional” count by inserting, immediately following the allegation that Peter Kern paid all premiums “until and including the 19th day of June, 1906,” the following:
    “Except for the month of May, 1906, and the payment for that month was delayed a few days owing to confusion and doubt as to the person to whom, and the place where, said premium should be paid, and the time when it should be paid, resulting from an attempt on the part of the defendant company to re-insnre said Peter Kern in another company, and also owing to conflicting notices regarding the payment of such premiums. Said premium was tendered to the defendant company on, to-wit: May 30th, 1906, and again on the 4th day of June, 1906—but although the defendant was in duty bound to accept said premiums when presented in spite of said delay, yet it refused so to do.
    “And afterwards, on the 19th day of June, 1906, the said insured again tendered in legal tender said May premium as aforesaid, and as an alternative offered to surrender said policy for the purpose of having issued to him extended insurance for the period of one year and three hundred sixty days, in lieu thereof—both of which offers or tenders were refused by the defendant company, which assigned as the only reason for said refusal that said insurance had been forfeited for non-payment of said premium promptly on the 20th day of May, 1906.”
    The cause came on for trial April 8, 1913, before a jury, and it was ordered that defendant’s plea of the general issue, theretofore filed, stand as its plea to said additional count as amended. The jury returned a verdict April 10, 1913, finding the issues against defendant and assessing plaintiffs ’ damages at the sum of $1,141.04. On May 7, 1913, the court overruled defendant’s motions for a new trial and in arrest of judgment, and entered judgment upon the verdict, which judgment defendant by this appeal seeks to reverse.
    The evidence disclosed the following facts •. Under date of May 10, 1899, said I. O. O. F. Society issued a policy of life insurance, No. 14,897, to Peter Kern. This policy was not introduced in evidence. On October 20,1900, the policy was surrendered and exchanged for a new policy, No. 21,732, in the same society. This policy was introduced in evidence. By it the society, in consideration of the payment of a premium of $10.68 on or before the 20th day of each calendar month and subject to many conditions specified, agrees to pay upon the death of Peter Kern to Henrietta Kern? wife, if living, and if not living, to the insured’s administrators or assigns, within ninety days after the receipt and approval of proofs of death, etc., a “gross amount” of $4,000. By the seventh clause of the printed conditions of the policy, however, it is provided that this contract is made as a reinsurance of the risk under policy No. 14,897; that the insured may pay as a premium $10.68; that should such premium amount to less than would be required by the “table .of premium rates,” for the attained age of the insured, for the “gross amount” of insurance expressed, he may elect to pay premiums in conformity with such table, and that should such election not be made, the liability of the society11 shall not exceed such sum as the amount paid by the insured will purchase according to the premiums prescribed by said table of premium rates.” Under a heading, “Annual and Monthly Installment Premiums for each $100 Insurance payable according to the present attained age of the insured, ’ ’ the monthly instalment premium at the age of sixty-four years was fixed at 97 cents. Peter Kern was born on October 31,1835, and he was sixty-four years of age at the date of the insurance of the policy, and, as the monthly premium was $10.68, the amount of insurance this premium would purchase at the age of sixty-four is $1,101.03. By the ninth clause it is provided that if this policy shall become void by the violation of .any stipulation all payments shall be retained by the society, except that, if after three full years’ premiums shall have been paid it shall become void solely by the nonpayment of any premium when due, the owner will be entitled, on legal surrender of this policy within thirty days thereafter, (1) to receive a certificate for extending this insurance for the face value of this policy for the number of years and months specified in a “table of surrender values,” upon the third page of the policy, provided that if death occurs during the term covered by such extended insurance, there shall be deducted from the amount payable the amount of premiums which would have been paid had there been no lapse; or (2) to receive a paid up life policy for the amount specified in said table; or (3) to receive the amount specified in said table as the cash value of this policy. In said table on said third page it appeared that at the end of the fifth year the period of extended insurance would be for one year and three hundred and sixty days. By the eleventh clause it is provided (a) that after the policy had been continuously three years in force, any surplus belonging to it, as determined by the society, shall be credited hereto annually; and (b) that at the death of the insured, any surplus then standing to the credit of this policy shall be payable hereunder in addition to the amount that would otherwise be due; and (c) that providing there is no indebtedness standing against this policy, the insured may have any surplus credited to this policy applied in reduction of premiums hereon. Attached to said policy, No. 21,732, is a rider, signed by the president and secretary of the society, dated April 22, 1901, to the effect that in conformity with an application of the insured the policy is made payable to the plaintiffs (naming them and describing them as the daughters of the insured).
    After said policy had been in force for a period of more than three years, it was exchanged for a new policy or certificate, No. 13,551, issued by the Mutual Life Insurance Company of Pennsylvania, under date of October 23, 1903. This policy was introduced in evidence and on its face it is stated that said company, in accordance with the terms of an agreement “hereon endorsed,” insures the life of Peter Kern “for the same amount at death as was payable under policy, No. 21,732,” issued by said society “as determined in accordance with clause 7 of the privileges and conditions endorsed on said policy. The ‘table of premium rates’ referred to in said clause is the table headed 'Annual and Monthly Premiums for each $100 Insurance Payable According to the Present Attained Age of the Insured.’ The amount of this insurance, unless changed by the insured, is payable to the same beneficiaries as are named in said policy. The premium on this insurance is $10.68, payable * * * on or before the 20th day of each month in each year during the continuance of this insurance. * * * This certificate shall be referred to as Policy No. 13,551.” On the face of this certificate or policy there were printed in stencil the words: ''Attach this to your policy.” The agreement referred to as being ''hereon endorsed” was printed in fine print on the back of the certificate or policy, and purports to be an agreement between said I. O. O. F. Society and said Mutual Life Company ‘' and any member of the Society who shall accept the terms hereof, hereinafter called Insured.” It is dated July 29, 1903, and the signatures (printed) of said society and of said company, by their respective secretaries, appear. Beneath the signatures is a table or schedule, headed “Annual and Monthly Premiums for each $100 Insurance payable according to the present attained age of the Insured.” In said table the monthly premium at age of sixty-four years is fixed at 95 cents, at the age of sixty-five years at 99 cents, at the age of sixty-seven at $1.10 and at the age of sixty-eight at $1.16. In the first clause of said agreement it is stated that the company insures the life of the insured “in the amount which the premium paid by the Insured to the Company will pay for at the attained age of the Insured according to the Premium Schedule hereto attached; and hereby promises to pay * * * the . said amounts unto the beneficiary named * * * within 90 days after the receipt of satisfactory proofs of death of the Insured.” This provision is seemingly in conflict with the face of the policy as to the amount of the insurance to be paid upon the death of the insured, but by the eighth clause of the agreement it is stated that “if the premium paid by the Insured to the Company shall be the same as that now being paid by him to the Society, the net amount of insurance payable hereunder shall not be less than the amount payable under the present contract of insurance with the Society, as determined by Section 7 of the Conditions endorsed on said contracts.” In the third clause of said agreement it is stated that “Provided the Insured’s policy has been continuously one year in force in Society, the Company hereby agrees upon the acceptance by the Insured of this agreement to pay to the Insured one-twelfth of the first annual premium payable by him or her hereunder to the Company.” It appears that policy, No. 21,732, was continuously in force for more than one year in the I. 0. O. F. Society before the issuance by the Company of said policy, No. 13,551, but it does not appear from the evidence that the Company ever paid to Peter Kern said one-twelfth of said first annual premium. In the fifth clause of said agreement it is provided that “The non-payment by Insured when due of any sum due hereunder shall render this agreement void, and shall discharge the Company from all liability hereunder to the Insured, and, in such event, all payments hereunder made by the Insured shall be forfeited.”
    The provision, contained in the ninth clause of the policy, No. 21,732, above mentioned, relative to the privilege of extended insurance, etc., in case of the nonpayment of any premium when due, is not contained in said policy, No. 13,551. In the seventh clause of said agreement it is provided that “notice of the amount and time of payment of any premium due the Company hereunder is given by the Company and accepted by the Insured by the payment of one such premium hereunder. Any other notice which may be required by statute, or otherwise, is expressly waived, provided, that notices may at its election be sent out by the Company, but the Company shall not be responsible for the omission or miscarriage of- any such notices.” In the nineteenth clause of said agreement it is provided that proofs of death must be furnished within six months after the death of the insured, and that no suit against the Company upon the policy shall be brought after one year from the time of the Insured’s death. It appears from the evidence that on March 10, 1904, said policy, No. 13,551, in said Mutual Life Insurance Company, was assumed by the “Life Insurance Company of Pennsylvania” by written memorandum sent to said Peter Kern and received by him. It further appears that Peter Kern accepted said policy, No. 13,551, and thereafter paid premiums thereon either to said Mutual Life Company or said Life Company, until said policy was assumed by the defendant as hereinafter mentioned.
    On April 20, 1905, the defendant Company, then doing business under the name of Knights Templars and Masons Life Indemnity Company (which name was afterwards changed to Western Life Indemnity Company), executed and delivered to Peter Kern the instrument in writing first above mentioned, a copy of which was filed with the declaration. The original was introduced in evidence. By this instrument the defendant agrees that, %ol%en a premium payment on said policy, No. 13,551, shall have been made to defendant and acknowledged by a receipt signed by defendant’s general manager, “the amount which may be payable at the death of the insured,” under said policy, No. 13,551, issued or assumed by said Life Insurance Company of Pennsylvania, “will be assumed” by the defendant. It appears from the evidence that a premium payment was made by Peter Kern to defendant and a receipt issued therefor signed by defendant’s general manager. It further appears that all subsequent premiums, up to and including the premiums payable on or before April 20, 1906, were paid by Peter Kern to defendant, bnt that the next premium, due May 20, 1906, was not paid when due, and that during the month of April and May, Peter Kern was not in good health, and that his son, John P. Kern, was looking after his business affairs, including his insurance matters, at Knoxville, Tennessee, where both father and son then resided. It further appears that said instrument in writing, bearing date April 20, 1905, was forwarded to Peter Kern about two months before its date. It was inclosed in a letter to him, signed by the general manager of defendant and dated February 18, 1905, in part as follows: “Kindly attach the inclosed rider to your policy. By this agreement, this Company assumes liability upon your policy upon receipt from you of your premium, which will be due as shown by the inclosed premium notice.” Miss M. D. Kern, one of the plaintiffs and one of the beneficiaries named in the policy, testified that she was the sister of the other plaintiffs and beneficiaries, and that her father “commenced paying money” to defendant about March 15, 1905. Attached to her deposition was the following receipt (which was introduced in evidence), signed by the general manager of defendant: “3-15-1905. Received from Peter Kern, as premium on Policy No. 13,551 to Api. 20,1905, $10.68. Paid Apr. 7-05. Tour next premium will be due and payable on or before April 20, 1905.” Inasmuch as premiums were payable monthly on or before the 20th day of each month, it thus appears that the premium due March 20, 1905, was not actually paid until April 7, 1905, but that the defendant accepted it. On March 6, 1906, the defendant Company, by George M. Moulton, its president, wrote Peter Kern asking for his proxy to vote at a meeting of policy holders to be held March 19th, on the subject of the proposed reinsurance in, or transfer.of the policies to, the American Mutual Life Insurance Company of Chicago, and on April 30, 1906, defendant sent to Peter Kern a copy of the proposed contract of transfer, with a letter, signed by the American Company and addressed to the policy holders or members of the defendant Company, giving ten days grace for payment of first premiums, dne May 1, 1906,- and stating that “premium notice will be sent to each member prior to May 1, 1906.” It appears that this reinsurance contract with said American Company was not consumated, and on May 30, 1906, John P. Kern found in his father’s mail a printed letter, dated Chicago, May 3,1906, and signed by said George M. Moulton, president of defendant, on the letter head of defendant, stating that the “notice sent you under date of April 30th by the American Mutual Life Insurance Company of Chicago is void for the reason that said American Company did not qualify,” requesting that Peter Kern “destroy the copy of reinsurance contract * * * as the contract is noneffective, ’ ’ and further stating: ‘ ‘ Continue your present Policy with the Western Life Indemnity Company by payment of assessments and dues, of which you will receive timely notice, as heretofore. Notice of May assessments enclosed herewith. Cash credits on deposit with the Company from members will be applied as heretofore for payment of assessments and dues as the same mature. * * * Remittances must be in negotiable funds at par value in Chicago. If you use your personal check add ten cents for collection as required by bank regulations.” On the same day, May 30, 1906, John P. Kern mailed to defendant a check of the Peter Kern Company, payable to the order of defendant, for $10.78, being for the amount of the May premium, $10.68 plus 10 cents for cost of exchange. John P. Kern testified that in the months of April and May, 1906, he was looking after the payment of premiums on his father’s insurance in the defendant Company, and further testified, in response to the question how it happened that he overlooked sending a check for said May, 1906, premium, that “on account of the confusing and conflicting notices received about the changes which were going into effect, I did not know when to send them nor to whom. ’ ’
    On June 2, 1906, the defendant, in a letter signed by said Moulton and addressed to Peter Kern, returned said, check “for the reason that your policy, No. 13,551, is forfeited for the nonpayment of the May premium which was due on May 20th.” On June 4, 1906, John P. Kern wrote George M. Moulton, president of defendant, in part as follows: “I am surprised to learn that the policy is forfeited as you state. I appeal as a Templar and 32° S. B. Mason to you * * * to reconsider this decision. In Father’s absence I overlooked the notice and it did not come to hand until Thursday last, and mailed the check at once. I can assure you it was an oversight. * * * I beg of you that you will accept the enclosed checks, one dated May 18th for $11.93, which is a dollar for interest for the ten days, and another check for June for $10.93, this includes 25 cents for bank collections.” On June 7, 1906, Mr. Moulton, president, returned the checks in a letter addressed to John P. Kern, saying in part: “Said checks are herewith returned for the reason that said policy is forfeited for the non-payment of premium due on the 20th day of May. Tour father is beyond the age at which re-instatement of his policy can be considered under the rules of this Company.” Thereupon John P. Kern consulted an attorney, Charles H. Brown, in Knoxville, Tennessee; and subsequently Brown was employed to make a trip to Chicago and interview the officers of defendant. On June 19, 1906, Brown called on defendant and first made a legal tender of the amount of the premiums for May and June. The defendant declined to receive the money or to reinstate Peter Kern as a member, and solely for the reason that he had failed to pay the May premiums on May 20th. Then Brown, in the alternative, tendered the policies, and all riders and papers connected therewith, and requested that defendant allow Peter Kern extended insurance, as provided in the ninth clause of policy, No. 21,732, issued by the I. O. 0. F. Society, above mentioned. This the defendant also refused to do,—Moulton, president, at that time saying: “We did not assume any policy on the life of Peter Kern which provided for extended insurance,”-—and Brown left, taking the policies and papers away with him. Moulton, and a clerk in the office of defendant, testified that Moulton’s said letter to Peter Kern, dated May 3, 1906, was mailed on the day of its date, as well as several thousand similar letters addressed to other policy holders. A mailing clerk of defendant also testified that she caused to be mailed to Peter Kern a notice to pay the May premium, said notice being dated May 7, 1906.
    On October 28, 1907, Peter Kern died at Knoxville. Plaintiffs, as beneficiaries, in apt time made proofs of death to defendant and claimed the insurance. Defendant denied liability and refused to pay plaintiffs anything and plaintiffs, within one year from the date of Peter Kern’s death, on September 14, 1908, commenced the present suit.
    Counsel for plaintiffs, in his brief and argument, stated that the amount of the jury’s verdict was not in dispute and that the same was arrived at as follows:
    “Premium, $10.68, divided by 97, equals (principal) $1,101.03
    Less 18 premiums unpaid, till death 192.24
    908.79
    Add interest from proof of death, 5% 232.25
    Amount of verdict $1,141.04”
    The court refused defendant’s motions, made at the close of plaintiffs’ case, and again at the close of all the evidence, to instruct the jury to find the issues for the defendant, and defendant excepted.

      The court instructed the jury orally, in the course of which charge the jury were told that “policy No. 13,551, and the contract of insurance assumed by the defendant on the life of Peter Kern from the Life Insurance Company of Pennsylvania, did not contain nor include any provision for extended insurance, such as is sued upon in said declaration, and that, therefore, the plaintiffs cannot recover in this action against the defendant upon any theory of extended insurance.”
    The court also instructed the jury as follows:
    “If you find from the evidence that after the issuance of the policy in question and its assumption by the defendant company, said defendant promised the insured that he would receive timely notice of assessments and dues, then in such event the insured is entitled to a reasonable time after the receipt of such notice, if any, of assessments or dues, within which to pay the same and payment or tender of such payment, if there is such, within a reasonable time after receipt of such notice, if any, is in apt time and valid and sufficient to keep in force the insurance in question. ’ ’
    “You are instructed that if at the time of the alleged lapse or forfeiture of the policy in question the defendant company had in its hands any funds of the insured, not reserve funds, or was indebted to the insured in any sum apart from the reserve fund, if there was any, it could not lawfully forfeit the policy of insurance without first applying such funds, if there were any, or • moneys, if there were any, in payment of the premiums, if any were due. ’ ’
    The defendant, by its counsel, objected to the giving of these last mentioned instructions on the ground that there was no basis, either in the issues formed by the pleadings or in the evidence for either instruction.
    From a judgment for plaintiffs for $1,141.04, defendant appeals.
    Thomas J. Graydon, for appellant.
    Charles Hudson, for appellees.

      Abstract of the Decision.
    1. Insurance, § 313

      —when delay in payment of premium not ground for forfeiture of policy. In an action on a life insurance policy which provides that the policy shall be forfeited if the premiums are not paid when due, where there is evidence tending to show that the nonpayment of a premium when due was owing to the receipt by insured’s agent of conflicting notices as to when and to whom such payment should be made; that the insurer had promised to send timely notice of the premium and that immediately upon the receipt of a definite notice to whom and where such premium was to be paid, insured, through his agent, tendered the amount of the premium which was refused, the evidence is sufficient to support a finding that the delay was excusable and that defendant was estopped to claim a forfeiture.
    2. Insurance, § 315*—when funds of insured in hands of insurer to he applied on premium. In an action on a policy of life insurance, where the evidence tends to show that" at the time the insurer claimed the right to forfeit the policy for the nonpayment of premiums it had, or should have had, in its possession moneys due the insured in the amount of the premium, such moneys should he applied to the payment of the premium before declaring a forfeiture.
    3. Insurance, § 690*—when instructions not prejudicial in action on insurance policy. Evidence in action on life insurance policy examined and held to warrant the giving of instructions as to diligence in payment of premiums and duty of insurer to apply funds of insured to payment of premium.
    4. Witnesses, § IV'—when agent of insured competent in action on life policy. In an action on a policy of life insurance, an agent of the insured who looked after the latter’s insurance matters is a competent witness to prove the existence of his agency.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Walenty J. Kasperski, Appellee, v. Stanley Karaskiewiez, Defendant, and Cicero State Bank, Garnishee. Frank G. Hajicek, Intervening Petitioner, Appellant.
    Gen. No. 19,910.
    (Not to be reported in full.)
    Appeal from, the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Statement of the Case.
    Action in attachment by "Walenty J. Kasperski, plaintiff, against Stanley Karaskiewicz, defendant, to recover the sum of six hundred and fifty dollars, the Cicero State Bank being served as garnishee and Frank Gr. Hajicek filing an intervening petition.
    The evidence shows that defendant obtained from plaintiff a loan of six hundred and fifty dollars, for the purpose of making a deposit on a bid which defendant was making on a contract to be awarded by the school district. Plaintiff deposited the amount in the Cicero State Bank in defendant’s name, whereupon he drew a check for the amount, dated August 10,1911, payable “to the order of Otto F. Heller, Sec’y School Dist. No. 99,” which was certified by the bank and delivered by defendant to Heller for the purpose of deposit on the bid. On the failure of defendant to secure the bid, the check was returned to him by Heller without indorsement, on August 25, 1911. The garnish ee in this action was served on the same day, but before the return of the check to defendant. On the following day, defendant and two others indorsed it and the check was cashed by the intervening petitioner’s cashier, who testified that he knew and relied upon the additional indorsers and made no inquiry as to the lack of Heller’s indorsement.

      Abstract of the Decision.
    1. Banks and banking, § 126

      —when title to funds not passed by drawing and certification of Chech. The mere drawing by a depositor of a check payable to the order of a third person and its certification by the drawee bank do not pass the title to the fund, from the depositor to the payee where there is merely a conditional delivery of the check to the payee and the check is returned by the payee to the depositor.
    2. Banks and banking, § 142*—who not a holder of Chech in due course. After the drawee bank had been served with garnishee summons against the drawer of a check payable to a third person, which it had certified, the drawer of the check and two others indorsed it and, without having the payee’s indorsement, a third person relying on the additional indorsements, cashed it. Held, that such third person was not a holder in due course and that his equity was not superior to that of the plaintiff.
    3. Gabnishmbnt, § 76*—who not necessary party. Where the payee of a check drawn on a fund which it is sought to garnishee has returned the check to the drawer unindorsed and enters an appearance and files an affidavit denying any interest in or title to the check, it is not necessary that he be served with garnishee summons.
    Heller entered appearance and filed an affidavit stating the facts relative to his receiving and returning the check and that neither he nor the board of education had any interest in the check.
    From a judgment for plaintiff for six hundred and fifty dollars, the intervening petitioner appeals.
    Smejkal, Klenha & Krasa and Charles A. Churan, for appellant.
    Ross C. Hall, Wiley W. Mills and William H. Holly, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.