text:
    John E. Bastien, Appellee, v. Ford Motor Company, and Chicago City Railway Company, on appeal of Ford Motor Company, Appellant.
    Gen. No. 19,758.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Action by John E. Bastien against Ford Motor Company and Chicago City Railway Company to recover damages for personal injuries- received by plaintiff in a collision between an automobile in which he was riding and a street car.
    Plaintiff was the owner of a Ford automobile, which he had used a year. The Ford Company had in Chicago a shop where it repaired automobiles. In this shop one Walters was employed as mechanic “to overhaul motors.” On the day of the accident plaintiff telephoned the Ford Company, asking: “Can I bring my car down to locate a rattle?” and was told that he could. The same afternoon he took his car to the Ford shop, was introduced to Walters and told by Nicollett, who was in charge of the shop: “Here is a good man to take out and locate the rattle.” Walters had quit work for the day and was about to go home. He lived three miles south of the Ford shop and plaintiff lived several blocks farther south. Walters got into the car with plaintiff, who drove it south to Twenty-third street. There, on the suggestion of plaintiff, he and Walters changed seats, Walters taking the steering wheel and plaintiff sitting by his side. At Thirty-second street plaintiff told Walters to turn into Thirty-second street. Walters did so, proceeded east to Indiana avenue, and there the car was struck by a Chicago City railway car and plaintiff sustained the injuries complained of.
    Plaintiff had judgment against both defendants for fifteen hundred dollars. To reverse the judgment, the Ford Motor Company appeals.
    A separate appeal was taken from the judgment by the Chicago City Railway Company. For the opinion of the Appellate Court rendered on that appeal see post, p. 369.
    Defress, Buckingham & Eaton, for appellant Ford Motor Company; Marquis Eaton and Don K. Jones, of counsel.
    Watson J. Ferry, for appellant Chicago City Railway Company; Leonard A. Busby, Warner H. Robinson and B. F. Richolson, of counsel.
    Charles C. Spencer and E. W. Austin, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Automobiles and garages, § 2 —when negligence of driver of automobile not imputable to his employer. Where a person took his automobile to an automobile company to have a “rattle” in the car located and an employee of the company got in the car and rode with the owner and later, at the suggestion of the owner, the employee drove the machine until it collided with a street car and the owner was injured, held that the negligence of the employee, if any, in driving the car could not be imputed to the automobile company so as to make it liable to the owner for his injuries, it appearing that the owner was directing the employee where to drive the machine, that the company had no authority to control the employee in driving it and that the company had not assumed the service of driving ór operating it.

2. Negligence, § 104 —rule as to imputed negligence. In order that the negligence of one person may be imputed to another, they must stand in such relation of privity that the maxim qui fadt per alium, fadt per se directly applies.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    John E. Bastien, Appellee, v. Chicago City Railway Company, and Ford Motor Company, on appeal of Chicago City Railway Company, Appellant.
    Gen. No. 19,809.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John. P. McGoorty, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Action by John E. Bastien against Ford Motor Company, and Chicago City Railway Company to recover for personal injuries sustained by plaintiff in a collision between his automobile, which was being driven by a servant of the Ford Motor Company, and a street car of the defendant railway company.
    Each count of the amended declaration alleged that the Railway Company so negligently ran its street car and the Ford Company so negligently ran the automobile that by reason of such negligence the car and the automobile collided and thereby plaintiff was injured, etc.
    Abstract of the Decision.
    Street railroads, § 104

      —when occupant of automobile injured in collision with street car guilty of contributory negligence. In an action against a street railway company and an automobile company for personal injuries received by plaintiff in a collision between his automobile in which he was riding and a street car at a street intersection, where the facts showed the automobile was driven by an employee of the automobile company, held that a recovery by plaintiff against the railway company could not be sustained for the reason that both the plaintiff and the driver were guilty of. contributory negligence, it appearing that both could have seen the car approaching had they looked, that the negligence of the driver was imputable to plaintiff, and that plaintiff himself did not use reasonable care for his own safety.

      Plaintiff recovered a judgment for one thousand five hundred dollars against both defendants and the defendant Chicago City Railway Company prosecutes this appeal.
    The question presented on this appeal with reference to whether the negligence of the employee of the Ford Motor Company was imputable to that Company was decided on by the Appellate Court on a separate appeal by the Ford Motor Company, see ante, p. 367, and the decision on that appeal held controlling in this. The opinion filed on that appeal is also referred to as containing a general statement of facts of this case.
    Defrees, Buckingham & Eaton, for appellant Ford Motor Company; Marquis Eaton and Don K. Jones, of counsel.
    Watson J. Ferry, for appellant Chicago City Railway Company; Leonard A. Busby, Warren H. Robinson and B. F. Richolson, of counsel.
    Charles C. Spencer and E. W. Austin, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. John Lysaught, Plaintiff in Error.
    Gen. No. 20,017.
    (Not to be reported in full.)
    Abstract of the Decision.
    Assault and battery, § 31

      —proof essential to sustain conviction for assault with deadly weapon. A conviction on an information charging defendant with committing an assault with a deadly weapon within the city of Chicago cannot be sustained where the evidence does not show that the alleged assault was committed in said city.
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Information filed in the Municipal Court by the People of the State of Illinois charging John Lysaught with committing an assault with a deadly weapon within the territorial limits of the City of Chicago. To reverse a judgment entered on a finding of guilty, defendant prosecutes a writ of error.
    O’Donnell & O’Donnell, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    A. H. Sackett, Defendant in Error, v. Centaur Motor Company of Illinois, Plaintiff in Error.
    Gen. No. 20,132.
    1. Principal, and agent, § 69

      —when agent entitled to commission. Where contracts were, in effect, offers by the defendant to sell automobiles on stated terms and a party accepted an offer before its withdrawal, the parties became bound thereby so that when defendant delivered a car to a retail dealer" under such circumstances, the moneys received therefor emanated from the sale of an automobile within the meaning of an agency contract such as to entitle the agent to a commission.
    2. Principal and agent, § 70

      —right of agent to commissions. When an arrangement with a prospective purchaser ripens into a sale, it gives a right to the agent to a commission, when his efforts are the efficient cause of the sale.
    3. Principal and agent, § 70

      —right of agent to commissions. An agent under contract of employment is entitled to commissions on automobiles sold by his principal under “arrangements” effected while in the principal’s employ, although the cars are not delivered and paid for until after his discharge prior to the termination of his contract of employment.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement by the Court. The defendant corporation, doing business at Chicago, employed plaintiff Sackett May 20, 1911, for an indefinite term to, “take the position-of sales manager at a salary of $25.00 per week and 1 per cent, of the gross sales emanating from the sale of automobiles sold through this office.” A supplemental contract between the parties made August 19, 1911, provided that Sackett should receive, “one-half of 1 per cent, on all cars going into the State of Wisconsin on and after this date. ’ ’ On the same day a contract in writing was made between the defendant and the Bates Odenbrett Company of Milwaukee, by which the Milwaukee Company agreed to buy of the defendant and the defendant agreed to sell to that Company two hundred and fifty cars of seven different patterns, the number of each pattern to be optional. The plaintiff was discharged by the defendant January 22, 1912. After January 22nd the defendant Company delivered to the Milwaukee Company twenty-seven cars and was paid therefor $35,908.72,- on which amount plaintiff claimed and was allowed by the court a commission of one-half of one per cent. On January 22nd the defendant Company had written orders for cars amounting to $9,167 from certain retail dealers, which cars were not delivered until after that date. At that time there were in existence certain alleged contracts of defendant with retail dealers, on each of which small deposits had been paid to defendant Company. Bach of such alleged contracts contained an agreement on the part of the dealer to buy of defendant a specified number of cars at certain prices for each of the seven patterns of cars therein mentioned, but it was optional with the dealer to take cars of any pattern or patterns.
    The contention of the defendant, plaintiff in error here, is that the plaintiff was entitled to receive only commissions on the money received by the defendant for cars delivered while plaintiff was in its employ; and the contention of plaintiff, defendant in error here, is that he was entitled to receive one per cent, of the amount received by defendant from the retail dealers with whom the defendant had such alleged contracts at the time of his discharge, and also one-half of one per cent, on the cars delivered to the Milwaukee Company after January 22, 1912. The court found in favor of the contention of the plaintiff and gave judgment accordingly, and the defendant prosecutes this writ of error.
    Miller, Gorham & Wales, for plaintiff in error.

      Montgomery, Hart, Smith & Steere, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

It may be conceded that the defendant could not have enforced the alleged contracts with the retail dealers, nor that with the Milwaukee Company, because such contracts were for the purchase of seven different patterns of cars, each at a specified price, and it was optional with the prospective purchaser to take all or any part of his cars of any pattern or patterns, and the alleged contracts were therefore uncertain and lacked mutuality. It may also be conceded that such contracts were at most executory contracts for the sale of cars, and not sales under which the title passed before delivery. When such writings were executed the plaintiff had completed the work he was obliged to do, but he had not earned his commission when discharged because no binding contracts of sale had been made, and in the case of the Milwaukee Company the cars had not gone into the State of Wisconsin.

The contracts were, in substance, offers by the defendant to sell cars on the terms stated, and if before the offer was withdrawn a party to whom such offer was made accepted the order by ordering a car or cars on the terms stated to him, and the defendant accepted such offer, the parties thereby entered into a contract which bound them, and when defendant delivered a car to a retail dealer under such circumstances, the moneys received for such car must be regarded as “receipts emanating from a sale of an automobile sold through this office,” within the meaning of the phrase as used in the contract of employment, and cars shipped to the Milwaukee. Company on orders received after plaintiff’s discharge must be regarded as, “cars going into the State of Wisconsin,” within the meaning of that phrase as used in the contract between plaintiff and defendant.

' If the alleged contracts were nothing more than arrangements, when an “arrangement” with a prospective purchaser ripens into a sale, it gives a right to the agent to a commission for the reason that the agent’s efforts are the efficient cause of the sale. Here it is immaterial whether the plaintiff did or did not make the “arrangement,” he was entitled to the commissions on the cars sold through defendant’s office under arrangements effected while he was in defendant’s employ.

We think the trial court properly interpreted the contract and allowed a recovery of commissions, and the judgment is affirmed.

Affirmed.


text:
    Mt. Vernon National Bank, Appellee, v. The Kelling-Karel Company, Appellant.
    Gen. No. 20,225.
    1. Bills and notes, § 240

      —rights of purchaser of draft before its acceptance. The purchaser of a draft before its acceptance in the ordinary course of business, in good faith, for "value, is as "clearly a holder for value as if he had purchased the draft after acceptance.
    2. Bills and notes, § 248

      —when purchaser of draft not charged uñth notice of its infirmity. The fact that the purchaser of a draft gives to the acceptor thereof the right to inspect the goods for the price of which the draft is drawn, does not show notice or knowledge of any infirmity in the draft.
    3. Bills and notes, § 241

      —what essential to charge purchaser of draft with notice of its infirmity. To effect the holder of a draft, notice of its infirmity must exist at the time he acquires the paper, when his relation to it is fixed.
    4. Bills and notes, § 240

      —when notice subsequent to acquisition of draft does not affect title of holder. Notice as to the infirmity of a draft subsequent in time to its acquisition does not affect a purchaser’s title or right to transfer the draft.
    5. Bills and notes, § 46

      —defense not available by acceptor. in an action by the payee against the acceptor of a draft, failure of consideration as between the drawer and drawee is not a defense.
    6. Bills and notes, § 436

      —when written acceptance may not be varied by parol. The terms of an acceptance in writing cannot be varied by any contemporaneous oral agreement.
    7. Bills and notes, § 34

      —what constitutes conditional acceptance. Facts stated in an affidavit of merits held not to show an agreement that the delivery of a draft was conditional, but only an agreement that the acceptance was conditional; but the acceptance as modified by such conditions was delivered to the purchaser of the draft without limitation or reservation that property in the instrument should not be transferred until the happening of the conditions named.
    8. Municipal Court of Chicaqo, § 13

      -—when affidavit of merits may be stricken. In an action in the Municipal Court of Chicago, an affidavit of merits which does not set up facts constituting a defense may be stricken.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Theodore Johnson, for appellant.
    Newman, Poppenhusen & Stern, for appellee; Edward R. Johnston, of counsel.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

The plaintiff Bank purchased the draft sued on November 22, 1912, in the regular course of business, for a valuable consideration. To the draft was attached a negotiable bill of lading for 196 barrels of pecans shipped via B. & O. R. R. to appellant. The draft was drawn on and accepted by the appellant, defendant in the trial court, November 26th, payable December 2nd. It was agreed between the parties that the plaintiff should deliver the pecans to a public warehouse in Chicago by December 2nd, and allow inspection thereof by defendant. December 17th plaintiff gave an order to defendant permitting inspection. It is claimed by appellant that on such inspection the. pecans were found to be inferior to the pecans purchased of the drawer, and for that reason payment of the draft was refused. The court struck out the affidavit of defense and gave judgment for the plaintiff. The grounds of reversal urged by appellant are:

“1. That appellee does not stand in the position of a holder in due course of the draft because before acceptance by appellant the draft had been dishonored.
2. That the consideration for the acceptance moved directly from appellee to appellant; that the consideration so moving from appellee failed; and that appellant has a right to show such failure of consideration as against appellee.
3. That delivery of the accepted draft was, by parol agreement between the parties, made conditional, and the nonfulfillment of such condition can be shown as a defense to appellee’s action.”

One who purchases a draft before its acceptance in the ordinary course of business, in good faith, for value, is as clearly a holder for value as if he had purchased the draft after acceptance. The fact that the purchaser gives to the acceptor the right to inspect the goods for the price of which the draft is drawn, does not prove notice or knowledge on the part of the purchaser of any infirmity in the draft. The rule is that notice to affect the holder of a draft must exist at the time he acquires the paper, for then his relation to it is fixed, and subsequent notice does not affect his title or right to transfer it. 1 Daniel, Neg. Inst. (6th Ed.) 929; Selover, Neg. Inst. (2nd Ed.) 225; Laws of 1907, p. 411, sec. 61 (J. & A. ¶ 7700); Id., p. 410, sec. 52 (J. & A. ¶ 7691); Hoffman & Co. of Milwaukee v. Bank, 12 Wall. (U. S.) 181; Craig v. Sibbett, 15 Pa. 240; Credit Co. v. Howe Ma chine Co., 54 Conn. 357; Fort Dearborn Nat. Bank v. Carter, Rice & Co., 152 Mass. 34.

It is a sufficient answer to the second ground .of reversal relied on, to say that in an action by the payee against the drawer on an acceptance, failure of consideration as between the drawer and drawee is not a defense. Nowak v. Excelsior Stone Co., 78 Ill. 307; 1 Daniel on Neg. Inst. (6th Ed.) 228.

The terms of an acceptance in writing cannot be varied by any contemporaneous parol agreement, as that is against the first principles of the law of evidence. 1 Daniel, Neg. Inst., supra, 612; Mosher v. Rogers, 117 Ill. 446.

The facts stated in the affidavit of defense do not show an agreement that the delivery of the draft was conditional, but only an agreement that the acceptance was conditional. But the acceptance as modified by such conditions was delivered to appellee without limitation or reservation that property in the instrument should not be transferred until the happening of the conditions named.

The consideration for the acceptance of the draft was the shipment of the 196 barrels of pecans—not any parol promise of the drawee.

We think that the action of the Municipal Court in striking defendant’s affidavit of defense from the record, on the ground that it did not set up facts constituting a defense, was proper, and the judgment is affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    North Side Sash and Door Company, Defendant in Error, v. Mary Schuetz, Plaintiff in Error.
    Gen. No. 18,730.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mechanics’ liens, § 135

      —when finding as to terms of original contract sustained by the evidence. Where one copy of a contract executed in duplicate between an original contractor and an owner contained a provision that the building should be constructed free from liens and the other contained no such provision, the evidence is held to justify a finding that the contract when executed contained no provision that there should be no liens.
    2. Mechanics’ liens, § 90

      —when contractor’s statement to

      owner sufficient. When the original contractor furnishes the owner a sworn statement showing the names of subcontractors- and the amounts due them, it will be presumed sufficient notice to the owner of the amount owing the plaintiff, a subcontractor, if the statement has been omitted from the bill of exceptions.

      Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement of the Case.
    The North Side Sash and Door Company, plaintiff, a subcontractor, recovered judgment for a mechanic’s lien on premises belonging to defendant, Mary Schuetz, and to review this judgment, which was rendered in the Municipal Court of Chicago, the defendant brought error.
    Carl O. Beroth, for plaintiff in error; George W. Stockwell, of counsel.
    Soboroff & Newman, for defendant in error; Samuel W. Newman, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Appeal and error, § 1021 —when objection to amount of judgment not presented for review. The objection that the judgment exceeds the amount named in the summons cannot be raised if the abstract of the summons does not show the amount claimed, and the judgment is not in excess of the amount claimed in the statement of claim.

4. Appeal and error, § 806 —presumption when exhibits not included in bill of exceptions. When the bill of exceptions does not include all the exhibits at the trial, the sufficiency of the missing documents to justify the finding of the trial court will be presumed.


text:
    Benjamin Ohnkin, Defendant in Error, v. Solomon Smoler, Plaintiff in Error.
    Gen. No. 19,196.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Action of trover brought in the Municipal Court of Chicago by Benjamin Ohnkin against Solomon Smoler for damages for the conversion of personal property. The trial court found for plaintiff and entered judgment against defendant for $22. To reverse the judgment, defendant prosecutes a writ of error.
    The facts as found by the trial court were substantially as follows: Plaintiff, a tailor, had two or three times bought goods from the defendant, a jobber. Defendant claimed that on October 27th, the day in question, plaintiff was indebted to him for goods to the amount of $26.30. On this day plaintiff came into the store and bought some goods, amounting to $22, for which he paid defendant cash. These goods were done up in a bundle and delivered to plaintiff, and the $22 was handed to defendant. The bundle was left for a short time on the counter, while plaintiff looked at other goods, and thereupon the defendant took the bundle, and when plaintiff inquired where his bundle of goods was defendant replied: “Ton owe me enough dollars, and you get out,” at the same time shoving the plaintiff out of the store.
    Abstract of the Decision.
    Trover and conversion, § 39

      —when finding as to ownership of goods warranted by the evidence. In an action of trover for goods purchased of a jobber, where the plaintiff claimed that he had paid for the goods and the bundle was delivered to him, and that after he had left it on the counter the defendant took it, and the defendant claimed that the money was paid by plaintiff to apply on an old account, held that a finding that the goods belonged to plaintiff was warranted by the evidence.
    Barnett & Glaskay, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Albert P. Snite, Plaintiff in Error, v. Robert C. Gehrke, Defendant in Error.
    Gen. No. 19,737.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Action of replevin by Albert P. Snite against Robert C. Gehrke to obtain household goods in the possession of defendant under a distress warrant. The trial court held adversely to plaintiff and a writ of retorno habendo was ordered to issue. To reverse the judgment, plaintiff prosecutes a writ of error.
    The chattel mortgage purported to have been made by Catherine D. Pearce and George C. Pearce, but the clerk of the Municipal Court, before whom the acknowledgment was made, certified that the persons acknowledging it before him were Arthur D. Pearce and George C. Pearce'. The mortgage also purported to have been given to secure a note of even date which, by the language of the mortgage, became “due and payable on or before 35 months after date of option of the legal holder thereof.”
    Snite & Longenecker, for plaintiff in error; Joel F. Longenecker, of counsel.
    Frederick H. Gansbergen and William C. Rigby, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Chattel mortgages, § 68 —when acknowledgment insufficient. Where a chattel mortgage is not acknowledged by one of the mortgagors, it will not be effective as against the claim of a third party.

2. Chattel mortgages, § 36 —when statement as to maturity of note defective. A provision in a chattel mortgage that the note secured thereby “became due and payable on or before 35 months after date of option of the legal holder thereof,” held to state no time for the maturity of the debt and to constitute a defect of which a third party may take advantage.

3. Replevin, § 44 —necessity of demand. Where defendant is in possession of goods, under a distress warrant, his possession is lawful and a demand is necessary before replevin can be brought.


text:
    George F. Schumann, Defendant in Error, v. Neal Karl Eikoos, Plaintiff in Error.
    Gen. No. 19,994.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Action by George F. Schumann against Neal Karl Eikoos. Plaintiff in his statement of claim alleged that his claim was for groceries and meats sold and delivered to defendant at his request by certain business firms, giving their names. Summons was served on defendant, who was defaulted for failure to appear, and judgment for plaintiff was entered for the amount claimed. Subsequently, defendant petitioned the court to set aside the default and to vacate the judgment, claiming that he had had no dealings with plaintiff. Plaintiff answered that at the time he commenced suit he was the owner by assignments of the claims mentioned in his statement of claim, and on motion he was given leave to file the assignments, which was done, and thereupon the court denied defendant’s -motion to vacate the judgment. To reverse the judgment, defendant prosecutes a writ of error.
    Abstract of the Decision.
    Appeal and error, § 1573

      —when irregularity in proceeding to vacate default judgment not reversible error. On petition to vacate a default judgment, where it appeared that plaintiff sought to recover as assignee of choses of action but had not complied with the statute in alleging that he was the actual bona fide holder thereof or how and when he acquired title, held that the action of the court in allowing plaintiff to file" the assignments of the claims sued on and thereupon denying the motion to vacate, though irregular, was not reversible error where the validity of the assignments was not questioned and there was no claim of any defense to the demands on the merits.
    Samuel G. Grodson, for plaintiff in error.
    William H. Tatge, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Herbert Miller by Fred Miller, Defendant in Error, v. Mrs. Frank G. Spreyne et al., Plaintiffs in Error.
    Glen. No. 20,108.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.

      Abstract of the Decision.
    1. Landlord and tenant, § 226

      —when owner of building liable for injury to child of tenant resulting from falling of stone step. In an action against the owners of a building to recover for injuries sustained by a child of a tenant by the falling of a stone step in a passageway used in common with other tenants of the building, held that a verdict for plaintiff should not be disturbed, it appearing that the defendants had once or twice attempted to secure the stone in place but that no mortar or cement was used.
    2. Negligence, § 250

      —when error in admission of evidence not prejudicial. In an action for personal injuries, error in the admission of portions of the testimony of plaintiff’s attending physician held not reversible error, where the jury were instructed to disregard it and the amount of the verdict did not indicate the jury were improperly influenced thereby.
    3. Damages, § 122

      —when amount of recovery for injury to leg not excessive. A verdict of six hundred dollars for personal injuries sustained by a minor held not excessive, it appearing that the accident caused a hole in his leg rendering it necessary to remove part of the bone, and that he was confined to his bed for a month and could not use his leg for seven or eight weeks.
    Statement of the Case.
    Action by Herbert Miller, a minor, by Fred Miller, his next friend, against Mrs. Frank G% Spreyne and Frank Gr. Spreyne to recover for personal injuries sustained by plaintiff by the falling of a stone step in a passageway in defendants ’ building. Plaintiff’s parents were tenants in the building and they and other tenants used the passageway in common. Plaintiff recovered a verdict for six hundred dollars and judgment was entered thereon. To reverse the judgment, defendants prosecute a writ of error.
    Kruse, Peden & Merrick, for plaintiffs in error.
    Jonas & Hess, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    City of Chicago, Plaintiff in Error, v. Dave Lewinsohn, Defendant in Error.
    Gen. No. 20,138.
    (Not to be reported in full.)
    Abstract of the Decision.
    Intoxicating liquors, § 105

      —when finding of not guilty in suit for violation of one o’clock closing ordinance contrary to evidence. In a prosecution against a saloon keeper for keeping open his saloon between the hours of one ‘o’clock a. m. and five o’clock a. m. in violation of a city ordinance, held that a finding by the trial court of not guilty was directly contrary to the conceded facts and could not be sustained, it appearing that a witness for plaintiff testified that on the morning in question .shortly after one o’clock, he saw twenty-five or thirty people drinking at the bar of defendant’s saloon, and the defendant testifying- in his own behalf admitted such to be the fact.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Prosecution by the City of Chicago against Dave Lewinsohn for violating a city ordinance prohibiting the keeping open of a saloon between the hours of one o’clock a. m. and five o’clock a. m. The trial court found the defendant not guilty. To reverse the judgment entered on the finding, plaintiff prosecutes a writ of error.
    William H. Sexton and James S. McInerney, for plaintiff in error; Ulysses S. Schwartz, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Oliver Tydings, Defendant in Error, v. Farrington Automobile Company, Plaintiff in Error.
    Gen. No. 20,181.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Action by Oliver Tydings against Farrington Automobile Company for a breach by defendant of a written contract to furnish plaintiff an electric automobile. By the terms of the contract defendant undertook for a certain price to furnish an Ohio Electric. . Plaintiff made a deposit of $100 which, in case there was no delivery, was to be refunded. Defendant agreed to allow plaintiff on the price of the electric car $600 for his Franklin gas car, which was to be traded in. Plaintiff claims that defendant failed to deliver the electric according to the contract. The trial court found in favor of plaintiff and assessed his damages at $700, being the amount of the deposit and the $600 for plaintiff’s car, which had been delivered to defendant and sold by it. From this amount $225, the price of a “rectifier” sold by defendant to plaintiff, was deducted and judgment was entered against defendant for $475. To reverse the judgment, defendant prosecutes a writ of error.
    McArdle & McArdle, for plaintiff in error.
    James Turnock, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Automobiles and garages, § 4*—when evidence of actual value of automobile to be taken in exchange admissible. In an action for defendant’s breach of a contract to sell plaintiff an automobile, where defendant had agreed to allow plaintiff a certain sum for his car which was to be traded in, and plaintiff’s car had been delivered to defendant and sold by it, refusal of court to admit in evidence testimony offered by the defendant to show the actual value of the car taken in exchange, held reversible error.

2. Evidence, § 63*—value. The amount agreed upon as the trading value of property may be prima facie evidence of its true value, but is not conclusive.


text:
    J. H. Heslop and H. W. Ryland, trading as Heslop-Ryland Desk Company, Plaintiffs in Error, v. Marcus J. Golden, Defendant in Error.
    Gen. No. 20,215.
    1. Fraudulent conveyances, § 2

      —Bulk Sales Law construed. “Other goods and chattels of the vendor’s business,” within the meaning of the Bulk Sales Law, does not mean any and all fixtures, goods or chattels used in any trade or business, but is- limited to those used in connection with the business of selling merchandise, commodities or other wares, under Hurd’s Rev. St. 1913, ch. 38a, §§ 4-6.
    2. Fraudulent conveyances, § 2

      -—what property covered by the Bulk Sales Law. Where one is engaged in running an employment agency, his desk, chair, filing case, rug and other articles of office furniture are not affected by the Bulk Sales Law such as to render a sale of the same void and fraudulent as to creditors, under Hurd’s Rev. St. 1913, ch. 38a, §§ 4-6.
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and judgment here.
    Opinion filed November 9, 1914.
    Rehearing denied November 23, 1914.

      P. R. Boylan, for plaintiffs in error.
    Arthur Shutan, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

In this replevin suit the trial court denied the right of property in plaintiffs on the ground that plaintiffs had obtained the same in violation of the so-called Bulk Sales Law (Hurd’s Illinois Statutes 1913, p. 906).

The facts are that one Charles A. Straw rented desk space from the defendant, Golden, in a suite of rooms at No. 19 South La Salle street, Chicago. The tenancy was by the month, and Straw conducted there an employment agency. He had a desk, a chair, a filing case, a rug and a few other articles of office furniture. He sold nothing from said office, and had no connection with or semblance to a mercantile establishment. Straw sold his furniture to the plaintiffs and left the building. Plaintiffs made a demand of the defendant, Golden, for the furniture but he refused to give it up, whereupon this replevin suit was commenced.

We hold that this property does not come within the operation of the Bulk Sales Law. This statute provides, in part, that: “The sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise, or merchandise and fixtures or other goods and chattels of the vendor’s business * * * shall be fraudulent and void as against the creditors of the said vendor, unless,” etc. It is claimed that the words “other goods and chattels of the vendor’s business” mean any and all fixtures, goods or chattels which may be used in any trade or business. We do not give these words, as used in the statute, so broad a meaning. We construe them to mean “other goods and chattels” used in connection with the business of selling merchandise, commodities or other wares. The office furniture of an employment agency is not so used and is not affected by this statute.

The judgment of the Municipal Court is reversed, and we find that the right of property is in the plaintiffs, and judgment for plaintiffs is entered in this court, plaintiffs having retained the property replevined.

Reversed and judgment here.


text:
    Alma Barginde, Appellee, v. Ewald Barginde, Appellant.
    Gen. No. 20,242.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Alma Barginde, complainant, filed a hill for separate maintenance, alleging cruelty and drunkenness of Ewald Barginde, defendant. After a hearing, the court granted a decree of separate maintenance in favor of the complainant and ordered the defendant to pay eight dollars a week for the support of complainant and her minor daughter. From the decree, defendant appeals.
    S. L. & Fred Lowenthal, for appellant.
    William L. Reed and Henry W. Huttmann, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Husband and wife, § 220 —ground for separate maintenance. Where the evidence showed that the defendant was frequently intoxicated and was brought home in such condition several times and that he struck and beat his wife several times, causing her face to be bruised and swollen, it was held sufficient to sustain a decree of separate maintenance and for support

2. Husband and wife, § 226 —when quarrelsome conduct of wife no defense to an action for separate maintenance. The testimony of the alleged quarrelsome conduct of complainant was considered but did not justify a disturbance of the decree for separate maintenance and alimony.

3. Husband and wife, § 243 —when amount of alimony not excessive. . Where there was nothing in the financial condition of a husband to render difficult the payment of eight dollars a week for the support of his wife and a minor daughter, the order of the payment of such a periodical sum was justified.


text:
    Albert Schaffner, Administrator, Appellee, v. C. F. Massey Company, Appellant.
    Gen. No. 20,345.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Rehearing denied November 23, 1914.
    Statement of the Case.
    Albert Schaffner, suing as the administrator of the estate of Frank Kosatka, deceased, recovered a judgment against C. F. Massey Company, a corporation, for five thousand dollars for the death of Frank Kosatka. The facts stated below are substantially taken from the opinion:
    Defendant manufactured concrete battery wells, used for the signal service of railroads. These wells resembled in shape large milk bottles. The perpendicular walls are five feet five inches high. Above this is a shoulder tapering inward, about ten inches high, and above this the neck extending about eighteen inches high. The opening in the top is twenty-eight to thirty inches in diameter, and at the bottom the well is about four feet ten inches in diameter. In the late afternoon of August 11, 1912, decedent, while working as a painter in the shop of the defendant, went into one of these wells, using a ladder, and proceeded to paint the inside. Whether or not he did this acting under a specific order from the foreman is disputed. He was not thereafter seen alive, but the next morning shortly after seven o’clock he was found lying dead tin the inside of the well. That his death was caused by paint and gasoline fumes seems to be admitted.
    On behalf of the administrator a witness testified that about 2:30 o’clock on the afternoon of August 11th, the foreman, Barry, said to the decedent: “Frank, get some of that paint, I want you to paint some battery wells on the inside up here;” that decedent went immediately to the paint barrel, filled a can with paint, then mixed it with gasoline, and walked with the foreman to the battery wells, and was seen with his hand on a ladder which was leaning against the well in which his body was subsequently found. Contradicting this, the foreman testified that his order was: “As soon as he finished the job he was on that I had some bottoms of wells to paint, to hunt me up and let me know, and I would show him what I wanted done.” Another witness gave testimony tending to corroborate the foreman. Respective counsel seek to support each story by evidence and argument concerning the circumstances of the situation and the usual manner of doing the work. For instance, it is strongly urged by defendant that the inside walls of the wells were never painted, but only the bottoms. This is disputed by testimony to the effect that sometimes the entire inside was painted.
    Abstract of the Decision.
    1. Witnesses, § 253

      —when credibility of witness is for jury. The credibility of a witness is for. the jury, in the absence of surrounding conditions such as to make his story impossible or improbable.
    2. Master and servant, § 197

      —when master bound to warn of dangers from fumes of paint and gasoline. Where decedent was given a specific order to paint the interior of a concrete battery well, the jury could properly believe from the evidence that paint and gasoline used in such a receptacle would give off fumes dangerous to the life of one working therein, so that the defendant must have been negligent in giving the specific order without warning of the dangers involved.
    3. Master and servant, § 379

      —when servant does not assume the risk incident to place and work. Evidence held insufficient to show that a painter assumed the risk from fumes in working in a battery well.
    4. Negligence, § 188

      —when evidence sufficient to show due care of deceased. In the absence of direct testimony, the evidence is held to show clue care on the part of decedent, who met his death from the fumes of paint and gasoline while painting a battery well.
    5. Negligence, § 188

      —presumption as to due care for safety. While the burden of proving due care for safety is upon the one asserting it, even if there is no direct evidence as to the conduct of a decedent in this respect, in an action to recover for his death from the fumes of paint and gasoline while painting the interior of a battery well, the decedent is entitled to the presumption that men naturally seek to avoid injury and to preserve their own lives.
    6. Death, § 58

      —what may be considered in arriving at damages by loss of a brother or son. In an action to recover for the death of decedent, an instruction authorizing the jury to consider not only what the parents of the decedent might reasonably have expected, if he had lived, but also what his adult brothers and sisters might have expected, is not erroneous, where the jury are limited to the consideration of the testimony upon the question and are told to consider only what the evidence showed the next of kin might reasonably expect in a pecuniary way.

      A judgment was entered in favor of the- administrator, and the defendant appeals from the judgment.
    Holt, Cutting & Sidley, for appellant.
    Francis X. Busch and Jarold Svoboda, 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 McSurely

delivered the opinion of the court.

7. Master and servant, § 307 —when court may refuse an abstract instruction as to assumption of risk. In an action to recover for a death caused by paint and gasoline fumes arising while decedent was painting the interior of a concrete battery well, it was not erroneous to refuse to give an instruction containing an abstract statement of the law as to assumption of risk, which ignored entirely the theory and proof that the decedent was obeying a specific order in painting the well.

8. Instructions, § 151 -—when requested instruction may be refused. It is not erroneous to refuse a requested instruction practically covered by an instruction given.

9. Trial, § 45 —when improper remarks of the court will not require reversal. Where the court’s remarks, indicating hostility towards certain of defendant’s witnesses, are made in chambers, out of the hearing of the jury, they are not so prejudicial as to require a reversal.

10. Death, § 67 —when the amount of damages awarded is not excessive. A verdict of five thousand dollars for the death of a young man over eighteen years of age, who was the support of his mother, held not excessive.


author: Mr. Presiding Justice Barnes

text:
    Samuel E. Erickson, Appellee, v. Fred Miller Brewing Company et al., on appeal of Fred Miller Brewing Company, Appellant.
    Gen. No. 19,936.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 9, 1914.
    Rehearing denied and modified opinion refiled November 24, 1914.

      Abstract of the Decision.
    1. Continuance, § 59

      —when affidavit admitted by adverse party erroneously excluded from evidence. In an action against two defendants, where one of the defendants made a motion for a continuance on the ground of an absent witness and the motion was denied upon plaintiff’s admission that the absent witness, if present, would testify to the facts set forth in the affidavit filed in support of the motion, held that said defendant was entitled to, the admission of the affidavit in evidence, so far as it was material to the issues between it and plaintiff, and that the court erred in excluding it on the ground that it would • operate prejudicially against the other defendant.

      Statement of the Case.
    Action in tort by Samuel E. Erickson against Fred Miller Brewing Company and Chicago Railways Company. The plaintiff had judgment against the defendant Brewing Company. To reverse the judgment, said Brewing Company appeals.
    When the case was called for trial, the Brewing Company made a motion for a continuance, supported by an affidavit setting forth the absence of a witness, the material facts expected to be proved by him and the necessity of taking his deposition. The Railways Company, having no notice of the motion, was not represented at the hearing thereof. But plaintiff was present and admitted that the absent witness, if present, would testify as alleged in the affidavit, whereupon the court denied the motion, the order reading on “plaintiff’s admittance.”
    When the Brewing Company offered the affidavit in evidence, it requested the court to give an appropriate instruction limiting the affidavit to the issue between it and the plaintiff and that it should not be considered as affecting the liability of the Railways Company. Plaintiff first objected to limiting the effect of the evidence and later joined with the Railways Company in objecting to its introduction at all. The court sustained the objections and the affidavit was excluded.
    Miller, Gorham & Wales, for appellant.
    C. Helmer, Johnson and Daniel Belasco, for appellee.

      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. Evidence, § 103 —rule as to admission of. Where evidence is competent for any purpose it must be admitted, and if its application should be restricted that may be done by an instruction.


text:
    Frank W. Shultz, Appellee, v. Isaac Miller-Hamilton et al., Appellants.
    Gen. No. 19,260.
    1. Pleading—reference to exhibits. A declaration cannot make attached exhibits a part of the pleading by referring to them as such.
    2. Pleading, § 476

      —when counts in declaration sufficient after verdict. In an action for breach of an agreement to repurchase bonds and stock at the expiration of two years, counts in the declaration defective in not averring a proper demand on defendants and tender of performance by plaintiff, etc., held sufficient after verdict.
    3. Appeal and error, § 1682

      —when error in sustaining demurrer waived. Defendants, by filing amended pleas, waive their right to urge error in sustaining a general demurrer to their original pleas.
    4. Pleading, § 128

      —when replication not responsive to plea. In an action for breach of a contract to repurchase stock and bonds at the expiration of two years, where one of defendants’ pleas averred that the place for delivery and payment of the stock and bonds was at a certain bank and that plaintiff at no time delivered or offered to deliver at said bank, held that a replication to the plea averring that none of the defendants were ready or offered at such bank or elsewhere to accept and pay for said bonds or stock was no answer to the plea for the reason it evaded the issue of tender.
    5. Instructions, § 131

      —when rulings on instructions as to tender erroneous. In an action for a breach of a contract, where plaintiff in his pleadings based his right to recover on his complete performance and not defendants’ waiver thereof, the giving of an instruction for plaintiff ignoring the necessity of tender and the refusal of an instruction offered by defendants making such tender essential to plaintiff’s recovery, held error.
    6. Contracts, § 387

      —when proof of performance essential to put defendants in default. Under a contract to repurchase stock and bonds, where a place is designated therein as the place of delivery and payment, in order for plaintiff to put defendants in default he must show in addition to his offer of performance that such stock and bonds were at such place for delivery unless such requirement was waived.
    7. Gaming, § 16

      —when provision in contract for resale not invalid. A contract for the sale of stock and bonds giving the buyer the right to return the same after two years and receive the purchase price, held to tie one of conditional sale and not an option contract, in contravention of section 30 of the Criminal Code, J. & A. 1i 3733.
    8. Sales, § 374

      —when instructions as to contribution to foreclosure sale properly refused. In an action for breach of a contract to repurchase stock and bonds, a requested instruction that plaintiff could not recover if certain persons purchased for the plaintiff and other bondholders the property at a foreclosure sale under a trust deed to secure the bonds, and if he contributed money for that purpose, and another requested instruction of the same purport requiring plaintiff to prove defendants’ consent to such contribution, held properly refused, there being nothing to show that plaintiff’s participation in the foreclosure sale would relieve defendants from their, obligations under the contract.
    9. Sales, § 374

      —when requested instruction as to merger properly refused. In an action for breach of a contract to repurchase stock and bonds, where it appeared that there had been a foreclosure of a trust deed given to secure the bonds, a requested instruction that if in the decree of foreclosure the court found the amount due on the bonds, then they were merged in said decree, and therefore of no validity and not capable of delivery after entry of said decree, held properly refused, it appearing' that the decree was not a final one or judgment for money enforceable by execution.
    10. Mortgages, § 635

      —right to deficiency decree. It is only by virtue of a statute that a money decree in a foreclosure proceeding can be rendered.
    Gridley, J., not being a member of this branch of the court when the case was orally argued, took no part in this decision.

      Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed November 10, 1914.
    Charles J. O’Connor, Joseph P. Mahoney and Charles A. Atkinson, for appellants.
    Zane, Morse, McKinney & McIlvaine, 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.

This is an appeal from a judgment in plaintiff’s favor for $30,035.83. . The suit was brought by appellee for breach of a written contract entered into June 10, 1908, between him as one party and appellants and one Wiley, who was also sued but not served, as parties of the other part. By a previous agreement between Shultz and Hamilton, dated April 4, 1908, the former purchased of the latter $25,000 in amount of bonds of the Big Horn Basin Development Company, a Wyoming corporation, paying therefor $23,750, and the accrued interest thereon. With said bonds went as a bonus a certificate for 25,000 shares, par value of $1 each, of the capital stock of another corporation. The bonds bore six per cent, interest, and were dated January 1, 1905, forming part of an issue of $750,000. Under said agreement Shultz had, at the time of the execution of the contract of June 10th, the right to return said bonds and stock and receive the purchase price therefor with the accrued interest on the bonds, but by said contract he agreed to retain the bonds and stock, waive such right and cancel such agreement. In consideration thereof and ‘' one dollar and other valuable considerations, ’ ’ appellants and said Wiley, by the contract in question, jointly and severally covenanted and agreed in substance :

First: So long as Shultz remains the holder of said bonds to guarantee payment of the interest thereon as it falls due, and in default of payment thereof by the company, to pay the same.

Second: Two years after date to take up and purchase said bonds and stock and pay therefor $23,750 with accrued and unpaid interest on the bonds; provided, however, Shultz might (a) exchange said bonds and stock for other securities or evidences of indebtedness of said company, in which event they will pay the same amount' therefor, two years from date; or (b) sell the bonds and stock, in_which event they shall be relieved from liability on account thereof.

Third: In event of foreclosure sale under the trust deed, before the expiration of two years, and the proceeds therefrom are insufficient to pay the repurchase price so agreed on, to pay Shultz the difference or deficit, reserving to them, however, the right to make such repurchase before the expiration of said two years.

The company defaulted on its bonds shortly after the execution of the contract of June 10th, paying no interest accruing thereafter, in consequence of which action was taken by the trustee named in the trust deed given to secure the bonds, a receiver of the company’s property appointed, a decree of foreclosure entered May 5, 1909, a sale of the property thereunder made December 2, 1909, and a deed thereof executed to certain persons as trustees for certain bondholders November 29, 1910.

On November 16, 1908, while such action was pending, a so-called reorganization agreement was entered into by certain bondholders, including appellants, looking towards a reorganization of the company, but the project was abandoned and the agreement surrendered before said sale. Pursuant thereto and subject to its terms bondholders, signing the same, were to deposit their bonds with the Colonial Trust & Savings Bank of Chicago as depositary. Shultz did not sign the agreement but at defendants ’ request did, on February 21, 1909, place his bonds with said depositary, receiving its receipt therefor.

On November 20, 1909, at a meeting of some of the bondholders, a committee was appointed to raise a cash fund and bid in the property at the foreclosure sale for the benefit of those who should contribute thereto. Notice of appointment of the committee and surrender of the reorganization agreement was sent to the several bondholders. Shultz and other bondholders, including defendants, contributed five per cent, of the par value of their holdings and said committee, as trustees, bid in the property at the foreclosure sale for $50,000, and received a deed therefor as aforesaid. It appears that said sum was absorbed in the foreclosure expenses and satisfaction of prior liens. As such trustees, and pursuant to an agreement with the contributing bondholders, they formed a new corporation, the Shoshone River Canal Company, to which they deeded the property, and the stock thereof was issued dollar for dollar to the bondholders so contributing, Shultz receiving a certificate for 250 shares, dated July 26, 1912, being after institution of this suit. At the trial he tendered to defendants said certificate of Stock, together with the receipt of the Colonial Trust & Savings Bank for the bonds and certificates of stock given with the bonds, offering to indorse and transfer the same. No actual tender of any kind, however, was made before the trial.

Shultz repeatedly demanded of appellants payment of interest on his bonds without avail, and on June 15, 1910, through his attorneys wrote Hamilton, requesting that he take back the bonds and pay him the repurchase price so agreed upon and the amount he had contributed for the purchase of the property, and mailed a copy of said letter to both Moore and Young. A few days later, just before beginning this suit, he called up Moore and Hamilton by telephone and insisted upon payment of the bonds and interest. Moore said he did not intend to pay, and Hamilton at first suggested that the matter stand for the time being, but when Shultz insisted upon payment, saying he wished to avoid litigation, Hamilton told him to “go ahead.”

The declaration is in three counts. The first two are predicated on a breach of the covenant to repurchase the bonds and stock at the expiration of the two years’ period. The third count is the only one on which a claim to recover the deficit on foreclosure could possibly rest, but it is fatally defective. It undertakes to make the contract in question and the other agreements aforesaid part of the pleading by referring to them as attached exhibits. While this is a familiar practice in chancery, it is not recognized either at common law or under our modified form of practice. See Jones v. City of Chicago, 167 Ill. App. 175, and cases there cited. Without reading into this count the exhibits referred to therein, its averments as to the contract sued on are incomplete and insufficient to state a cause of action. The judgment, therefore, must stand, if at all, on the other counts.

But it is urged that they do not state a cause of action,—that they state mere conclusions and do not show a proper notice or demand on defendants for performance nor a tender of performance by plaintiff, nor that he was ready, willing and able to perform. They do aver a demand and an offer to deliver to defendants the stock and bonds, and complete performance on plaintiff’s part, and, therefore, we think the alleged defects are such as would be cured by verdict. Sargent Co. v. Baublis, 215 Ill. 428.

To the declaration were filed six special pleas to which a general demurrer was sustained, and thereafter, on leave granted, defendants filed what in some parts of the record are referred to as “amended” and in other parts as “additional” pleas, and by thus pleading over waived their right to urge error in sustaining such demurrer. Nor can they urge that it was an abuse of judicial discretion for the court to refuse their request made after obtaining said leave to file a special demurrer to the declaration.

Appellants also urge that the demurrer to the special pleas should have been carried back to the declaration, but whatever might be said with respect to the third count, we do not deem the first two counts repugnant to a general demurrer.

To the additional pleas replications were filed and error is urged to the refusal to sustain demurrers to three of them. One of said pleas set out a provision of the contract in haec verba whereby it was covenanted and agreed that the place for the delivery and payment of the bonds and stock should be the State Bank of Chicago, Illinois, and averred that plaintiff at no time delivered or offered to deliver to defendants, or either of them, said bonds and stock at such bank. The replication thereto averred that none of the defendants were ready or "offered at such bank or elsewhere “to accept and pay for said bonds or stock or any of them,” and closed with an offer to verify. Inasmuch as the "declaration averred complete performance on plaintiff’s part, said plea set forth a proper defense, and by replying thereto, plaintiff so admitted (Home Ins. Co. of New York v. Favorite, 46 Ill. 263); but the replication was no answer thereto, evading, as it did, the issue of tender so presented. To put defendants in default, plaintiff was bound to prove not only notice of his election and ability and readiness to perform, but performance as alleged in his declaration. This involved tender of the bonds and stock aforesaid, unless tender thereof was waived; but waiver, if relied on, was not pleaded as it might have been, either in the declaration or replication, and plaintiff could not plead performance and recover under waiver of performance. Expanded Metal Fireproofing Co. v. Boyce, 233 Ill. 284; Schillinger Bros. Co. v. Thompson-Starrett Co., 171 Ill. App. 319.

On this same subject an instruction complained of was given at plaintiff’s instance telling the jury that he was entitled to recover if he fully performed ‘ ‘ and was ready and willing and offered to perform.” But it ignored the necessity of tender. Other refused instructions tendered by defendants relate to this same subject and are to the effect that without tender or delivery of the bonds and stock at the bank aforesaid, no recovery could be had, and that without such a tender or offer to deliver before the beginning of the suit, plaintiff could not recover under the offer or tender made in open court. Of course, tender at the time of trial, if not also made before the suit was begun, was unavailing unless before trial plaintiff was excused therefrom. But, in view of the state of the pleadings based on plaintiff’s complete performance and not on defendants’ waiver, there was error both in giving plaintiff’s instruction and denying defendants’ instructions.

Plaintiff’s contention that the deposit of the bonds with said bank at defendants’ request put tender thereof out of his power, except through said receipt, and estopped defendants from raising the question, is not well founded. The purpose of their deposit, namely, for reorganization, had ceased, and after notice of its abandonment there was apparently nothing to prevent their delivery to plaintiff on his presentation of said receipt and demand therefor.

Plaintiff was required, therefore, even on the issues presented, to prove performance. The record does not show an actual tender of the bonds and stock to any of the defendants, or plaintiff’s readiness and ability to perform by having them at the place named in the contract for their delivery. The only proof thereon consists of the letters and conversations above referred to, relating to the request made to take back the bonds. The letter addressed to Hamilton, after reciting the covenants of the contract and stating that the property had been foreclosed, and that Shultz had paid $2,500 (half that sum in fact) to enable his bonds to participate in the benefit of the same, makes demand for payment to Shultz in the following language:

“He now calls upon you, as the most favorable to you, to take these bonds off his hands at the stipulated figure of $23,500, which is 95 cents oh the dollar, together with all accrued and unpaid interest thereon and the additional sum of $2,500 paid in on the bonds at the foreclosure. He is ready to deliver to you the bonds and stock at any time.
If this is not done, he will find it necessary to bring an action against you and the other contracting parties.”

The letters to Moore and Young, inclosing a copy thereof, merely stated that a copy of a letter to Hamilton was inclosed “which explains itself.” It was after sending them that Shultz personally repeated the demand to Moore and Hamilton by telephone and sought, but failed, to reach Young. Even if sending to Young a copy of a letter making a demand on Hamilton and stating that it explained itself could be deemed a demand on him for performance, yet the statement therein that Shultz was ready to deliver the bonds and stock at any time was not of itself enough to prove performance by plaintiff or to put defendants in default. Osgood v. Skinner, 211 Ill. 229; Lester v. Jewett, 11 N. Y. 453; Plumb v. Taylor, 27 Ill. App. 238; Kelley v. Upton, 5 Duer (N. Y.) 336. Had they, acting thereon, gone to the place designated in the contract for their delivery, they would not have found them there. They were not compelled to seek plaintiff or to go to any other place. In addition to his offer of performance he was bound to have them there for delivery, and make proof thereof unless the requirement was waived and pleaded.

A similar contract was under consideration in the Osgood case, supra, and while it did not designate a place of delivery, as in the case at bar, the stock was nevertheless duly transferred and sent for delivery to a specified place of which due notice was given, and it was the coupling of such action with the offer to perform that put defendant in default and not the latter alone, the Court saying that the defendant could not be put into default by merely proving readiness and willingness to transfer the stock.

Some of defendants’ refused instructions raise the question whether the privilege given in the contract to plaintiff to repurchase the bonds after the lapse of two years made it an option contract in contravention of section 130 of the Criminal Code (J. & A. ¶ 3733), as it then existed. Such a contract is regarded as one of conditional sale and not an option contract within the meaning of the statute. Osgood v. Skinner, supra; Wolf v. National Bank of Illinois, 178 Ill. 85; Schlee v. Guckenheimer, 179 Ill. 593; Ubben v. Binnian, 182 Ill. 508; Loeb v. Stern, 198 Ill. 371; Kantzler v. Bensinger, 214 Ill. 589; Bates v. Woods, 225 Ill. 126. As is said in the Bates case, supra-. “The principal subject-matter of the contract was a legitimate business transaction and the option contained in the contract was but incidental to the main transaction.”

By another refused instruction, the jury were told, in effect, that the plaintiff' could not recover if said committee purchased for the plaintiff and other bondholders the property at foreclosure sale and he contributed money for that purpose; and another of the same purport required plaintiff to prove defendants’ consent to such contribution. Both were properly refused. Nothing is disclosed in the record by which defendants would be relieved from their joint and several obligations under the contract in question because plaintiff participated in the foreclosure sale; and, if defendants ’ consent were requisite, it might be implied from the fact that they were parties to the agreement to bid in the property and invited plaintiff to participate with them in such purchase.

Another refused instruction told the jury, in effect, that if in the decree of foreclosure the court found the amount due on the bonds in question, then they were merged in said decree, and by law were cancelled, of no validity and not capable of delivery after entry of said decree. The instruction was properly refused and the authorities cited in support of it are not applicable to the record in this case. Portions of the decree, introduced in evidence, show that the court found what was due on the outstanding bonds, and ordered, adjudged and decreed that the trustee recover judgment therefor _ against the company. But it further ordered that in case the proceeds of the sale were insufficient to pay in full the amount therein found to be due, the trustee or any of the holders of the bonds might make application for a deficiency judgment. This was not a final decree or judgment for money enforceable by execution. Cotes v. Bennett, 183 Ill. 82; Eggleston v. Morrison, 185 Ill. 577. It is only by virtue of a statute that a money .decree in a foreclosure proceeding can be rendered (8 Amer. & Eng. Encyc. of Law, 284), and the judgment contemplated is for the balance found to be due after sale. Jones on Mortgages, sec. 1709a. The record before us does not show the entry of a judgment for deficiency and, therefore, no basis for the contention that there was a merger of the bonds in the decree.

But for the errors stated the judgment must be reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Gridley, not being a member of this branch of the court when the case was orally argued, took no part in this decision.


text:
    Joseph Szimkus, Appellee, v. Stephen Ragauckas et al., Appellants.
    Gen. No. 19,858.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed on remittitur.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Action by Joseph Szimkus against Stephen Ragauckas, Joseph Gestaukos, Anton J. Bierzynski, Francis Bierzynski and others who are dismissed from the case. All were members of a musical and dramatic organization called the “Lithuanian Youths’ Circle.” At one of its entertainments, appellee was on a committee that had charge of collecting the proceeds therefrom. At a later entertainment, he had charge of the wardrobe and collected the proceeds from the same. From the latter fund he retained the sum of $4.70, claiming that he overpaid the society that much from the proceeds of the first entertainment. A controversy and dispute over his right to the sum so retained having arisen in the society, it passed a resolution demanding it from him and threatening to publish his conduct in the newspapers if he did not pay it. In pursuance thereof an article, the original of which was signed by appellants, was published on May 5, 1911, in a Lithuanian paper and language, the translation of which is as follows:
    “On the 29th of January of this year this Society played the play ‘Valkata.’ J. Szimkus, a member of this Society, was appointed in wardrobe, who charged 10 cents to each person for their clothing they left, but he kept the money, $4.70, himself. At first monthly meeting, after the play, he was asked for an explanation. J. Szimkus just told this much that he got the $4.70, but that he will not give it back. Violent uproar; J. Szimkus was asked if he cannot show for what reason he kept the money, and if he cannot show the reason he ought to return it to the Society Treasurer; but instead of that he said he would not belong to Society and went out. We will mention that this was not the first time that this happened with J. Szimkus. While he was organizing the Committee of this play, he used to give us an account in two or three months, but his account never used to agree with the sum of money which he used to turn in to Society, and he used to tell that he made mistakes in his account, or that he lost the money from his pocket." As he was of the same nationality, and a member of this Society, Society used to forgive him for a few dollars. The way he acted is very unfortunate. This Society is forced to let the public know about him.”
    The suit was commenced by filing a praecipe October 16, 1911, and issuance of summons on the same day. The declaration was filed September 18, 1912, consisting of one count, alleging .in due form that,by said article therein set forth it was intended to charge that plaintiff had “feloniously stolen and carried away certain moneys of said society,” and claiming special damages to his reputation, credit and business.
    Pursuant to an order entered October 8, 1912, an alias summons was issued and served on three of the defendants. All of them afterwards entered a general appearance and filed general and special demurrers, which were overruled, whereupon defendants filed pleas of not guilty, justification and the statute of limitations. A demurrer to the plea of statute of limitations was sustained. The verdict in favor of plaintiff was for fifteen hundred dollars, and there being a remittitur of three hundred dollars, judgment was entered tor twelve hundred dollars. To reverse the judgment, defendants appeal.

      Abstract of the Decision.
    1. Appearance, § 17

      —effect as waiving defects in process. Defendants, by entering their general appearance and defending on the merits, waive any objection to the summons or service.
    2. Limitation of actions, § 53

      —What constitutes commencement of action. The filing of the praecipe and issuance of the summons constitute the commencement of a suit.
    3. Appearance, § 20

      —right to withdraw. The court held not to have abused its discretion in refusing to allow withdrawal by defendants of their general appearance and entry of special appearance.
    4. Libel and slander, § 3

      —when question whether article is libelous per se not involved. The question whether an article is ■libelous per se is not involved in a case where,the suit was not brought on that theory, but that the averments in the inuendo made it libelous and that special damages resulted from its publication.
    5. Libel and slander, § 159

      —when case must be submitted to jury. In an action for libel, a plea of justification alone requires submission of the case to the jury.
    6. Libel and slander, § 21

      —when malice may be implied. Where the words published were intended to impute to the plaintiff the crime of larceny, malice may be implied from the very use thereof, and the implication is not overcome merely by defendants’ denial of malice or "of certain expressions attributed to some of them by plaintiff indicating malice. '
    7. Libel and slander § 56

      —when publication not privileged. The fact defendants were officers of a society and carried into effect its resolution for the publication of an article concerning one of the members, held not to make the article a privileged communication, it appearing that their action in so doing was wholly apart from any duty they owed the society.
    Cyrus J. Wood and William G. Wood, for appellants.
    Samuel J. Andalman, for appellee; Jacob Cohen, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

8. Libel and slander, § 64 —truth as a defense. Truth of the words published constitutes a sufficient defense only when the publication is with good motives and for justifiable ends.

9. Libel and slander, § 134 —evidence competent to prove meaning of words. In an action for libel, evidence to show that a person after reading the article withdrew money from the custody of plaintiff, explaining his conduct by stating how he interpreted the article, held competent to show the sense in which such person understood it.

10. Damages, § 175 —when evidence of pecuniary condition of parties admissible. In an action for libel, evidence is admissible to show the pecuniary circumstances of the defendants, if malice is shown'.

11. Libel and slander, § 155 —when verdict excessive. In an action for libel, a verdict in favor of plaintiff for twelve hundred dollars, held excessive.


text:
    Winfield & Elliott Packing Company, Appellee, v. G. H. Cross, Appellant.
    Gen. No. 19,873.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Action by Winfield & Elliott Packing Company against Gr. H. Cross to recover money claimed to have been collected for plaintiff and withheld from it by defendant. The affidavit of merits set up the nature of the defendant’s defense in the following language:
    “That on to-wit, Aug. 5, 1912, this defendant advanced to one H. H. Elliott, the promoter of said corporation and one of the organizers and original stock subscribers thereof the sum of Five Hundred ($500.00) Dollars, which said sum is evidenced by one certain judgment note executed by H. H. Elliott, copy of which is hereto attached and which said sum so advanced by this defendant to said H. H. Elliott, was to be used in the building and construction of a certain building, to-wit, Shipping Station at Miami, Florida, and in and about the business of the said plaintiff then in the process of organization and which said sum so advanced to H. H. Elliott, this defendant is informed and believes the fact to be true was used_ in the construction of said building, to-wit: Shipping Station aforesaid, and which said building this defendant is informed and believes the fact to be true is now used by said plaintiff in and about the said business.”
    Abstract of the Decision.
    1. Pleading, § 153

      —when affidavit of merits insufficient. In an action to recover money claimed to have been collected for plaintiff and withheld by defendant, an affidavit of merits stating that defendant advanced to a certain person who was a promoter of plaintiff corporation, etc., held properly stricken from the files as not setting forth facts from which acceptance or plaintiff’s knowledge of the transaction could be inferred or such fact as constituted a defense.
    2. Pleading, § 153

      —essentials for affidavit of merits. Section 55 of the Practice Act, J. & A. ¶ 8592, requires an affidavit of merits to specify the nature of the defense, and contemplates a statement of facts showing a legal defense.
    The court entered an order striking the affidavit from the files and entered judgment as of default against defendant for $515 and costs. To reverse the judgment, defendant appeals.
    Charles W. Stiefel, for appellant.
    Ralph L. Peck, for appellee.

      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:
    Fulton Packing Company, Appellant, v. Anton J. Cermak et al., Appellees.
    Gen. No. 19,882.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Action of replevin by Fulton Packing Company, a corporation, against Anton J. Cermak and others. On the day of the trial, an order of court was entered requiring plaintiff to produce at the trial certain books and documents pertinent to the issue. Later in the day the case came up for trial before another judge. When this order was brought to his attention by filing a copy thereof, another order of the same purport was entered requiring plaintiff to produce some of the same books and documents at two o’clock of the same day, and the hearing was continued to that time to enable plaintiff to comply with the order. At that hour, plaintiff’s counsel stated that he went to plaintiff’s plant about a mile away; that the bookkeeper was out; that he and plaintiff’s secretary made' a search for the papers called for and were unable to find any books excepting a stub check book then produced. No other explanation was given and no further time was asked for. No further information being vouchsafed as to plaintiff’s willingness or readiness to comply with the orders, the court, on defendant’s motion, discharged the jury, dismissed the case and ordered that a writ of retorno habendo issue for the property taken under the replevin writ. To reverse the judgment, plaintiff appeals.

      Abstract of the Decision.
    Dissmissal nonsuit and discontinuance, § 39

      —when suit may he dismissed on failure of plaintiff to comply with order to produce hooks. In an action of replevin, where plaintiff failed to comply with an order of the court to produce certain books and documents pertinent to the issue and made no showing of a reasonable effort or want of opportunity to do so, held that the court was justified in dismissing the suit and ordering a writ of retorno hahendo to issue.
    Henry M. Hagan, for appellant.
    Blum, Wolfsohn & Blum, for appellees.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Kenfield Publishing Company, Appellee, v. Edward H. Baumgartner, Appellant.
    Gen. No. 19,898.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Plaintiff, Kenfield Publishing Company, a corporation, declared on the common counts against Edward H. Baumgartner, defendant.
    The primary question involved was whether defendant was liable to plaintiff for the expenses incident to the printing and publishing of certain numbers of a monthly journal, called “The Motor Way,” for the months of April to October, 1907, inclusive. The report of the referee was adopted by the court so far as it found defendant liable for the expenses incurred up to and including September 6, 1907, when defendant ceased to do anything further in the way of publishing said journal. The cross-errors relate to the failure of the court to find defendant liable for expenses of printing, etc., incurred after said date.
    “The Motor Way” was owned by the Technical Press of America, a corporation, of which one Albert T. Leach was a stockholder. By written agreement made March 27, 1907, between said corporation and Leach of one part, and Baumgartner of the other, the latter agreed, among other things, to continue the publication and distribution of “The Motor Way” for five years at his own expense. Prior to that time said journal was printed by plaintiff for said Technical Press. Plaintiff continued to print the subsequent issues here involved, and this suit was brought to recover the charges and expenses incident thereto.
    Leach was the secretary and treasurer of the plaintiff and testified that defendant requested plaintiff to print the April issue and said he would assume payment of the bills and responsibility for the publication, and that thereupon plaintiff agreed to do the printing for him; that he subsequently promised payment on account and transferred to plaintiff certain notes to be applied thereon. In a letter dated July 11, 1907, replying to a letter from plaintiff saying it had ceased work on the publication of the July number, defendant, claiming its action was unwarranted, said: “You (plaintiff) were directed by me to issue the number.’.’ In another letter written in September, after abandonment of his contract, he recognized his liability for the account with plaintiff “for printing, paper, etc., incurred within the last four or five months.”
    Plaintiff recovered judgment from which defendant appeals.

      Abstract of the Decision.
    1. Contracts, § 97

      —when evidence of fraud in execution of sealed instrument inadmissible. Proof under a special plea of fraudulent representations, as an inducement to enter into a contract, is properly excluded as inadmissible in a suit on an instrument under seal.
    2. Assumpsit, action of, § 70

      —when recovery may be had on quantum meruit. Evidence held sufficient to warrant recovery under a quantum meruit count for printing, paper and other expenses up to the time when defendant gave notice of the abandonment of his contract.
    3. Evidence, § 255

      —when entries in booh account do not impeach promise to pay. Where entries are made in hook accounts charging both a defendant and another, they do not necessarily impeach the independent evidence that defendant promised plaintiff to pay the account and recognized his liability therefor, since there is an implied consent to the charges made against him.
    4. Contracts, § 349

      —when made for benefit of third party. The doctrine that a third party may maintain an action on a promise made by one person to another for his benefit is limited to contracts which have for their primary object and purpose the benefit of a third person and which are made for his direct benefit.
    5. Contracts, § 349

      —-when one is not a third party beneficiary. Where plaintiff corporation was not a party to a contract and had no interest in its performance except possible employment to do printing, its interest was so indirect that it could not invoke the doctrine of third party beneficiary under a contract, so that the court properly limited defendant’s liability to the obligation arising under the agreement which the evidence tended to show he made directly with the plaintiff.
    Edwin A. Hunger, for appellant.
    Jones, Addington, Ames & Seibold, for appellee; Walter Hamilton, 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:
    Paul E. Gierz, Appellee, v. John Rus, Appellant.
    Gen. No. 19,909.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1303

      —presumption when all the evidence is not preserved. Where it is evident that a reviewing court has not before it all the evidence upon which the trial court acted, the presumption obtains that the evidence omitted would' support the judgment even though the evidence as preserved by the record is insufficient to sustain its finding of damages for failure to comply with and complete a building contract.
    Appeal from 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 November 10, 1914.
    Rehearing denied November 24, 1914.
    Statement of the Case.
    Paul E. Gierz, plaintiff, brought action for damages for an alleged failure of John Bus, defendant, to comply with and complete a contract for the erection of a building. When the case was tried without a-jury, by consent of the parties, the trial judge inspected the premises in question. Defendant claimed a set-off of $175. A judgment was entered in favor of the plaintiff for $475, and from this judgment defendant appeals.
    Edward J. Herdlicka, for appellant.
    Edward J. Green, for appellee.

      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:
    Virginia Dreyfuss, Appellee, v. William Freud et al., Appellants.
    Gen. No. 19,922.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Action by Virginia Dreyfuss, complainant, against William Freud and others, defendants, resulted in a decree declaring a pecuniary legacy to complainant to be a lien on the testatrix’s real estate, and allowing interest thereon.
    In the first clause of the will in question the testatrix directed that her debts should be paid out of the proceeds of her estate hereinafter named, which was thereafter referred to in the clause making the bequest, which read as follows:
    “Third, I give, devise and bequeath to my children, William Freud, Mrs. Bertha Lapiner, the wife of Alvin E. Lapiner, Joseph Freud and Bessie Freud, in equal parts, all my estate, both real and personal, that I may die seized and possessed of at the time of my death, less the sum of two thousand dollars ($2,000), which I hereby give and bequeath to my sister Miss Virginia Dreyfuss, which said sum of $2,000 shall be deducted first out of my estate and the residue shall be divided in equal parts between my children above named, share and share alike.”
    • Defendants contended that the legacy abated, as the testatrix did not leave enough personal property to pay the debts, costs and expenses of administration and the legacy. From the decree in favor of the complainant, defendants appeal.

      Abstract of the Decision.
    1. Wills, § 476

      —when legacy charged on real estate. A charge of a legacy upon real estate may he made by a testator, either by express directions to such effect contained in a will, or the intention thus to charge may be implied from the whole will taken together.
    2. Wills, § 479

      —when language sufficient to charge real estate with legacy. Where the testatrix gave her entire estate, both real and personal, to her children, less a- certain sum bequeathed to complainant, which she expressly directed should be deducted first out of her estate and the residue to be divided in equal parts between her children, it was the intent of the testatrix to charge her real estate as well as her personal property with the payment of the legacy to complainant.
    3. Wills, § 480

      —when extrinsic evidence inadmissible. Where evidence was offered to show that at the time of the execution of a will, and for some time thereafter, the testatrix was the owner of personal property in excess of the amount necessary to pay her debts and a legacy in question, it was properly rejected as the intention to charge real estate with the payment of the legacy could be clearly gathered from the will itself.
    4. Wills, § 441

      —when a legacy begins to draw interest. A general pecuniary legacy draws interest from the time it is due and payable, which, when not fixed by the terms of the will, is one year .after the testator’s death.
    5. Wills, § 441

      —payment of legacy. Where the personal estate was insufficient to pay a legacy, the residuary devisees and legatees took real estate burdened therewith and were liable for the interest on the legacy.
    6. "Costs, § 67

      —when statutory damages will not be added. Where an appeal has not been taken for delay, statutory damages will not be added.
    Frank & Lurie, for appellants.
    Hoyne, O’Connor & Irwin, for appellee.

      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:
    In re Petition of Louis Greenberg, Appellant, v. Minnie V. Connor, Appellee.
    Gen. No. 19,947.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Execution, § 295

      —when declaration to show malice the gist of the action within meaning of Insolvent Debtors’ Act. A count in a declaration, charging among other things that the petitioner, with force and arms, etc., broke open the outer doors of the, judgment creditor’s dwelling and continued to make a great noise and disturbance therein for three days, held to show malice as the term is used in the Insolvent Debtors’ Act, J. & A. ¶¶ 6198 et seq., and held that the judgment against petitioner was, under the doctrine of res adjudicate, conclusive of that question and estopped petitioner from showing the contrary.
    2. Execution, § 295

      —determination as to whether malice is gist of action. Whether malice is the gist of a civil action within the meaning of the Insolvent Debtors’ Act, J. & A. ¶¶ 6198 et seq.. may be determined alone from an inspection of the record thereof and particularly from the allegations of the declaration.

      Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Petition by Louis Greenberg in the County Court for discharge, under the Insolvent Debtors’ Act, from custody under a capias ad satisfaciendum issued on a judgment recovered against him in the Circuit Court in favor of Minnie V. Connor. To reverse a judgment dismissing the petition, petitioner appeals.
    Martin Connor, for appellant.
    William J. Stapleton, 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.

3. Execution, § 302 —when rule as to extrinsic evidence inapplicable. The rule that where there are several counts in the declaration" and malice is the gist of some but not of others, the question whether extrinsic evidence may be resorted- to to determine under which count the verdict was rendered, is not applicable where each count charges malice and the judgment necessarily involves the determination of that question as one of the issues.