text:
    Adkins, Young & Allen Company, Appellee, v. Rhinelander Paper Company, Appellant.
    Gen. No. 21,940.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and judgment here.
    Opinion filed May 1, 1916.
    Rehearing denied May 15, 1916.
    Statement of the Case.
    Action by Adkins, Young & Allen Company, a corporation, plaintiff, against Rhinelander Paper Company, a corporation, defendant, to recover a balance said to be due for installing in defendant’s manufacturing plant what are called ‘ ‘ Fuel Economy Gauges. ’ ’ Defendants in its affidavit of defense alleged failure of plaintiff to perform its contract; it also filed a claim of set-off. Upon trial by the court defendant was defeated as to its set-off, and plaintiff had judgment for $2,000, from which defendant appeals.
    The evidence showed that letters contained the contract of the parties. On September 22, 1913, plaintiff wrote to defendant offering to equip one of its boilers, No. 6, with “Indicating and Recording Gauges,” with a guaranty that they would increase “the efficiency of evaporation at least five (5%) per cent.,” to be determined by tests. If the increase was not shown the device was to be removed free of charge. This offer was accepted. On January 3, 1914, plaintiff wrote as follows:
    “As per our contract of September 22nd, 1913, and your letter of the 30th ult., we take pleasure in submitting this contract that covers every detail of both our written and verbal agreements.”
    Then follows a proposition to equip each of defendant’s five other boilers with the “Wilsey Fuel Economy Gauges,” under the following conditions:

      “We guarantee to increase the efficiency of steam production at least five (5) per cent, over present figures.

      ‘1 This savings guarantee to be determined by two (2) evaporative tests each of one (1) week duration. One test under present conditions and the second test with the fireman taking advantage of our gauge readings. It is understood you will have one of your men check these figures at all readings and verify them to you.
    “In the event of test not being satisfactory to either party, duplicate tests are to be conducted.
    “If, according to these tests, give (5) per cent, or more increase in the evaporation per fuel unit is shown, the complete installation is to be paid for within thirty (30) days of installation.
    “If less than five (5) per cent, increase in efficiency is shown, the equipment is to be removed free of charge to you.
    “These efficiency tests are to be as stated, each of one (1) weeks duration, i. e., six (6) consecutive working days each. * * *
    “Price of complete installation as above outlined and subject to above guarantees, including our services as efficiency engineers, to be two thousand ($2,000) dollars.
    “The installation on No. 6 boiler to be paid for as per previous contract if these tests are completed as outlined and show 5% or more.”
    This, also, was accepted by notation on the letter.
    The gauges having been installed, the tests contemplated were made, commencing February 16th and ending February 28th. At the conclusion of the tests it was reported by plaintiff’s representative to the defendant that these tests showed an “increase in evaporation or efficiency of 17.24%.” Defendant’s manager expressed doubt as to the accuracy of these figures, saying that he wanted to run another test the following week. This conversation took place on Saturday. The manager said he knew there was something wrong with this test, and he wished to confirm it. Mr. Adkins of the plaintiff company asked for a payment on account, and represented that they had been at considerable expense and that there was no question of making the saving of five per cent., and that they would like to have a little advance. Thereupon plaintiff was paid $425. At the same time plaintiff ’s representative was again told that defendant’s manager was sure these figures were not correct and that he would make another test the following week. This was agreed to by plaintiff. This second test was made, and two days thereafter, that is on March 18th, defendant reported to plaintiff that this test “indicated a saving of 1.91%.” Letters passed between the parties in which plaintiff argued that this second test showed the saving guarantied, which claim was combated by defendant. On April 14th, defendant wrote to plaintiff as follows:
    “Your favor of the 9th received and we do not agree with you that there has been an average saving of 10%% in our boiler room since installing your Economy G-auges.
    “As advised you when here, the first test without the gauges was not a practical one in any way as it showed the highest cost of fuel of any run ever made in the history of our mill. It was for this reason that I took advantage of our contract for a second test.
    “Up to the present time we are not satisfied with the results shown since the last test showed a saving of less than 5% and we might have had this difference in firing from one week to another without any gauges attached.
    “Please note, therefore, that we do not accept the apparatus.”
    There was a disagreement between the parties as to the consumption of wood fuel in the respective tests, defendant claiming that in the first test this consumption was disregarded, and plaintiff claiming that this factor was of no importance. In June and July defendant had tests made as to the fuel value of wood such as was used in its mill, but the court refused to allow the result of these tests to be shown.
    Abstract of the Decision.
    1. Contracts, § 330

      —when payment on account not a waiver of conditions of contract. In an action to recover a balance claimed to be due for installing a device in defendant’s plant, evidence examined and held to show that a payment of a part of the purchase price did not constitute a waiver by defendant of the conditions and guaranties of the contract and an acceptance of the device.
    2. Contracts, § 374*—when burden of proving compliance on plaintiff. In an action to recover a balance claimed to be due under a contract for the purchase of a device, where defendant sets up a failure of the device to fulfil the conditions and guaranties of the contract, the burden is on plaintiff to show that the device conformed to such guaranties.
    3. Set-oto and recoupment, § 18*—when amount paid on account recoverable. Were a buyer has paid a part of the purchase price upon a condition to be subsequently performed which thereafter fails, he is entitled to recover such amount on a plea of set-off in an action to recover the balance of the purchase price.
    Meyer Shapiro, for appellant; Gregory & McNab and Albert S. Long, of counsel.
    Bryan, McCormick & Wilber, for appellee; William E. Bryan, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    William J. Scown, Appellee, v. County of Cook, Appellant.
    Gen. No. 22,022.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action by William J. Scown, plaintiff, against County of Cook, defendant, for compensation for the services of plaintiff and associates rendered to defendant at its request, in appraising the property of the Dunning Institution in Cook county. Plaintiff alleged that the claims of his associates had been duly assigned to him. Upon trial a jury returned a verdict for the plaintiff in the sum of $3,800 upon which judgment was entered. Defendant appeals.
    The evidence showed that in 1912 the County of Cook and the State Board of Administration of the State of Illinois began negotiations looking to the transfer of the Dunning Institution from the County of Cook to the State of Illinois. In connection with this transfer the board of administration, in February, 1912, requested the County Board of Cook County to furnish “a detailed inventory of all property belonging to Cook County which may be transferred to the State of Illinois on July 1, 1912.” On March 4, 1912, pursuant to said request, the county board adopted a resolution reciting that “The State Board of Administration has asked for an inventory of all the personal property now situated in said institution, together with lists of buildings and descriptions of real estate; * * * That the President of the Board of Commissioners be and hereby is directed and authorized to appoint and name six persons * * * who shall inventory .and appraise all the personal property and effects of the Dunning Institution, and make its report to the President of the Board of Commissioners and members at as early a date as possible, said persons and the cost of said inventory to be paid for out of the Dunning Institution Building Fund.” On March 8, 1912, the president of the county board appointed the plaintiff and Arch M. Campbell as building appraisers to do this work.
    It further appeared that at this time there were two funds which had been appropriated by the county board in its annual appropriation bill available for the payment of these services, (1) “for such building purposes as are not otherwise provided for, $25,000”; (2) “building purposes at Dunning Institution, $50,000.”
    The performance of the work was not in dispute. Plaintiff and Mr. Campbell, with necessary assistance, made the appraisement and reported the same to the county commissioners. There was also evidence that the reasonable, usual and customary charges in Chicago for performing such services would amount to over $20,000. Defendant’s only witness testified that this charge would be over $14,000, and it was admitted by defendant that one per cent, would be the usual and customary price, which would amount to nearly $10,000 for each appraiser. There was evidence that these appraisers had made an agreement with a committee appointed by the county board as to their compensation, which was considerably less than the amount shown to be reasonable and customary.
    Maclay Hoyne, for appellant.
    Lee D. Mathias, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Judges, § 9 —when judge of a City Court of another county may sit as judge of Superior Court of CooJc county. The judge of a City Court outside of Cook county may sit as judge of the Superior Court of Cook county in the trial of an action against Cook county to recover appraiser’s fees.

2. Counties, § 40*—when president of board of county com/inissioners may appoint appraisers. Where the board of county commissioners of a county adopts a resolution directing and authorizing its president to appoint and name persons to appraise and inventory all the personal property and effects of a certain institution, such resolution being in connection with the transfer of the institution to the State board of administration which had requested a detailed inventory of all the property, the president may appoint persons as expert building appraisers to appraise the buildings of the institution.

3. Contbacts, § 382*—when evidence as to rate of compensation admissible. In an action against a county to recover compensation for services in appraising property, defendant cannot complain of the admission of evidence of an agreement between plaintiff, on the one hand, and the president of defendant’s board of county commissioners (by whom plaintiff was employed) and a committee, on the other, as to the rate of compensation, where, under the common counts of plaintiff’s declaration he would be entitled to recover on a quantum meruit which, the evidence shows, would give him a larger amount than he claimed or was awarded by the jury.

4. Customs and usages, § 26*—when evidence inadmissible. In an action against a county to recover for services rendered in appraising property, evidence as to the customary manner of making an appraisal of such property is properly excluded where plaintiff had made the appraisal in conformity to the method prescribed by the board of county commissioners by which he was employed.

5. Counties, § 40*—when resolution does not confer on president of board of county commissioners power to malee contract. A resolution of a board of county commissioners that its president be and is directed and authorized to name and appoint a certain number of persons who shall inventory and appraise certain property and shall be paid out of a certain fund, does not confer on him the power to make a contract.

6. Municipal cobpobations, § 172*—when estopped to question right to compensation for services. Where a municipality has power to contract for services and such services have been rendered and it has accepted the benefits thereof, it is estopped to claim that the person rendering them is not entitled to compensation, and is liable for the reasonable value of such services.

7. Counties, § 2 —when authorised to employ appraisers. A county has power to employ appraisers to appraise its property.

8. Counties, § 71*—when appropriation valid. A resolution of a board of county commissioners providing for .the payment of the cost of the inventory and appraisal of a certain county institution out of the building • fund of such institution is valid.

9. Contracts, § 384*—when evidence sufficient to support verdict. In an action against a county to recover for services rendered in appraising property, evidence examined and held to support a verdict for plaintiff.

10. Payment, § 24*—when matter of defense. Payment is a matter of defense, and in the absence of evidence it will be presumed that it has not been made.


text:
    Richard J. Prest, Appellant, v. Carman Laundry Supply Company and H. Hinchliffe, Appellees.
    Gen. No. 22,040.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action by Richard J. Prest, plaintiff, against Car-man Laundry Supply Company and H. Hinchliffe, defendants, to recover compensation for injuries received while he was a passenger on a car of the Chicago Railways Company. Plaintiff alleged that the defendants were in control of a certain wagon being driven along Des Plaines street at the crossing with Madison street, and that they so negligently managed the wagon that a collision occurred and plaintiff was injured. As directed by the court, the jury returned a verdict finding the defendants not guilty, and upon this verdict judgment was entered. Plaintiff appeals.
    Abstract of the Decision.
    Appeal and errob, § 1303

      —when assignments of error not considered where Mil of exceptions insufficient. On appeal, where the document purporting to be a bill of exceptions not only does not pretend to contain all of the evidence, but states by implication that it does not, the Appellate Court must assume that there was evidence sufficient to justify the trial court in directing the verdict.
    The certificate of the trial judge appended to the bill of exceptions recited that the foregoing “is a synopsis of the evidence offered or received on the trial of the foregoing entitled cause * * * which were all of the proceedings, other than evidence as above described, had on the trial of the foregoing entitled cause.”
    George V. McIntyre, for appellant.
    Howard Ames, Harry W. Meneley and Sylvester G. Abbott, for appellees.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois by Maclay Hoyne, State’s Attorney, ex rel. Ida L. M. Fursman, Appellees, v. City of Chicago et al. Board of Education of the City of Chicago et al., Appellants.
    Gen. No. 22,236.
    1. Injunction, § 173

      —when parties complainant properly joined. On a bill by the People by the State’s Attorney on the relation of a tax payer and voter of a city to enjoin the enforcement of a rule of the board of education of the city prohibiting teachers in the public schools from belonging to certain societies or unions, parties complainant held properly joined.
    2. State’s attorney, § 5*—when bill maintainable by where disbursement of public school money affected. Under J. & A. f 616, the State’s Attorney is required to commence and prosecute a suit which involves the disbursement of money by the public schools.
    3. Injunction, § 173*—when taxpayer may maintain bill. A taxpayer of a city may maintain a bill to enjoin the enforcement of a rule of the board of education of such city involving the disbursement of its public school funds.
    4. Injunction, § 191*—when bill not prematurely brought. A bill by the State’s Attorney on the relation of a taxpayer of a city to enjoin the enforcement of a rule of the board of education of such city prohibiting the teachers from belonging to certain unions and societies under the penalty of dismissal is not prematurely brought though no teacher has been discharged, where the bill alleges that the board is preparing to send out notices requiring compliance with the rule, is spending money and threatening further to enforce the rule.
    5. Schools and school distbicts, § 104*—what extent of power of board of education to pass rules governing teachers. While the board of education of a city has power to pass rules regulating the teaching force, it cannot pass an unreasonable rule in violation of the statutes or constitution of the State.
    6. Schools and school districts, § 104*—when rule of board of ediication void. A rule of the board of education of a city which restricts employment of teachers to such as are not members of certain organizations is void as discriminating between certain classes and conferring special privileges.

      7. Schools and school districts, § 104

      —when rule of board of education not valid as disciplinary measure. A rule of the board of education of a city restricting employment to such teachers as are not members of certain unions or societies, and prohibiting membership in such unions or societies under the penalty of dismissal, • cannot be sustained as a disciplinary measure.
    Holdom, J., dissenting.
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court.
    Affirmed.
    Opinion filed May 1, 1916.
    Angus Boy Shannon and Chauncey M. Millar, for appellants.
    Maclay Hoyne, for appellees; I. T. Greenacre and Alice Greenacre, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal from an order denying a motion to dissolve a preliminary injunction.

Appellees have made motions (1) to dismiss the appeal, or (2) to dismiss the appeal as to certain defendants in the bill. In view of the decision reached by a majority of this court upon the substantive question before us these motions are not material, and for that reason are denied.

The bill was filed by the State’s Attorney of Cook county and joined in by Ida L. M. Fursman, a taxpayer and voter of the City of Chicago, praying for an injunction restraining the enforcement of a rule passed by the board of education prohibiting teachers from belonging to certain societies or unions. This rule of September 29, 1915, is as follows:

“Section 93-A — Membership in Organizations Aeeecting Discipline and Efficiency ■ Prohibited.

“l._ Membership by teachers in labor unions, or in organizations of teachers affiliated with a trade union, or a federation or association of trade unions, is inimical to proper discipline, prejudicial to the efficiency of the teaching force, and detrimental to the welfare of the public school system; therefore, such membership or affiliation is hereby prohibited. Membership in some teachers’ organizations which have officers, business agents or other representatives who are not members of the teaching force is inimical to proper discipline, prejudicial to the efficiency of the teaching force, and detrimental to the welfare of the public school system; therefore membership in such of said last mentioned organizations as this Board hereafter shall determine are inimical, prejudicial or detrimental as aforesaid is hereby prohibited.

“2. All members of the Education Department who are now members of any such prohibited organizations shall forthwith discontinue their membership therein, and shall within three (3) months from the date of the adoption of this rule furnish satisfactory evidence that such membership has been discontinued.

“3. No person shall be employed hereafter in any capacity in the Education Department until such person shall state in writing that he or she is not a member, and will not while employed in the Education Department become a member of any such prohibited organization.

“4. No member of the Education Department shall be eligible hereafter for promotion, .advancement in salary, or transfer from school to school until such person shall have stated in writing that he or she is not a member of any such prohibited organization.

‘ ‘ 5. Any member of the Education Department who shall be found guilty of violation of any provisions of this rule shall be liable to dismissal from the service, or to such lesser disciplining as this Board in its discretion in each case shall determine.”

It is alleged by the bill that in accordance with a rule of the board of education, on June 23, 1915, the teachers were elected for the ensuing year in the regular manner, more than 7,000 in number, including the relator ; that the teachers have been teaching in the public schools for a great many years, and a rule provided that in the employment of teachers each year the board should give preference to those already employed if found satisfactory; that before this election on June 23, 1915, the board of education had found all of such teachers well qualified and competent, that such teachers had done and continued to do all things for the proper maintenance and discipline of the schools in accordance with the by-laws, rules and regulations governing the same as adopted by the board of education ; that such teachers had done all things in accordance with their contract of employment, and they had not done anything, and had permitted nothing to be done, that was inimical to the proper discipline of the schools, and that they were still willing under their contract of employment to so continue their duties.

That for many years there has been a Teachers’ Pension Fund as provided by law; that more than 6,500 of the teachers elected on June 23rd are contributors to such fund; that it aggregates more than $500,000, and is made up from payments made by the teachers from their salaries,, and from general taxation; that the money expended by the Board of Education is made up from general taxation and other sources.

That for several years more than 3,500 of the teachers elected have been and are now members of the Chicago Teachers’ Federation, a corporation organized under the laws of Illinois; that the corporation is not for profit, and was formed “to obtain for teachers all the rights and benefits to which they are entitled; the consideration and study of such subjects as the Federation may deem necessary; the consideration and support of the pension law, and the study of parliamentary law.”

That the Chicago Federation of Labor is a voluntary association made up of delegates from the trade and labor unions, and that the Teachers’ Federation is affiliated with such Labor Federation.

That the American Federation of Labor is a voluntary association of trade and labor unions, and that the Teachers’ Federation is affiliated with the American Federation.

That there is also a body of teachers known as the Federation of Men Teachers, and also a similar body known as the Federation of Women High School Teachers; that the members of these two organizations contributed to the pension fund, and are affiliated with the Chicago and American Federations of Labor.

That the board has ordered printed 7,000 copies of a pledge for the teachers to sign, stating that they are not members of the organizations prohibited by the rule above quoted, and is threatening to distribute them among the teachers of the 290 schools, at great expense for the material, printing, etc., and to pay for the same out of the school fund.

That under rules heretofore in force certain classes of teachers were to be given promotion; that this promotion has been refused to any teacher in accordance with the above-quoted rule, and that the moneys for salaries and the pension fund are being held by certain city officials, and that teachers will be dismissed unless they will comply with said rule.

That the actions of the several teachers and the conduct of their respective schools are the same whether or not the teacher belongs to the prohibited organizations.

That a great many of the teachers employed June 23, 1915, have been re-employed each year for many years past, and during a great many years were or have been members of the organizations prohibited by said rule; that probably one-half of the teachers belong to such organizations; that if such rule is enforced teachers will be discharged, the pension fund depleted, and taxpayers be at great inconvenience.

It is contended that the rule conflicts with several provisions of the State_ and Federal constitutions, and that it is arbitrary, unreasonable and void.

The answer denies the right of the State’s Attorney, either of his own accord or upon the relation of Ida L. M. Fursman, to maintain the bill of complaint. It states that the board, after careful consideration and due deliberation and in the exercise of its sound judgment, found and declared that membership by teachers in labor unions or in organizations affiliated with labor unions was so injurious to the school system as to require the prohibition thereof. It denies that the enforcement of the rule would create confusion; admits that the teachers are as a whole as competent and well qualified as any body of teachers in the United States, but that they need and require a constant and strict disciplinary control; and the answer charges that the prohibition against membership or affiliation with labor unions by teacheis is not only just and reasonable but also a necessary disciplinary rule; and denies that the rule violates any natural right or any constitutional provision.

Upon hearing of the motion for a preliminary injunction it was ordered that the writ of injunction issue restraining the defendants from enforcing rule 93-A above quoted, until the further order of the court. A subsequent motion to dissolve this injunction was denied.

The parties complainant are properly joined, and the bill is not multifarious. The State’s Attorney is required by statute “to commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any court of record in his county, in which the people of the State or county may be concerned.” Section 5, chapter 14 (J. & A. 616). That the people are interested in the money disbursed by "the Board and are concerned in the management of the public schools is beyond dispute, A taxpayer may maintain such, a bill. Jones v. O’Connell, 266 Ill. 443. The nature and function of the Board of Education and the rights of a taxpayer in relation thereto are thus stated in Adams v. Brenan, 177 Ill. 194, 198:

“The board of education of the city of Chicago is a public corporation, created by legislative authority as an agent of the State for the purpose of maintaining public schools and school buildings within that subdivision of the State. For the purposes of that function it receives from the taxpayers and holds as a trustee the school fund, and is bound to administer it for the benefit of the beneficiaries of the trust. The taxpayers are in equity the owners of the fund, and the board can only hold and apply it to legitimate purposes of the trust. The law is established, beyond doubt or controversy, that a bill to enjoin public officers so situated from misappropriating the fund in their charge is a proper remedy for a taxpayer.”

The suit is not prematurely brought. It does not matter that no teacher has yet been discharged. The bill alleges that the board is preparing to send out notices to the teachers that they must comply with the rule, is spending money, and threatening further to enforce the rule. Now is the proper time for suit to be brought.

It may be conceded that the board has power to pass rules regulating its teaching force, and that generally such matters are within its exclusive discretion; but the board has no power to pass an unreasonable rule in violation of the statute or constitution. People v. Harrison, 223 Ill. 540.

Is the rule in question discrimination between different classes of citizens, conferring special privileges upon a class or group less than all? A majority of this court holds that it is. In Adams v. Brenan, supra, the board of education sought by rule to restrict the work of repairing a schoolhouse to members of a labor union. - The enforcement of the rule was enjoined, the court holding that it created a discrimination between different classes of citizens. In its opinion the court said:

“It is unquestionable that if the legislature should-enact a statute containing the same provision as this contract in regard to any work to be done for boards of education, or if they should by a statute undertake to require this board, as the agency of the State in the management of school affairs in the city of Chicago, to adopt such a rule or insert such a clause in its contracts, or should undertake to authorize it to do so, the provision would be absolutely null and void as in conflict with the constitution of the State. If such a restriction were sought to be enforced by. any law of the State it would constitute an infringement upon the constitutional rights of citizens, so that the State in its sovereign capacity, through its legislature, could not enact such a provision. (Millett v. People, 117 Ill. 294; Frorer v. People, 141 id. 171; Braceville Coal Co. v. People, 147 id. 66; Ramsey v. People, 142 id. 380; Ritchie v. People, 155 id. 98; People v. Chicago Live Stock Exchange, 170 id. 556.) There is no more reason or justification for such a contract as this than there would be for a provision that no one should be employed except members of some particular party or church. In any such case it might be said that the board entertained a bona fide opinion that the members of some political party were more intelligent and better capable of performing the work, so that better results would be attained;, or that the members of a church, on account of their higher standard of morality, would more faithfully and conscientiously carry out the contract.”

And, again:

“The board of education may stipulate for the quality of material to be furnished and the degree of skill required in workmanship, but a provision that the work shall only be done by certain persons or classes of persons, members • of certain societies, necessarily creates a monopoly in their favor.”

In Holden v. City of Alton, 179 Ill. 318, by ordinance the city council sought to prohibit the letting of any contract for city printing to any office which could not furnish the label of the typographical union. The court held such ordinance void, saying, it “is in violation of common right, tends to create a monopoly and cannot be tolerated. * * * There is here an unequivocal admission of an arbitrary exclusion from the privilege of contracting with the city or laboring for it, of a portion of the citizens, for the sole reason that they are not members of an association.” See also, Mathews v. People, 202 Ill. 389, and cases there cited.

By these decisions it is settled that any rule which the board of education might pass restricting the employment of teachers to members of any particular societies or unions would be void. It follows logically that a rule which restricts employment to nonmembers of such societies or unions is also void.

Is it valid as a disciplinary measure? If the board had resolved that it was necessary as a matter of discipline that it would employ as teachers only members of the Chicago Teachers’ Federation, would such a restrictive rule be valid? Or that its teachers should all be Presbyterians or Catholics as a necessity for “efficiency of the teaching force?” Or that no members of such churches should be employed for the same reason? Or that no member of a particular political party should be employed because membership of the teacher in such party was ‘ ‘ detrimental to the welfare of the public school system?” The answers to such queries must manifestly be against the validity of such a rule. In the Adams case, supra, the rule passed by the board gained no virtue because the “board may have been of the opinion that its action was for the benefit of the public. ” The law is that the board may stipulate for the amount of training, the degree of proficiency and the physical fitness of its teaching employees, but it cannot provide that its teaching shall be done only by certain persons or classes of persons members or nonmembers of certain societies.

Furthermore, we have before us only the assertion by a scant majority of the board that membership in the banned societies is inimical to proper discipline. The rule was adopted by a vote of 11 favorable to 9 opposed. No facts on this point are presented or tendered either by bill or answer. It is possible that the validity of such a rule as a measure of discipline might be the proper subject of judicial consideration in connection with the necessities arising from facts and occurrences, but no such necessities are now before us.

It is a sound principle that agents to whom is delegated power to expend moneys derived from the public generally should not be permitted arbitrarily to contract for the expenditure of those moneys exclusively with .a particular class of the public. However, very pertinent to this and like cases are the words of Mr. Justice Holmes: “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise.”

A majority of this court is of the opinion that the motion to dissolve the injunction was rightly determined, and the order denying the motion is affirmed.

Affirmed.

Mr. Justice Holdom dissenting.


author: Mr. Justice Baker

text:
    Giovanni Battesta Solda, Plaintiff in Error, v. Joseph Hanreddy, Defendant in Error.
    Gen. No. 21,533.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Kickham, Soanlait, Judge, presiding. Heard in this court at the October term, 1915.
    Petition for certiorari dismissed.
    Affirmed.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action "by Giovanni Battesta Solda, plaintiff, against Joseph Hanreddy, defendant, to recover for personal injuries alleged to have been caused plaintiff by defendant’s negligence. To reverse a judgment on á directed verdict for defendant, plaintiff prosecutes this writ of error.
    The evidence showed that defendant was constructing a tunnel called the “Hanreddy tunnel” under State street south from Seventy-ninth street. The Parker-Washington Company had constructed a tunnel called the ‘‘Pafker-Washington tunnel” from the north to Seventy-ninth street, which was separated from the Hanreddy tunnel by a narrow ledge of rock called ‘1 the connection,” which it was intended to blow out. On the morning of the accident Powers was defendant’s superintendent, Hacker was his foreman, and Valortigera, called “Jim,” was drilling boss. Plaintiff was his helper and his brother Joe worked with him running a drill. Samuels was city engineer. Harrigan was assistant city engineer and all the work on the Hanreddy tunnel was done under his direction and supervision.
    The negligence alleged was based on the allegation that there was an accumulation of gas in the Parker-Washington tunnel; that the defendant knew, or by the exercise of ordinary care might have known, that an accumulation of gas was dangerous and liable to produce the injury complained of when the opening was made between the two tunnels; that the plaintiff himself did not know and did not have equal opportunity with the master of knowing these circumstances; that the accident resulted from the explosion of gas accumulated in the Parker-Washington tunnel.
    The accident occurred on the morning of October 30, 1908. The night before Harrigan told defendant’s employees that there was water between the bulkhead in the Parker-Washington tunnel and “the connection” and that they should look out for the water when the connection was broken through. On the morning of the accident the men went to work as usual. Usually twenty-two holes were drilled and blasted every morning. First, six holes would be drilled at points in a circle near the middle of the face of the tunnel wall, all slanted, so that the inner points of the holes would be very close together, to force the debris out into the tunnel. Other holes were placed on each side of the first six holes, and all would be drilled before any shot was made. Dynamite was put in only part of the holes at one time. Sometimes a shot would blow out a hole and sometimes not. It was the duty of the drill boss to go in after each blast and see the effect of the shot, and his helper would go with him. After the drilling and before the shot would be fired they would go back about four hundred feet from the face of the tunnel, where there was a switch in electric wires, by which the dynamite was exploded. They would hear the noise of the dynamite as it exploded, but they could not tell whether the rock had been thrown out. After waiting a few minutes until the smoke and dust were forced back from the wall by compressed air, they would go into the face and see if the shot had taken effect, carrying dynamite with them, and if it had taken effect they would dynamite the helping holes. If it had not taken effect they would put more dynamite in the same holes that had been shot and again go back to the electric switch and explode the dynamite.

      Abstract of the Decision.
    1. Master and servant, § 683

      —uMat proof essential in action for injury by explosion in tunnel. In an action by an employee to recover for personal injuries alleged to have been caused by the accumulation of inflammable gas in dangerous quantities in a tunnel connecting with the one in which plaintiff was working and by failure of defendant to warn him thereof, in order to show negligence it is incumbent on plaintiff to prove that there was inflammable gas in dangerous quantities accumulated in such connecting tunnel and that defendant knew or by the exercise of ordinary care should have known of the presence of the gas and that it was capable of producing injury, and that plaintiff did not know and did not have equal opportunity with defendant of knowing thereof at the time of the injury.

      On the morning in question the wires were connected, the men went back to the switch, turned on the current and waited about half an hour for the water which they expected to come through the hole they thought would be made when the dynamite was exploded. When the water did not come for half an hour, they started to go to the "face of the tunnel. Hacker walked in front, plaintiff second, and the drill boss third. Hacker, as usual, took a lighted torch with him. The plaintiff, as usual, carried with him a box of dynamite for the purpose of loading the helping holes in case the shot had not taken effect. When Hacker got within a few feet of “the connection” he saw that the shot had taken effect, and turned and so told plaintiff and the drill boss. Just then an explosion occurred. At the time of the explosion plaintiff dropped the dynamite he was carrying and started to run. He testified that when he dropped the dynamite it exploded and knocked him down.. The fire filled the tunnel to the point where he was and set his clothes on fire.
    Hyde, Westbrook & Watson, for plaintiff in error.
    Ryan, Condon & Livingston, for defendant in error.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

2. Evidence, § 466 —when circumstantial evidence insufficient. When circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed.

3. Evidence, § 23*—when one presumption not basis for another, A presumption of fact is not alone a legitimate foundation for a second presumption of fact.

4. Master and servant, § 683*—when evidence insufficient to support a verdict. In an action by a servant for personal injuries, evidence examined and held insufficient to support a verdict for plaintiff.


text:
    Chicago Steel Foundry Company, Defendant in Error, v. Andresen-Evans Company, Plaintiff in Error.
    Gen. No. 21,734.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action "by the Chicago Steel Foundry Company, plaintiff, against the Andresen-Evans Company, defendant, for the contract price of six tray lips for grab-buckets manufactured by plaintiff for defendant. There was a judgment for plaintiff for $152.62, to reverse which defendant prosecutes this writ of error.
    The evidence showed that the lips were made pursuant to a written order. The specifications, so far as material, were that “the lips are to be of vanadium cast steel, 35 to 45 per cent, carbon annealed, to be true to pattern, not warped * * * the metal in cutt'ng edges, solid and of the best quality.” The contention of defendant was that the lips contained defects rendering them worthless and that they were not made according to the specifications contained in the order. Defendant also gave notice of a set-off and counterclaim for $951. The contract provided that the lips should be made according to blue print and pattern furnished by defendant, and defendant on the trial admitted that they were so made. The lips contained the specified amount of carbon and were properly annealed, and the amount of vanadium fixed by the custom of the plaintiff in the manufacture of its products was added to the steel in casting.
    Abstract of the Decision.
    1. Sales, § 252

      —what not sufficient to constitute breach of contract. Where one ordering an article to he manufactured directs it to be made in a certain shape or style and of certain ingredients and the manufacturer complies with these directions, he is not liable for injuries arising from the failure of the article to serve the purpose for which it was intended.
    2. Sales, § 251*—when manufacture of article according to custom of manufacturer a compliance with contract. Where a contract for the manufacture of certain articles provides that they are to be of “vanadium cast steel,” without specifying the percentage of vanadium, the manufacturer sufficiently complies with the contract if he uses the percentage of vanadium fixed by his custom in the manufacture of his products.
    3. Sales, § 329*—when evidence sufficient to support verdict. In an action to recover the contract price of certain articles, evidence examined and held to support the verdict.
    West & Eckhart, for plaintiff in error.
    Loesch, Scofield & Loesch, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Richard W. Carter, Plaintiff in Error, v. R. C. Crist, Defendant in Error.
    Gen. No. 21,750.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action by Richard W. Carter, plaintiff, against R. C. Crist, defendant, on the following .written instrument:
    “For value received, I hereby guarantee the payment of the rent and performance of the covenants by the party of the second part in the leases made and executed on the 20th day of November, A. D. 19.14, and expiring on the 30th day of September, 1915, by and between........and Mrs. Jessie E. Brown and Miss Lotta Edwards, on the land and building known as 1511 Lawrence avenue, in the City of Chicago, Illinois.
    “Witness my hand and seal this 20th day of November, A. D. 1914.
    “R. C. Crist (Seal).”
    The Municipal Court struck the plaintiff’s “more specific statement of claim” from the files and plaintiff electing to stand by the statement, judgment was entered for defendant, to reverse which this writ of error is prosecuted.
    In his “more specific statement of claim” plaintiff alleges that on the date of the instrument sued on he was the owner of a two-story building at 1511 Lawrence avenue, Chicago; that on said day he leased the first floor of said building to Jessie E. Brown and Lotta Edwards, described in said lease as party of the second part, from December 15, 1914, to the 30th day of September, 1916, for $1,027.50, payable in advance at $45 a month the first year and $50 a month the second year; that on said day he leased the second floor of said building as a dwelling to said Jessie E. Brown and Lotta Edwards, described as party of the second part, from the -first day of December, 1914, to the 30th. day of September, 1916, for $770, payable in advance, at $35 a month; that on said day the defendant executed and delivered to plaintiff a certain written instrument, under seal, which is the instrument sued on.
    Abstract of the Decision.
    Municipal Court of Chicago, § 19

      —when judgment by default :properly refused. In an action in the Municipal Court of Chicago to recover on an alleged guaranty of the performance of a lease by the lessee, the entry of a judgment by default is properly refused where the lease described in the “more specific statement of claim” filed by plaintiff is not the lease set forth in the instrument sued on.
    Michael Lyons, for plaintiff in error.
    M. E. Gallion, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Appellee, v. Chicago & Erie Railroad Company and Chicago & Western Indiana Railroad Company, Appellants.
    Gen. No. 21,802.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Rehearing denied May 15, 1916.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Nathan Collins, deceased, plaintiff, against the Chicago & Erie Railroad Company and Chicago & Western Indiana Railroad Company, defendants, to recover for the death of plaintiff’s intestate. From a judgment for $2,000 recovered by plaintiff, defendants appeal.
    It appeared that deceased was a switchman in the employ of the Belt Railway Company of Chicago and at the time he met his death was a member of a train crew engaged in the operation of a train of two cars and an engine on the tracks of the Chicago & Western Indiana Railroad Company. There were on the right of way six tracks numbered from the east 1 to 6, and west of track 6 two switch or lead tracks. Collins’ train was to be shoved north towards 37th street on track 6. A Chicago & Erie train came north on track 3, passed over a diagonal track between 38th and 39th streets to track 4, and there stopped until it got a signal to go to track 5. It passed over track 5 to the crossing from 5 to 6 near 38th street, the engine in front. The deceased got off from his train on the east side thereof about fifty feet north of 38th street, probably to step across track 6 and throw a switch. Kibling, his conductor, got off the train on the west side and threw the switch. Collins when last seen by Kibling was standing on the east side of his train, which, as has been said, was on track 6. The Chicago & Erie train, which had stopped at the crossing of the diagonal switch track and track 4, came north on track 5 and struck and killed Collins at a point about fifty feet north of 38th street.
    Abstract of the Decision.
    1. Railroads, § 587

      -—when question whether signal of approach of train given one of fact. In an action against a railroad company to recover for the death of the employee of another railroad company through being struck by a train, held that, under the evidence, the question whether or not a signal was given of the approach of the train was for the jury.
    2. Railroads, § 589*-—when question of contributory negligence for jilry. In an action to recover for the death of one struck by a train, question of decedent’s negligence held for the jury under the evidence.
    The tracks were elevated and there were several gangs of workmen engaged in completing the work in the immediate vicinity of the place where Collins was struck, and a sand train was working on the west lead track. Collins, standing between tracks 5 and 6, gave the signal to his train to go ahead. The Chicago & Erie train was moving on a diagonal track and Collins could not tell from the direction of the train which' track it was intended to go on.
    W. O. Johnson and Bull & Johnson, for appellants.
    John A. Bloomingston, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Albert W. Rudnick, Administrator, Appellee, v. City of Chicago, Appellant.
    Gen. No. 21,985.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal corpobations, § 145

      —when evidence insufficient to show existence of office. In an action against a city to recover compensation for services alleged to have been performed as meter setter, held, following Rudnick v. City of Chicago, Gen. No. 20,897, 198 Ill. App. 474, that no such office existed.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed with judgment of nil capiat.

    Opinion filed May 1, 1916.
    Statement of the Case.
    Action by Albert W. Rudnick, administrator of the estate of James F. Scanned, deceased, plaintiff, against the City of Chicago, defendant, for compensation of the plaintiff’s intestate, who was alleged to be a meter setter in the Department of Public Works of the City of Chicago. From a judgment of $5,069.30 for plaintiff, defendant appeals.
    Samuel A. Ettelson, for appellant; Edward J. Smejkal, of counsel.
    A. D. Gash, 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:
    Jacob E. Zink, Appellee, v. National Council Knights and Ladies of Security, Appellant.
    Gen. No. 22,031.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 1, 1916.
    Statement of the Case.
    ■ Action by Jacob E. Zink, plaintiff, against National Council Knights and Ladies of Security, defendant, on a beneficial certificate issued by defendant on the life of Martin Zink, a son of the plaintiff. The statement of claim stated that the suit was brought by plaintiff as beneficiary on the beneficial certificate above mentioned; that Martin Zink died February 5, 1913, and was then a member of defendant society in good standing; that plaintiff made proofs of death and defendant refused payment, and that there is due $1,916 and interest. The beneficial certificate sued on was a part of the statement of claim. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    The defendant in its affidavit of defense stated that the application, beneficial certificate and by-laws of the society constituted the contract; that the insured had made false statements which he had warranted to be true; that one of such statements was that a sister had died of pneumonia, when in fact she had died of consumption; that none of his blood relatives had been afflicted with consumption, when in fact the sister above referred to had died of consumption; that engaging in the manufacture or sale of liquors was a prohibited occupation, and that the insured was engaged at su'ch occupation at the time of his death. The court in the instructions to the jury gtated that;

      ‘ ‘ Ordinarily, in a case snch as this, the plaintiff has what we call the burden of proving his case by a preponderance of the evidence, but it is different in the case before us. The defendant admitted what we term the prima facie case of the plaintiff; he admitted that unless the defenses that the defendant relied upon are established by that degree of evidence which the law requires, that then the plaintiff should recover the amount sued for. That, therefore, changes the rule of law and throws the burden upon the defendant to establish its case, its defense, by a preponderance or greater weight of the evidence. ’ ’
    The jury were also instructed that:
    “Under the by-laws which form a part of the contract in this case, it became the duty of the defendant, whenever it came to its knowledge or the knowledge of its executive committee that a beneficiary certificate had been obtained by false representations, to at once inquire into the facts, and if they believed such charges to be true, to notify the accused member and subordinate council to which he belonged, of such charges, and direct the subordinate council should require the member to appear before the council for a hearing upon such charges, fixing the time and place in the notice given by the council to the member; or, the executive committee may, after being satisfied from an investigation that the charges are true, require the accused member to appear before such committee at such time and place as they shall direct in the notice to said member, and if the charges are found to be true, at the hearing, to order such beneficiary certificate at once to be cancelled. This is an affirmative action required to be done on the part of the defendant, and where affirmative action is required to be done, in order to avail itself of a certain violation on the part of a member, it must prove that it has availed itself of that and has taken the affirmative action. And, you are now instructed, as a matter of law, that if you find from all the evidence before you that the defendant, through its agents, at any time prior to the death of the deceased, had obtained the knowledge that the representations as to the death of the sister, or as to the fact that there was no tuberculosis in the family, were false, and failed to take any action thereafter, and accepted the payments of assessments and dues, with full knowledge of those facts, that that would constitute a waiver on the part of the defendant of its right to insist upon that clause in its certificate that the plaintiff could not recover by reason of such false statements. But, of course, in order to constitute a waiver, a party would have to have full knowledge of the facts. One cannot be held to have waived anything if he did not know all the facts and circumstances about a condition.”
    Abstract of the Decision.
    1. Insurance, § 908

      —when burden of proving defenses on insurer. In an action to recover on a fraternal benefit certificate, where defendant admits that unless the defenses which he relies upon are established by the legal degree of evidence, plaintiff should recover, it is proper to instruct that the burden is on" him of establishing his defense by a preponderance of the evidence.
    2. Trial, § 53*—when defendant entitled to open and close. Where the defendant’s admissions place upon him the burden of proof, he is entitled to open and close.
    3. Insurance, § 797*—when right of forfeiture for false statements in application and on medical examination waived. The provisions of the by-laws of a, fraternal benefit society for a forfeiture of the certificate for false statements in the application and on the medical examination may be waived by the act of the local council in collecting assessments from the insured, though officers of the council knew the facts and that the statements of the insured were untrue.
    A. W. Fulton, for appellant.
    John B. McCabe and Adolph L. Benner, for appellee; E. K. Smith, of counsel.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

4. Insurance, § 897 —when question of waiver of by-laws for jury. In an action on a fraternal benefit certificate, the question whether the conduct of officers of the local council of the insurer was not such as to induce a belief on the part of the insured that the council did not intend to exercise its right of forfeiture for false statements by insured in the application and medical examination, but intended to recognize insured as a member in good standing, held for the jury.

5. Insurance, § 908*—when instruction misleading. In an action on a fraternal benefit certificate, an instruction examined and held not supported by the evidence in making it the duty of the officers of defendant’s local council to notify insured or hear charges in case knowledge that he has made false statements should come to them.


text:
    L. W. Hubbell Fertilizer Company, Defendant in Error, v. D. Jacobellis and Antonio Tarallo, Plaintiffs in Error.
    Gen. No. 22,060.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in this court at the October term, 1915.
    Petition for certiorari dismissed.
    Affirmed.
    Opinion filed May 1, 1916.
    Rehearing denied May 15, 1916.
    Statement of the Case.
    Action by L. W. Hubbell Fertilizer Company, a corporation, plaintiff, against D. Jacobellis and Antonio Tarallo, defendants.
    Plaintiff recovered a judgment December 10, 1914, against defendant Jacobellis, who the same day prayed and was allowed an appeal to this court on giving an appeal bond within thirty days with security, etc. The appeal bond was filed January 18, 1915, thirty-nine days after the rendition of the judgment. The bond was executed by defendant Jacobellis as principal and Antonio Tarallo as surety, and recited the recovery of the judgment, the prayer by and allowance to defendant Jacobellis of an appeal, and provided that if Jacobellis paid the amount of the judgment, etc., in case the judgment was affirmed, the obligation to be void; otherwise, etc. The same day Jacobellis sued o.ut of this court a writ of error and gave a supersedeas bond in the usual form. April 19, 1915, the appeal was dismissed. This action was then brought on the appeal bond and judgment recovered, to reverse which this writ of error is prosecuted.
    Abstract of the Decision.
    1. Appeal and ebbob, § 1870

      —when failure of appeal bond to conform to order allowing appeal does not release parties executing it. The fact that an appeal bond was filed nine days later than the time fixed by the order allowing the appeal does not relieve the principal and surety on the bond from liability thereon.
    2. Appeal and ebbob, § 1851*—when maker of appeal bond bound by its recitals. The maker of an appeal bond is bound by the recitals therein.
    3. Appeal and ebbob, § 1860*—when dismissal of appeal equivalent to affirmance. The dismissal of an appeal is equivalent to a legal and technical affirmance of the judgment below so as to entitle appellee to claim a forfeiture of the appeal bond and have .his action therefor.
    D. Jacobellis and Antonio Tarallo, pro se.

    Allen Gr. Mills, 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:
    Paul R. Ellguth, Appellee, v. Edward R. Litzinger, Appellant.
    Gen. No. 22,492.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Bill by Paul B. Ellguth, complainant, against Edward B. Litzinger, defendant. The defendant answered the bill, both parties filed affidavits, and the court, with the consent of the parties but in their absence, heard the statements of former Judge McEwen and incorporated such statements in the certificate of evidence.
    It appeared that the parties were engaged in the manufacturing business and the written agreement between them shows that they contemplated forming a partnership to carry on such business, but no partnership was actually formed. Litzinger advanced approximately $40,000. Ellguth became indebted to Smith & Biossat, and they obtained possession of and operated the plant, but were willing to surrender the same if repaid the amount advanced. Ellguth appealed to Litzinger and he agreed to purchase the plant for $5,000, which would pay Smith & Biossat the $3,500 demanded by them, and made a contract with Ellguth to give his time and energy to the business, and should the business prove profitable and all indebtedness be paid, then the $5,000 should be paid to Litzinger out of the profits, and in that case, or if Ellguth paid Lit-zinger $5,000, he would convey to Ellguth a one-half interest in the business and assets.
    The business was not successful but grew worse, and Litzinger concluded to wind it up. With this decision Ellguth was then satisfied, but later concluded to continue ■ the business. The record showed that Ellguth had unsatisfied judgments outstanding against him and that Litzinger was solvent. January 13, 1916, Litzinger took exclusive possession of the plant and thereafter did not permit Ellguth to enter. The bill was filed January 17, 1916, and application for the appointment of a receiver made by Ellguth. The court having indicated its intention to appoint a receiver, Litzinger, then in possession of the property and before the appointment was made, moved the court that in lieu of the appointment of a receiver he be permitted to give a bond in such penalty as the court might fix and with such security as might be satisfactory to the court, and that said bond might be so conditioned as the court might order or approve. This motion was denied. On February 4,1916, the Central Trust Company was appointed receiver “to receive outstanding debts and effects of the business conducted by the parties at 3110 Morgan street, Chicago, in the pleadings in this case mentioned.”
    Abstract of the Decision.
    I. Receivers, § 3

      —when appointment improper. On a bill in equity by one member of a partnership against the other, evidence examined and held to show that in view of the small extent of complainant’s business and the danger to the business, the court should not have appointed a receiver for the partnership business, but should have permitted defendant to give bond.
    2. Equity—when hearing of statement in absence of parties improper. On a bill in equity, it is not proper for the court to hear a statement of a witness in the absence of the parties and incorporate it in the certificate of evidence, even though the statement is heard with the consent of the parties.
    Chytraus, Healy & Frost, for appellant.
    H. J. Toner, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Walter J. Ashley, Defendant in Error, v. E. F. Masterson, Agent, Plaintiff in Error.
    Gen. No. 21,268.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1327

      —when intendment in favor of judgment where hill of exceptions stricken. On a writ of error where the hill of exceptions is stricken on the motion of defendant in error, the court will deal only with the errors appearing in the statutory record, and every intendment will he in favor of the accuracy of the procedure and the correctness of the judgment.
    Error to the Municipal Court of Chicago; the Hon. John C. Work, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Statement of the Casé.
    Action by Walter J. Ashley, plaintiff, against E. F. Masterson, agent and attorney for Anna Dickson, defendant. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    On April 14, 1916, on motion of the defendant in error, the bill of exceptions in this case was stricken from the record.
    Defendant in error moved to affirm the judgment of the trial court on the statutory record, abstracts and briefs of plaintiff in error.
    E. F. Masterson, pro se.

    Fred Sass and Daniel A. Egberts, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Edward Burnstein, Defendant in Error, v. Alcazar Amusement Company, Plaintiff in Error.
    Gen. No. 21,589.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fey, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Rehearing denied May 15, 1916.
    Statement of the Case.
    Action by Edward Burnstein, plaintiff, against Alcazar Amusement Company, defendant. On a trial before the court plaintiff had judgment for $169, of which judgment defendant seeks this review.
    The evidence showed that defendant operated in a Chicago theater, a place of entertainment known as the Great Northern Hippodrome, of which plaintiff was a patron. On several occasions when plaintiff patronized defendant’s place of amusement he had a satchel with him which defendant’s servants cared for, giving him an identification check, as is usual in places where articles of such character are received for temporary safe-keeping. On the occasion which gave rise to this suit plaintiff attended the place of amusement of defendant, paid the usual admission fee, and having with him a case or box delivered it to an attendant, at the request of such attendant, for safe-keeping during the time plaintiff was. attending the performance, and received an identification check therefor. On leaving the performance plaintiff presented the check to the attendant, who made a search for the article but could not find it, whereupon plaintiff brought this suit to recover its value.
    Prank P. LeffingWell, for plaintiff in error.
    Pines & Newman, for defendant in error.

      Abstract of the Decision.
    1. Bailment, § 27

      —when evidence sufficient to support verdict. In an action by the patron of a theater to recover for the loss of an article checked with defendant’s servants, evidence held to support the verdict.
    2. Bailment, § 11*—when proprietor of theater liable as bailee for loss of article checked with attendant. The proprietor of a theater is liable as a bailee to a patron for the loss of an article checked by the latter with such proprietor’s servants, where such loss results through negligence in failing to exercise reasonable care.
    3. Appeal and error, § 384*—when objection first made on appeal comes too late. In an action by the patron of a theater against another as owner and operator of a theater for the loss of an article therein, an objection that plaintiff failed to prove that defendant was in control, management or operation of such theater comes too late when first made in the Appellate Court.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Moses Ovenu, Defendant in Error, v. Esther Ovenu, Plaintiff in Error.
    Gen. No. 21,618.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Rehearing denied May 15, 1916.
    Statement of the Case.
    Action of forcible detainer by Moses Ovenu, plaintiff, against Esther Ovenu, defendant. Plaintiff had judgment for possession, in an attempt to reverse which, defendant brings this writ of error.

      The facts are briefly that plaintiff claimed to be the owner in fee of a building consisting of two flats and three stores; that at the time in question the flat here involved was vacant and unoccupied, the other flat being tenanted, one of the stores being occupied by a son of plaintiff, who had the keys to the vacant flat and kept them in his possession in the store which he occupied; that while he paid no rent to his father for the store, he collected the rent from the tenant and paid it over to plaintiff, for whom he acted as agent for the whole building. To the son prospective tenants applied for the keys of the vacant flat so that they might inspect it, and to him defendant applied for and received the keys.
    Plaintiff proffered a warranty deed from the husband of defendant, in which deed she did not join, conveying to plaintiff the whole of the property. Aside from this deed the evidence in the record showed that plaintiff was in the possession of the whole property by his tenant of the occupied flat and the possession by his son of one of the stores as tenant of his father and also his possession of the building as agent of his father.
    By a subterfuge defendant obtained the keys to the flat from Max Ovenu, and at night surreptitiously, and without any leave from plaintiff or his agent and without any knowledge on their part of her intentions, moved into ,the flat with her furniture and children, and continued to retain possession from that time to the commencement of this suit and after demand upon her to vacate and surrender possession to plaintiff.
    Adler & Lederer, for plaintiff in error.
    Miles J. Devine, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Forcible entry and detainer, § 1 —when questions of title cannot be adjudicated. Questions of title cannot be tried or adjudicated in a forcible detainer action.

2. Forcible entry and detainer, § 5*—what constitutes forcible entry. A surreptitious entry into a vacant tenement without right or title and without the consent or knowledge of the owner is a forcible entry which entitles the owner to invoke the statute (J. & A. If 5843) to regain possession.

3. Forcible entry and detainer, . § 20*—when possession by another is possession by owner. The owner of a building is in possession thereof where it is partly occupied by tenants and the part thereof forcibly detained was in possession of the owner’s son, who had the keys until defendant secured them from him by a false pretense.

4. Forcible entry and detainer, § 2$*—when laches not defense. The fact that the owner of property failed to commence suit to recover possession until seven months after demanding possession is not a defense where defendant’s entry was unlawful and the detention without right, notice or demand for possession not being necessary in such case.


text:
    J. T. Russell, Jr., and Eugene Butler, copartners, trading as Russell & Butler, Defendants in Error, v. The Mahaffey Company, Plaintiff in Error.
    Gen. No. 21,693.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Rehearing denied May 15, 1916.
    Statement of the Case.
    Action by J. T. Russell, Jr., and Eugene Butler, co-partners, trading as Russell & Butler, plaintiffs, against The Mahaffey Company, a corporation, defendant. The action was for the amount remaining unpaid upon a judgment for $287.75 with interest and costs, in favor of plaintiffs and against defendant, rendered by the Circuit Court of Lauderdale county in the State of Mississippi. On a trial before the court the issues were found for plaintiffs and damages assessed against defendant for $153.86, and defendant seeks this review.
    Defendant in its affidavit of meritorious defense interposed as its defense to the judgment that the Mississippi court did not have jurisdiction to render against it the judgment which it did; that it had never engaged in business in the State of Mississippi; had never had any agent or representative in the State upon whom process copld be served; that it never appeared in the action; that it never had any business transactions with the plaintiffs; that it was never indebted to the plaintiffs; that defendant was never within the jurisdiction of the Circuit Court of said Lauderdale county nor brought into nor made subject to its jurisdiction.
    Plaintiffs offered in evidence a duly authenticated and exemplified judgment of the Lauderdale county Circuit Court, and proved by the testimony of one of its attorneys tliát it had authorized his firm to appear and defend the suit; that they did so, and from the first judgment appealed to the Mississippi Supreme Court and obtained a reversal; that the case was again tried and again unsuccessfully defended, and that the judgment in suit is the second judgment in the cause; that the same was in full force, that no further proceedings to review that judgment had been taken and that the defendant had paid its attorneys for all their services, both in the trial court and on appeal.
    Abstract of the Decision.
    1. Judgment—when evidence sufficient to support verdict on foreign judgment. In an action on a foreign judgment, evidence examined and held to show that the foreign court had jurisdiction of defendant and of the subject-matter of the suit, and that defendant was represented at the trial by counsel having authority from him to appear.
    2. Judgment, § 580

      —when foreign judgments binding on parties. In an action on a foreign judgment where the evidence shows that the foreign court had jurisdiction of defendant and of the subject-matter of the suit and that defendant was represented by counsel having authority from him to appear, the judgment of the foreign court binds all the parties to it.
    3. Judgment, § 670*—when jurisdiction of foreign court presumed. In an action on a foreign judgment, the recital in the record of the appearance of defendant by attorney is presumptive evidence that the court had jurisdiction of defendant’s person, the authority of the attorney being presumed.
    Thornton & Chancellor, for plaintiff in error.
    M. F. Gallagher and E. B. Wilkinson, for defendants in error.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Judgment—when evidence sufficient to show jurisdiction of foreign court. In an action on a foreign judgment where the record recites the appearance of defendant by .attorney and there is evidence of one of the attorneys that his firm was employed and that the suit was defended by it, and that the services rendered in such defense were paid for by defendant, all the elements necessary to render the judgment effective are present in the record.

5. Appeal and ebbob, § 1485 —when admission of evidence harmless error. In an action on a foreign judgment, even though it is error to receive evidence of attorneys for the defendant in the action in the foreign court that they were employed by defendant, that the suit was defended by them and that services rendered were paid for by defendant, such error is harmless where the recital of appearance appears in the record.

6. Judgment, § 658*—when defense made too late on action in foreign judgment. In an action on a foreign judgment, the contention that the claim in the foreign action was against another corporation of the same name as defendant and that the record showed that such claim was contracted before defendant’s incorporation, comes too late when first made in the action on the foreign judgment.

7. Depositions, § 22*—when judge may read depositions before offered or read by counsel. The trial court may read the depositions in the case before they are offered or read by counsel.


text:
    John A. Abel and Edward C. Abel, copartners, trading as Abel Brothers & Company, Appellants, v. George M. Poe, trading as George M. Poe & Company, Appellee.
    Gen. No. 21,878.
    1. Sales, § 1

      —when evidence sufficient to show transaction to he a sale. In an action of trover, evidence examined and held to show that as to certain articles involved the transaction was a sale vesting title, and as to others that the title was retained by the shipper.
    2. Sales, § 436*—when third person purchasing goods sold on memorandum does not acquire title. Where goods are sold to a buyer on memorandum, the seller retaining title, the third person receiving them in pawn from the buyer does so at his own risk and gains no title by the transaction, the title remaining in the seller, whether or not such third person has knowledge of the illegal conduct of the buyer in pawning such articles.
    3. Contracts, § 205*—what is duty of court in an action on a written contract. In an action of trover where the transaction involved are in writing and made the contract of the parties, it is the duty of the court to construe the contract and instruct the jury as to its legal import.
    4. Appeal and error, § 1316*—when instructions presumed in accordance with law. Where the appellant complained of instructions given by the court at the appellee’s request and set forth in the abstract these particular instructions but failed to set forth any of the instructions given by the court, the trial court will not go to the record to ascertain what instructions the court gave but will assume that they were in accordance with law and sufficient to cure any defect appearing in the instructions objected to.
    5. Set-off and recoupment—when not permissible in action of tort. An action in assumpsit cannot be set off in an action of tort.
    6. Pawnbrokers and secondhand dealers, § 5*—when evidence insufficient to show lien in action of trover. In an action against a pawnbroker for trover, evidence examined and held insufficient to show that defendant had, under an agreement with a third person, a lien on the articles in question for the payment of the claim set up by it.
    7. Trover and conversion, § 31*—when demand for return of articles, unnecessary. In an action of trover to regain goods pawned with defendant hy person having no title to them, no demand for the return of such articles is necessary to render defendant liable.

      8. Evidence, § 160

      —when evidence of attempt to compromise inadmissible. Conversations between the parties to an action of trover or their representatives in an attempt to effect a compromise are not admissible as evidence.
    9. Appeal and erbob, § 897*—when loose document in record not reviewable. Loose documents contained in an envelope between pages of the record and designated on the envelope as “Exhibits referred to in stenographer’s report and incorporated therein by reference thereto,” but having no earmarks to identify them, cannot be resorted to on review.
    Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 1, 1916.
    Rehearing denied May 15, 1916.
    Franklin N. Wood and A. E. Manheimer, for appellants.
    Leslie H. Whipp, 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 Holdom

delivered the opinion of the court.

This is an appeal by plaintiffs from a judgment of nil capiat entered upon the verdict of a jury. The action was replevin, but the goods sought not being taken on the writ, the cause proceeded to trial as in cases of trover.

■ The plaintiffs are jewelers in New York and defendant is a pawnbroker in Chicago. The controversy involves nine pieces of jewelry of the claimed value of $2,500. All of these nine pieces of jewelry were by plaintiffs consigned to the “Globe Importing Company” of Chicago for sale “on memorandum.” With each shipment was sent a bill containing the following provision: “The conditions of this memorandum bill is that these goods remain our property and we reserve the right to charge the same to you or to have them returned to us. The limit of time for selection is five days from receipt of goods.” The Globe Importing Company pledged the jewelry in dispute with plaintiffs.

Two defenses were interposed: One that the title of the jewelry passed to the Globe Importing Company ; the other that defendant, under an agreement with the Pinkerton National Detective Agency, made in behalf of plaintiffs, with authority, that if defendant would return the goods in suit to plaintiffs they, would reimburse defendant for all the advances made by him upon the articles with interest at three per cent, a month, and that defendant counterclaimed for the amount due him under this agreement. The affidavit setting up this counterclaim was subsequently stricken from the files on motion of plaintiffs at the close of defendant’s evidence, although the record discloses that evidence was received in an attempt to establish this counterclaim.

Our decision, however, will eliminate from the case the counterclaim of defendant, and we will therefore proceed to determine the effect of the defense first interposed, viz., whether the title of the articles in question passed to the Globe Importing Company.

On July 3, 1914, the Globe Importing Company returned to plaintiffs certain articles, retaining four, three of which, marked A 10327, A 27865 and A 27966, are part of the nine articles involved in this case, and said in its letter accompanying the articles: “You will, therefore, greatly oblige by sending us a bill of sale for same, as per your terms mentioned in your letter of June 25, and we hope that we will be able to do a large business in the future.” Four days thereafter plaintiffs acknowledged the receipt of both letter and package, stating: “Herewith are cancelled memo bills and also charge bill for the four diamond rings retained.”

The undisputed correspondence between the parties stamps the transaction as to these four articles as a sale vesting the title in the Globe Importing Company. As to the other six articles, there is no evidence of a sale nor any evidence that the terms of the memorandum under which they were sent, viz., that the goods should remain the property of plaintiffs, were departed from. As to these six articles, defendant received them in pawn at his own risk and gained no title by the transaction, the title remaining in plaintiffs. Lenz v. Harrison, 148 Ill. 598. Plaintiffs contend as to the three articles, A 10327, A 27865 and A 27966, that they were pawned while the memorandum stage of the transaction existed. In this regard plaintiffs failed to establish their contention. When the Globe Importing .Company pawned the six articles they were guilty of a tortious act, and under section 243, ch. 38, (J. & A. If 3896) and section 9, ch. 107 a, Rev. St. (J. & A. 6711), plaintiffs could not be divested of their title regardless of whether defendant had knowledge of the illegal conduct of the pawner or not. As the Globe Importing Company liad no title it could not confer one upon defendant. No sale or pledge by the Globe Importing Company of the articles, the title of which was in plaintiffs, could deprive plaintiffs of their right to recover the same from defendant. Fawcett, Isham & Co. v. Osborn, Adams & Co., 32 Ill. 411. The rule of law is well stated in an opinion by Mr. Presiding Justice Ball in Charles Moe Co. v. J. H. Logue Co., 108 Ill. App. 128, where he says:

“It is an elementary rule of the law of personal property that no man can be deprived of it without his consent, or by operation of law. Another fundamental rule is that no one can sell a right which he does not have; that the purchaser takes nothing more than the rights of his vendor. With us the exceptions to this last rule arise only where the property is money or negotiable paper. In all other cases the purchaser cannot retain the property as against the owner unless it appear that the seller, by sale and delivery to him, though induced by fraudulent pretenses, had the indicia of title. Possession of personal property is indicative of title, but it is not title; and that alone will not protect the purchaser from the effects of a demand by the real owner.” Schwartz v. Clark, 136 Ill. App. 150.

The transactions involved were in writing and made the contract of the parties. It was incumbent upon the court, therefore, to construe the contract and to instruct the jury as to its legal import. Graham v. Sadlier, 165 Ill. 95; Danziger v. Pittsfield Shoe Co., 204 Ill. 145.

Plaintiffs complain of certain instructions given by the court at the request of defendant, and set forth in the abstract these particular instructions, but have failed to set forth any of the instructions given by the court. In this condition of the abstract we will not go to the record to ascertain what instructions the court gave, but will assume that they were in consonance with the law and sufficient to cure any defect which may appear in the instructions objected to. Leroy v. Scott, Gen. No. 21,632, 198 Ill. App. 491; Village of Des Plaines v. Winkelman, 270 Ill. 149.

Defendant cannot in this action set off his counterclaim for services and disbursements under the agreement with Pinkerton. An action in assumpsit cannot be set off in an action of tort, and there is no evidence in the record justifying the conclusion that defendant had under the agreement with Pinkerton a lien on the articles in question for the payment of its claim. No demand for the return of the articles was necessary. Farwell v. Hanchett, 120 Ill. 573.

Conversations between the parties or their representatives in an attempt to effect a compromise were not admissible as evidence.

In a manilla envelope between pages 377 and 378, of the record there are sundry loose documents, which are designated on the envelope as “Exhibits referred to in stenographer’s report and incorporated therein by reference thereto.” They have no earmarks to identify them. They are liable to be lost and, for aught we know, many may have been. If they were material to our review, they could not be resorted to for that or any other purpose. The remark of the court in Roy v. Galloway, 54 Ill. App. 610: “Suppose these pins get loose, or it should be charged that the exhibits have been changed, how could we determine what is in the record?” is equally applicable here. These loose documents should have been copied into the bill of exceptions.

For the errors indicated, the judgment of the Municipal Court is reversed and the cause is remanded for a new trial in accord with this decision.

Reversed and remanded.


text:
    Joseph Ptaszek Fogel, Appellee, v. David H. Fritts, Appellant.
    Gen. No. 21,934.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Frank R. Shopin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action on the case for assault and battery by Joseph Ptaszek Fogel, plaintiff, against David H. Fritts, defendant. On a trial before the court and a jury a verdict was rendered for $2,500, from which $1,200 was remitted upon the hearing of a motion for a new trial and a judgment entered for $1,300, and defendant appeals.
    The evidence showed that the relation of master and servant had existed between defendant and plaintiff for ten years. Defendant denied the assault in his pleading and evidence. It appeared that on the day of the assault plaintiff was wheeling molding upon a truck in the shipping room of defendant near an alley; that defendant called to him that he was breaking the molding and came running towards plaintiff and struck him in the region of the solar plexus and also struck him with a piece of the molding; that as a result of this assault the plaintiff had stomach trouble of a very serious character and was incapacitated for any work for more than three months and thereafter was only able to work infrequently, and was still suffering from his injuries at the time of the trial. The stomach trouble was proven by • the evidence of a medical man of standing and probity, who traced the trouble to the assault complained of. He testified that plaintiff’s condition is known as paralysis or injury to the sympathetic system, a part of the solar plexus; that he had not been cured and that he was unable to cure him; that an ultimate cure depended upon plaintiff’s constitution. This medical testimony defendant did not offer to rebut.
    Abstract of the Decision.
    1. Assault and battery, § 14

      —when evidence sufficient to support the verdict. In an action on the case for assault and battery, evidence examined and held to support the verdict.
    2. Assault and battery, § 22*—iohen verdict not excessive. In an action on the case for assault and battery, where the evidence shows that plaintiff had stomach trouble of indefinite duration as a result of the assault, was incapacitated for work for three months and was, thereafter, able to work infrequently only, a verdict for $1,300 is not excessive.
    Eben F. Runyan, for appellant.
    Wagner & Beckman, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Edna Coleman, Appellee, v. Ashland Catering Company, Appellant.
    Gen. No. 22,019.
    (Not to he reported in full.)
    Abstract of the Decision.
    Negligence, § 46

      —when principal not Haile for negligence of independent contractor. In an action to recover for personal injuries, evidence examined and held to show that the injury complained of was caused by the negligence of an independent contractor or his servants for which defendant was not legally responsible.
    Appeal from the Superior Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action on the case for personal injuries by Edna Coleman, plaintiff, against Ashland Catering Company, a corporation, and William M. Walker, defendants. From a judgment of $5,000 against Ashland Catering Company entered upon the verdict of a jury, it appeals.
    The suit was dismissed as to Walker, with whom plaintiff had settled for $1,000, Walker taking a covenant from plaintiff not to sue in consideration of the $1,000.
    Mayer, Meyer, Austrian & Platt, for appellant.
    Munson T. Case, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Katherine M. Heineke, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,037.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthha, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action by Katherine M. Heineke, plaintiff, against Chicago Railways Company, defendant, to recover for personal injuries while a passenger on defendant’s car. Defendant appeals from a judgment against it of $2,500 entered upon the verdict of a jury.
    The declaration charged two acts of negligence against defendant: First, that it negligently permitted the aisle in the car to be obstructed by a valise or suit case; and second, that while the car was in motion and plaintiff was seeldng a seat defendant carelessly and negligently caused the car to start forward or to jerk; that as a result of such starting or jerking plaintiff was thrown forward and tripped against the suit case thrown down upon the floor of the car and injured. Defendant claimed that it had no knowledge whatever in relation to the accident complained about, and consequently no opportunity to give evidence either in support or denial of plaintiff’s claim.
    Philip Rosenthal and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Frederick Z. Marx, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 476 —when evidence sufficient to support verdict in action by passenger. In an action by passenger to recover for injuries alleged to have been caused by falling over baggage in the aisle by reason of the sudden jerking of defendant’s car, evidence examined and held sufficient to support a verdict for plaintiff.

2. Appeal and error, § 1512*—when remarks of court not ground for reversal. In an action against a carrier for injuries to a passenger, remarks of court held not so prejudicial to defendant as to afford grounds for reversal, where the amount of the verdict is not such as to justify any inference of prejudice or passion on the part of the jury.

3. Carriers, § 482*—when instructions sufficient in action for injury to passenger. In an action against a carrier for injury to a passenger, instructions examined and held to be sufficient.

4. Instructions, § 151*—when instruction on matter already covered properly refused. A requested instruction is properly refused where the jury have been already sufficiently instructed without it, although the propositions of law covered are correctly stated.

5. Carriers, § 482*—where instruction proper in action by passenger for personal injuries. In an action by a passenger for personal injuries, the use in an instruction of the term “reasonably consistent with the practical operation of its road” is an inclusive phrase, contemplating not only the “mode of conveyance adopted by the carrier” hut the power of propulsion and all else which enters into the practical operation of the road.