text:
    H. A. Hillmer Company and Henry A. Hillmer, Appellants, v. Martha Behr, Appellee.
    Gen. No. 6,117.
    1. Appeal and error, § 726

      —when decree must be supported by evidence m record/. Where a decree finds no facts to support it, such decree must be supported on appeal by evidence found in the record, if supportable at all.
    2. Injunction, § 311

      —when solicitor's fees may be recovered upon dissolution of temporary injunction. On a suggestion of damages after the dissolution of a temporary injunction, a defendant may recover solicitor’s fees which such defendant has paid or for the payment of which he has become obligated, in so far as such services were rendered in obtaining such dissolution, but not including services rendered in the general defense of the suit.
    3. Injunction, § 320

      —when evidence insufficient as basis for awarding attorney's fees for procuring dissolution of temporary injunction. Where on a suggestion of damages after the dissolution of a temporary injunction solicitor’s fees are sought to be assessed as an element of such damages, and where the evidence makes no distinction between services rendered as strictly necessary to procure such dissolution and those rendered in the case generally, there is no evidence on which the value of the services directed solely to the object of obtaining such dissolution can be determined.
    4. Injunction, § 154

      —what is office of injunction pendente lite. An injunction pendente lite is a mere ancillary writ whose only office is to preserve the status in quo pending a final hearing, and for which writ a complainant may apply or not as he sees fit.
    5. Injunction, § 239

      —when one may do acts sought to be restrained by permanent writ with impunity. A defendant in a bill praying for a perpetual injunction against whom no injunction pendente lite has been sued out may, during the pendency of the suit, do the acts sought to be restrained thereby without being in contempt of the writ, but he so acts at the risk of having his acts done pendente lite declared illegal, and of being compelled to restore everything to its condition at the commencement of the suit.
    6. Injunction, § 311

      —what are separable items in computing attorney's fees as damages upon dissolution of injunction pendente Ute. On a suggestion of damages after the dissolution of an injunction pendente lite, where it is sought to have solicitor’s fees assessed as an element of such damages, the services rendered for the mere purpose of getting rid of such an injunction are clearly distinguishable from services rendered in the general defense of the suit.
    7. Injunction, § 320

      —when evidence insufficient to authorize assessment of attorney’s fees as damages upon dissolution of temporary injunction. On a suggestion of damages after the dissolution of a temporary injunction, where it is sought to have solicitor’s fees assessed as an element of such damages, and the evidence makes no discrimination between services rendered as strictly necessary to procure a dissolution of the injunction and those rendered in the case generally, an assessment of such fees as damages cannot be sustained on evidence that a certain sum was paid on a motion to dissolve and upon a final hearing together.
    8. Injunction, §308

      —when attorney’s fees for depending suit not assessable as damages upon dissolution of temporary injunction. Where a temporary injunction is sued out as ancillary to the principal relief sought, fees for defending the suit generally cannot be assessed as damages on the dissolution of the injunction.
    9. Injunction, § 308

      —when reasonable attorney’s fees allowed as damages upon dissolution of temporary injunction. On a suggestion of damages after the dissolution of temporary injunction, a reasonable solicitor’s fee may be allowed as damages notwithstanding the fact that a demurrer w.as interposed to the bill or that the knowledge gained on hearing of a motion to dissolve was subsequently used at the hearing on the merits.
    10. Injunction, § 308

      —what solicitor’s fees allowed as damages upon dissolution of temporary injunction may cover. The damages allowed by the statute on a suggestion of damages after the dissolution of a temporary injunction are only those sustained by an improper and wrongful suing out of the injunction, so that any solicitor’s fees allowed can only extend to those paid for services on the motion to dissolve.
    11. Injunction, § 391

      —when decree assessing solicitor’s fees as damages or dissolution of temporary injunction reversed. A decree assessing solicitor’s fees and expenses as damages on the dissolution of a temporary injunction must be reversed where no attempt is made either in the evidence or in the argument of counsel to distinguish between the items of services and expenses, and where it appears that the injunction in question was only dissolved by a final decree dismissing the bill, no motion for such dissolution being made prior to the final decree.
    12. Appeal and error, § 12692

      —when not presumed trial court acted on' evidence not in record. On appeal from a decree, the Appellate Court cannot presume that in making such decree the trial court acted on evidence not shown in a record which purports to be a full copy of all the evidence introduced.
    Appeal from the Circuit Court of Stephenson county; the Hon. Richabd S. Fabband, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed.
    Opinion filed October 20, 1915.
    Charles H. Green, for appellants.
    R. R. Tiffany, 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 Carnes

delivered the opinion of the court.

This is an appeal from a decree awarding damages for wrongfully suing out an injunction. There had been a temporary injunction granted and no motion to dissolve the same, but the bill was dismissed on a hearing on the evidence and that decree of the court sustained on appeal to the Supreme Court in H. A. Hillmer Co. v. Behr, 264 Ill. 568. It was a controversy between the parties involving the question whether a piece of land upon which appellee was about to build, and from which building she was temporarily .enjoined, was a public street, and it was held that it was not. The facts and questions involved can be learned from a reading of the opinion in that case. Counsel for both sides argue from the statement of the ease there made.. The trial court had continued the injunction in force pending the appeal, and reserved for future consideration the question of damages for wrongfully suing out the same, which reservation the Supreme Court held was proper practice, but did not have the question before it whether any damages could be properly assessed and therefore cannot be said to have considered or passed on that question.

The suggestion of damages on which the present hearing took place consisted of different items, including items of solicitor’s fees and solicitor’s expenses in the Circuit and Supreme Court of $390.50, which the court allowed, and a large item for rent of the premises which the court disallowed, it is said by appellee, because of the wrongful use which he held the evidence showed she was to make of the premises. No cross-error is assigned, and the only question presented here is whether the court erred in allowing the items of solicitor’s fees and expenses. There is no finding of facts in the decree, and it must be sustained, if at all, on the evidence found in the record. There is no attempt in the proof to distinguish between services rendered in obtaining a dissolution of the injunction (if such services can be said to be rendered where there is no motion to dissolve the temporary injunction) and services rendered in the general defense of the suit, and appellants contend that for that reason the decree should be reversed. The law is clearly announced in Lambert v. Alcorn, 144 Ill. 313, where the court said, citing authorities, that a defendant might recover solicitor’s fees which he had paid or become obligated to pay, for services rendered in obtaining a dissolution of the injunction, but not those rendered in the general defense of the suit, and the court found from the record before it that the principal part of the services rendered for which a recovery was sought were in the general defense of the suit, and particularly upon the final hearing, and said: “The evidence wholly fails to distinguish between the services rendered in relation to the motion to dissolve, and those rendered in the general defense of the suit, and there is nothing, so far as we are able to see, from which the value of the services directed solely to the object of obtaining a, dissolution of the preliminary injunction can be determined.”

And held for that reason there could be no recovery, and also said: “Perhaps the view was entertained by court and counsel at the time of the assessment of damages, that as the only relief sought by the bill was an injunction, the entire defense was virtually directed to the sole object of procuring a dissolution of the injunction, and therefore that all the services rendered in the case must be deemed to have been rendered for that purpose. The relief sought by the bill was a perpetual injunction restraining the defendant from laying his proposed tile drain, and an injunction pendente lite was a mere ancillary writ which the complainant was at liberty to apply for or not as he saw fit. Its only office was to preserve the statu quo until a final hearing could be had. The complainants might have prosecuted their suit without asking for a preliminary injunction, and if the defendant had proceeded to construct his drains during the pendency of the suit, he would not have been in contempt for disobedience to a writ it is true, but he would have acted at the risk of having his acts pendente lite declared illegal, and of being compelled to restore everything to the condition in which it was at the commencement of the suit. In a litigation of this character, the services rendered in the general defense of the suit are as clearly distinguishable from those rendered for the mere purpose of getting rid of an injunction pendente lite, in case one has been issued, as they are in cases where relief of a different character is sought.” In that case a motion was made to dissolve the preliminary injunction and partly heard, but never decided. In the present case there was no motion to dissolve the temporary injunction. A similar question was before this court in Kotz v. Glos, 53 Ill. App. 485, where, as here, there was no motion to dissolve the preliminary injunction, the case of Lambert v. Alcorn, supra, and other earlier cases were discussed and attention called to the language of the court in Elder v. Sabin, 66 Ill. 126, where it is said: “The statute only allows the assessment of damages sustained by reason of improperly suing out the injunction, and the damages must be confined alone to that ground. The charge for lawyer’s fees could only extend to the motion to dissolve the injunction.”

The court held in Landis v. Wolf, 206 Ill. 392, that where, the evidence makes no discrimination between services rendered in the case generally and services which were strictly necessary to procure a dissolution of the injunction there is no evidence upon which the assessment of damages can be based, and an allowance in such case cannot be sustained on proof that a certain sum was paid upon a motion to dissolve and upon a final hearing together. In Milligan v. Nelson, 188 Ill. 139, the court reviewed the authorities and held that where the services sought to be recovered for are rendered in securing a dismissal of the bill on final hearing, there can be no recovery on a suggestion of damages. In Dempster v. Lansingh, 234 Ill. 381, there was a temporary injunction and hearing on motion to dissolve and an allowance of solicitor’s fees as damages, and in reviewing the case on the question of that allowance the court said: ‘ ‘ The law is, that where the injunction is ancillary to the principal relief sought, fees for defending the suit generally should not be assessed as damages upon the dissolution of the injunction.”

In City of Princeton v. Gustavson, 241 Ill. 566, a bill for injunction was dismissed on hearing and the defendant was allowed $300 as damages to reimburse him for solicitor’s fees “which he had expended ór agreed to pay in procuring a dissolution of the injunction.” It does not appear whether there was a motion to dissolve the temporary injunction, but we assume there was and some liability for solicitor’s fees in that matter, for the court held, without much discussion of that feature of the case, that the allowance was supported by the testimony, and affirmed the decree, citing Lambert v. Alcorn, supra, and Dempster v. Lansingh, supra, in support of its decision, which, of course, means that it did not intend to overrule or qualify anything said in those cases. Appellee’s counsel in support of the actions of the court cites Marks v. Columbia Yacht Club, 219 Ill. 417, holding that a reasonable solicitor’s fee for services in procuring the dissolution of the injunction may be allowed as damages notwithstanding the fact that a demurrer was interposed or that the knowledge gained on a hearing of a motion to dissolve was subsequently used upon the trial of the case' on its merits; but in that case it is said on page 420 of the opinion: “The damages allowed by the statute are only those sustained by reason of an improper and wrongful suing out of the injunction, and the solicitors’ fees can only extend to the motion to dissolve.”

As we have before said, the allowance of damages was based on the items of solicitor’s fees and solicitor’s expenses. There is no effort in the argument of counsel to distinguish between the items of solicitor’s services and solicitor’s expenses, and they are naturally covered by the same suggestions as to proof and the purpose for which they were incurred. As there was no motion to dissolve in this case and no services rendered in an attempt to get rid of the preliminary injunction that under the authorities cited seem a basis for the recovery of damages, thé decree must be reversed. Appellants’ counsel says that the court had before it the abstract of the record on the appeal, and may have reached his conclusions in part from that. This appellee’s counsel denies. We cannot presume that the court acted from evidence not shown by the record here which purports to be a full copy of all the evidence introduced. Presuming that the opinion of the Supreme Court in this case contains a full statement of its history so far as it is necessary to consider that history here outside of what is shown by the record filed here (and counsel for both sides seem to argue the case on that theory), we are of the opinion that there can be no recovery on account of any payment or liability incurred for solicitor’s fees and expenses on a suggestion of damages for wrongfully suing out the injunction, therefore the cause is not remanded.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    H. C. Williams, Appellee, v. American Insurance Company, Appellant.
    Gen. No. 6,120.
    1. Insurance, § 668

      —when evidence sufficient to sustain finding that horse was hilled hy lightning. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses by reason of lightning, where the horse was alleged to have been struck by lightning while running in a pasture and so damaged that plaintiff was compelled to kill it, and where the evidence tending to prove that the horse was injured by lightning was circumstantial, evidence held to warrant the jury in finding that the injury was the result of lightning, such injuries being usually, if not necessarily, proven by circumstantial evidence.
    2. Insurance, § 342

      —when stipulations in policy requiring written waiver of proofs of loss as prerequisite to action may he waived. Stipulations in an insurance policy making it a prerequisite to a recovery thereon that insured shall furnish proofs of loss as required in such policy may be waived by insurer, and such waiver need not be in writing although such policy provides that such condition shall not be waived unless the waiver be in writing, such condition being one which may be waived like other conditions in the policy.
    3. Insurance, § 321

      —when stipulation in policy requiring proofs of loss as prerequisite to action waived. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses by reason of lightning, where the horse was alleged to have been struck by lightning while running in a pasture and so damaged that plaintiff was compelléd to kill it, a provision in the policy requiring plaintiff as a prerequisite to recovery thereunder within sixty days of a loss under the policy to furnish to insurer proofs of such loss, held waived where it appeared that shortly after the accident an agent, of insurer called on plaintiff to adjust the loss and filled out a form of proof of loss which plaintiff executed, and in which he incorrectly stated that the horse “was struck by lightning,” it also appearing by uncontradicted evidence that such agent took the paper away with him after being informed by plaintiff of the actual fact as to the cause of the death of the horse, such information being given either before signing such proof of loss or so immediately thereafter as to be part of the same transaction.
    4. Insurance, § 472

      —when failure of insured to demand arbitrar tion of amount of loss not condition precedent to maintenance of action. In an action to recover on a policy of insurance which provided that in case of difference arising in case of loss or damage such difference should be arbitrated, but that such arbitration should be binding “as to the amount of loss only,” where insurer did not demand an arbitration, and where there was no controversy as to the amount of loss, the failure of insured to make such demand held immaterial, such arbitration being not made by the policy a condition precedent to the right of recovery thereunder.
    5. Evidence, § 399

      —when expert may not state ultimate fact. An expert witness must not take the place of the jury and declare his belief as to the ultimate fact to be determined by them.
    6. Evidence, § 399

      —what facts witness may not express opinion upon. A witness cannot give his opinion upon the fact which the jury are to determine.
    7. Appeal and error, § 1492

      —when exclusion of expert testimony not substantial error as unduly restricting rights thereto. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses by reason of lightning, where the horse was alleged to have been struck by lightning while running in a pasture, the horse’s leg being broken and it being so damaged that plaintiff was compelled to kill it, the exclusion of the testimony of an insurance adjuster and two veterinary surgeons offered as expert witnesses by defendant as to whether such horse was struck by lightning, held not substantial error as unduly restricting defendant in the introduction of expert testimony where it appeared that such witnesses were permitted to testify as to the effect of a stroke of lightning on an animal, and that such a stroke would not be likely to break a bone without killing the animal, as well as to other facts supposedly within the special knowledge of such witnesses.
    8. Evidence, § 399

      —what matters expert witnesses may not state conclusions in. Expert witnesses are not permitted to state their conclusions in matters of common observation in which the lay mind is capable of forming a correct conclusion.
    9. Evidence, § 399*—when veterinary surgeon may not express opinion as to how horse brolce leg. There is nothing in the education of a veterinary surgeon which would enable him, as an expert witness, to enlighten the lay minds of the jury on the question as to how a horse might get his leg broken while running in a pasture.
    10. Insurance, § 397a

      —when insurer liable for loss of horse hilled by owner because disabled by lightning. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses as a result of lightning, where the horse was alleged to have been struck by lightning while running in a pasture, so damaging the horse that plaintiff was compelled to kill it, it is immaterial whether the horse was killed by the lightning or by plaintiff as a result of being injured by the lightning, since the recovery is based on the injury and not on the killing.
    11. Insurance, § 669

      —what evidence sufficient to establish lach of value of horse after injury by lightning. In an action to recover for the loss of a large farm gelding used as a draft horse, under a policy insuring plaintiff against loss as to his farm horses by lightning, where the horse was alleged to have been struck by lightning while running in a pasture and so damaged that plaintiff was compelled to kill it, only slight evidence will be required to prove that the horse was of no value after the injury where there is direct evidence that it was worth but $125 before such injury.
    12. Insurance, § 447

      —when incorrect statement in proof of loss of horse by lightning does not bar recovery. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses as a result of lightning, where the horse was alleged to have been struck by lightning while running in a pasture and so damaged that plaintiff had to kill it, and where the policy provided that attempted fraud or false swearing by plaintiff, either in the proof of loss or otherwise, should forfeit all claim under the policy, a written statement sworn to by plaintiff and intended as a proof of loss, wherein plaintiff incorrectly stated that the horse “was killed by lightning,” held not available to defendant as a bar to recovery where it appeared by uncontradicted evidence that the statement in question was prepared by defendant’s agent and taken away by him with full knowledge that such statement was not strictly true, plaintiff having so informed such agent either before signing or so immediately thereafter as to be part of the same transaction, it thereby appearing that plaintiff had no intention of deceiving defendant.
    13. Insurance, § 694

      —when instruction as to proofs of loss not substantially harmful in ignoring issues. In an action to recover for the loss of a horse on a policy of insurance insuring plaintiff against loss as to his farm horses as a result of lightning, which action involved the question of defendant’s waiver of a provision in such policy requiring proofs of loss to be furnished as a prerequisite to a recovery, and the further question of plaintiff’s alleged fraudulent misstatements in a paper intended to be a proof of loss in compliance with the requirements of the policy, an instruction that as a prerequisite to a recovery in the action the jury must find that plaintiff complied with the conditions of the policy, held not substantially harmful to defendant in that it ignored the question of waiver and fraud or in that it told the jury without qualification that plaintiff could recover regardless of waiver, since if such instruction was so construable the evidence was clear that there was a waiver of such proof of loss.
    14. Insurance, § 639

      —when evidence of agent admissible without proving authority. In an action to recover on an insurance policy, evidence of the statement of an agent made to plaintiff that insurer would not pay the loss is competent without proof of the authority of such agent to speak for the company, where it appears that the policy sued on was negotiated by such agent and was by him delivered to plaintiff, in which case such agent must be held to have authority to communicate to plaintiff the fact that insured would not voluntarily pay the loss.
    Appeal from the Circuit Court of Mercer county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Searle & Marshall, for appellant.
    Graham & Carlstrom, 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.

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

   Mr. Justice Carnes

delivered the opinion of the court.

H. C. Williams, the appellee, held a policy issued by the American Insurance Company, the appellant, insuring him among other things ‘ ‘ against all such immediate loss or damage as may occur by lightning” to horses owned by him. One Seaton, an agent of appellant, took the application and delivered the policy. On the night of October 4,1913, there was a severe thunder storm and the next morning a large work horse belonging to appellee was found in his forty-acre pasture field with its hind leg broken just above the hock. The bone seemed to be splintered and a small sliver stuck through the flesh on the inside of the leg. There were dark streaks on the leg that looked as though it had been burned. The hind parts of the horse seemed to be paralyzed and he could not get up. There was a hole in the ground ten or twelve inches deep, and a foot or more in diameter that seemed to have been recently made by some explosive force and indications that the horse had fallen near that hole and dragged itself a few yards down an incline to the place where he was found. He had been seen in the pasture the evening before in good condition, and there were no other marks upon the horse or the ground, and no other circumstances tending to show the cause of the injury. Several persons were called by appellee to see the horse, and then concluding that the injuries rendered him valueless, he was killed. Appellant was in some way notified of the occurrence and within a few days its agent, Hubble, appeared to adjust the loss. He filled out a proof of loss which included the statement that the horse “was killed by lightning,” and appellee signed and swore to the statement; but when that statement was made appellee told the agent Hubble that the horse was not killed but that his leg was broken and they shot him. Appellee says he told him this before signing the paper, and Hubble says he told it after signing the paper, but they agreed that it was a part of the same transaction in which the paper was signed. Hubble left, taking the paper with him, and afterwards the agent, Seaton, told appellee that the company would not pay the loss. Whereupon this suit was begun before a justice of the peace, where appellee had judgment for $125. It was tried on appeal in the Circuit Court and there appellee had a verdict and judgment for $125. The insurance company brings the case, here for review and argues that the proof does not sustain the necessary finding included in the verdict that the immediate loss or damage occurred by lightning; that the evidence was circumstantial and that under the law the burden was on appellee to prove that the horse was struck by lightning and so injured that it was necessary to kill him, and that if the injury was occasioned in any other manner or could be accounted for under the evidence in any manner other than being caused by lightning on the night in question, then the plaintiff could not recover. The court at appellant’s instance so instructed the jury, and we are of the opinion, even assuming that to be the law applicable to circumstantial evidence, that the facts as above stated warranted the jury in finding that the injury was caused by lightning. Injuries of this kind must usually, if not always, be proven by circumstantial evidence.

Appellant argues that recovery was precluded by failure of appellee to furnish proofs of loss, as required by the terms of the policy. That such requirement may be waived by the insurance company has long been settled law in this State, and it may be waived, not in writing, notwithstanding the policy contains the provision that it shall not be waived unless in writing. The stipulation in a policy that there shall be no waiver unless in writing is itself a condition that can be waived like other stipulations in the policy. Phenix Ins. Co. v. Grove, 215 Ill. 299, and authorities there cited. We entertain no doubt that under the facts above stated proof of loss was waived by appellant. It is argued that appellee cannot maintain this action because there was a provision in the policy that in case of difference arising in case of loss or damage such difference should be submitted to arbitration, which arbitration should be binding “as to the amount of loss only.” There is no controversy about the amount of loss. The evidence is uncontradicted that the market value of the horse was $125. No arbitration was demanded by appellant, and we are of the opinion that the failure of appellee to demand an arbitration is not material under the facts of this case. (Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329.) Defendant offered the testimony of its agent, Hubble, an experienced adjuster of such claim, and two veterinary surgeons to enlighten the jury to the effect of a stroke of lightning upon an animal. Several questions were asked these witnesses, calling for their opinion whether the horse in question was struck by lightning. The court properly sustained objections to these questions. “An expert must not take the place of a jury and declare his belief as to the ultimate fact.” Keefe v. Armour & Co., 258 Ill. 28, and authorities there cited. “The rule is, that a witness cannot be permitted to give his opinion on the very fact which the jury is to determine.” Schlauder v. Chicago & S. Traction Co., 253 Ill. 154. The witnesses were permitted to testify to the effect on an animal of a stroke of lightning, and that it was unlikely that it would break a bone without killing the animal, and various other facts that might be supposed to be within their special knowledge. We find no substantial error of the court in excluding expert testimony offered by appellant. The court seems to have kept within the rule indicated in Illinois Cent. R. Co. v. Smith, 208 Ill. 608. Experts are not permitted to state their conclusions in matters of common observation in which the lay mind is capable of forming a correct judgment. Some of these witnesses in this case were asked, in substance, to express an opinion how a horse might have got his leg broken running in a pasture, and the court sustained objections to those questions. It is not clear how the education of a veterinary would enable him to enlighten the lay mind on that subject. But be that as it may, we are satisfied that appellant was not unduly restricted in the introduction of expert testimony.

Appellant places much stress on the fact that the horse was not killed by lightning, but was killed by appellee. We see no force in this contention. The recovery is based not on the killing but on the injury. There is direct testimony that the animal was rendered valueless by the broken leg, and slight testimony should suffice to support the proposition that a big farm gelding only worth $125 before his leg is broken is of no value after his leg is broken.

There is a clause in the policy providing that any attempted fraud or false swearing on the part of the assured in the proof of loss, or otherwise, shall forfeit his claim, and appellant urges that the sworn statement of appellee that the horse was killed by lightning precludes his recovery. There is. no merit in this contention. The record shows that as a part of the same transaction the paper in question was prepared by appellant’s agent and signed by appellee, and taken by appellant’s agent and carried away with full knowledge that the statement that he had asked appellee to sign was not strictly true. This is uncontradicted, and it is very apparent that appellee did not wish to mislead the company but was only desiring to sign such a statement as it required as a condition precedent to paying the loss. Appellant cannot under these facts set up this written statement as a bar to recovery.

It is said that the court ignored this question of fraud and waiver in giving an instruction for the plaintiff ; but the jury in the instruction complained of were told they must find that the plaintiff after the injury complied with the conditions of his policy of insurance requisite to his recovery for such loss. We do not think this instruction should be construed as telling the jury without qualification that the plaintiff was entitled to recover regardless of the question of waiver, and if it should be so construed the evidence is so clear on the question of waiver that no substantial harm could have resulted to appellant.

It is also objected that the court erred in permitting evidence of the statement of appellant’s agent, Seaton, before referred to, that the company would not pay the loss, on the ground that there was no proof that Seaton was authorized to speak for the company. He had acted for the company in soliciting the insurance contract, and had, as the company’s agent, delivered the policy to appellee, and we think he may well be held to possess the authority to communicate to appellee what certainly was the fact that the company would not voluntarily pay the loss. Finding no reversible error in the record the judgment is affirmed.

Affirmed.


text:
    In re Estate of Hortense S. Teeple, Deceased. Lovina L. Dunlap, Administratrix, Appellant, v. John H. Savage, Appellee.
    Gen. No. 6,131.
    1. Evidence, § 461

      —what weight given to testimony of judge as to nonjudicial aets. Directions and advice given by a probate judge to the parties to a controversy not before him while acting as a court, and in which he makes no orders of record embodying such directions, are .only material as an incidental part of the evidence in a case involving the subject-matter of the controversy in regard to which such directions and advice were given.
    2. Executors and administrators, § 147

      —when administrator not in legal possession of securities. A person about to be appointed public administrator of the estate of an intestate who consents to receive manual possession of securities formerly belonging to his intestate, under an agreement to return the same on demand to one claiming title by reason of a gift from intestate in her lifetime, is not in legal possession of such securities as such administrator although he retains such possession after being appointed such.
    3. Evidence, § 35

      —when title presumed from possession of personalty. Possession of personal property is prima facie evidence of title thereto.
    4. Words and phrases—personal property. The term “personal property” applies to notes and money as well as to goods and chattels.
    5. Deeds, § 176

      —when presumption of delivery of deed in lifetime of grantor. A deed produced by a grantee after the death of the grantor is presumed to have been delivered in the lifetime of such grantor although the parties thereto were members of the grantor’s family during his lifetime.
    6. Evidence, § 479

      —how possession of title in possessor of personal property may be overcome. The presumption of title in the possessor of personal property may be and often is overcome by evidence explaining such possession.
    7. Executors and administrators, § 100

      —when administrator under no obligation to begin action to determine title to securities. Where securities are in the possession of one claiming title thereto under an alleged gift by an intestate in her lifetime, and where the presumption of title in such possessor arising from the fact of possession is supported by direct evidence, other than that of the claimant, that such claimant has such title, no duty rests on the administrator of such intestate to begin an action to determine the question of title to such securities.
    8k Executors and administrators, § 559

      —how right to compensation determined. The fact that an administrator, pending his appointment as such, was appointed administrator to collect, is not material in determining his right to compensation, where his only acts in either capacity were to collect a small amount of assets belonging to intestate, and to litigate the validity of his appointment.
    9. Appeal and error, § 1200

      —what questions not considered on appeal from order approving administrator’s report.. On appeal from an order approving an administrator’s report, the fact that such administrator did not file an inventory of such estate within the time required by law is not material in determining his right to compensation, where the objections heard on review are not based on that ground, and where it does not appear that the estate suffered any loss by reason of such failure.
    10. Appeal and error, § 1488

      —when admission of immaterial testimony in trial by court not ground for review. On appeal from an order entered in an action tried by the court, an appellant cannot complain that immaterial testimony was heard by the court in the absence of prejudicial error.
    11. Executors and administrators, § 559

      —when administrator cannot recover compensation. Where the assets of an estate have been exhausted in paying the expenses of litigation instituted by those interested therein, an administrator cannot recover compensation for Ms services, although his efforts to perform his duty are honest and intelligent, and although he has been subjected to much annoyance and trouble from such litigation.
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Herman Welk, for appellant; Frederic C. Ellis and Jesse Wilcox, of counsel.
    John H. Savage, for appellee.

      See Illinois Notés 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 Carnes

delivered the opinion of the court.

Hortense S. Teeple died intestate March 23, 1909. The appellee, John H. Savage, then public administrator, was on April 1, 1909, on application of creditors, appointed administrator of her estate by the Probate Court of Will county, and qualified as such, and so acted until July, 1911, when his appointment was revoked and under the direction of this court and appellant, Lovina L. Dunlap, an heir, was appointed administratrix of the estate. The facts concerning and the reasons for the revocation of appellant’s letters are found in our opinion in Savage v. Luther, 165 Ill. App. 1. Nothing impeaching his integrity or reflecting on his management of the estate was found in the case then before us.

During the period of his administration, litigation about his appointment was constantly pending. He got possession of assets of the estate upon which he realized $100 only, and he paid out in court costs and other expenses $124.05, the largest item, $72.35, being the costs of appeal here, which he was ordered by this court to pay in due course of administration. He made no charge for attorney’s fees or commissions. Upon his removal he turned over to his successor the assets in his hands, and made a report asking that he be allowed $24.05, the sum that he had expended in excess of what he had received from the estate. Objections were filed to this report and heard and overruled in the Probate Court and in the Circuit Court on appeal, and this appeal is from the order of the Circuit Court approving said report.

Deceased in her lifetime was the owner of three securities mentioned in the arguments as the Evanston bond, $100, Lynch note, $500 and Ochs note, $400, each drawn or indorsed so as to be payable to bearer. Appellant in his statement of his reasons for reversal here says that those securities came to the sight, knowledge and possession of Savage, as such administrator, and that he is chargeable therewith. This is the only question of importance raised here. Three items of expenses aggregating $26.70 are objected to, but we are of the opinion that they were properly allowed. The facts concerning the three securities are that ''Mrs. Teeple died at the residence of a friend. Immediately after her death these securities were exhibited to some of the people in the house by Mrs. Isabel Reece, who then had them in her possession. A day or two after the funeral Mrs. Reece took them to the office of Morris Sprague, a lawyer in Joliet, who was acquainted with the deceased and her friends. Mrs. Reece claimed that deceased in her lifetime had given her the securities, and left them with the attorney, taking his written receipt and promise to deliver them to her on demand.' He took them to the probate judge, told him of the transaction, and asked what he had better do with them. The judge had appointed, or was about to appoint, appellee administrator, and advised Mr. Sprague to leave them with appellee as a custodian the same as he, Sprague held them, to be delivered to Mrs. Reece on demand. The judge testified on the trial of this case that he so advised the disposition of the papers because he understood Mrs. Reece was liable to be out of his jurisdiction more or less in the future, and he wanted the papers where they could be obtained in case of litigation before him as to their ownership. Appellant says evidence of this interview with the judge, and what he said and thought, is improper and immaterial, which is probably true. But Sprague took the papers to appellee, told him of the facts concerning Ms, Sprague’s possession of them above stated, including his conversation with the judge, and appellee took the papers and put them in his vault, consenting to act as custodian under those conditions. About four months after this transaction Mrs. Reece went to Sprague’s office, tendered the receipt, and demanded the possession of the papers. They both went to appellee’s office and asked him for them. He hesitated as to his duty in the matter, and all three of them went to the courthouse and stated the matter to the probate judge. He directed appellee to return the papers to Sprague, which he did, and Sprague immediately handed them to Mrs. Reece. On neither of these occasions was the judge acting as a court. There was no order entered of record in reference to either of the transactions. Therefore, the advice and direction of the judge is only material here as an incidental part of the story of what was done with these papers, and why it was done.

Nothing further was done by any one interested in the estate in relation to these three securities until after appellant’s appointment as administratrix, when she filed in the Probate Court a petition for a citation against Mrs. Reece and others, to compel them to disclose concealed assets of the estate. Mrs. Reece was then in CMcago and was not served with process, but she voluntarily appeared before the Probate Court and testified that these securities were given her in the lifetime of deceased in the presence of witnesses, and produced in court the witnesses to the transaction in the presence of appellant and her attorney, who was conducting the trial. Appellant then moved to dismiss the citation proceeding without prejudice, which motion was denied, but on appeal to the Circuit Court, granted. Mrs. Reece had the two notes in her possession and so stated at the hearing in the citation proceeding in the Probate Court. While it is true that appellee had these securities in his manual possession, he did not receive or hold them in his capacity as administrator of the estate, and had no more right to retain them against Mrs. Reece’s demand than he would have if they had been placed in his vault, and therefore within his reach, by some third person occupying the vault with him. The question is whether he should be charged with negligence in not beginning some proper proceeding to test the ownership of the securities. He had only $100 of the estate that he could use in paying expenses. He was kept in constant litigation over his right to administer, which it was his duty to defend, and in which he was successful in the lower courts. Mrs. Reece had possession of these securities after the death of Mrs. Teeple either by herself, or by Sprague, or appellee, as her custodians. That possession was prima facie evidence that she owned them. This proposition of law is denied by appellant, but is elementary and has been repeatedly recognized in this State. Roberts v. Haskell, 20 Ill. 59, is among the earlier cases. It was said in Brownell v. Dixon, 37 Ill. 197: “The possession of personal property is prima facie evidence of ownership, and the term ‘personal property’ applies as well to notes and money as to goods and chattels.” See also, Henderson v. Davisson, 157 Ill. 379. A deed which was produced by a grantee after the grantor’s death is presumed to have been delivered in the grantor’s lifetime. Lines v. Willey, 253 Ill. 440. And that presumption prevails though the parties to the instrument were, in the lifetime of the grantor, members of the same family. Schroeder v. Smith, 249 Ill. 575; Inman v. Swearingen, 198 Ill. 437. See also, O’Connor v. Messenger, 183 Ill. App. 1. This presumption may be, and often is, rebutted and overcome by proof otherwise explaining the fact of possession. But it seems to have developed in this transaction on the trial in the citation proceeding that there was competent direct evidence, other than that of the donee of the securities, in support of the presumption that her possession meant ownership. No duty rested on appellee to begin proceedings tó settle title to these securities under the circumstances. Woerner’s American Law of Administration (2nd Ed.), vol. 2, paragraph 678.

It also appears in this record that appellee, pending his administration before discussed, was appointed by the Probate Court administrator to collect; but that is of no consequence here, because his only acts in question in either capacity are as above set forth. It also appears that he did not file an inventory of the estate within the time required by law, but the objections to his report here reviewed are not based on that ground, and there is no reason to suppose that the estate suffered from that failure. The record discloses immaterial testimony heard by the court, as is usual in the trial of cases without a jury. No error in that respect was committed of which appellant can complain. The controlling facts were established without much contradiction by competent evidence. It seems to us from an inspection of the entire record that appellee performed a duty not of his own seeking in a proper manner; that for years he has been subjected to much labor, annoyance and trouble for which he has not received, and cannot receive, any compensation, and that the only injustice disclosed is, that under the condition of this estate and the law applicable to the administration of estates, appellee could not ask and the court could not give him any compensation for his time and trouble expended in an honest, intelligent effort to perform his duty. The judgment is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    A. L. Carlisle and G. N. Carlisle, trading as A. L. Carlisle & Son, Appellee, v. John L. Novak, Appellant.
    Gen. No. 6,077.
    (Not to be reported in full.)
    Appeal from the County Court of Kane county; the Hon. Frank G. Plain, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by A. L. Carlisle and Gr. N. Carlisle, trading as A. L. Carlisle & Son, plaintiffs, against John L. Novak, defendant, in the County Court of Kane county, to recover a broker’s commissi on for negotiating the sale of defendant’s farm to one Mattsen, a tenant of the farm in question. From a judgment for plaintiffs for $430.20, defendant appeals.
    Plaintiffs introduced a letter from defendant to them, as follows:
    “I hereby notify you that I am placing my farm in St. Charles, again on the market, and if you care to handle it on the basis of two per cent, commission, as we formerly agreed upon, I hereby authorize you to sell the farm for $150 an acre for cash or part cash, and for the balance a mortgage.”
    Defendant testified, in substance, that he procured the sale of the farm to the buyer in question and that having made a proposal to such buyer, which was rejected by him on account of dissatisfaction with the purchase price proposed, defendant suggested that such buyer submit the terms on which he would purchase, which was done, and defendant accepted the buyer’s proposal. Plaintiffs introduced evidence to the effect that after the failure of defendant’s negotiations, in accordance with defendant’s written request as above stated, they commenced negotiations with Mattsen, inducing him to change his mind and to submit the proposal testified to by defendant, which was prepared in their office, which was accepted and the farm sold to him. Plaintiffs ’ evidence was corroborated by Mattsen. It did not appear from plaintiffs’ evidence whether the proposal by Mattsen, after being prepared by them, was submitted to defendant by Mattsen or by themselves.
    Abstract of the Decision.
    1. Brokers, § 90

      —when evidence sufficient to sustain finding that broker induced buyer to purchase. In an action to recover a broker’s commission for procuring the sale of defendant’s farm, where the evidence was conflicting as to whether defendant made the sale or whether such sale was brought about by plaintiffs’ efforts after defendant had failed to induce the buyer to purchase, a finding for plaintiffs held not erroneous under the evidence.
    2. Brokers, § 95

      —when instruction on right to commission erroneous. In an action to recover a broker’s commission for negotiating the sale of defendant’s farm, the buyer being a tenant of defendant, and where the evidence was conflicting as to whether defendant negotiated the sale without the intervention of plaintiffs, or whether, after failure of defendant’s negotiations to effect a sale, the efforts of plaintiffs induced such buyer to again consider purchasing such farm, after which all the negotiations were conducted by plaintiffs, a proposition of law to the effect that plaintiffs did not earn a commission by their prior negotiations, if any, with the tenant, unless such conversations and negotiations resulted in bringing the defendant and the tenant into direct negotiations which culminated in a sale, held properly refused as an incorrect statement of the law, and as it assumed the disputed fact of direct negotiations between plaintiffs and defendant.

      The case was tried without a jury and the court refused to hold a proposition of law submitted by defendant, as follows:
    “That the plaintiff did not earn a commission on the sale of the defendant’s real estate to Mattsen by. their prior conversations or negotiatipns, if any, with Mattsen, unless such conversations and negotiations resulted in bringing the defendant and Mattsen into direct negotiations which culminated in a sale.”
    Walter Truc, for appellant.
    Robert G. Earley, for appellees.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    William Decker, trading as Montgomery Table Works, Appellant, v. Albert Braverman, trading as Spokane Furniture Company, Appellee.
    Gen. No. 6,097.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, Presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action of assumpsit by William Decker, trading as Montgomery Table Works, plaintiff, against Albert Braverman, trading as Spokane Furniture Company, defendant, in the Circuit Court of Peoria county, to recover the invoice price of manufactured goods sold and delivered to defendant. From a judgment for defendant, plaintiff appeals.
    The controverted matters concern the purchase by the appellee of twelve oak library tables, called “tables in white,” which were shipped to the defendant, but which defendant claims were not of the kind and quality purchased by him, and that he therefore returned them to the plaintiff.
    The testimony of defendant was to the effect that he gave the order for the “tables in white” to a traveling salesman of plaintiff, to be like certain photographs which the salesman had displayed to him, and also, of the grade of oak, and in the kind of wood finish, like a table in defendant’s stock; that the grade of wood of the table in defendant’s stock was No. 1 oak; and that the finish of the wood was also of the highest grade.
    Abstract of the Decision.
    1. Evidence, § 461

      —what weight given to uncontradieted testimony. Uncontradieted testimony must be taken to be a true statement of the matters testified to.
    2. Sales, § 146

      —when purchaser may reject goods. A purchaser is not bound to accept and pay for goods which are not of the kind and quality called for by the contract.
    3. Sales, § 147

      —what is reasonable time to accept or reject goods. The question of what is a reasonable time within which a purchaser of goods must accept or reject the same depends on the circumstances of the particular case.
    He further testified that the tables sent to him were No. 3 grade of oak, and the wood finish was not clear and smooth like the finish of the table in defendant’s stock, but was rough and splintered; and that parts of the tables were very roughly put together. The defendant’s testimony was not contradicted.
    It also appeared that checks were twice sent by defendant for an amount less than the invoice price of such goods and plaintiff for that reason refused such checks. The goods remained in defendant’s warehouse thirty days before he examined them. The amount claimed was $150 and interest from June 30,1914. Defendant tendered and paid into court $56.70. The case was tried by the court without a jury and the only witness was defendant, who was called by plaintiff.
    Kirk & Shurtleff, for appellant.
    A. M. Otman, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

4. Sales, § 147—to It at is not unreasonable delay in rejecting goods. In an action to recover for goods sold and delivered where defendant retained the goods in his warehouse for thirty days before examining and rejecting them as not in compliance with .the contract, held that defendant’s delay was not unreasonable under the evidence, he having the right to assume that the goods delivered were in compliance with the contract, in which case defendant would naturally not make haste to examine them.

5. Sales, § 105 —when sending of checlos in payment no waiver of compliance with contract. In an action to recover for goods sold and delivered where defendant retained the goods in his warehouse for thirty days before examining and rejecting them as not in compliance with the contract, the fact that before examination of the goods defendant sent plaintiff a check for less than the invoice price, held not to prove a waiver of plaintiff’s failure to comply with the contract, defendant not having at the time of sending the checks such knowledge of the defects in the goods that he could be presumed to have intended to waive such defects by sending such checks.

6. Contracts, § 203 —when contract of sale divisible. In a sale of goods consisting of independent items, of different articles with different prices, each item necessarily constitutes a separate contract.

7. Appeal and error, § 1088 —when only errors assigned in brief will be considered. On a writ of error the Appellate Court can only consider the errors discussed by appellant in his brief, although he declares he relies on all the errors assigned, including some not so discussed, since an appellant must abide by the case made by his opening brief, and if no case is made thereby, the judgment reviewed will be affirmed.


text:
    J. J. Farley, Appellee, v. George H. Dean and Frances Dean, trading as G. H. Dean and Company, Appellants.
    Gen. No. 6,103.
    1. Pleading, § 387

      —when general issue sufficient plea. Where defendant pleads the general issue to a declaration containing only the common counts, a further plea is not required upon plaintiff amending by adding other counts, the general issue being a sufficient plea to such counts.
    2. Pleading, § 453

      —when written pleas and formal joinder of issue warned. By going to trial without raising any question as to the lack of pleas, plaintiff waives the necessity for written pleas and for the formal joinder of issue.
    3. Principal and agent, § 167

      —when agent not liable for breach of contract negotiated for principal. One who is not a party to a contract, and has nothing to do with such contract except he negotiated the contract as agent for another, cannot be held liable for a breach thereof.
    4. Pleading, § 431

      —when variance fatal. A material variance between a contract declared on and the contract proved is fatal, since the evidence offered in support of a declaration must substantially support the allegations of such declaration.
    5. Contracts, 366

      —what constitutes fatal variance between contract declared on and proved. In an action to recover on a contract wherein the contract proved was not between the same parties and not in relation to the same subject-matter as that declared on, held that there was a fatal variance, so that a motion by defendant at the close of all the evidence to direct a verdict in its favor should have been sustained.
    Appeal from the City Court of DeKalb; the Hon. John A. Dowdall, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    Rehearing denied December 8, 1915.
    A. G. Kennedy, for appellants.
    Cliffs & Cliffs, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this ease the appellee, James J. Farley, sued the appellants, George H. Dean and Frances Dean, copartners under the name of G. H. Dean & Company, in assumpsit, in the City Court of DeKalb, and recovered a judgment for the sum of $350, for the value of a secondhand Maxwell automobile. Appellee claims to have turned this automobile over to the appellants as a first payment on the purchase of a new automobile, which was to be furnished him by the appellants, under an alleged contract, and which it is alleged they failed to so furnish.

The first declaration filed contained only the common counts, to which appellants pleaded the general issue. Afterward, by leave of court, the appellee filed three additional counts. In the first additional count, it is alleged, that the appellee, on or about April 6, 1913, entered into an agreement or contract of sale, for one 40-horsepower Maxwell automobile and extra attachments thereto, to be delivered to the appellee on or about May 1,1913; and that appellee, in consideration of said purchase and the delivery of said automobile to him, agreed to pay the sum of $1,700 therefor, namely: $1,135 in cash and one secondhand automobile, of the value of $575; that appellee was ready and willing to complete said contract and to pay to appellants the $1,135 balance on said first day of May, 1913, but that appellants failed and refused to deliver to appellee the automobile contracted for, and refused to return to appellee the secondhand automobile which he had turned over to them as first payment, but converted the same to their own use.

Substantially the same allegations are contained in the other additional counts, in regard to the contract entered into, the kind of automobile purchased by appellee, the amount to be paid therefor, the kind and character of payments to be made and the time of making the same; also as to the failure of appellants to deliver the automobile so purchased, to appellee, as agreed; and similar allegations are contained therein, as to the retention and conversion by appellants, of the. secondhand automobile, turned over to appellants, by appellee, as a first payment.

No plea was filed by appellants to the additional counts, but this was not necessary as the plea of the general issue on file was sufficient to constitute an answer to the additional counts. Dubois v. Robbins, 115 Ill. App. 372; Wright v. Lessee of Hollingsworth, 1 Pet. (U. S.) 165; McAllister v. Ball, 28 Ill. 210; Eames v. Morgan, 37 Ill. 260; Ridgely Nat. Bank of Springfield v. Fairbank, 54 Ill. App. 296; Pease v. Bartlett, 97 Ill. App. 492; Milwaukee Mechanics’ Ins., Co. v. Schallman, 188 Ill. 213.

Moreover, the parties by going to trial, without raising any question on account of the lack of pleas, waived the necessity of written pleas and formal issues joined. Brazzle v. Usher, Breeze 14; Ross v. Reddick, 2 Ill. (1 Scam.) 73; Ryan v. McGirr, 168 Ill. App. 415; J. I. Case Threshing Mach. Co. v. Pule, 175 Ill. App. 190; Anderson v. Patty, 168 Ill. App. 151; Ryan v. McGirr, 168 Ill. App. 415.

The evidence adduced on the trial clearly shows that the subject-matter of this suit is based on a contract in writing, made by the appellee with the Cole Motor Company through the agents of the company, G. H. Deane & Company, and that the contract is for the purchase of a Cole Model 40-T car, with certain extras mentioned, to be delivered to appellee about May 1, 1913. The contract is as follows:

“Chicago, Ill., 4-5, 1913.
Phone Calumet 5466.
“Cole Motor Company,
1470 Michigan Ave.
Gentlemen:
You are hereby authorized to enter my order for one Model 40 T, for which I agree to pay the sum of $1,135, F. O. B. DeKalb. Hand you herewith Maxwell Dollars as first payment thereon and agree to pay balance on delivery which is to be on or about May 1st, 1913.
The first payment shall be forfeited as liquidated damages if subsequent payment is not made within five days of notice that the car is ready for delivery.
Notice may be sent by mail to the address given below. 49 Extras as follows:
1 tube & casing & chains & cover
Price of car...............
Price of extras............
Freight ..................
Total ....................
Deposit ..................
Balance dne...............
Deposit received and accepted this.............191
Cole Motor Co., J.” J. Farley,
Purchaser.
Salesman, Quinn DeKalb,
Address, •
Order No........ Ill.
Telephone.”

As a first payment, the appellee turned over to the appellants, as agents of the Cole Motor Company, his secondhand Maxwell car; and "by the foregoing contract agreed to make a further payment of $1,135 on delivery to him, of the Cole car, F. O. B. DeKalb. Appellee claims that there was a breach of this contract, because the' car specified in the contract was never furnished nor offered to him by the Cole Motor Company or its agents.

There was no evidence on the trial of any contract between the parties, than the one hereinbefore set out, with the Cole Motor Company. It is clear that the appellants had nothing to do with this contract, except in the capacity as agents of the Cole Motor Company, and were not parties to it and hence could not be held liable for a breach thereof. No evidence was adduced on the hearing, and none appears in the record, to sustain the allegations made in the declaration, of a contract made by appellee with appellants, for the purchase from them of a Maxwell car; nor is there any evidence of any other transaction than that relating to and connected with the contract heretofore set out; and there is no evidence under which a recovery could he had under the common counts.

It is well settled that the proof must substantially sustain the allegations of the declaration. If the contract proved varies materially from the contract stated in the pleadings, it is fatal to a recovery. Wheeler v. Reed, 36 Ill. 85; Kaiser v. Topping, 72 Ill. 229; Stephen on Pleading, 107; 1 Greenleaf on Evidence, 79.

The contract in evidence is clearly at variance with the contract set out in the declaration. It relates to a different kind of an automobile, and is not between the same parties. In that state of the pleadings and the proofs, the court should have sustained appellant’s motion, made at the close of all the evidence, to direct a verdict for the defendants.

The judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Jacob Massock, Appellee, v. Royal Insurance Company, Appellant.
    Gen. No. 6,112.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action of assumpsit by Jacob Massock, plaintiff, against the Royal Insurance Company, defendant, in the Circuit Court of Bureau county, to recover on a policy of fire insurance insuring the store building of defendant in Granville, Illinois, in the sum of $1,700. From a judgment for plaintiff for $2,006.70 and costs of suit after trial without a jury, defendant appeals.

      Abstract of the Decision.
    1. Insurance, § 452

      —when clause requiring proof of loss may be warned. A stipulation in a policy of fire insurance requiring insured to furnish a proof of loss as a prerequisite to the liability of insured on the policy may be waived by insured or by its agent.
    2. Insurance, § 455

      —when provisions of policy requiring waiver in writing attached to policy do not prohibit waiver of proof of loss. A condition in a policy of insurance requiring steps to be taken by insured after a loss, such as to furnish to insurer a proof of loss, are not within the limitation of another provision of such a policy providing that no officer, agent or other representative of insurer shall have power to waive any provision of the policy except in writing upon or attached to the policy.
    3. Insurance, § 455

      —when agent power to waive condition in policy requiring /proofs of loss. An agent of a fire insurance company is empowered to waive a condition in a policy requiring proofs of loss as a prerequisite to the liability of insurer thereon where such agent has authority to solicit insurance and negotiate contracts therefor within a named territory, although his authority may be local as to such territory.

      A reversal of the judgment is asked, on the ground that the appellee did not comply with the provision of the insurance policy, which requires that proofs of loss by fire shall be furnished to the Insurance Company, within sixty days after the loss has occurred; and it is urged that the failure to comply with this provision of the policy bars a recovery.
    It does not appear that a proof of claim was ever filed by plaintiff. There was evidence that plaintiff was informed by an agent of defendant, when such agent learned of the fire, that he would notify defendant, whereupon defendant would send an adjuster to adjust the loss. It does not appear that this was done.
    Charles B. Obermeyer and Cairo A. Trimble, for appellant.
    S. P. Hall and Butters & Clark, 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 Niehaus

delivered the opinion of the court.

4. Insurance, § 455 —how agent may waive provision of policy requiring proofs of loss. A condition in an insurance policy requiring insured to furnish proofs of loss as a prerequisite to the liability of insured thereon may be waived by its agent without express words, by conduct inconsistent with an intention to enforce a strict compliance with the condition and which conduct is calculated to lead insured to believe that insurer does not intend to require such compliance.

5. Insurance, § 455 —what constitutes waiver of proof of loss By agent. In an action to recover on a policy of fire insurance which required as a prerequisite to the liability of insurer thereon that insured furnish proofs of loss within sixty days of such loss, which condition was not complied with, held that a waiver was proved where it appeared that when informed of the loss defendant’s agent assured plaintiff that he would send a notice to insurer as a result of which insurer would send an adjuster who would adjust the loss, plaintiff being entitled to infer from such assurances that his loss would be promptly adjusted without proof of loss, and that insurer would not insist on such proofs being furnished.


text:
    Orr & Lockett Hardware Company, Appellee, v. Charles H. Pattison and Kate Pattison, Appellants.
    Gen. No. 6,113.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by the Orr & Lockett Hardware Company, Plaintiff, against Charles H. Pattison and Kate Patti-son, defendants, in the Circuit Court of Lake county.
    An appeal from the judgment'of the Circuit Court of Lake county, dismissing defendants’ appeal, which had been taken from the judgment of a justice of the peace, for defendants’ failure to comply with the order of the court requiring them to file a new appeal bond. From an order dismissing the appeal for failure to file a new bond, defendants appeal.
    Abstract of the Decision.
    1. Justices of the peace, § 192

      —when appeal not perfected for want of bond and transcript. Hurd’s Rev. St., ch. 79, art. X, sec. 1 (J. & A. ¶ 6976), providing that where an appeal is taken from the judgment of a justice of the peace or police magistrate the justice or magistrate shall return the appeal bond, with the other papers in the case and the transcript of his docket, to the clerk of the court to which the appeal is taken, clearly contemplates that the appeal bond shall, with the transcript and other papers in the case, be on file in the court to which the appeal is taken, and that the appeal shall not be fully completed until the bond and transcript are so filed.
    2. Justices of the peace, § 174

      —power of Circuit Court to force compliance with statute regulating appeals. The Circuit Court has power to enforce a compliance with the requirements of the statute on appeals from justices of the peace.
    3. Justices of the peace, § 194

      —when appeal properly dismissed for failure to file new bond. An order dismissing an appeal from a justice of the peace held proper where it appeared that the appeal bond originally filed with the justice was lost, and that appellant failed to comply with an order to file a new bond, such order being reasonable and proper and it being the duty of appellants to comply therewith.

      Plaintiff recovered a judgment before the justice of the peace. Defendants appealed to the Circuit Court, and filed with the justice a sufficient appeal bond, which the justice accepted and approved, but the bond was lost, or mislaid by the justice, and he therefore failed to return the bond with the other papers and the transcript to the clerk of the Circuit Court as required by the statute.
    R. F. Fowler, for appellants.
    H. C. Coulson, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Katherine Dyer, Appellee, v. Jacob Weinstein, Appellant.
    Gen. No. 6,119.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthinston, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed.
    Opinion filed October 20, 1915.
    Rehearing denied December 8, 1915.
    Statement of the Case.
    Action of replevin by Katherine Dyer, plaintiff, against Jacob Weinstein, defendant, to recover possession of a diamond ring, the value of which was fixed in the affidavit at seventy-five dollars. The ring not being obtained by the writ, its value was sought to be recovered by a count in trover.
    There was evidence tending to show that the ring was the property of plaintiff, who was a prostitute, and that the ring was pawned with defendant. There was also evidence tending to show that the ring was pawned by plaintiff’s paramour, one Grosnell, with plaintiff’s knowledge and consent and that plaintiff in a large measure intrusted Grosnell with her money and property. From a judgment for defendant, plaintiff appeals.
    J. B. Wolfenbarger, for appellant.
    Clyde Capron, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Replevin, § 50 —when owner of pawned property must pay or tender amount due as prerequisite to action. One whose personal property has been pawned with her knowledge and consent cannot maintain replevin to recover possession of such property without first paying or tendering the amount due to the pawnee in redemption from the pledge.

2. Troves and conversion, § 28 —when owner of pawned property must pay or tender amount due as prerequisite to action. An action of trover to recover the value of personal property cannot be maintained against a pawnee of such property where it appears that the property was pawned with the knowledge and consent of plaintiff, and that the amount due to the pawnee in redemption of the pledge was not paid or tendered to pawnee before Commencing the action.


author: Mr. Justice Niehau

text:
    Claire Beitel, Appellee, v. C. T. Beitel, Appellant.
    Gen. No. 6,135.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    Rehearing denied December 8, 1915.
    Statement of the Case.
    Action by Claire Beitel, plaintiff, against C. T. Beitel, defendant, in the Circuit Court of Lee county, to recover.on a declaration of which three counts in trespass charged an assault on plaintiff by defendant, who was the father of plaintiff’s husband, and of which a fourth count charged an alienation by defendant of the affections of such husband. The general issue was pleaded to all counts. From a judgment for plaintiff for five hundred dollars, defendant appeals.

      Abstract of the Decision.
    1. Assault and battery, § 22

      —when loss of comfort, society and friendship of husband element of damages. The loss of the comfort, society and friendship of plaintiffs husband is not a proper element of damages in an action against the father of such husband to recover for an assault alleged to have committed on plaintiff by such father.
    2. Assault and battery, § 17

      —when instruction misleading and prejudicially erroneous. In an action by a wife against the father of her husband, where in her declaration plaintiff in three counts of trespass alleged an assault upon her by defendant, and in a fourth count alleged that defendant alienated the affections of such husband whereby plaintiff was “deprived of the support, society assistance and affection of her said husband,” an instruction that" the jury might “award her such damages as they believed from the evidence she had sustained in the loss of the comfort, society and friendship of her husband, held misleading and prejudicially erroneous where defendant was found guilty on the first three counts, in that such instruction was not limited to the fourth count, since without such limitation such instruction stated a wrong measure of damages as to the counts on which defendant was found guilty.
    Wirick & Wirick and John E. Erwin, for appellant.
    Trusdell, Smith & Leech, for appellee.

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

   Mr. Justice Niehau

delivered the opinion of the court.


author: Per Curiam.

text:
    The People of the State of Illinois, Defendant in Error, v. Moses Brown, Plaintiff in Error.
    Gen. No. 6,068.
    (Not to be reported in full.)
    Error to the Circuit Court of DeKalb county; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.

      Abstract of the Decision.
    1. Criminal law, § 344

      —when proper to receive verdict in absence of defendant. In a misdemeanor case it is not error to receive a verdict while defendant is absent from the court room on bail.
    2. Criminal law, § 692

      —when judgment affirmed by .operation of law. Where one of the judges of the Appellate Court is disqualified and the others are divided in opinion as to whether a judgment should be affirmed or reversed, the judgment is affirmed by operation of law.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Moses Brown, defendant, in the Circuit Court of DeKalb county. To reverse a judgment of conviction, defendant prosecutes this writ of error. ;
    James W. Cliffe, for plaintiff in error.
    Lowell B. Smith, for defendant in error; E. M. Burst, of counsel.

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

   Per Curiam.


text:
    Elizabeth Strickland, Executrix, Appellee, v. Alexander H. Strickland and Elizabeth Hibbs, Appellants.
    Gen. No. 6,143.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Woodford county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1915.
    Transferred to Supreme Court.
    Opinion filed October 22, 1915.

      Abstract of the Decision.
    1. Appeal and error, § 126

      —when question of freehold involved on appeal from decree construing will. On appeal from a decree construing a will disposing of both real and personal property, which will, after making certain specific bequests of personalty, devised to testator’s wife, for her use during her natural life, all the remaining property of testator, with remainder to others after the termination of the life estate, an assignment of error asking a remand with mandate to determine and decree that such residuary legatee took only a life estate in testator’s real estate, held to raise a question of freehold, in that the determination asked for does not give to such residuary legatee power to sell such real estate.
    2. Appeal and error, § 123

      —when Appellate Court no power to determine question of freehold. The Appellate Court has no legal power to determine a question of freehold.
    3. Appeal and error, § 123

      —when cause involving freehold transferred to Supreme Court. Where a cause appealed to the Appellate Court involves a question of freehold, the cause must be transferred to the Supreme Court under section 102 of the Practice Act (J. & A. ¶ 8639), providing for the disposition of cases improperly appealed.
    Statement of the Case.
    Bill by Elizabeth Strickland, in her own right and as .executrix, complainant, against Alexander H. Strickland and Elizabeth Hibbs, defendants, in the Circuit Court of Woodford county, praying for a construction of the will of James M. Strickland, deceased. The main question involved was whether defendants took a contingent or a vested remainder in testator’s real estate under the will sought to be construed. From a decree that defendants took a contingent remainder in such real estate, defendants appeal.
    Kirk & Shurtleff, for appellants.
    Bosworth & Bosworth and Riely & Riely, for appellees.

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

   Per Curiam.


author: Mr. Presiding Justice Dibell

text:
    Richard Fiedler, Appellee, v. Chicago, Indiana & Southern Railroad Company, Appellant.
    Gen. No. 6,099.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Putnam county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed November 5, 1915.
    Statement of the Case.
    Action by Bichard Fiedler, plaintiff, against the Chicago, Indiana & Southern Railroad Company, defendant, in the Circuit Court of Putnam county, to recover the value of a steer alleged to have been killed as a result of defendant’s negligence. From a judgment for plaintiff for eighty-five dollars defendant appeals.
    On August 17,1911, Richard Fiedler owned and occupied a farm near Granville, in Putnam county, which was crossed by the Chicago, Indiana & Southern Railroad Company. The right of way across this farm was separated from the farm land by a fence, erected and maintained by defendant, and at one point in this fence there was a gateway leading to a private crossing over the track. On the day in question a steer belonging to Fiedler was killed by a train of the defendant and it is claimed by Fiedler that the gate was out of repair due to negligence of the railroad company, by reason of Which the steer passed through the gate and upon the right of way.
    The evidence showed that the gate in question consisted of a steel frame about fourteen feet wide and sixteen feet long, hung from a post by hinges on one end, and on the other end originally fastened to another post by an iron hook; that the hook had been broken more than a year before the date in question and the gate had been fastened thereafter by wrapping wires around the end of the gate and the post and twisting them; that one of the posts by which the gate was fastened had become rotten and that' the section men of the defendant had not removed the rotten post, but had put in a new post alongside of the old one; and that the gate would not reach from one post to the other. The evidence further showed that after the killing of the steer the gate was found open towards the right of way, although the natural way to open it was away from the right of way, and that the wires that had held the gate shut were lying on the ground. There was evidence in the record to the effect that hunters had been seen in the neighborhood on the morning in question, but there was no evidence directly showing that such hunters were on the premises at that time or near this gate, while there was other evidence showing that cattle of appellee had broken through this gate on other occasions and that defendant’s servants had promised several times to repair this gate in a suitable manner.
    Abstract of the Decision.
    1. Railroads, § 868

      —when evidence sufficient to sustain finding that gate along right of way not opened by human agency. In an action to recover for the alleged, killing of plaintiff’s steer by defendant’s train, where it appeared that the steer got on defendant’s right of way through a gate in a fence separating defendant’s right of way from plaintiff’s land, both gate and ‘fence being constructed and maintained by defendant; that the gate swung on hinges from a post in the fence and was formerly fastened by an iron hook to a post set on the opposite side of the opening, and after the hook was broken defendant did not repair it, but fastened the gate by twisting wires round the end of the gate and the post; that after the accident the wires were found lying on the ground untwisted; that after the post had become rotten defendant set a new post alongside the old post, so that the gate did not reach to the new post; that the gate had been pushed open by cattle on other occasions, and that on the day of the accident hunters were seen in the vicinity, held that the evidence did not exclude the possibility that on the day in question the gate was pushed open by cattle so as to warrant an inference that it was not opened by human agency.

      The action was tried by jury in the Circuit Court on appeal from the judgment of a justice of the péace, and the jury found for plaintiff, the value of the steer being agreed to be sixty dollars and the value of plaintiff’s attorney’s fees to be twenty-five dollars.
    Boys, Osborn & Griggs, for appellant; Robert J. Cary, of counsel.
    George W. Hunt, for appellee.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

2. Witnesses, § 197 —when paper used by witness to refresh memory may not be used by adverse counsel. Where a paper from which a witness has refreshed his recollection as to the facts to which he testifies contains expressions of opinion, and such witness after examination of the paper testifies to all the matters of fact therein contained, so that the witness could not be contradicted by the admission of the paper, it is incompetent as evidence.

3. Evidence, § 365 —when opinion evidence improper. Opinion evidence is properly excluded where there is no occasion for expert testimony, and where the jury are as well qualified as the witness to decide the question as to which the opinion is sought.

4. Instructions, § 41 —when instruction not rendered improper by insertion of words limiting province of jury. The insertion of the words “if proven” in an instruction requested by a party, which instruction commences “if the jury believe from the evidence,” is not objectionable as shifting the burden of proof, the words inserted being of the same meaning as “if the jury believe from the evidence,” and the words so inserted being merely an unnecessary repetition of what was already expressed.

5. Appeal and error, § 1241 —when party may not complain of his own instructions. The fact that an instruction given put an improper burden on a party to an action cannot be assigned by such party as error where the instruction complained of was requested by it.