text:
    George R. Stewart, Appellee, v. William E. Dodson, Appellant.
    Gen. No. 22,835.
    (Not to be reported in full.)
    Abstract of the Decision.
    Gaming, § 16

      —what constitutes unenforceable gambling contract. Where, long after plaintiff purchased certain stock from defendant and as no part of that purchase, plaintiff and defendant entered into a contract providing that defendant would purchase said stock at a .certain price should plaintiff desire within one year from the date of the contract to sell the stock, held that the contract was a gambling contract and obnoxious to section 130 of the Criminal Code (J. & A. f 3733), and unenforceable in the courts.
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by George E. Stewart, plaintiff, against William J5. Dodson, defendant, to recover on a certain contract providing that defendant would purchase within one year from date at a certain price certain shares of stock theretofore purchased by plaintiff from defendant if plaintiff should desire to sell same. Prom a judgment for the plaintiff for $1,800, the amount of the stock at the price agreed, defendant appeals.
    Buell & Abbey, for appellant.
    George W. Wilbur, 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.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Helburn Leather Company, Appellee, v. Benjamin Stone and Jacob W. Stone, copartners, trading as Stone Brothers, Appellants.
    Gen. No. 22,839.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sams, § 129

      —what constitutes symbolical delivery of goods to consignees. Delivery of goods f. o. b. a certain city, held to mean that the goods should arrive in such city, and when they did so arrive in the usual and customary course of transit the possession of the common carrier at such city was a symbolical delivery to the consignees who had ordered the goods and effective to vest the title of the goods in them.
    2. Carriers, § 79*—who may maintain action for wrongful or negligent, delivery where goods are deliverable f. o. b. cars at destina^

      lion. Where goods are delivered to a common carrier for shipment to a purchaser f. o. b. cars at the purchaser’s city and are at such city delivered by the carrier to another, any right of action for wrongful or negligent delivery lies only in favor of the purchaser against the carrier.

      Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by the Helbnrn Leather Company, a corporation, plaintiff, against Benjamin Stone and Jacob W. Stone, copartners, trading as Stone Brothers, defendants, to recover the agreed price of three bundles of leather bought of plaintiff. From a judgment for plaintiff for $195.89, defendants appeal.
    Max M. Grossman, for appellants; H. J. Rosenberg, of counsel.
    A. M. Schwarz, J. A. Joseph and M. E. Burr, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Trial, § 295*—when request that proposition of law be passed upon is too late. A request that propositions of law presented to a trial judge after entry of judgment be passed upon nune pro tunc as of the date of the judgment is properly refused as being too late.


text:
    Weber Chimney Company, Appellant, v. Claude A. Johnson, Appellee.
    Gen. No. 22,842.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Attachment, § 14

      —when evidence is sufficient to establish residence within State. Evidence held sufficient to establish defendant’s residence within the State, in an action in attachment against defendant as a nonresident debtor, where it appeared that defendant was a traveling man, absent from the State most of the time, but had rented a room in a house in a city within the State, carried a key and occupied the room when in the city.

      Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action of attachment by the Weber Chimney Company, plaintiff, against Claude A. Johnson, defendant, as a nonresident debtor. From a judgment for defendant, plaintiff appeals.
    Frederic Burnham, for appellant.
    Rankin, Howard & Donnelly, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court,

2. Attachment, § 3*—when act construed strictly. An attachment is an extraordinary remedy, and the act is strictly construed against the party seeking to enforce its drastic provisions.

3. Attachment—when grounds of must be strictly proven. There are no presumptions in favor of plaintiffs in attachment suits; the grounds of attachment must be strictly proven.

4. Attachment—residence as question of fact. The question of residence in an attachment suit is one of fact.

5. Domicile, § 4*—what considered in determining residence. The question of residence is largely a matter of intent.

6. Appeal and error, § 1500 —when exactitude in rulings of court are not imperative. Where the merits of the controversy are strongly in favor of the defendant, exactitude in the rulings of the court in procedure or on instructions are not imperative.


text:
    Arthur Dixon, Appellee, v. Ruby Schwartz, Appellant.
    Gen. No. 22,852.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Arthur Dixon, plaintiff, against Ruby Schwartz, defendant, to recover on a guaranty of a lease. From a judgment for plaintiff for $2,149.75, defendant appeals.
    Frank Schoenfeld, for appellant.
    Calhoun, Lyford & Sheean, for appellee.

      Abstract of the Decision.
    1. Guaranty—when evidence is sufficient to show execution of before signing and delivery of lease. Evidence held sufficient to sustain the finding that the guaranty of a lease was executed before the signing and delivery of the lease by the lessor, in an action to recover on such guaranty.
    2. Landlord and tenant, § 443

      —when evidence is sufficient to show that lease was not canceled. Evidence held sufficient to sustain the finding that the lease in question was not canceled by agreement of . the parties, in an action to recover on a guaranty of the lease.
    3. Guaranty, § 7*—when no independent consideration is necessary. Where a guaranty of a lease is executed before the execution and delivery of a lease by the lessor, no independent consideration is necessary.
    4. Seals, § 2*—when presumed that each person signing instrument adopted a seal. When a bond or other sealed instrument purports on its face to be sealed by all its signers, and there are several seals to it, but not so many as there are names, it will be presumed that each person signing it adopted some one of' the seals.
    5. Guaranty, § 12*—when is as broad as terms of lease. A guaranty on a lease of “the payment of rent, and the performance of the covenants by the party of the second part in the within lease, covenanted and agreed, in manner and form as in said lease provided,” held to be as broad in its terms as the lease.
    6. Guaranty, § 16*—when obligation of guarantor becomes fixed. The obligation of the guarantor on a lease of payment of rent and performance of the covenants by the lessee in the lease, held to have become fixed upon default by the lessee of which the guarantor would not be entitled to notice, the guaranty being unconditional.
    7. Guaranty, § 17*—what is sufficient notice to guarantor of default. Commencement of suit on the guaranty of a lease is sufficient notice to the guarantor of the lessee’s default.
    8. Landlord and tenant, § 40*—what does not constitute delivery of lease to lessee. The handing of a lease to one of the parties to procure the signature of a guarantor thereto does not constitute a delivery thereof to the lessee, the lease not having been executed by the lessor.

      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.

9. Landlord and tenant—what does not constitute possession of premises under lease. Possession, of premises by a lessee prior to execution and delivery of a lease therefor is not under such lease so far as the lessor’s rights under the lease are concerned.


text:
    Joseph Mazur, trading as Joseph Mazur & Company, Appellee, v. Stanislaw Goderski and Pelagia Goderski, Appellants.
    Gen. No. 22,755.
    (Not to he reported in full.)
    Abstract of the Decision.
    Brokers, § 88

      —when evidence is sufficient to show employment as broker. Evidence held sufficient to sustain the finding that defendants employed plaintiff in the exchange of defendants’ real estate, in an action to recover a commission on such exchange.
    Appeal from the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action "by Joseph Mazur, trading as Joseph Mazur & Company, plaintiff, against Stanislaw Goderski and Pelagia Goderski, defendants, to recover commissions as a real estate broker. From a judgment for plaintiff for three hundred dollars, defendants appeal.
    C. C. H. Zillman, for appellants.
    Beach & Beach, 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.


author: Mr. Presiding Justice O’Connor

text:
    Commercial Germania Trust & Savings Bank, Appellee, v. W. M. Hoyt Company, Appellant.
    Gen. No. 21,880.
    1. Pledges, § 24

      -—when pledgee of warehouse receipts loses lien as against third parties without notice. Where the owner of certain coffee pledged the warehouse receipts for same with his creditor as security for a debt due the creditor, who thereafter surrendered the receipts to the owner to enable him to make delivery of the coffee upon a sale thereof, and took in lieu of such receipts a trust receipt signed by the owner, agreeing to pay over to the creditor out of the proceeds of the sale the amount of the creditor’s debt, held that under the laws of Louisiana, wherein the transaction occurred, the creditor thereby lost his lien as against third parties without notice.
    2. Sales—when breach of trust receipt does not affect validity of sale of goods. Where the owner of certain coffee pledged the warehouse receipts for same with his creditor as security for his debt to the creditor, who thereafter surrendered the receipts to the owner to enable him to make delivery of the coffee upon a sale thereof and took in lieu of such receipts a trust receipt signed by the owner, agreeing to pay over to the creditor out of the proceeds of the sale the amount of the creditor’s debt, and the owner thereupon sold and assigned the invoice of the sale for value to a party without notice of the prior transactions, but failed to turn over to his creditor out of the proceeds received on such sale and assignment the amount due the creditor as required by the trust receipt, held, in an action by such party to recover against the buyer of the coffee for the purchase price, that such breach by the owner of the trust receipt in no way affected the validity of the sale of the coffee or the right of the owner to make collection of the proceeds thereof from the plaintiff.
    Taylor, J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. J. J. Rooney, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    Rehearing denied May 8, 1917.
    Tenney, Harding & Sherman, for appellant; Gustaf B. Westfeld and Willard C. McNitt, of counsel.

      Defress, Buckingham & Eaton, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

The Commercial Germania Trust & Savings Bank of New Orleans brought suit in the Municipal Court of Chicago against W. M. Hoyt Company of Chicago to recover the purchase price of one hundred and thirteen bags of coffee. The case was tried before the court without a jury and judgment was entered in favor of the plaintiff for the amount of its claim, to reverse which this appeal is prosecuted.

The facts, so far as material, are: The Smith Brothers Company, of New Orleans, importers and sellers of coffee, borrowed money from William Brandt & Sons Company, London bankers, through the latter’s representatives, Westfeldt Brothers, bankers and forwarders of coffee, also of New Orleans, and pledged as security a warehouse receipt for ninety-four bags of coffee. Afterwards on June 13, 1913, The Smith Brothers Company sold one hundred and thirteen bags of coffee to the defendant, payment to be made within ten days from the date of the invoice, which was dated July 1, 1913. The coffee was sold f. o. b. New Orleans, and was to be delivered to Westfeldt Brothers as forwarding agents of the defendant. In order to deliver the coffee to the defendant, The Smith Brothers Company secured from Westfeldt Brothers, as agents for William -Brandt & Sons Company, the warehouse receipt covering the ninety-four bags and gave in lieu thereof the following trust receipt:

“Trust Beoeipt.
New Orleans, La., June 14, 1913.
“Received of Westfeldt Bros., Agts., the Bill of Lading or other documents or securities as enumerated below, held by the said Bank as collateral pledged to secure advances made to the undersigned, and in consideration thereof, the undersigned hereby agrees to pay over to the said Bank or its assignees, and to specifically apply against the very same advances the proceeds of the sale of the property mentioned in said documents; or to deliver to the said Bank or its assignees the shipping documents or warehouse receipts representing the undermentioned goods within one day from the receipt thereof, this delivery being temporarily made the undersigned for convenience only, without novation of the original debt, or giving the undersigned any title thereto, except as trustee for the said Bank, and except to receive the avails thereof or the documents therefor for account of the said Bank.
‘ ‘ Crescent W. H. Cert. #1705 for 267 Bags Coffee. We want 94 bags for Hoyt.
The Smith Bros. Co., Ltd.,
P. J. Orchard,
“S. B. C. K. 2 to 8 BA—4 Secty. & Treas.”

The Smith Brothers Company, after receiving the warehouse receipt, took the ninety-four bags of coffee, which were stored in a warehouse, and nineteen other bags, which they owned, and delivered them to the railroad company, and received a memorandum ticket for the coffee in the name of Westfeldt Brothers, agents, and delivered the same to them. Upon receipt of this memorandum ticket, Westfeldt Brothers, as forwarding agents for the defendant, secured a bill of lading for the coffee and sent it to the defendant in Chicago. The coffee was not to be forwarded immediately, but was to be held in New Orleans until such time as it could be sent in a carload lot.

On June 17th, The Smith Brothers Company sold and assigned the invoice against the defendant for the price of the coffee, receiving the face value thereof. On the same day plaintiff notified the defendant of the assignment and requested that payment be made direct to it. About a week afterwards The Smith Brothers Company were forced into bankruptcy. On. the next 'day Westfeldt Brothers, as agents for William Brandt & Sons Company telegraphed the defendant that they would forward the coffee if the defendant would pay them for the ninety-four hags, and on the next day they telegraphed the defendant requesting that it hold the purchase price of the ninety-four bags for them, if defendant had not already paid plaintiff, and stated that they would protect defendant with bonds. The defendant thereupon returned the bill of lading to Westfeldt Brothers, agents for William Brandt & Sons Company, and on June 30th sent a telegram to The Smith Brothers Company canceling the order for failure to ship the coffee according to contract.

Upon receipt of the bill of lading Westfeldt Brothers, as agents for William Brandt & Sons Company, disposed of -the ninety-four bags of coffee and retained the proceeds thereof and returned the nineteen bags to The Smith Brothers Company. The defendant having refused to pay the purchase price of the coffee to the plaintiff, this suit was brought.

It is obvious that the defendant could not cancel the contract for the purchase of the coffee in the manner indicated, and had no authority to. return the bill of lading to Westfeldt Brothers, as agents for William Brandt & Sons Company. But it is insisted that the rights of William Brandt & Sons Company, under the trust receipt, are superior to those of the plaintiff, because, it is urged, that under the law of Louisiana the rights of third parties are not protected against secret liens—that although the lien of William Brandt & Sons Company was secret and unknown to the plaintiff or the defendant until after the bankruptcy proceedings against The Smith Brothers Company, yet it is superior to plaintiff’s claim based on the invoice. (Lallande v. His Creditors, 42 La. Ann. 507; Stern Bros. v. Germania Nat. Bank, 34 La. Ann. 1119; Henderson v. Case, 31 La. Ann. 215; Bird v. Cockrem, 82 La. Ann. 70; In re Dreuil & Co., 205 Fed. 568; Commercial Nat. Bank of New Orleans v. Canal-Louisiana Bank & Trust Co., 239 U. S. 520.)

In the Lallande case, supra, it was held that a factor authorized to sell the goods of his principal could not pledge the goods for his own debts so as to bind the principal.

The Stern case, supra, holds that where a matured negotiable instrument was placed in a third person’s hands to collect, the latter could not pledge it to secure his personal loan and defeat the owner.

It was held in the Henderson case, supra, that the purchaser of a dishonored note from one not the owner nor authorized to sell did not acquire a good title as against the owner of the note.

In the Bird case, supra, the owner of past due promissory notes left them in the hands of a third person for safe-keeping. The latter pledged them as security for a personal loan. The court held that the owner’s title was superior to that of the innocent pledgee.

It is clear that none of the above cases sustains the contention of the defendant that the rights of William Brandt & Sons Company, under the trust receipt, are superior to those of the plaintiff.

In the Dreuil case, supra, bills of lading covering certain cotton were pledged with a bank .by the owner. Afterwards the bills of lading were surrendered and a trust receipt similar to the one in the case at bar was given to the bank. The owner of the property thereupon secured the cotton and deposited it in a warehouse and secured warehouse receipts in its own name, depositing these warehouse receipts with a second bank as collateral for a loan. The warehouse receipts were subsequently taken up by the owner and in lieu thereof a second trust receipt was given to the second bank. The owner obtained the cotton and afterwards went into bankruptcy. In a contest between the two banks, it was held, that under the trust receipt given to the first bank, the owner had no authority to pledge the cotton to the second bank, and judgment was given in favor of the first bank, which was affirmed by the Circuit Court of Appeals. (211 Fed. 337.) A further appeal was prosecuted to the Supreme Court of the United States, where the judgments of the District Court and Circuit Court of Appeals were reversed and judgment entered in favor of the second bank. (Commercial Nat. Bank of New Orleans v. Canal-Louisiana Bank & Trust Co., 239 U. S. 520.)

It is insisted that the reversal of the judgments by the Supreme Court was for the sole reason that under the Uniform Warehouse Receipts Act, warehouse receipts were negotiable, and that as the second bank receipted the warehouse receipts without notice of any claim of the first bank, its rights were superior to that of the first bank. We think, however, that the decision of the Supreme Court was not based alone on the provisions of the Uniform Warehouse Receipts Act, but it was also based on the ground of estoppel. In delivering the opinion of the court, Mr. Justice Hughes said, p. 524: “It is a familiar rule that one who has no title to chattels cannot transfer title unless he has the owner’s authority or the owner is estopped. See Civil Code (La.) arts. 2452, 3142, 3145, 3146. It follows that, in the absence of circumstances creating an estoppel, one without title cannot transfer it by the simple device of warehousing the goods and indorsing the receipts. But if the owner of the goods has permitted another to be clothed with the apparent ownership through the possession of warehouse receipts, negotiable in form, there is abundant ground for protecting a bona fide purchaser for value to whom the receipts have been negotiated.” The court continuing, in discussing the Uniform Warehouse Receipts Act, said, p. 526: “It will be observed that 'one who takes by trespass or a finder is not included within the description of those who may negotiate.’ ” And on p. 527: “It was not the placing of the cotton in the warehouse in the usual course of business, but the negotiation of the receipts, that constituted the violation of Dreuil & Company’s agreement with the Canal-Louisiana Bank. By the very terms of that agreement Dreuil & Company were to take the position of ‘trustee’ for the bank, with authority to receive ‘the avails’ of the goods or ‘the documents’ therefor for account of the bank, and being bound to apply the proceeds of sale to the bank’s advances. * * * (p. 528). To repeat, it was the negotiation of the receipts that constituted. the breach of trust. But after the Canal-Louisiana Bank had allowed Dreuil & Company to be clothed with apparent ownership through possession of the receipts, it cannot be heard to question the title of a bona fide purchaser for value to whom they had been negotiated. * * * (p. 529). It was because the Canal-Louisiana Bank clothed Dreuil & Company with the indicia of ownership that a bona fide purchaser for value was enabled to take title.”

Prom this it appears that' the Canal-Louisiana Bank, by reason of, its clothing Dreuil ft Company with the indicia of ownership, was estopped to assert its right against the second bank, the latter being a bona fide purchaser for value. In that case the only breach committed by Dreuil & Company was in the negotiation of the warehouse receipts, as it had authority to sell and “collect the proceeds of the sale. In the case at bar, Westfeldt Brothers, agents for William Brandt & Sons Company, clothed The Smith Brothers Company with the indicia of ownership of the bags of coffee. The latter company, under the trust receipt, was authorized to sell the coffee and collect the proceeds thereof, and'the only breach, if any, committed by The Smith Brothers Company was in its failure to turn over the avails or proceeds of the sale which it received from the plaintiff, and this in no way affected the validity of the sale of the coffee, nor the transaction of The Smith Brothers Company in collecting the avails or proceeds thereof from the plaintiff.

Furthermore, the Supreme Court of Louisiana in the case of Arbuthnot, Latham & Co. v. Richheimer & Co., 139 La. 797, 72 So. 251, held that secret liens, as provided for in a trust receipt similar to the one in the case at bar, could not affect the rights of innocent third parties. In that case the court said (pp. 253, 803): “The trust receipt at most was a private agreement between the parties, which, of course, ■ did not affect third persons without notice.”

In its last analysis, this is a case where William Brandt & Sons Company, who had a valid lien on the coffee, surrendered the property, and thereby gave up their lien and took in lieu thereof the trust receipt, which entitled them to receive from The Smith Brothers Company either the coffee or the proceeds of the coffee when sold. The coffee was sold, and William Brandt & Sons Company thereby became entitled to receive the purchase price as soon as The Smith Brothers Company collected it. The latter clearly had the right under the trust receipt to collect the purchase price from the appellant, or to obtain the “avails” of the sale by selling their claim to the bank. At the time they sold it they had a perfect right to receive the purchase price. There can be no doubt that the bank did actually purchase this claim against appellant, for the assignment distinctly directs the latter to pay the money “to the bank direct.” The demand note was only for the latter’s protection in case the claim was not paid in due course. The Smith Brothers Company, unquestionably had the right, under the terms of the trust receipt, to obtain the proceeds of the sale by selling the claim, which they did, and therefore the bank, who bought the claim and paid full value for it, became its absolute owner. The Smith Brothers Company in turn, as soon as they sold the claim, held the proceeds subject to the terms of the trust receipt which they had given to William Brandt & Sons Company.

The judgment of the Municipal Court of Chicago is correct and it is affirmed.

Affirmed.

Mr. Justice Taylor dissents.


text:
    Edmund H. Stroud, trading as E. H. Stroud & Company, Appellant, v. R. F. Conway Company, Appellee.
    Gen. No. 21,900.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Edmund H. Stroud, trading as E. H. Stroud & Company, plaintiff, against B. F. Conway Company, defendant, to recover $668.68 balance claimed to be due upon the purchase price of a pulverizing machine, and, by subsequent action consolidated, to recover $114 for certain parts sold to defendant for repairing the same machine. From a judgment for defendant for $1,219.32 on a counterclaim on account of money paid on the purchase price of the machine, plaintiff appeals.

      Abstract of the Decision.
    1. Contracts, § 187*—what considered in construing contract. It is always allowable to look to the interpretation placed upon a contract by the parties themselves.
    2. Sales, § 56

      —when letter is part of contract. Where plaintiff submitted a written contract for the sale of a rock pulverizing machine, stating that the machine would receive “soft limestone * * * of good grinding quality” and reduce it at a certain rate to powder, and two days later wrote defendant, to whom the contract was submitted, explaining what was meant by the' words quoted and stating that, if the matter of the grinding quality of the stone was to be left an open question, plaintiff would base its guaranty contained in the contract upon a certain less quantity of output, and the contract was thereafter signed, and plaintiff wrote defendant later, upon failure of the machine to produce the quantity of output provided for, and referred to the first letter as showing defendant was getting an average of what was promised on hard stone, held that the first letter was part of the contract and was properly admitted in evidence, in an action to recover the purchase price of the machine.
    3. Sales, § 329*—when evidence is sufficient to show that seller waived objection as to manner of installation of machine. Evidence, held sufficient to sustain the finding that plaintiff waived any objection to the manner in which a certain machine sold by plaintiff to defendant was installed, and that the machine as installed would produce more than if it had been installed in accordance with the plans and specifications submitted as required by the contract of sale, in an action for the purchase price of the machine.
    Iles, O’Connor, Eberhardt & Kesler, for appellant; Charles J. O’Connor and A. M. Eberhardt, of counsel.
    Edmund S. Cummings, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Isaac W. Pritchard, Appellee, v. Margaret McGregor, Appellant.
    Gen. No. 21,922.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Wills, § 489-When debts and funeral expenses are not charge upon land. "Where a will provided, among other things, that “after the payment of my debts and funeral expenses, I hereby give, devise and bequeath" to the testator’s sister certain lots during the sister’s natural life, then to certain other relatives for life, with remainder over to a' certain Home, the words “after the payment of my debts and Juneral expenses” held not to make such debts and expenses a charge upon the two lots referred to.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed in part, reversed in part and remanded.
    Opinion filed April 18, 1917.
    Rehearing denied April 27, 1917.
    Statement of the Case.
    Bill by Isaac W. Pritchard, as executor of the estate of Sarah P. Doane, deceased, complainant, against Margaret McGregor, defendant, to construe the will and codicil thereto of the deceased. From a decree construing the will and codicil, defendant appeals. '
    Robert L. Lyons, for appellant; Martin L. Wilborn, of counsel.
    George W. Hall, for appellee; J. W. Whitehead, of counsel.

      See minois 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, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Appeal and error, § 855*—when facts must be preserved by certificate of evidence. Where there is an answer on file denying the allegations of a bill, in a chancery suit, the party obtaining relief, if the specific facts proven on the hearing are not found in the decree, must on appeal sustain the decree by preserving such facts by a certificate of evidence.

3. Wills, § 429*-—-when executor entitled to ash for construction of witl. The allegations of fact in the bill, the admissions in the answer and the decree, showing the decedent died leaving a will set up in the bill; that it was admitted to probate; that complainant qualified as executor; that decedent left surviving certain'heirs at law; that she died seized of the real estate described in the will and in the decree, and that a controversy arose as to the true intent and meaning of certain provisions of the will, held to justify complainant in asking the Circuit Court for a construction of the will.

4. Wills, § 226*—what is sole purpose of construction. The sole purpose of the construction of a will is to ascertain the intention of the testator that effect may be given to such intention, when not, contrary to public policy or in contravention of law.

5. Wills, § 228*—what is basis for determination of intent of testator. The intention of a testator must be determined from an examination of the entire will.

6. Executors and administrators, § 77*—when executor has no authority to collect rents. Where a will devised to specified devisees all of the testator’s real estate and provided in nominating and appointing an executor that such executor should “have full and exclusive possession of my entire estate- until its final distribution," held, from an examination of the entire will and a codicil thereto, that no power or authority was given the executor to collect any rents from the real estate involved, notwithstanding there was a deficiency of personal assets to pay the deceased’s debts, and that such provision as to possession of the entire estate until distribution applied only to the personal estate, if any.

7. Wills, § 436*—when question of construction of will as res judicata is not reviewable. Where there was no admission in the pleadings and no finding in the decree from which appeal was taken as to an order by the County Court in which probate of a will was had construing such will, held that the question of res judicata as to the construction of the will was not before the court for review on appeal, on a bill to construe a will.

8. WkLLS, § 423 —when County Court has no jurisdiction. County Courts have no jurisdiction to construe wills.

9. Ini ants, § 45*—when court presumed to hnow value of services of guardian ad litem. A court in allowing a fee to a guardian ad litem is presumed to know what the reasonable value of the services of the guardian is, notwithstanding there may have been no evidence upon which to base an allowance.

10. Im-ants, § 45 —when allowance to guardian ad litem- is not improper. Where a fee of seventy-five dollars was allowed a guardian ad litem, held such allowance cannot be said to have been improper, notwithstanding there may have been no evidence upon which to base it.


text:
    Ferdinand Schimanski, by Otto Schimanski, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 21,939.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theobobe Bbemtaito, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    Rehearing denied May 3, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action "by Ferdinand Schimanski, by Otto Schimanski, his father and next friend, plaintiff, against the Chicago Railways Company, defendant, to recover damages for personal injuries sustained by plaintiff while alighting from defendant’s street car. From a judgment for plaintiff for $2,250, defendant appeals.
    Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Gallagher & Messner, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Cabriebs, § 476*—when evidence is sufficient to sustain finding for plaintiff as to accident. Evidence held sufficient to warrant the finding for plaintiff notwithstanding his description of the car and manner in which his clothing caught at the time he was injured was inaccurate as to some details, in an action to recover damages for personal injuries sustained while alighting from defendant’s street car.

2. Appeal and error, § 1563*—when refusal of instruction is not reversible error. It is not reversible error to refuse an instruction denying the right of recovery under certain counts of a declaration where there is evidence tending to prove the allegations of other counts.

3. Instructions, § 151*—when refusal of instruction is not error. Refusal to give an instruction that unless plaintiff proved his case by a preponderance of the evidence, that if the evidence was evenly balanced or the jury in doubt they should find the defendant not guilty, in an action to recover damages for personal injuries, held not error where other instructions told the jury that plaintiff must prove his case by a preponderance of the evidence.

4. Damages, § 120*—when verdict for personal injuries to boy is not excessive. Verdict for $2,250 held not excessive, where the evidence tended to show that plaintiff, a boy eight years old at the time of the accident, was a normal healthy boy prior thereto, was found unconscious immediately after the accident and so remained for some time; that he had a swelling, on his head the size of a hen’s egg, bruises on his nose and a slight hemorrhage from the nostrils; chest and knees bruised and latter swollen; that he vomited a substance tinged with blood immediately after the accident, was confined to his bed for two weeks, and was out of school the same length of time, suffered with headaches and dizziness for three years after the accident and until time of trial, and by reason of the accident had become epileptic.

5. Appeal and error, § 1094 —when brief contains improper statements. Charges in brief of plaintiff’s counsel that defendant and certain of defendant’s witnesses had suppressed facts, held unjustified and the language used unbecoming, unwarranted and. undignified.


text:
    In re Estate of August F. Roeske, Deceased. On appeal of Bertha Gulzow (formerly Bertha Roeske), Appellant, v. Maria Fillwock et al., Appellees.
    Gen. No. 21,948.
    1. Executors and administrators, § 8*—what- is nature of jurisdiction of County and Probate Courts in matters of administration. County and Probate Courts are courts- of general and unlimited jurisdiction in matters of administration, and exercise an equitable jurisdiction adapted to their organization and modes of procedure.
    2. Executors and administrators, § 8*—when order allowing 6r disallowing claim may be set aside. County and Probate Courts in the exercise of their equitable jurisdiction in matters of administration may, on motion at a subsequent term, set aside an order allowing or disallowing a claim against an estate where fraud or mistake has intervened.
    3. Executors and administrators, § 552*—when presumed evidence was sufficient to establish fraud in allowance of child’s award in account of executrix. Where the Circuit Court, on appeal from an order of approval by the Probate Court of an executrix’s final account, found a certain child’s award mentioned in such account was excessive and ordered that it be set aside and a new award made, held in the absence of a bill of exceptions, that it would be presumed that there was evidence before the trial judge on such appeal tending to establish fraud or mistake in the allowance of such award so as to give' the court jurisdiction to set the award aside.
    4. Executors and administrators, § 552*—when presumed that necessary steps were had in Circuit Court against executrix failing to account for assets. Where the Circuit Court, on appeal from an order of approval by the Probate Court of an executrix’s final account, found certain assets unaccounted for and ordered the executrix to account for same, held that while an executrix who conceals assets may be proceeded against by citation under Rev. ■ St. ch. 3, secs. 81, 82 (J. & A. Hj[ 130, 131), such was not the only remedy, and on appeal from the judgment of the Circuit Court it would be presumed the necessary steps were had in "that court in the absence of a bill of exceptions.
    5. Courts, § 104

      —when Probate Court has jurisdiction. Where it is claimed that the representative of an estate has property belonging to the estate which is claimed by such representative individually, the Probate Court has ample authority to determine the ownership of the property, and it is not necessary that a separate suit be brought.
    6. Courts, § 104*—when Probate Court has no jurisdiction. The Probate Court has no jurisdiction to determine the ownership of property where the proceeding is between the representative of an estate on the one side and third persons on the other.
    7. Pleading, § 3*—when formal pleadings not required. No formal pleadings are required in the Probate Court.
    8. Executors and administrators, § 556*—when case tried de novo on appeal. On appeal to the Circuit Court from an order of approval by the Probate Court of an executrix’s final account, the case is tried de novo.

    9. Executors and administrators, § 552

      —when presumed that sufficient showing was made that appellees were interested in subject-matter of proceeding. In the absence of a bill of exceptions on appeal from a judgment of the Circuit Court trying an appeal from an order of approval by the Probate Court of an executrix’s final account entered in the administration of an estate, held that it would be presumed that there was sufficient showing made that appellees were interested in the subject-matter of the proceeding.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    Rudolph H. Wollner and Charles Leviton, for appellant.
    Francis E. Croarkin, for appellees.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

This is an appeal by the executrix of the estate of August F. Roeske, deceased, from a judgment entered in the Circuit Court of Cook county.

It appears that the executrix filed her amended final account in the Probate Court of Cook county, and that the same was approved. From such order of approval, appellees prosecuted an appeal to the Circuit Court of Cook county. The matter there came on for hearing upon a stipulation of the parties, and testimony heard in open court. The Circuit Court found that it had jurisdiction of the parties and subject-matter, and as to the objections filed to appellant’s amended final account, the court further found that there was $300 deposited in the Hibernian Bank of Chicago, in the name of Bertha Boeske individually,' which was the property of and belonged to August F. Boeske, deceased, at the "time of 'his death. The court further found that $500, which was loaned to certain persons about three years before the death of August Boeske, was the property of August F. Boeske, and belonged to him at the time of his death; and it was ordered that the executrix account for the $300 and $500 not accounted for in the final account. The court further found that the child’s award of $1,000 mentioned in the executrix’s final account was excessive and ordered that it he set aside and a new award made.

Appellant contends that the Circuit Court had no authority to set aside the child’s award for the reason that the award is a judgment in favor of the child, and is similar to the allowance of a claim of the second class, and, as no appeal was taken from the order of allowance, the court was therefore without jurisdiction.

County and Probate Courts are courts of general and unlimited jurisdiction in matters of administrar tion, and exercise an equitable jurisdiction adapted to their organization and modes of procedure, and in the exercise of such equitable jurisdiction may, on motion at a subsequent term, set aside an order allowing or disallowing a claim against an estate, where fraud or mistake has intervened.” Tisdale v. Davis, 198 Ill. App. 116; Schlink v. Maxton, 153 Ill. 447; Sherman v. Whiteside, 190 Ill. 576; Heppe v: Szczepanski, 209 Ill. 88; Whittemore v. Coleman, 239 Ill. 450; Marshall v. Coleman, 187 Ill. 556; Domitski v. American Linseed Co., 221 Ill. 161; Ford v. First Nat. Bank, 201 Ill. 120.

In the Marshall case, supra, where it appeared claims had been allowed and subsequently when the final report came on for approval objections were made to such allowances, the court held the objections were made in apt time. It was there said (p. 570): “We are, accordingly, of the opinion that, as the estate of the deceased, Edward B. Goodner, was not closed, the County Court of Marion county had a right, when appellant’s final report was presented for approval, to hear testimony for the purpose of contradicting and surcharging his former reports and accounts as administrator, and to surcharge and correct the same, if the testimony so introduced justified such action.”

There is no bill of exceptions in the record in this case. We have, therefore, no means of ascertaining what evidence was produced before the Circuit Court. Every intendment is in favor of the validity of the judgment, and we must therefore presume that the court heard sufficient evidence to authorize the entering of the judgment. Under this rule, we must presume that there was evidence before the trial judge tending to establish fraud or mistake in the allowance of the child’s award, and therefore the court had jurisdiction to set the award aside.

The appellant further contends that the Circuit Court had no jurisdiction to order the executrix to account for the $300 and $500 above mentioned; that the proper procedure where the executrix conceals assets is a proceeding for citation under sections 81 and 82, chapter 3, Revised Statutes (J. & A. 130, 131), and not by filing objections to the final account, and that where the executrix has disclosed assets but claims them as her own, then sections 81 and 82 are inapplicable, and the proper method is by a bill in equity. It is true that when an executrix conceals the assets she may be proceeded against under sections 81 and 82, but this is not the only remedy (Simms v. Guess, 52 Ill. App. 543), and, in the absence of a bill of exceptions, we must presume that the necessary steps were had in the trial court. In the Marshall case, supra, it was held that the account of an administrator could be surcharged and corrected upon the filing of the final account, and, as above stated, we must presume that objections were made to the final account that it did not include therein the $300 and $500, and the Probate Court overruled these objections and approved the account, from which appeal was talcen, and the Circuit Court therefore had jurisdiction of the matter.

Where it is claimed that the representative of an estate has property belonging to the estate, which is claimed by such representative individually, the Probate Court has ample authority to determine the ownership of the property, and it is not necessary that a separate suit be brought. Martin v. Martin, 170 Ill 18; Dinsmoor v. Bressler, 164 Ill. 211; Platt v. Williams, 175 Ill. App. 1; Rone v. Robinson, 188 Ill. App. 438. But the Probate Court has no jurisdiction to determine the ownership of property where the proceeding is between the representative of an estate on the one side and third persons on the other. Dinsmoor v. Bressler, supra; Moore v. Branderburg, 248 Ill. 240. In the case at bar, the contention is that the $300 and $500, claimed by the executrix individually, in fact belonged to the estate. She could not, therefore, as executrix, proceed against herself individually. As was said in the Martin case, p. 29: “In this case the plaintiff in error, who was proceeded against, is one of the executors, and could not he both plaintiff and defendant in a suit at law. If she held property, claiming the same as her own, which belonged to the estate being administered under the jurisdiction of the County Court, and of which she was one of the' executors, the relation afforded ground for an equitable proceeding against her. It is one of the cases where the court may properly order a surrender of property, and enforce a duty owing by the trustee in the manner provided by the statute.”

Appellant also contends that the Circuit Court had no jurisdiction, because there is no showing that appellees had any interest in the subject-matter. Section 24, chapter 3, Revised Statutes (J. & A. ft 73), provides that appeals may be taken from all judgments or orders of the County or Probate Courts by any person who may consider himself aggrieved by the judgment or order. No formal pleadings are required in the Probate Court, and, on appeal to the Circuit Court, the trial is de novo. Under the rule above stated, we must presume that there was sufficient showing made that appellees were interested in the subject-matter.

Finding no reversible error in the record, the judgment of the Circuit Court of Cook county is affirmed.

Affirmed.


text:
    Edward H. Breslauer, Appellee, v. S. Franklin & Company, Samuel Franklin and Fred J. Abrams, Appellants.
    Gen. No. 22,002.
    1. Mandamus, § 179*—when petition of to compel allowance of inspection 'of books of corporation by stockholder is sufficient. A petition for mandamus to compel the respondent corporation and its officers to allow petitioner as a stockholder in the corporation to examine its books and records, alleging that the corporation had its principal place of business in Chicago; that certain of the respondents were its president and secretary, respectively; that petitioner appointed an agent or attorney and requested the corporation, its officers and directors to permit petitioner’s representative to examine its books and records, and that the request was denied, held to be sufficient.
    2. Corporations, § 179*—when stockholder may enforce right of inspection of books. The right of a stockholder to examine the books and records of the corporation may be enforced by mandamus against it and its officers if such right is denied.
    3. Mandamus, § 122*—who is proper party respondent. The corporation is properly joined as a party respondent in a petition for mandamus to enforce the petitioner’s right as a stockholder to examine the corporation books and records.

      i. Corporations, § 178

      —what time allowed to stockholder to examine books within mandamus order. An order awarding a writ of mandamus to a petitioner to examine the books and records of a corporation of which he is a stockholder “during business hours,” held not to mean that such examination be carried on throughout the entire business day, but during business hours and not in the nighttime.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    H. C. Levinson and Leo W. Hoffman, for appellants; Max Daniels, of counsel.
    Leo Koretz and S. J. Richman, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook county, awarding a peremptory writ of mandamus against the appellants, S. Franklin & Company, a corporation, and its president and secretary, commanding them and each of them to forthwith permit the appellee, or his duly-authorized agent or attorney, to examine the corporate records and books of appellant, S. Franklin & Company, during business hours on any business day. Appellee was a stockholder in the corporation, and prior to the filing of the petition he made a written request upon the company and its officers and board of directors to permit him, by his agent, to make an examination of the books. The request being denied, appellee applied for a peremptory writ of mandamus. Section 13, chapter 32, Revised Statutes (J. & A. f 2430) confers upon a stockholder of a corporation the right to inspect the corporate books and records. Venner v. Chicago City Ry. Co., 246 Ill. 170; Stone v. Kellogg, 165 Ill. 192.

Appellants contend that the petition is insufficient, in that it does not allege that the appellants are directors or trustees of the corporation, and does not set forth any legal duty upon the appellants to keep corporate records, and further that the petition fails to show that there are any books or records belonging to the corporation, or, that if such books and records were in existence, that they were in the custody or control of the appellants. The statute requires the directors or trustees of every corporation to cause to be kept at its principal place of business corporate books and records. The petition alleges that the corporation has its principal place of business in Chicago; that appellants, Franklin and Abrams, are its president and secretary, respectively; that appellee appointed an agent or attorney and requested the corporation, its officers and board of directors to permit his representative to examine the books and that the request was denied. The statute provides that a stockholder shall have the right at all reasonable times by himself or attorney to examine the books of the corporation. We think the petition is sufficient.

Appellants further contend that the corporation is not a proper party defendant, in that the statute makes it the duty of the directors or trustees to keep the books, and that the writ should run against the parties having the custody of the books. The right of a stockholder to examine the books and records may be enforced against the corporation and its officers if such right is denied. We think the corporation was properly joined as a defendant. Crown Coal & Tow Co. v. Thomas, 60 Ill. App. 234; People v. Weber Co., 159 Ill. App. 588; Maremont v. Old Colony Life Ins. Co., 189 Ill. App. 231.

Complaint is also made that the order awarding the writ is broader than that authorized by the statute; that the statute provides that books of account may be examined “at all reasonable times,” while the order provides that the examination of the books be made “during business hours on any business day, upon request made by the petitioner,” and to continue from day to day until completed; that this is not an examination at all reasonable times as authorized. We think there is no merit in this objection. The order provides that the examination be conducted during business hours. This does not mean that such examination be carried on throughout the entire business day, but it was intended that the examination be not conducted in the nighttime, but only during business hours.

The judgment of the Circuit Court of Cook county is affirmed.

Affirmed.


text:
    Paul E. Gierz, Appellee, v. John Rus and Peter Soukup, Appellants.
    Gen. No. 22,042.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 252*—what amendments may he made after term. After the expiration of the term at which a judgment has been entered it can he amended only in matters of form.
    2. Appeal and ebbob, § 1887*—what are requisites of judgment in action on appeal hond. In an action of debt on an appeal bond, the judgment should specify the amount of the debt and damages and should be rendered for the debt to be satisfied upon payment of the damages.
    3. Appeal and ebbob, § 1887

      —what amendment to judgment on appeal hond may not he made after term. In an action of debt on an appeal bond where judgment was entered upon a finding for the plaintiff and assessment of damages in a certain sum, and after expiration of the term at which the judgment was entered and approval and filing of an appeal bond , the court, on motion, entered a judgment purporting to correct the former judgment in form for incorrect transcription thereof hy the clerk of the court, and finding amount of debt and of damages and adjudging recovery of such debt and damages, with costs, held that such amendment was one of substance and not of form and the court was without power to make same.

      Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Slough, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 18, 1917.
    Statement of the Case.
    Action by Paul E. Gierz, plaintiff, against John Bus and Peter Soukup, defendants, to recover on an appeal bond. From a judgment for plaintiff for $1,000 damages, defendants appeal.
    Edward J. Herdlicka, for appellants.
    Edward J. Green, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

4. Appeal and error—when proper judgment cannot he entered on appeal in action on appeal hand. Where the evidence was not preserved in the record by bill of exceptions, held that there was no way of ascertaining the amount of damages, in an action to recover on an appeal bond, and proper judgment could not be entered on an appeal.


author: Mr. Justice Goodwin

text:
    Anatole Klintz, Appellant, v. Walter Z. Marx et al., Appellees.
    Gen. No. 21,831.
    (Not to foe reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 18, 1917.
    Statement of the Case.
    Bill by Anatole Klintz, complainant, against Walter Z. Marx, Zero Marx, Reuben II. Donnelley and Chicago Telephone Company, defendants, charging defendants Marx with the wrongful use of the trade name “Zero Marx Sign Works” and with unfair competition in trade, and asking an injunction against all defendants as to using such trade name or one similar thereto. From a decree dismissing the bill, on demurrer, complainant appeals.
    Loesch, Scofield & Loesch, for appellant.
    Charles E. Selleck, for appellees.

      Abstract of the Decision.
    1. Trade-marks and trade names, § 26

      —when right to use purr chased trade name of bankt upt must be determined in court of bankruptcy. Where a bankruptcy court through its receiver sold the tangible assets of a bankrupt corporation, together with its good will and right to use its trade name, the determination of the question whether the value of the right to use such name depended on continuous usage, held to be a matter to be determined by that court, and not collaterally in a suit brought by the purchaser of such right at such sale against parties charged with infringement and unfair use of the name.
    2. Bankruptcy, § 30*—when sale made without authority may be validated by confirmation. A bankruptcy court having power to order a sale of intangible property may, by confirmation of a sale made by a receiver without a prior order, ratify and validate the sale, the confirmation being equivalent to a prior order.
    3. Trade-marks and trade names, § 24*—what constitutes unfair competition in trade. The use by defendants of the words “Zero Marx Signs” and "Marx Zero Signs” in a telephone directory, and solicitation by them of business by representing they were successors in business of a corporation bearing the name “Zero Marx Sign Works,” held to be unfair competition in trade against complainant as purchaser at a receiver’s sale in a bankruptcy court of the right to use the name of said corporation, in a suit for infringement and unfair use of such name.
    4. Trade-marks and trade names, § 14*—right of purchaser to use trade name. A trade name is an asset which may lawfully be sold and the purchaser has the right to use it.
    5. Trade-marks and trade names, § 10*—what is effect of use of trade name by purchaser. The use of a trade name by the purchaser of the right to use same is not a representation that the purchaser is the identical person who formerly used it, but merely that, he has the right to do business under that name.
    6. Trade-marks and trade names, § 26*—when bill for injunction against use of trade name is sufficient. A bill for an injunction setting up complainant’s purchase of the right to use a certain trade name and the use by defendants in their business of a similar name with representations that they were successors to the original user of the name, held to state grounds for relief in a court of chancery.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Edward McGowan, by Patrick H. McGowan, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,846.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 53

      —what does not constitute use of cars on street railway within fender ordinance. Where plaintiff was injured by certain dismantled and discarded summer street cars belonging to defendant while such cars were being moved from certain temporary tracks to defendant’s car barns, held that such use of the cars by defendant was not within the term “each and every car used on such street railway,” used in an ordinance providing that “every person or corporation controlling any street railway in the City of Chicago shall equip and provide each and every car used on such street railway with fenders," etc.

      Appeal from the Superior Court of Cook county; the Hon. Riciiabd E. Burke, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 18, 1917.
    Statement of the Case.
    •Action by Edward McGowan, by Patrick H. McGowan, his father and next friend, plaintiff, against the Chicago City Railway Company, defendant, to recover damages for personal injuries sustained by being struck by one of defendant’s street cars. From a judgment for plaintiff for $2,000, defendant appeals.
    Franklin B. Hussey and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Litzinger, McGurn & Reid, for appellee; Edward R. Litzinger, of counsel.

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

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

   Mr. Justice Goodwin

delivered the opinion of the conrt.

2. Street railroads, § 131 —when evidence is insufficient to show wanton and wilful misconduct in injuring person crossing street car trade. Evidence held insufficient to warrant finding that certain cars of defendant were being pushed along the track at an excessive rate of speed, or that defendant’s servants were so conducting the moving of the cars as to constitute wilful and wanton misconduct, undér a count of a declaration charging defendant with wilful and wanton injury to a person crossing the street car tracks.


text:
    Ed. C. Smith Furniture Company, Appellee, v. Peter & Volz, Appellants.
    Gen. No. 21,854.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    Rehearing denied May 3, 1917.
    Statement of the Case.
    Action by Ed. C. Smith Furniture Company, plaintiff, against Peter & Volz, defendants, to recover damages for breach of contract for the exclusive agency for the sale of defendants’ school furniture in Harris county, Texas. From a judgment for plaintiff for $274, defendants appeal.
    Wallace E. Shirra, for appellants.
    Gustav E. Beerly, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Principal and agent—what is competent evidence of knowledge "by principal of invasion of exclusive territory. In an action to recover damages for breach of a contract giving plaintiff exclusive agency for the sale of defendants’ goods in a certain territory, a telegram by plaintiff to defendants stating that a certain party was selling samples of the goods in such territory and that plaintiff would expect protection, held to be competent evidence that defendants had notice of the activities of such party.

2. Damages, § 66 —what is measure of for breach of contract for exclusive agency. In an action to recover damages for breach of a contract giving plaintiff the exclusive agency for the sale of defendants’ goods in a certain territory, the value of the contracts lost to plaintiff by the breach, held to be the measure of damages.

3. Instructions, § 98*—when proper on weight given testimony of interested party. An instruction that in weighing the testimony of one of the parties to the action the jury have the right to take into consideration the fact that he was a party to and interested in the result of the action, held proper where the other party to the action had not testified.

4. Principal and agent—what constitutes binding contract of exclusive agency for sale of goods. An offer by plaintiff to sell defendants’ goods if given an exclusive agency for a certain territory and defendants’ written acceptance of such offer, and the purchase by plaintiff of such goods and plaintiff’s efforts in promoting their sale, held to create a binding and enforceable contract, in an action to recover damages for a breach of such contract.

5. Damages, § 179*—what is competent evidence in action by agent for breach of contract of exclusive agency. In an action to recover damages for the breach of a contract giving plaintiff the exclusive agency for the sale of defendants’ goods in a certain territory, the price lists of defendants, the amount of plaintiff’s bid on a certain prospective sale of such goods, and a computation as to the net cost of their delivery on such sale, held competent evidence and a proper basis for computing plaintiff’s damages.

6. Evidence, § 128*—when copy of telegram is admissible. A copy of a telegram is admissible upon accounting for the destruction of the original telegram.

7. Evidence, § 114*—what is best evidence of contents of telegram. The original telegram filed with a telegraph company is the best evidence of its contents.


text:
    Frank M. McKey, Trustee, Appellee, v. Francis Cropper Company, Appellant.
    Gen. No. 21,871.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 340—when question whether boxes manufactured are in accordance with contract is for jury. The question whether certain boxes manufactured under -a contract with the defendant were in accordance with the terms of the contract, held to be one for the jury, who had opportunity to examine the sample referred to in the contract and the one offered in evidence, in an action to recover damages for breach of the contract by defendant’s refusal to accept the boxes.
    2. Sales, § 340*—what are questions for jury in action for damages for refusal to accept goods. The question whether defendant by its actions had prevented the completion of certain boxes manufactured for it by plaintiff at the time stipulated in their contract, and, if not, whether it had waived such provision of the contract, held to be for the jury, in an action to recover damages for breach of the contract by defendant’s refusal to accept any of the boxes.

      Appeal from the County Court of Cook county; the Hon. A. D. Webb, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    Statement of the Case.
    Action by Frank M. McKey, trustee in bankruptcy of the estate of Aamax Cabinet Company, plaintiff, against Francis Cropper Company, defendant, to recover damages for breach of contract for the manufacture of 5,000 cabinets for defendant. From a judgment for plaintiff for $400, defendant appeals.
    Bryan, McCormick & Wilber, for appellant; William E. Bryan, of counsel.
    Paul Huxmann and Vose & Page, 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 Goodwin

delivered the opinion of the court.

3. Sales, § 341*—when evidence is sufficient to sustain finding in favor of plaintiff in action for refusal to accept goods. A finding for plaintiff, in an action to recover damages for breach of contract by defendant’s refusal to accept certain boxes manufactured for defendant, under the contract, upon the question whether defendant had prevented completion of the boxes at the time stipulated in the contract, and, if not, whether defendant had waived such provision, held not manifestly against the weight of the evidence.

4. Sales, § 344 —when evidence is sufficient to sustain verdict for damages for refusal to accept goods. Evidence held sufficient to sustain a verdict of $400 damages, in an action to recover damages for defendant’s breach of contract by refusing to accept certain boxes manufactured for it under the contract, plaintiff having substantially completed a certain quantity of the boxes for which it would have been entitled under the contract to $550, and certain other boxes being in various stages of manufacture.


text:
    Samuel Barnett, Appellee, v. Thomas Stanton and Jacob Feder, Appellants.
    Gen. No. 21,892.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. P. B. Flanagan, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    Statement of the Case.
    Action by Samuel Barnett, plaintiff, against Thomas Stanton and Jacob Feder, defendants, to recover damages on account of defendants’ failure to perform, a certain written contract whereby plaintiff agreed to purchase and defendants to sell certain real estate for the sum of $8,900. From a judgment for plaintiff, defendants appeal.
    Abstract of the Decision.
    1. Vendor and purchaser, § 352*—when parol evidence is inadmissible to vary contract. Where a contract for the sale and purchase of certain real estate was by its terms to be held by a certain third party therein named and permanently retained by him after consummation of the sale, and who was directed therein to apply the earnest money paid, if same should be retained as therein provided, in a specified manner, evidence that it was not the intention of the parties that the contract should be binding until certain information had been received by one of them, held inadmissible, in an action to recover damages for breach of such contract, as varying its terms by a parol agreement.
    2. Vendor and purchaser, § 351

      —what evidence is inadmissible under affidavit of merits in action for damages for refusal to sell property. In an action to recover damages for defendants’ breach of a contract with plaintiff for the sale by defendants to plaintiff of certain real estate, where defendants’ affidavit of merits stated plaintiff had not done and performed everything required of him by the contract and had not been ready, willing and able to pay defendants any balance of the purchase price or tendered any purchase price, evidence that plaintiff refused to take the property on account of the amount of special assessments due, held to be evidence of an anticipatory breach not covered by said affidavit and properly excluded.
    3. Trial, .§ 91*—when exclusion of evidence is proper. Where objection to a question was withdrawn and the party’s attorney stated that the evidence simply should not be stricken out and the witness was allowed to answer, held that, there was no assignable error in the court excluding the evidence.
    Barnhardt & Stafford and C. D. Lee, for appellants.
    Sonnenschein, Berkson & Fishell, for appellee.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

4. Appeal and ebrob—when discussion of evidence is harmless error. Discussion in the presence of the jury with reference to the admission of certain evidence which was properly excluded, held not to he prejudicial.

5. Municipal Court of Chicago, § 4 —when judge of County Court may preside. Under the Municipal Court Act, the judge of a County Court may preside in the Municipal Court.


text:
    Samuel Barnett, Appellee, v. Jacob Feder and Thomas Stanton, Appellants.
    Gen. No. 21,901.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. P. B. Flanagan, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    Statement of the Case.
    Action by Samuel Barnett, plaintiff, against Jacob Feder and Thomas Stanton, defendants, to recover damages for defendants’ failure to perform a certain contract whereby plaintiff agreed to purchase and defendants to sell certain real estate for the sum of $8,900. From a judgment for plaintiff, defendant Jacob Feder separately appeals.
    This being the same action as Barnett v. Stanton, ante, p. 382, opinion in which was filed the same day, for the reasons therein stated the judgment is affirmed.
    C. D. Lee, for appellants.
    Sonnenschein, Berkson & Fishell, for appellee.
   Mr. Justice Goodwin

delivered the opinion of the court.


author: Mr. Justice Taylor

text:
    Elizabeth Stanton, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,434.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebrob, § 1413*—when verdict of jury,not disturbed. Where an action to recover damages for personal injuries had been tried twice, the witnesses produced at each trial were practically the same, both juries found the defendant liable, and such finding was not manifestly against the weight of the evidence, held that setting aside the verdict as to liability of the defendant would not be justified, notwithstanding the evidence might easily be held, on an independent review, to exculpate the defendant. •
    2. Damages, § 241

      —when verdict not disturbed as excessive. A judgment for $6,700 held not excessive, notwithstanding a verdict and judgment on a former trial for $6,500 was held on appeal to have been excessive, the witnesses produced at each trial being practically the same, but the evidence on the second trial as to the extent of the injuries upon which the damages were based being somewhat stronger.

      Appeal from the Circuit Court of Cook county; the Hon. Habry C. Moban, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed April 18, 1917.
    Rehearing denied May 3, 1917.
    Statement of the Case.
    Action by Elizabeth Stanton, plaintiff, against the Chicago City Railway Company, defendant, to recover damages for personal injuries sustained while plaintiff was entering defendant’s street car. From a judgment for plaintiff for $6,700, defendant appeals.
    For the decision on a former appeal, see Stanton v. Chicago City Ry. Co., 188 Ill. App. 502.
    Franklin B. Hussey and Charles Le Roy Brown, for appellant; John R. Guilliams, of counsel.
    James C. McShane, for appellee.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

3. Cabriebs, § 484*—when instruction on duty of carrier towards passengers is not erroneous. A general broad instruction as to a carrier’s duty towards passengers within the scope of the words “it does * * * undertakes to exercise the highest • degree of practicable care to secure the safety of its passengers” and the words “provided, that such neglect, if any, on the part of the carrier” to exercise such care “and such care, if any, on the part of the passenger” to exercise ordinary care for his own safety “are alleged in the declaration,” etc., held, considering all the instructions given, to furnish no basis for the claim the jury might have concluded they were warranted in basing their verdict upon any ground of negligence except that charged in the declaration.

4. Cabriebs, § 484 —when instruction on what constitutes ordinary care is not misleading. An instruction that ordinary care as •used in instructions meant such as an ordinarily prudent person situated as plaintiff was before and at the time of injury would exercise for his or her own safety, held not objectionable as misleading, the jury to think that plaintiff, if she undertook voluntarily to step off the car while it was in motion, was ip. the exercise of ordinary care.