text:
    Louis Abt, Appellant, v. Chicago Railways Company, Appellee.
    Gen. No. 23,309.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action by Louis Abt, plaintiff, against the Chicago Railways Company, a corporation, defendant, for personal injuries sustained by plaintiff in an assault on him by one of defendant’s conductors. From a judgment for plaintiff for $25, he appeals.

      Abstract of the Decision.
    1. Cabbiebs, § 327

       — when passenger becomes trespasser. A passenger who has alighted from a street car at his destination and reboards the car to make an assault on the conductor is a trespasser, the relation of passenger having ceased upon leaving the car.
    2. Cabbiebs, § 344* — when carrier not liable for assault by. conductor on former passenger. Where the relation of passenger and carrier has ceased upon the passenger alighting at his destination, the carrier is not liable for an assault by the conductor upon such former passenger upon his 'reboarding the car to attack the conductor.
    3. Assault and batteby, § 22* — when damages not inadequate. Evidence held sufficient to sustain a verdict for $25 as adequate damages for an assault upon a passenger by a conductor when he first alighted from the car and before he forcibly re-entered the car as a trespasser to attack the conductor.
    4. Damages, § 162* — when exclusion of evidence as to financial loss in business proper. In an action by a passenger against a street railroad company for damages for personal injuries due to an assault upon plaintiff by defendant’s conductor, the exclusion of testimony regarding financial loss in the business of plaintiff is proper where there is no averment in the declaration regarding special damage through financial loss in plaintiff’s business.
    5. Damages, § 180* — when evidence as to financial loss in business is inadmissible. Even though a declaration in an action for assault and battery contains an averment regarding financial loss in the business of plaintiff, evidence as to such loss is inadmissible.
    6. Tbial, § 78* — -when evidence improper in rebuttal. In an action for damages for an assault and "battery, where plaintiff had already testified as to his injuries and defendant had proven by one of its witnesses that plaintiff’s injuries were not serious, and that, while his nose was cut, it was not bleeding, but there was a small bruise under his eye, held that the admission of evidence as to the condition of plaintiff’s face was not proper in rebuttal.

      Stein, Mayer & Stein, for appellant; W. S. Hefferan, Jr., of counsel.
    Frank L. Kriete, for appellee; J. E. Guilliams and Thomas J. Symmes of counsel.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

7. Carriers, § 344 — when instruction on liability of carrier for assault by conductor, is correct. In an action by a passenger against a street railroad company for damages for personal injuries due to an assault upon plaintiff by defendant’s conductor, held that an instruction that after plaintiff alighted from the car the relation of passenger and carrier ended, and when plaintiff again boarded the car for the purpose of assaulting the conductor he was not a passenger but a trespasser, and that defendant was not liable for the conduct of the conductor towards the plaintiff while he was on the car for the purpose of assaulting the conductor, was correct.

8. Appeal and bbbor, § 1407* — when judgment not disturbed because of inadequacy of. A judgment will not be disturbed on appeal for mere inadequacy of damages awarded unless it is apparent that the verdict was the result of passion or prejudice in the jury or of errors of law by the court.


source: Caselaw Access Project

author: Mr. Justice Dever

license: Public Domain

text:
    John M. Gallagher and Maurice Ascher, copartners, trading as Gallagher & Ascher, Appellants, v. Grand Trunk Western Railway Company, Appellee.
    Gen. No. 22,607.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed October 2, 1917.
    Rehearing denied October 15, 1917.
    Statement of the Case.
    Action by John M. Gallagher and Maurice Ascher, copartners, trading as Gallagher & Ascher, plaintiffs, against the Grand Trunk Western Railway Company, the terminal carrier, defendant, to recover damages due to the freezing of canned tomatoes in transit. From a judgment against them for costs, plaintiffs appeal.
    Abstract of the Decision.
    1. Carriers, § 189

       — what is liability of carrier of interstate shipment. Every carrier connected with an interstate shipment is liable for damage or loss to the property so received or transported, caused by its own negligence.
    2. Carriers, § 189* — when bill of lading of interstate shipment construed as contract of connecting carrier. The bill of lading for an interstate contract issued by an initial carrier is to be construed, under the provisions of the Carmack Amendment to the Interstate Commerce Act, as the contract of the connecting carrier.
    3. Carriers, § 197* — when action for breach of contract may be maintained against terminal carrier. An action for breach of contract for failure to properly transport and deliver goods, instead of an action in tort only, may be maintained against a terminal carrier, where goods are received by the consignee in a frozen condition, since the contract of the initial carrier is. the contract of the terminal carrier.
    4. Carriers, § 196*- — when evidence shows receipt of canned goods by terminal carrier in unfrozen condition. In an action for breach of contract by a consignee against a terminal carrier for failure to transport canned tomatoes in safety, where it appeared that ten per cent, of the goods were examined by the federal authorities at an eastern port, to which they had been shipped from a foreign country, and found to be in good condition; that goods in the cases would not freeze unless' exposed to a temperature of 6° Fahr. or lower, and that the initial carrier delivered bills of lading which recited that the goods were in apparent good order, evidence held sufficient to sustain a finding that the goods were not frozen at the time of their receipt by the terminal carrier from an intermediate carrier.
    Baker & Holder, for appellants.
    L. L. Smith, for appellee.

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

   Mr. Justice Dever

delivered the opinion of ’the court.

5. Carriers, § 199* — when hill' of lading is prima facie proof of condition of goods at time of receipt hy initial carrier. Bills of lading issued by an initial carrier reciting that the goods are in apparent good order are prima facie proof of the condition of the goods at the time they were received by the initial carrier, for shipment, in an action by a consignee against a terminal carrier for breach of contract in failing to transport the goods safely.


text:
    Moir Hotel Company, Defendant in Error, v. Fidelity & Deposit Company of Maryland, Plaintiff in Error.
    Gen. No. 22,972.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 120

       — how policies construed. Policies of insurance must, where the language is doubtful, be construed most strongly in favor of the assured.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Rehearing denied October 15, 1917.
    Statement of the Case.
    Action by the Moir Hotel Company, plaintiff, against the Fidelity & Deposit Company of Maryland, a corporation, defendant, to recover on a burglary policy. From a judgment for plaintiff for $433.70, defendant brings error.
    Mechem, Bangs & Harper, for plaintiff in error.
    Campbell & Fischer, for defendant in error.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Insurance, § 397a — what losses covered by burglary policy. A burglary policy insuring the owner of a hotel building against loss by robbery (commonly known as holdup) occasioned by felonious, violent and forcible abstraction of property from its office, counting room or store, where such loss was not occasioned by any employee and where the loss was brought about by violent and forcible means (commonly known as holdup), and where the premises were directly under the charge or care of at least two persons, must be construed as insuring the owner against loss occasioned by a forcible and violent abstraction of its property from its premises by breaking open a locked case back of a cashier’s desk and cigar stand in which the cashier had placed a tin box filled with money during her temporary absence from her desk, and the liability for loss cannot be limited by the word “holdup” to a violent taking of the same under circumstances which would constitute robbery.


text:
    Frances Goepper, Appellee, v. Travelers Insurance Company, Appellant.
    Gen. No. 23,065.
    (Not to be reported in full.)
    Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Frances Goepper, plaintiff, against the Travelers Insurance Company, defendant, to recover on an accident insurance policy upon the life of one Charles H. Goepper. From a judgment for plaintiff for $7,890, defendant appeals.
    Frank M. Cox, for appellant; Abbott, Hood, Smith &■ Griggs, of counsel.

      Abstract of the Decision.
    “ 1. Insubance, § 189

       — when evidence insufficient to show cancellation of accident policy. In an action on an accident insurance policy, -where it appeared that defendant unsuccessfully attempted to substitute a similar policy bearing a new rate then in existence and failed to return the additional premium provided for in a rider granting additional insurance, as required thereby upon cancellation, and did not accept the tendered premium at the old rate, evidence held, insufficient to show a cancellation of the policy.
    2. Insurance, § 196* — when evidence insufficient to show abandonment of accident policy by insured. In an action on an accident Insurance policy, where it appeared that insured, a few days before the expiration of the policy, tendered the premium at the rate required by the policy, instead of the new rate demanded by the agent, but stated to the agent at a subsequent time, when the latter tried to induce him to take insurance in another company, that he did not want to take any more insurance and that he had got accident insurance all out of his mind, evidence held insufficient to show an abandonment of the contract.
    Charles C. Spencer, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Max Epstein, Appellee, v. Fort Dearborn Motor Cartage Company, Appellant.
    Gen. No. 23,074.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 336

       — when copy of note filed is not part of declaration. Where a copy of a promissory note is filed with or attached to a declaration, it does not become a part thereof.
    2. Chattel mortgages, § 216* — when assignment of notes not stating on faces to be secured by chattel mortgage not invalidated. Courtwright’s Ill. St. ch. 107, sec. 8 (J. & A. f 7602), providing that all notes secured by chattel mortgages shall state upon their face that they are so secured, and, when assigned by the payee, shall be subject to all defenses existing between the payee and the payor, does not in'validate an assignment of notes, even though they are, and appear on their faces jto be, secured by a chattel mortgage, but merely permits a person sued on such notes to set up any defense existing between the payee and payor.

      Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action by Max Epstein, plaintiff, against the Fort Deahbom Motor Cartage Company, a corporation, defendant, to recover on four promissory notes given by defendant to Master Motor Company and alleged to have been by it indorsed and delivered before maturity, for a valuable consideration, to plaintiff. From a judgment for plaintiff for $653.66, defendant appeals.
    Frank D. Fulton and Eugene L. Carey, for appellant; Earl James Carey, of counsel.
    Stein, Mayer & Stein, for appellee; Sigmund W. David and Ezra Cohn, 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 Dever

delivered the opinion of the court.

3. Municipal Court of Chicago, § 13 — when aXlegations in statement of claim taken as true. The statements of a plaintiff in his statement of claim as to the amount due on promissory notes sued on must be taken as strictly true until met by a sufficient denial.

4. Municipal Court of Chicago, § 13* — when affidavit of merits insufficient to put plaintiff to proof of claim. In an action in the Municipal Court of Chicago on promissory • notes, where plaintiff set up in his statement of claim that there was legally due him the full amount claimed in the statement, held that an allegation in defendant’s affidavit of merits merely denying any knowledge of the matter was not sufficient to put plaintiff on proof of allegation in his statement of claim.

5. Municipal Court of Chicago, § 13* — when affidavit of merits in action on notes is insufficient. In an action on four promissory notes by the assignee against the maker, held that an affidavit of merits which failed to present the defenses that the consideration for the notes had failed and that there was a breach of warranty of the machinery which represented the consideration for the notes, and that the notes were within the provisions of J. & A. If 7602, providing that all notes secured by chattel mortgage shall state such fact upon their faces and, when assigned, shall be subject to all defenses existing between the payee and payor, was insufficient to defeat plaintiff’s claim that he was a bona fide holder in due course of the notes.

6. Venue, § 14* — when motion for Change of is too late. A petition for change of venue, presented after two affidavits of merits have been stricken from the files and after counsel for plaintiff has presented and argued his motion to strike an amended second affidavit of merits, is too late.

7. Venue, § 19* — how petition for change of construed. A petition for a change of venue must be strictly construed.

8. Venue, § 20* — when petition for change of is insufficient. A petition for a change of venue which incorrectly designates the petitioner, who is the plaintiff, as defendant, and is signed by a certain person as authorized agent for defendant, and alleges that “he” could not expect a fair trial, and fails to allege that the defendant could not receive a fair trial, is insufficient.

9. Appeal and ebbob, § 1094* — what is improper matter in brief. It is highly improper for counsel to use in their brief insolent and opprobrious language regarding the trial court in making its rulings, even if the court has committed error.


text:
    Ernest Turner, Plaintiff in Error, v. Samuel Buchsbaum, trading as S. Buchsbaum & Company, Defendant in Error.
    Gen. No. 23,087.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 339

       — when servant assumes risk of accident. Where a servant has notice for several days prior to an accident of the presence near a punch press of pieces of wood, junk and rubbish of various kinds, he assumes any risk of an accident happening from pieces of wood getting under the foot lever and throttle of the machine, which act causes a hammer, a part of the machine, to be released and drop upon his hand, the machine being ordinarily operated by means of the foot pedal.

      Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action by Ernest Turner, plaintiff, against Samuel Buclisbaum, trading as S. Buchsbaum and Company, defendant, to recover for personal injuries sustained while in the employ of defendant. From a judgment for defendant, plaintiff brings error.
    Stedman & Soerke, for plaintiff in error; Swan M. Johnson, of counsel.
    Mayer, Meyer, Austrian & Pratt, for defendant in error; Abraham Meyer, 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 Dever

delivered the opinion of the court.

2. Master and servant, § 123 — what is duty of master as to safe place to work. It is the duty of a master to use reasonable care in providing a punch-press operator with a safe place to work, and also to keep the machinery and tools used by the operator in a reasonably safe condition.

3. Master and servant, § 764* — when verdict properly directed for defendant in Action by employee for personal injuries. In an action by a punch-press operator to recover for personal injuries sustained as the result of a piece of wood getting in the foot lever of the machine at which plaintiff was working and causing a' hammer to be released and fall on plaintiff’s hand, evidence held insufficient to show any negligence of defendant, and to warrant the directing of.a verdict in defendant’s favor.


text:
    Pietro Caira, Appellee, v. Fort Dearborn National Bank, Appellant.
    Gen. No. 23,102.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Pietro Caira, plaintiff, against the Fort Dearborn National Bank, defendant, to recover the sum of $1,676.65 collected by defendant from a foreign bank through a power of attorney, delivered to defendant by a private banker acting as agent for plaintiff and deposited to the credit of such private banker, who appropriated the money to his own use. From a judgment for plaintiff for $1,676.65, defendant appeals.
    Abstract of the Decision.
    1. Evidence, § 138

       — when notice to produce document before introducing copy is unnecessary. Where an action against a bank collecting money and wrongfully crediting it to an agent of plaintiff is based upon a power of attorney to collect given defendant and defendant admits the execution of the power of attorney and delivery of same to it, defendant has knowledge of the fact that such instrument is necessary to establish plaintiff’s case, dispensing with service of notice to produce before trial, and, upon its failure to produce such document, a copy thereof is admissible in evidence.
    2. Customs and usages', $ 11* — what constitutes usage. A usage must be generally known and established, and so well settled and so uniformly acted upon, as to raise a fair presumption that it was known to both parties, and that they contracted with reference to and in conformity with it.
    3. Customs and usages, § 27* — when evidence does not show known general usage. Evidence held insufficient to establish a general usage among bankers collecting money from foreign banks for agents of persons residing in the United States through powers of attorney given by depositors, of crediting the agents with the amount of deposit so as to warrant a finding that the depositors knew of such usage.
    4. Banks and banking, § 160* — when bank collecting money in foreign bank liable for payment of money to agent of depositor. Where a bank is given a power of attorney to collect money in a foreign bank by the agent of the depositor, the fact that there is a limited usage unknown to the depositor whereby the collecting bank credits the agent with the deposit, cannot operate to relieve the collecting bank from liability where the money is converted by the agent to his own use.

      Adams, Crews, Bobb & Westcqtt, for appellant.
    Edmund J. Rice and Frank DeBartolo, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

5. Banks and banking — what is the effect of delivery of pass hooks to third person. The delivery of pass books on a foreign bank by the depositor to his agent does not warrant a collecting bank in treating such agent as the owner of the funds, since pass books are not negotiable instruments.


text:
    Bohumil Ruzicka, Appellee, v. Willy H. Lau, Appellant. Joseph Korinek, Appellee, v. Willy H. Lau, Appellant.
    Gen. No. 23,286.
    (Not to he reported in full.)
    Gen. No. 23,287.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Consolidated actions by Bnhumil Ruzicka and Joseph Korinek, respectively, plaintiffs, against Willy H. Lau, defendant, to recover on a promise by defendant to repay plaintiffs for stock purchased in the corporation in which defendant owned nearly all the stock. From a judgment for plaintiffs for $390 and $200, respectively, defendant appeals.
    Eastman, White & Hawxhurst, for appellant ; Ralph R. Hawxhurst and Homer C. Dawson, of counsel.
    Charles S. Hamilton, for appellees.

      Abstract ef the Decision.
    1. Corporations, § 149

       — when evidence shows promise by stockholder to personally purchase stock. Evidence held sufficient to sustain a finding that defendant, the owner of nearly all the stock in a corporation, orally promised' to employees purchasing stock to personally purchase the shares of the stock if such employees left the service of the corporation.
    2. Corporations, § 142* — when promise by stockholder to repurchase stock is based upon consideration. A promise by a stockholder, who transfers his stock to a corporation, to employees purchasing stock that he will personally repurchase their shares upon their leaving the service of the corporation is based upon a consideration where the stock is in fact the property of such stockholder, and he derives direct personal benefit from the contract.
    3. Frauds, Statute of, § 25* — when contract for repurchase of stock is not within. A contract for the repurchase of stock by a stockholder of a corporation from employees purchasing stock upon the latter leaving the employ of the corporation is not within the Statute of Frauds, because it is not to be performed within a year, where it is completely executed upon the part of the employees and the latter could at any time within a year have terminated their employment with the corporation.
    4. Municipal Court of Chicago, § 13a* — what does not constitute material variance in fourth-class case. In a fourth-class case in the Municipal Court of Chicago, a variance between the pleading and proof as to the date of the execution of an oral contract sued on held not so material as to warrant a reversal where defendant was fully apprised of the nature of the claim against him.
    5. Municipal Court of Chicago, § 28* — when claim of variance is too late. The claim of variance between a statement of claim and the proof is too late where the objection is first raised on appeal.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Albert Cada, Appellant, v. James Sack et al., Appellees.
    Gen. No. 23,327.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mechanics’ liens, § 5

       — how act construed. The Mechanics’ Liens Act is in derogation of the common law. It confers special favors and privileges upon one class of creditors, and while it should be construed so as to give effect to the evident purpose and intention of the Legislature, its meaning cannot' be extended, nor can there be conferred upon this favored class of creditors rights and privileges not within the language of the act.
    2. Mechanics’ liens, § 92* — who is purchaser of property within statute. A wife of the owner of a building, to whom the property is deeded without consideration, is a “purchaser” within the Mechanics’ Liens Act, sec. 7 (J. & A. *|f 7145), providing that no contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within four months after completion, he shall either bring suit to enforce his lien therefor or shall file his claim for lien, and her rights will be protected, especially where the contractor has constructive notice, due to the recording of the deed, of the transfer three months prior to the expiration of the four months’ period.

      Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Bill by Albert Cada, a building contractor, complainant, against James Sack and others, defendants, for foreclosure of a mechanic’s lien on a building owned by James Sack and conveyed to his wife, Amalie Sack, and of which a trust deed was executed as security for a loan. From a decree dismissing the bill, complainant appeals.
    Edward J. Herdlicka, for appellant.
    Walter Truc, 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 aj)íJ geetion number.

   Mr. Justice Dever

delivered the opinion of the court.

3. Mechanics’ liens, § 93 — when claim for lien may he enforced. No lien can be enforced even as against the owner of property unless a claim for a mechanic’s lien is filed, or suit to enforce the lien begun, within four months after the last payment on a building contract.


author: Mr. Justice McSurely

text:
    Nellie A. Bechtel, Executrix, Defendant in Error, v. George A. Marshall, Plaintiff in Error.
    Gen. No. 22,624.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed October 2, 1917.
    Rehearing denied October 15, 1917.
    Statement of the Case.
    Action by Nellie A. Bechtel, executrix of the last will and testament of Henry H. Bechtel, deceased, plaintiff, against George A. Marshall, defendant, on a promissory note. From a judgment for plaintiff for $24,207.24 upon a directed verdict, defendant brings error.
    Helmer, Moulton, Whitman & Whitman, for plaintiff in error; Lloyd 0. Whitman and Boland D. Whitman, of counsel.
    Culver, Andrews & King, for defendant in error.

      Abstract of the Decision.
    1. Bills and notes, § 420

       — when documentary evidence is in-' admissible in action on note. In an action by the representative of a deceased stockholder on a note given by one stockholder to deceased in an alleged settlement among stockholders at the time of the winding up of the business of the corporation, to reimburse deceased for the portion of defendant’s share of the debts of the corporation assumed by deceased, in which defendant claimed that there was an error in the statement of accounts at the time of settlement, held that writings in books and papers offered by defendant made by parties other than deceased or his representatives were inadmissible, because not binding on him, and that other writings, the authorship of which was not shown, were also inadmissible.
    2. Bills and notes, § 443* — when evidence insufficient to show failure of consideration. In an action by the representative of a deceased stockholder in a corporation on a note given by another stockholder in an alleged settlement of defendant’s share of the indebtedness of the corporation assumed by deceased, evidence held insufficient to show that such note was without consideration.
    3. Bills and notes, § 440* — when evidence insufficient to show note was for accommodation purposes. In an action by the representative of a deceased stockholder in a corporation on a note given by another stockholder in an alleged settlement of defendant’s share of the indebtedness of the corporation assumed by deceased, evidence held insufficient to show that such note was for accommodation purposes.
    4. Bills and notes, § 407* — when burden of proof is on defendant. The burden of proof is on defendant in an action on a promissory note to show failure of consideration.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    J. J. Cohen, Plaintiff in Error, v. Anna Rosenthal and Michael Rosenthal, Defendants in Error.
    Gen. No. 23,054.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 256

       — what error hy cleric in entering may he corrected at subsequent term. Where a clerk of court, after a case coming on for trial, after the vacation of a judgment hy confession, was dismissed for want of prosecution, made an entry in his minute book indicating a dismissal for want of prosecution, but later, in transcribing the order from the minute book to the “half sheet,” wrote that the order to vacate the judgment of the previous date was dismissed for want of prosecution, held that a clerical error was committed which might properly be corrected by order nunc pro tune at . a subsequent term.

      Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action by J. J. Cohen, plaintiff, against Anna Rosenthal and Michael Rosenthal, defendants, on certain promissory notes. A judgment by confession against defendants was, on motion of defendant Anna Rosenthal, vacated as to her, and she was let in to plead, but, on the trial, the case was dismissed for the failure of plaintiff to appear and prosecute the action. From an order made at a subsequent term correcting an erroneous entry of the clerk of court at the time of the trial on the “half sheet,” that the order to vacate the judgment was dismissed for want of prosecution, so as to read that the judgment by confession was vacated and the action, as to the defendant Anna Rosenthal, was dismissed, plaintiff brings error.
    Pines & Newmann, for plaintiff in error.
    Max M. Grossman, for defendant in error Anna Rosenthal.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Judgment, § 263 — when minutes of clerk sufficient to enable court to determine what order was for purpose of correction of error. The minutes of a clerk “Dis. wt.' Pros. p. c.,” meaning, dismissed for want of prosecution at plaintiff’s costs, made at the time of the trial of an action on promissory notes, upon failure of either party to appear, a judgment by confession having been vacated at a previous time, held sufficient to determine what the order was so as to warrant the correction at a subsequent term of the clerical error of the clerk, in transcribing the order from the minute book to the “half sheet,” by writing that the order to vacate the judgment had been dismissed.

3. Dismissal, nonsuit and Discontinuance, § 38* — when order dismissing case for want of prosecution is proper. Where a defendant has procured the vacation of a judgment by confession and plaintiff fails to appear at the time of trial, an order dismissing the case for want of prosecution is proper.

4. Judgment, § 86* — what is effect of opening judgment by confession on burden of proof. Where a defendant has been let in to plead, upon the opening of a judgment by confession, the burden rests upon plaintiff to prove his case the same as if there had been no judgment by confession.


text:
    L. Starks Company, Appellant, v. Michigan Central Railroad Company, Appellee.
    Gen. No. 23,070.
    1. Municipal Coubt of Chicago, § 13

       — when statement of claim is sufficient in action against initial interstate carrier for injury to goods. In an action in the Municipal Court of Chicago under the Carmack Amendment to the Interstate Commerce Act against an initial carrier of an interstate shipment of produce, a statement of claim alleging that plaintiff delivered to defendant a car of produce to he transported from a certain point in one State to a certain city in another State for reconsignment, that afterwards plaintiff in the State of shipment reconsigned the produce while it was in the possession of defendant’s agent, a connecting carrier; that it was defendant’s duty to transport the produce to the place of destination and that it had negligently failed to do so, to plaintiff’s loss, held sufficient.
    2. Carriers, § 188* — when initial carrier liable for failure to transport reconsigned interstate shipment to destination. Where a reconsignment of an interstate shipment of goods is made while they are in possession of the initial carrier and before delivery to a connecting carrier, the liability of the initial carrier for failure to transport the goods safely to the destination as indicated by the reconsignment exists; and it is the established rule in cases of this sort that the second carrier is the agent of the initial carrier.
    3. Carriers, § 188* — when initial carrier is liable for injury to interstate reconsigned shipment under Carmack Amendment. Under the Carmack Amendment to the Interstate Commertie Act, where a reconsignment of an interstate shipment of goods is made while they are in the possession of a connecting carrier in the State of shipment, the initial carrier is liable for the negligent injury to such goods before delivery at the point of destination as indicated by the reconsignment, where there is nothing in the bill of lading issued by defendant that the point of destination originally designated is to be the point of delivery, but the shipment is “for reconsignment,” since the connecting carrier is the agent of the initial carrier.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed October 2, 1917.

      Elliott R. Goldsmith, A. W. Martin and Edward H. S. Martin, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; Frank H. Towner^ of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, bringing suit under the Carmack Amendment to the Act to Regulate Commerce, to recover for alleged damages to a shipment of goods, was met by a motion to strike its statement of claim on the ground that it failed to state any cause of action against defendant. The trial court acted favorably upon this motion and, plaintiff standing by its statement, the suit was ordered dismissed. Plaintiff appeals to this court asserting the sufficiency of the claim.

By its. statement of claim plaintiff alleged that at Mattawan, Michigan, it delivered to the defendant one car of potatoes of the value of $372.12, to be by the defendant safely transported for plaintiff for hire from Mattawan to Louisville, Kentucky, for reconsignment, and afterwards plaintiff, at Grand Rapids, Michigan, reconsigned said potatoes, and defendant, by its agent, the Chicago, Indianapolis & Louisville Railway Company, the carrier which then had said goods in its possession for delivery to plaintiff at said Louisville, as a part of the transportation aforesaid, contracted with the plaintiff for hire to safely transport said potatoes to New Orleans, Louisiana; that defendant was a common carrier for hire, operating lines of railroad and transporting goods for hire in interstate commerce, and in these dealings with the plaintiff it was acting as a common carrier in interstate commerce; that defendant, upon receiving the potatoes at Mattawan, i-ssued and delivered a bill of lading, which is set ont in the statement of claim in full. It recites the receipt of the potatoes by the defendant in apparent good order, and the agreement to carry them to Louisville, Kentucky, “for reconsignment.” It is alleged that afterwards, at the time of the reconsignment, the defendant, by its agent, the Chicago, Indianapolis & Louisville Railway Company, issued to plaintiff at Grand Rapids a bill of lading which recited that the latter company had received at Grand Rapids in apparent good order the car of potatoes and agreed to carry the same to destination, New Orleans. The bill of lading further recited that it was issued in exchange “for M. C. R. R. bill of lading, issued at Mattawan, Mich.” It was further alleged that plaintiff surrendered to the defendant’s agent, the Chicago, Indianapolis & Louisville Railway Company, the bill of lading first issued in exchange for the bill of lading secondly issued. It was alleged that under the statute it became the duty of the defendant to safely transport the potatoes from Mattawan to New Orleans in good order and condition, and that defendant failed to safely transport them, but acted negligently and without due and ordinary care for the safety of the potatoes, and that they thereby became damaged and destroyed to the extent of $313.42, and were delivered in New Orleans in this damaged condition. It was sought to recover this amount with interest. Plaintiff claimed other damages and expenses, and by its affidavit alleged the total amount of $600 to be due.

Properly read, the statement alleges that the re-consignment was made at Grand Rapids, Michigan, at the instance of the plaintiff by the Chicago, Indianapolis & Louisville Railway Company, the agent of the defendant, and while the goods were in the possession of the second carrier. Defendant’s argument is predicated upon the assumption that the reconsignmont was made at Louisville, the destination of defendant’s undertaking for carriage. From this is deduced the conclusion of a completed delivery. The argument is that defendant is liable for only such damage to the property as occurred prior to reconsignment at Louisville, and therefore, as the statement of claim does not allege that any damage occurred prior to this time, it states no cause of action against the defendant.

The cases cited in support of this are concerned with a completed contract of carriage by delivery, where it is held that after delivery a reconsignment or diversion at the instance of the plaintiff is a new contract imposing no obligations upon the original initial carrier. That is not this case. The reconsignment was made at Grand Eapids, which no one claims was the place of delivery. If the reconsignment had not taken place until after the arrival at Louisville, under circumstances which might be held to be a delivery, a more difficult question would be presented for consideration. However, we are not called upon to consider such a state of facts.

If the reconsignment had been made before the shipment reached Grand Eapids and while upon the tracks of the defendant company, there could be little, if any, doubt as to the liability of the defendant to transport it safely to New Orleans. It is the established rule in cases of this sort that the second carrier is the agent of the initial carrier. Northern Pac. Ry. Co. v. Wall, 241 U. S. 87.

Some meaning must be given to the words “for reconsignment” contained in the bill of lading issued by the defendant. Giving to them their most natural meaning, we should say that in connection with the entire contract they express the condition agreed to by the carrier, that Louisville was not fixed as the point of delivery, but that it should be such other point as might be designated by the shipper. These words are written on the bill of lading not in connection with “Louisville, Ky.,” or any other particular words, but in a line by themselves below the description of the articles shipped. Therefore, when the Chicago, Indianapolis & Louisville Railway Company, acting as the agent of the defendant company, contracted to carry the goods in compliance with the order of reconsignment to New Orleans, it was performing the condition assumed by its principal, the defendant. The contract under the reconsignment directions was in law the contract of the defendant, the initial carrier.

.We see no reason to exclude such a transaction as this from the operation of the Carmack Amendment. It is reasonable to assume that this amendment was intended to cover such a case; otherwise, as contended in argument, a frequent and common manner of contracting with carriers would be wholly without the operation of the statute. Such a result is negatived by the language of the amendment, which in part is that “no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed.”

We hold that under the Carmack Amendment the defendant was liable for any damages to the property which may be shown to have occurred during transporation from Mattawan, Michigan, to delivery at New Orleans, Louisiana; that the statement of claim sufficiently stated a good cause of action against the defendant, and that the trial court was in error in striking it from the files. The judgment of the Municipal Court will therefore be reversed and the cause remanded with directions to deny defendant’s motion to strike the statement of claim, and for further proceedings.

Reversed cmd remanded with directions.


text:
    Dalton Adding Machine Company, Appellant, v. A. A. Sherrard et al., Appellees.
    Gen. No. 23,078.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bankruptcy, § 38

       — when decree of referee in bankruptcy as to title to property purchased, from receiver is res judicata as to purchaser and agent. In an action of trover against a receiver in bankruptcy, and the purchaser of property belonging to plaintiff from the receiver, and the agent of the purchaser, a certified copy of a verified petition filed by plaintiff in the bankruptcy proceedings, the answer of the receiver and the order and decree by the referee finding ownership in plaintiff is res judicata as against the purchaser and his agent and admissible in evidence where the agent had notice that the property belonged to plaintiff, owing to the fact that the property was described in the receiver’s inventory as property alleged to belong to third parties.

      Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed October 2, 1917.
    Rehearing denied October 15, 1917.
    Statement of the Case.
    Action of trover by the Dalton Adding Machine Company, a corporation, plaintiff, against A. A. Sherrard, Central Trust Company of Illinois and Adolph Glohl & Company, a corporation, defendants, to recover an adding machine belonging to plaintiff and sold by defendant Central Trust Company, receiver and trustee in bankruptcy of' Walther & Lucas Company, to whom the machine had been loaned, to defendant A. A. Sherrard as agent for defendant Adolph G-ohl & Company. From a judgment finding defendants not guilty, plaintiff appeals.
    Thurman, Hume & Kennedy, for appellant.
    Silber, Isaacs, Silber & Woley, for appellees; Clarence J. Silber, of counsel.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Bankruptcy, § 35 — when agent purchasing property from receiver deemed to have notice of rights of third person. One who, as agent for another, purchases property from a receiver in bankruptcy, listed in the receiver’s inventory as property alleged to belong to third persons, must be deemed to have notice that the property belongs to one making claim thereto in bankruptcy proceedings.

3. Principal and agent, § 200* — when notice to agent is notice to principal. Notice to an agent of the rights of a third person in property purchased for the principal from a receiver in bankruptcy is notice to the principal.

4. Bankruptcy, § 30* — what is effect of sale "by receiver of property not owned by bankrupt. Where a bankrupt has no title to personal property, a sale by the receiver in bankruptcy does not deprive the owner of any right thereto.

5. Trover and conversion, § 3* — what constitutes joint conversion of property purchased from receiver in bankruptcy. Where a receiver in bankruptcy sells personal property belonging to another as property of the bankrupt to the agent of another person, and the principal refuses to deliver the property, on demand, there is a joint conversion, rendering the receiver, agent and principal jointly liable.


text:
    Rudolph Styblo, Plaintiff in Error, v. Plzensky Sokol (corporation), Defendant in Error.
    Gen. No. 23,083.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 50

       — when evidence insufficient to show grounds for discharge of servant. In an action by a servant employed as physical instructor for a society to recover damages for wrongful discharge during the term of his contract, where the contract provided for the creation of a technical committee, whose duty it was to have conferences with plaintiff regarding the work, and which was made an investigator and arbiter of any matters arising in connection with the work, evidence held insufficient to show any refusal of plaintiff to furnish reports to such committee, or appear before it, or adverse report by such committee, so as to warrant a discharge of plaintiff by the society.
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action by Eudolph Styblo, plaintiff, against Plzensky Sokol, a corporation, defendant, to recover damages from defendant on account of an alleged wrongful discharge from employment. Prom a judgment for defendant, plaintiff brings error.
    Abram E. Adelman and Harold 0. Hulks, for plaintiff in error.
    Joseph Z. Klenha and Edwin T. Peifer, for defendant in error.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Master and servant — when master hound hy terms of contract as to committee of supervision of work. Where a contract of employment of a physical instructor provides for the employment of a certain committee for handling and disposing of questions concerning the servant’s work, the master is bound thereby and may not require the servant to be answerable to a different committee.

3. Master and servant, § 50 — when evidence insufficient to show grounds for discharge. In an action by a servant employed as physical director of a society, held that, even though plaintiff was answerable to a special supervising committee instead of the regular committee provided by the contract, the evidence was insufficient to show a serious refusal on the part of plaintiff to appear before such committee so as to warrant his discharge.


text:
    Retta T. Kevan, Plaintiff in Error, v. National Life Insurance Company of the United States of America, Defendant in Error.
    Gen. No. 23,086.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Charles M. Foeix, Judge, presiding. Heard in this court at the Miarch term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Bill by Eetta T. Kevan, complainant, against National Life Insurance Company of the United States of America, defendant, asking that a release signed by complainant releasing defendant from liability on a policy of insurance on the life of complainant’s husband in consideration of the refund of the last premium paid, after default in payment, be canceled and defendant be required to pay the amount of the policy. From a decree dismissing the bill for want of equity, complainant brings error.

      Abstract of the Decision.
    1. Insurance, § 378

       — when evidence insufficient.to show extension of time for payment of last premium. On a bill by a beneficiary in a life insurance policy to set aside a release given by complainant releasing defendant from liability on a policy on the life of complainant’s husband, and to compel the payment of the amount of the policy, evidence held, insufficient to show an extension of time for the payment of the last premium.
    2. Release, § 8* — when release of insurance company from liability is valid. Where there is a disagreement between the beneficiary in a life insurance policy and the insurer as to whether an oral agreement was made between complainant and one of defendant’s employees for an extension of time for the payment of the last premium, a release of the company from liability executed in consideration of the repayment of a previous premium is valid, in the absence of fraud or misrepresentation.
    3. Equity, § 345* — when findings of fact in decree are unnecessary. Findings of fact in a decree dismissing a bill for want of equity are unessential and superfluous, since a decree for the defendant needs no evidence to support it and it is supported by the absence or insufficiency of evidence.
    4. Appeal and error, § 1175* — what is not subject of review on appeal from decree dismissing bill for want of equity. Argument and remarks of counsel are not proper subjects for review on appeal from a decree dismissing a bill for want of equity, as the only question for review is the propriety of the order dismissing the bill, considered upon the evidence presented and the rules of- law applicable thereto.
    Worth Allen, for plaintiff in error.
    L. A. Stebbins, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Hyman Winograd, Defendant in Error, v. Maurice Olson, Plaintiff in Error.
    Gen. No. 23,091.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 67

       — when lease not construed as meaning that premises demised should be used as garage. A lease providing that premises are to be used only as a store, to handle and sell automobile accessories and as a showroom for new automobiles, but no repairs of any kind will be allowed on the premises, cannot be construed as meaning that the premises demised should be used as a garage.
    2. Contracts, § 173* — when construction rendering contract valid and enforceable adopted. Where a contract is capable of opposite constructions, one of which would render it valid and enforceable and the other illegal and void, the former construction should be adopted.
    Error to the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action by Hyman Winograd, plaintiff, against Maurice Olson, defendant, to recover for rent due under a lease. From a judgment for plaintiff for $114, defendant brings error.
    William A. Jennings, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    J. J. Heffernan for use of Rittenhouse & Embree Company, Appellee, v. Breen & Kennedy, Appellant.
    Gen. No. 23,101.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Garnishment, § 100

       — when evidence sufficient to establish judgment. In an action of garnishment, the judgment on which the garnishment proceedings are based is established where an execution evidencing a return by the bailiff “no part paid and no part satisfied” is introduced in evidence, and. existence of the judgment is admitted by an officer of the defendant.
    2. Garnishment, § 26* — what debts should be disclosed in answer of garnishee. Under section 5 of the statute on garnishment (J. & A. If 5940), relating to disclosure of debts by the garnishee in answer to interrogatories, a debt owing and due at the date of service, and a debt owing at the date of service which becomes due thereafter, and a debt owing and due at any time after the service of the writ, up to the date of the answer, are included.

      Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action of garnishment by J. J. Heffernan for the nse of Rittenhouse & Embree Company, a corporation, plaintiff, against Breen & Kennedy, a corporation, defendant. From a judgment for plaintiff for $383.52, defendant appeals.
    John J. Kelly, for appellant; Frank Hall Stephens, of counsel.
    Adams, Crews, Bobb & Westcott, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Gabnishment, § 63 — what is duty of garnishee as to holding funds. It is the duty of the garnishee, pending the outcome of garnishment proceedings, to hold the difference between funds in its hands and an overdraft of the debtor.


text:
    Daisy G. Rose, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,265.
    (Not to be reported in full.)
    Appeal from .the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 2, 1917.
    Rehearing denied October 15, 1917.
    Statement of the Case.
    Action by Daisy G. Bose, plaintiff, against the Chicago City Bailway Company, defendant, for damages for injuries claimed to have been sustained by plaintiff while a passenger on one of defendant’s street cars. From a judgment for plaintiff for $3,500, defendant appeals.
    Busby, Weber & Miller, Franklin B. Hussey and Arthur J. Donovan, for appellant; John B. Guilliams, of counsel.
    James 0. McShane, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 476 — when evidence shows negligence in failing to allow passenger and child reasonably sufficient time to alight from car. In an action by a passenger against a street railroad company to recover damages for personal injuries alleged to have been sustained while alighting from one of defendant’s cars, evidence held sufficient to establish negligence on the part of defendant in failing to permit the car to stand a reasonably sufficient time to allow plaintiff and her child to alight therefrom.

2. Damages, § 188* — when evidence shows injury to breast of passenger previous to injury in street car accident. In an action against a street railroad company for damages for personal injuries, including injury to plaintiff’s breast, due to the car jerking before plaintiff’s daughter had alighted from the car and throwing the child against plaintiff, evidence held sufficient to show an injury to plaintiff’s breast nearly two years before the accident.

3. Evidence, § 454* — when opinions of physicians as to possibility of infection of breast of woman by germ are of no force. The opinions of expert medical witnesses as to the character of the infection of the breast of a woman who was injured in a street car accident, as the result of her child being thrown against her while in the act of alighting from a car, and as to the possibility of infection either with or without any blow, are neutralized in effect where their opinions as to the causal connection are predicated upon the absence of any prior injury.

4. Evidence, § 423* — when medical expert testimony essential. The opinions of medical experts are essential in a personal injury action for the guidance of a jury as to infections, their causes and progress, as such matters left to the guesses of the uninformed would make possible damages based solely on speculation and not upon evidence.

5. Appeal and error, § 1803* — when judgment reversed and cause remanded for new trial. Where important evidence has been omitted in the trial of a personal injury action, the Appellate Court, in view of the fact that it cannot call and examine witnesses to supply such omission, will reverse a judgment and remand the cause for another trial.


text:
    Nettie M. Voelker, Appellant, v. Edwin Voelker, Appellee.
    Gen. No. 23,277.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment — when question of estoppel on ground of former adjudication is waived. The question of estoppel, by a divorce decree providing for conveyance of certain real estate from the husband to the wife, to have title to personal property determined in a subsequent replevin suit by the wife against the husband is waived by defendant’s failure to present it in apt time, where defendant was represented by counsel at the time plaintiff made application to the chancellor during the divorce suit for an order allowing her to replevy such personal property, and when the order was entered concerning it, and raised no such question of estoppel on ground of a former adjudication.

      Appeal from the Municipal Court of Chicago; the Hon. John ■ Stelk, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action in replevin by Nettie M. Voelker, plaintiff, against her former husband, Edwin Voelker, defendant, for the possession of certain household goods, wearing apparel, and the like, of the alleged value of $550. From a judgment finding the right of property in the defendant and awarding to him the return of the goods taken under the writ, plaintiff appeals.
    Arthur W. Kettles and Philip L. Sullivan, for appellant.
    Clark & Clark, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

„2. Judgment, § 502 — what estoppel by limited to. Estoppel by judgment is limited to questions involved in the issue and not to incidental matter.

3. Judgment, § 502* — when decree of divorce providing for property rights in real- estate does not estop party seeking recovery of personal property. A decree in a divorce suit providing for the conveyance of certain real dstate from the husband to the wife does not create an estoppel by judgment as to personal property, which was not involved in and was not essential to the conclusion reached in the divorce suit, in an action by the wife to replevy such personal property.

4. Judgment, § 688* — who has burden of proving former adjudication. Where a plea of former adjudication is relied upon, the burden of proving such plea is upon the defendant, and it must be shown what was determined by' the former judgment, and such proof must be clear, certain and convincing.

5. Judgment, § 444* — when in former proceeding creates an estoppel. A judgment in a former proceeding is an estoppel only where it appears from the face of the record, or by extrinsic evidence, that the precise matter in controversy in the suit at bar was raised and determined in the proceeding which is urged as an estoppel.


text:
    Fred C. Ramp, Appellee, v. W. P. Rooney Company, Appellant.
    Gen. No. 23,311.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 29

       — when presumed that rule in effect permitting agent of plaintiff to swear to affidavit of claim. In an action in the Municipal Court of Chicago, where nothing to the contrary appears in the record, it will be presumed on appeal that there had been adopted and was in force at the time of the execution of an affidavit of claim by an agent of plaintiff a rule of the Municipal Court permitting such agent to swear to such affidavit.
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 2, 1917.
    Statement of the Case.
    Action on an account stated by Fred C. Ramp, plaintiff, against the W. P. Rooney Company, a corporation, defendant, in which judgment by default in favor of plaintiff for $251.50 was. entered. The judgment was on motion of defendant vacated and plaintiff was ordered to file a more specific statement of claim. This done, defendant sought to have the amended statement stricken for the reason that the affidavit of claim was signed not by plaintiff, but by his alleged agent. From, a judgment in favor of plaintiff, upon denial of such motion, defendant appeals.
    . Louis W. McIntyre, for appellant.
    No appearance for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    Henry McAlevy, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 22,572.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Civil service, § 27

      - — When police patrolman guilty of laches in seeking reinstatement. A police patrolman is guilty of laches in seeking to be reinstated as patrolman on the police force of a city where he files the original petition more than fifteen months after his name has been dropped from the pay roll and his services dispensed with, and a demurrer is filed three days later, and nothing more is done until about twenty-seven months later, when an order setting aside a previous order of dismissal and reinstating the cause is made, and an amended petition is filed one month later.

      Appeal from the Superior Court of Cook county; the Hon. William Fekjmobe Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed.
    Opinion filed October 9, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Petition of mandamus by Henry McAIevy, petitioner, against the City of Chicago, William H. Thompson, mayor, Charles C. Healy, general superintendent of police, Percy B. Coffin, Charles E. Frazier and Joseph P. Geary, civil service commissioners, respondents, for reinstatement as patrolman on the police force of the City of Chicago. From a judgment commanding respondents to place petitioner’s name on the civil service list of the city and the pay roll of its police patrolmen, respondents appeal.
    Samuel A. Ettelson, for appellants; Boy S. Gas-kill, of counsel.
    A. B. Chilcoat and Egbert D. Melick, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Municipal cokpobations, § 13 — what was effect of organization of City of Chicago under Cities and Tillages Act as to continuance of position of police patrolman as city office. The organization of the City of Chicago under the Cities and Villages Act (J. & A. If 1271 et seq.), affected an abolition of all city offices not thereby-continued or created, and a repeal of all provisions in previous acts inconsistent therewith, and such previous acts were inconsistent with the provisions of the Cities and Villages Act as to continuance of the position of police patrolman as a city office.

3. Mandamus, § 139* — when petition of mandamus for reinstatement of police patrolman shows no legal right to position as public office. A petition for reinstatement of patrolman on the police force of the City of Chicago which does not show that the steps required by the Cities and Villages Act necessary to the creation of any other office than those created by the act have been taken to establish the position of police patrolman as a city office as designated in said act, shows no legal right of petitioner to the position as a public or city office.

4. Mandamus, § 139* — when petition of mandamus for reinstatement of patrolman on police force does not show appointment. A petition of mandamus for reinstatement of a patrolman on the police force of the City of Chicago which sets forth the adoption of the Civil Service Act (J. & A. If 1799 et seq.) by the city, the classification by the Commission of places of employment thereunder including “persons in the uniformed police force,” and the qualifications of petitioner for the position of police patrolman, and avers that he took the civil service examination and “passed as being duly qualified for the office of police patrolman” in the year 1902, and on January 21, 1903 “was appointed” to said office by the then superintendent of police, and took the prescribed oath, entered upon the duties of such office and has never been legally removed, is insufficient to show that petitioner was ever legally appointed as police patrolman classified as such under such act, such averment as to appointment being the mere conclusion of the pleading.

5. Mandamus, § 126* — how petition for mandamus for reinstatement of patrolman construed. A petition for mandamus for reinstatement of a patrolman on the police force of a city under the Civil Service Act must be taken most strongly against the pleader.

6. Mandamus, § 139* — what are essentials of petition for mandamus for reinstatement of police patrolman. A petition for mandamus for reinstatement of a patrolman on the police force of the City of Chicago must show that the petitioner was an officer de jure and not merely a de facto policeman.


text:
    B. Brown, Appellant, v. Julian S. Jackson and Norton Starr, copartners, trading as David Burr & Company, Appellees.
    Gen. No. 22,666.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 11

       — when only nominal damages recoverable for breach of contract. Where there is a breach of contract to deliver merchandise, in the absence of proper proof of damages, only nominal damages are recoverable. '
    2. New trial, § 59* — when not granted. A new trial will not be granted merely to enable a party to recover nominal damages.
    3. Sales, § 373* — when evidence insufficient to show contract. In an action to recover for breach of an alleged contract for the delivery of caustic soda, evidence consisting of telegrams and letters passing between the parties held insufficient to establish a contract.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by B. Brown, plaintiff, against Julian S. Jackson and Norton Starr, copartners, trading as David Burr & Company, defendants, to recover damages for failure to' deliver, under three • alleged contracts, six carloads of caustic soda. From a judgment for defendants, plaintiff appeals.
    Franklin N. Wood and William; Gr. Lesemann, for appellant.
    Culver, Andrews, King & Stitt, for appellees.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

4. Sales, § 18 — when seller not required to keep offer open. Where the seller of merchandise quotes a price for a certain amount for future delivery, subject to being unsold, and wires the purchaser to send initial payment immediately if he wants deal closed and to wire answer, and the purchaser wires that the terms are satisfactory and that he will send the check on a certain day, the seller is not required to keep the offer open if he does not receive initial payment when promised.

5. Sales, § 18* — when contract not completed By acceptance. Where an offer of goods is made on the condition that they are unsold and the lot offered is sold before receipt of acceptance of the offer, there is no completed contract.

6. Sales, § 18* — what does not constitute unequivocal acceptance of offer. Where a purchaser, in reply to an offer sent by wire, replies that he will take the merchandise offered at the seller’s prices outside of a previous purchase, and asks the seller to wire him, thus making the acceptance conditional on the seller’s yielding to and confirming the purchaser’s claim that a prior offer resulted in a contract, and calling for a reply, is not an unequivocal acceptance of the offer.

7. Sales, § 18* — when offer may Be withdrawn. Where an offer for the sale of goods is made by the seller and the purchaser makes a conditional acceptance, the seller not having received an unequivocal acceptance may withdraw his offer.

8. Payment, § 5* — when evidence insufficient to show acceptance of part payment by retention of check. Where a purchaser of goods pursuant to an alleged compliance with the offer by the seller sends a check as initial payment to close a deal, but before its receipt the seller has withdrawn the offer because payment was not made in compliance therewith, and makes two later offers as a substitute for the first in an effort to help out the purchaser and retains the check for use only in case the then pending negotiations ripen into a contract, and upon the alleged failure thereof returns the check, there is no acceptance of a partial payment to close the first deal.


text:
    Louis Arrigoni, Appellee, v. C. Strassheim, Sheriff, and George J. Cooke Company, Appellants.
    Gen. No. 22,793.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Tbial, § 216

       — what evidence determines rights of defendant under motion for directed verdict. "Where the defendants at the close of the plaintiff’s evidence move for directed verdict, the evidence at such time must be considered in determining the defendants’ rights under the motion.
    2. Execution, § 312* — when presumed that execution creditor directed officer to levy in accordance with process. In an action against a sheriff and an execution creditor to recover for alleged wrongful levy of execution, or abuse of process, by the sheriff, held
      that it would be presumed, in the absence of evidence tending to show participation by the execution creditor in the claimed trespass or knowing approval and ratification of the act, that it merely directed the officer to levy on property of the judgment debtor in accordance with the process.

      Appeal from the Superior Court of Cook county; the Hon. Harry C. Moban, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by Louis Arrigoni, plaintiff, against C. Strassheim, sheriff of Cook county, and George J. Cooke Company, a corporation, defendants, to recover damages for the alleged wrongful levy of execution, or abuse of process, by such sheriff. From a joint judgment for '$500 against the sheriff, Strassheim, and the execution creditor, George J. Cooke Company, such defendants appeal.
    John C. Slade, for appellants.
    Saunders, Ramsey & Thompson, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Execution, § 312* — when execution creditor responsible for trespass by sheriff making wrongful levy of execution. To render an execution creditor responsible for a sheriff’s alleged trespass in making a wrongful levy of execution, it is necessary to prove that the execution creditor through some authorized agent advised, directed or encouraged the abuse of the process complained of, of, knowing of its abuse and for its own benefit, ratified it, and this must be proved by legitimate evidence.

4. Execution, § 309* — what essential to show ratification by creditor of abuse of process. The receipt by attorneys for an execution creditor of money paid, which is obtained under a wrongful execution levied by a sheriff, does not constitute ratification by the execution creditor as principal, unless it is shown that such execution creditor had knowledge of the material facts and circumstances of the tort of which the proceeds were the fruits.

5. Appeal and bbbob, § 1793* — when joint judgment erroneous as to both defendants. Where a joint judgment in an action against a sheriff and an execution creditor for damages for abuse of process in wrongful levying of an execution is erroneous as to the execution creditor, it is likewise erroneous as to the other defendant, and must .be reversed.


text:
    John C. Patterson, Appellant, v. Northern Trust Company et al., Appellees.
    Gen. No. 22,798.
    1. Judgment, § 443

       — when bill for accounting does not ask for relief other than that subject of adjudication in judgment and decrees in previous litigation. A bill by a beneficiary against a trustee asking for an accounting and charging other defendants, including solicitors for the trustee, in vague terms with fraud and conspiracy, construed, and held that the main design and purpose of complainant, under the guise of charges of fraud and conspiracy, was to attack a previous decree of the court and reopen matters definitely adjudicated in previous decisions to which complainant and principal defendants were parties.
    2. Equity — when court may dismiss frivolous or vexatious hill on motion. Where a bill by a beneficiary against a trustee for an accounting, and against other defendants, including solicitors for the trustee, charges such other defendants in vague terms with fraud and conspiracy for the purpose of attacking a previous decree and reopening many matters, including the right to an accounting which had been definitely adjudicated in numerous prior decisions to which complainant and defendants were parties, the court, in the exercise of its inherent power to protect itself and the principal defendants against a multiplicity of actions and harassing and vexatious litigation, may dismiss the bill on motion.
    3. Costs, § 5

       — what may he allowed and taxed as costs. Only items of costs designated by the statute can be allowed and taxed as costs by the court, with exception that a trustee seeking construction of an ambiguous will may be allowed costs, including solicitor’s fees, payable out of the estate.
    4. Trusts, § 201* — when trustee not entitled to solicitor’s fees. In a suit for an accounting, although the suit is a vexatious proceeding, designed to attack a previous decree and to reopen matters adjudicated in prior decisions in which the complainant and the trustee and other defendants were parties, the trustee, although acting in good faith, will not be entitled to solicitor’s fees.
    Appeal from the Superior Court of Cook county; the Hon. Demis E. Sum.ivam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 9, 1917.
    Rehearing denied October 20, 1917.
    John C. Patterson, pro se.

    Oliver & Mecartney and John S. Brown, for appellees.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from a decree dismissing a bill of complaint at complainant’s costs on motion of certain defendants.

The decree finds “that the said bill of complaint and the matters therein contained and set forth are insufficient, scandalous, impertinent, irrelevant, frivolous and vexatious, and a clear and palpable abuse of the process and offices of this court,” and “have heretofore been finally adjudicated by the final decrees of the courts of this State,” and that said bill was filed in violation of an injunction of the court.

The motions to dismiss were supported by an affidavit which sets forth previous litigations affecting and adjudicating substantially all material matters constituting the basis of this proceeding. The cases in which they were involved may be found in vols. 132, pp. 63 and 208; 139 p. 681; 170 p. 501; 184 p. 549; of the reports of this court, and in vols. 230 p. 334; 231 p. 22; 238 p. 601; and 265 p. 263 of the Supreme Court reports.

It would extend this opinion to unreasonable length and dignify what the court properly characterized as “frivolous and vexatious” and as an abuse of its process were we to reiterate here and discuss the numerous allegations in the bill justifying such findings. To do so would require not only quoting much of a long and more or less incoherent and unintelligible pleading that bears little resemblance in form or substance, outside of its character as a bill for an accounting, to any known bill for equitable relief, but a repetition of the matters forming the basis of the decisions reported as aforesaid. We shall not undertake such a review.

The prayer of the bill asks for an accounting by the Northern Trust Company, as trustee by virtue of a certain deed of trust under which complainant is one of the beneficiaries, but no specific relief against other defendants (most of whom were solicitors for said company or the Shedds in prior litigation with complainant) whom the bill charges in vague terms with fraud and conspiracy. •

But the design of the bill is manifestly an attack, under an improper form and with insufficient allegations more or less, scandalous and impertinent, upon a decree entered pursuant to the directions of this court in Johnson v. Northern Trust Co., 184 Ill. App. 549, affirmed in 265 Ill. 263. Comparing its averments with the subject-matter, judgments and decrees of previous litigation described in said affidavit, it is clearly apparent that under the guise of such charges of fraud and conspiracy the main design and purpose of complainant is to attack the decree directed by this court as aforesaid and reopen many matters, including the right to an accounting, that have been definitely adjudicated in this long line of decisions to which he and the principal defendants were parties. This is so obvious, when the bill is read in the light of saiA, affidavit, that the court was justified in exercising its inherent power to protect itself and the principal defendants against a multiplicity of actions and harassing and vexatious litigation, by dismissing the bill on motion. (Stewart v. Butler, 27 N. Y. Misc. 708, 59 N. Y. Supp. 573; 20 Encyc. Pl. & Pr. pp. 44, 51, 61, 70, 74; Edmonds v. Attorney General, 47 L. J. Ch. (1878) 345; Barrett v. Day, L. R. 43 Ch. 449; Burstall v. Beyfus, L. R. 26 Ch. 38; Macdougall v. Knight, L. R. 25 Q. B. Div. 10 (1890); Metropolitan Bank v. Pooley, 54 L. J. H. of L. 449.) In the cases cited is found ample authority for the doctrine that every court of justice possesses the inherent power to protect itself from the abuse of its own process, and may resort to the summary remedy of dismissing a cause of action that is frivolous or vexatious.

There is no serious attempt in appellant's brief to defend the bill against the court’s findings. We shall, therefore, not undertake to point out in detail the many particulars justifying its dismissal.

What was said in the Edmonds case, supra, is pertinent to the case at bar: “Where you find a litigant like Mr. Edmonds, who will have recourse to such a series of vexatious and improper litigation as he has had recourse to,- and when a decision has been given against him, will persist in treating it as a mére nullity, * * * when such a litigant is found, I think it a most wholesome doctrine that any court should have the power of shopping such litigation.”

Cross errors are assigned both by the Northern Trust Company and appellee Edward A. Shedd to the denial of their respective motions to tax solicitor’s fees against the complainant.

The denial of these motions was based on the decisions of Metropolitan Life Ins. Co. v. Kinsley, 269 Ill. 529; Goudy v. Mayberry, 272 Ill. 54, and the cases cited therein, particularly Wilson v. Clayburgh, 215 Ill. 506, wherein the court said: “It has been repeatedly held in this State that nothing can be allowed and taxed as costs by the clerk or the court but items of’ cost designated by the statute to be so allowed and taxed.” In the Kinsley case, supra, the court recognized that a different rule prevailed in certain other jurisdictions but added that the law of this state on the subject “had been so long and firmly established * * * that it ought not now to be changed by the courts without statutory authority.”

It is urged by counsel for the trustee that these cases did not involve the right of a trustee to solicitor’s fees, and they cite cases recognizing the principle of indemnifying trustees for necessary expenses incurred, including solicitor’s fees, from the estate of a cestui que trust, where they have faithfully executed their trust. In this connection and as authority for distinguishing cases involving trustees from those - of other litigants, reference is made to the case of Waterman v. Alden, 144 Ill. 90, a case of an accounting where the expenses of litigation were apportioned between a trustee and other parties to the decree and included fees for the trustee’s solicitor. The opinion in that case discusses more particularly the equity of the apportionment than the principle here involved, and cannot in view of the explicit language of the court in the more recent cases above cited be deemed controlling authority upon this subject. In the Wilson case, supra, the court recognized but one exception to the rule in this State, namely, where a trustee seeks construction of an ambiguous will. While there is much reason in the contention that the principle of the exception is equally applicable to other cases involving a trust fund where a trustee acting in good faith is a party, particularly where a vexatious proceeding like that at bar is instituted against him by a cestui que trust, we think the language of the decisions cited precludes this court from extending the principle or recognizing any other basis than the statutes for tax"ation of costs (with the exception noted) whoever the parties or whatever the character of the proceeding. The decree will be affirmed.

Affirmed.


text:
    John C. Patterson, Appellant, v. Northern Trust Company et al., Appellees.
    Gen. No. 22,797.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 9, 1917.
    Rehearing denied October 20, 1917.
    Statement of the Case.
    Bill for an accounting by John C. Patterson, complainant, against the Northern Trust Company and others, defendants. From an order holding complainant guilty of contempt of an order and injunction decree entered in the cause, enjoining him from commencing' any other suits, actions or proceedings at law or in equity against the Northern Trust Company in any other court or courts, based upon and relating to the matters and things in the bill charged, and from in any manner harassing and annoying the Northern Trust Company by the commencement or institution of any other suits, actions or proceedings against it in relation to the same subject-matter, complainant appeals. For the prior decision, which is the basis for the order of contempt, see Patterson v. Northern Trust Co., Gen. No. 22,798, ante, p. 355.
    John C. Patterson, pro se.

    Judah, Willard, Wolf & Reichmann, for appellee Northern Trust Company, as trustee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Contempt, § 37 — when order of for violation of injunction is proper. Where a party complainant to a suit for an accounting violates an injunction against commencing any other suit or action in any court based upon matters charged and set forth'in the bill for an injunction, an order holding the complainant in contempt of court is proper.


text:
    Ezra L. Kern, Appellee, v. Estelle Foster, Appellant.
    Gen. No. 22,892.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by Ezra L. Kern, plaintiff, against Estelle Foster, defendant, for dental services, and claim of set-off by defendant for damages resulting from unskilful workmanship.' A judgment for $200 was entered on a verdict for that amount in defendant’s favor, and on plaintiff’s motion the judgment was vacated and the cause reinstated. On the trial a judgment was rendered against defendant for $17.50, from which she appeals.
    John B. Synnestvedt, for appellant; George H. Sugrue, of counsel.
    Lucius J. M. Malmin, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 19 — when motion to vacate judgment is too late. A motion to vacate a judgment after the lapse of thirty days from the entry of the judgment is too late under section 21 of the Municipal Court Act (J. & A. U 3333).

2. Municipal Court of Chicago, § 19* — when judgment deemed valid until regularly vacated. Where the Municipal Court of Chicago has jurisdiction of the parties and the subject-matter, a judgment rendered by it must be deemed valid until regularly vacated, either under the practice prescribed in section 21 of the Municipal Court Act (J. & A. H 3333), or unless reversed on a writ of error.


text:
    Barr & Collins, Appellee, v. Thomas Mack, Appellant.
    Gen. No. 22,899.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action in assumpsit by Barr & Collins, a corporation, plaintiff, against Thomas Mack, defendant, claiming an indebtedness from defendant for mill work and building material. Defendant filed a plea of general issue and a set-off. From a judgment for plaintiff for $272.10, the precise amount of the difference between the total debit and credit items as shown by its ledger, defendant appeals.
    Gurdon Williams and Thomas Mack, for appellant.
    Balcomb, Lane & McGrath, for appellee.

      Abstract of the Decision.
    1. Evidence, § 110

       — what constitutes best evidence of stated account. Where the seller of goods seeks to prove an alleged stated account, the original bills or their duplicates actually sent to and received by the purchaser constitute the best evidence of such account.
    2. Evidence, § 138* — what is basis for introduction of secondary evidence of stated account. Where it is sought to prove a stated account for goods sold, secondary evidence of the original bills or their duplicates is not admissible where there is no attempt to produce or account for them.
    3. Evidence, § 143* — when ledger entries not admissible oh failure to produce checks. Where, in an action by the seller of goods on a stated account, notice is given to the defendant to produce checks which were entered in the cash book of plaintiff as cash and credited to defendant, the failure to produce them does not warrant reading or computing the amount of credits as copied into the ledger from apparent sources of original entry in plaintiff’s possession.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Joseph H. Macauley, Appellee, v. James H. Burdette et al., Appellants.
    Gen. No. 22,902.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Civil service, § 10

       — what capacity commission acts in. The State Civil Service Commission acts as an inferior tribunal.
    Appeal from the Circuit Court of Cook county; the Hon. Oscab M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Certiorari by the People of the State of Illinois on the relation of Joseph H. Macauley, petitioner, against James H. Burdette and others, constituting the State Civil Service Commission, respondents, to review the action of respondents in ordering relator’s discharge from service as a clerk in the State grain inspection office on the charge “that in violation of Buie No. 4, Section No. 10, of the State Civil Service Commission, he was seeking the office of assessor in the Town of Berwyn, in the County of Cook, State of Illinois, at the election to be held April 7,1914. ’ ’ From the quashing of the record of respondents’ proceedings shown by their return to the writ, respondents appeal.
    John J. Poulton, for appellants.
    Gideon S. Thompson, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Civil service, § 16 — what presumption does not arise as to jurisdiction of commission. The jurisdiction of the State Civil Service Commission will not be presumed, but it must appear on the record.

3. Civil service, $ 26* — how jurisdiction of commission should he shown. The jurisdiction of the Civil Service Commission should be shown in the return to a writ of certiorari to review its action in ordering the discharge of a clerk in the State grain inspection office, on the ground that he was seeking an office in violation of a rule of the commission.

4. Civil service, § 26* — when return of commission to writ of certiorari is insufficient to show jurisdiction. A return of the State Civil Service Commission to a writ of certiorari sued out to review the commission’s action in ordering the discharge from service of a-clerk in the State grain inspection office, which merely recites the filing of a charge “that in violation of Rule No. 4, Section No. 10, of the State Civil Service Commission, he is seeking the office of assessor in the Town of Berwyn, in the County of Cook, State of Illinois, at the election to be held April 7, 1914,” without setting forth such rule, or what it prescribes, and also recites the serving of relator with notice of the hearing, the holding of the same, the commission’s finding that the charge was proved, its order for petitioner’s discharge, and its certification to the appointing officer with directions to enforce the order, is insufficient to show jurisdiction of the subject-matter of the commission’s proceedings, and the quashing of the record of such proceedings is warranted.