text:
    Alonzo J. Cutler, Appellant, v. Charles W. Pardridge, Appellee.
    Gen. No. 17,375.
    1. Evidence, § 46

      —when burden of proof is on defendant. A defendant relying upon affirmative defenses has the burden of proving them.
    2. Instructions, § 18*—when an instruction is misleading. An instruction requiring the plaintiff to establish “his case” by a preponderance of evidence is misleading when there is no controversy as to the plaintiff's case, but only as to the defenses thereto.
    3. Gaming, § 13*—when contracts are invalid. In an action to recover commissions and money lost on certain board of trade transactions, an instruction that plaintiff could not recover if he knew “or by the exercise of ordinary prudence and care ought to have known” that the defendant simply intended to wager upon the future prices of commodities and to settle all such contracts by the payment or receipt of differences in market prices is erroneous, since such contracts are not invalid unless neither party has the intention of delivering the property, and such question of intention is to be determined from all the evidence, the nature of the transaction and the method of carrying on business.
    4. Brokers, § 1*—what constitutes. The term “broker” applies as well to a broker on the Board of Trade as to one on the Stock Exchange.

      5. Brokers, § 4

      —when broker must be licensed. If the construction given to a city ordinance licensing brokers by those intrusted with its enforcement is entitled to consideration, it would have no weight when the language of such ordinance is free from doubt, as where it defines a “produce and grain broker” as one “who, for a commission or other compensation, is engaged in selling or negotiating the sale of * * * produce or grain belonging to others.”
    6. Brokers, § 28*—when compensation and advances are recoverable. While an unlicensed broker cannot recover commissions for his services he may recover for advances made in negotiating contracts for a customer, when such contracts are not prohibited or against public policy.
    7. Gaming, § 10*—what not proof of agreement to settle on difference. Proof of settlement of Board of Trade transactions between brokers thereon under its rules for “set-off,” and “ringing off” is not evidence of an agreement between broker and customer to settle by payment of difference such as prohibited by statute.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 14, 1913.
    Rehearing denied October 29, 1913.
    Henry S. Robbins, for appellant; Martin H. Foss, of counsel.
    Bradley, Harper & Eheim, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number»

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

This case comes here on appeal for the third time. Opinions rendered on prior appeals appear in 68 Ill. App. 569, reversed in 168 Ill. 504; and 104 Ill. App. 89. On each of the other occasions the judgment was in favor of" plaintiff; this time it is against him. The suit, based on the common counts, was to recover commissions and money paid out for losses on certain transactions made by appellant for appellee on the Board of Trade of the city of Chicago.

Appellee relied on three defenses: (1) that they were gambling transaction's; (2) that the contracts were wrongfully closed out in violation of a contract for credit; (3) that appellant could not recover his advances or commissions because he had not taken out a broker’s license under an ordinance of the city of Chicago. This last defense was not made in the former trials.

Appellant procured no license under the ordinance pleaded which made it unlawful for any person to exercise the business of broker, including that of produce or grain broker, without having first procured a license for such purpose, and imposed a penalty for its violation. One plea set up the ordinance as a bar to the entire suit, and another to the recovery of commissions. A demurrer to the first was sustained, the court thereby holding it was not a bar to the recovery of advances, and that to the second was overruled. Cross-errors are assigned to the first ruling mentioned, to which we will refer later.

There was a flat contradiction in the testimony relating to the first two defenses. The facts were sharply controverted. The testimony on the issues raised by them unquestionably presented a ease for the jury. On substantially the same character of testimony it was so held on the former appeals. It was important, therefore, that the jury should have been accurately instructed with respect thereto.

Plaintiff’s case consisted of proof of the individual transactions engaged in at defendant’s request. Defendant did not deny that they took place, or that the plaintiff was his authorized agent. He relied upon affirmative defenses, and the burden of proving them unquestionably rested upon him. Pelouze v. Slaughter, 241 Ill. 215; Richelieu Hotel Co. v. Military Encampment Co., 140 Ill. 248; Cothran v. Ellis, 125 Ill. 496; Clews v. Jamieson, 182 U. S. 461. The case, therefore, as tried and submitted to the jury, presented no contention as to plaintiff’s case, whether the transactions he relied on took place and were authorized, but simply whether defendant had established his affirmative defenses, or either of them, that such transactions were invalid and closed out in violation of a contract for credit.

On the question of burden- of proof, the Court gave the following instruction: “The plaintiff is required by law to establish Ms case by a preponderance of the evidence before he can recover. If the plaintiff in this suit has not established Ms case by such preponderance ; or if the evidence in support of Ms case is evenly balanced so that the jury are in doubt and unable to see on which side is the preponderance; or if the preponderance of the evidence is in favor of the defendant ; then in either of these cases the jury should find the issues for the defendant.”

What the jury understood by “his case,” in view of the fact that there was no controversy as to plaintiff’s case, but only upon the defenses thereto, it would be difficult to say. We think it was misleading. The jury were presumably not acquainted with the distinction between plaintiff’s case, which as submitted to them was not controverted, and hence called for no special direction of the jury as to the burden of proof with respect thereto, and the case which, as tried and submitted to them, involved only such controversies as were raised by affirmative defenses. They might, and probably did, think that before plaintiff could recover he was bound by law to establish the negative of such-defenses. The case of Rich v. Naffziger, 248 Ill. 455, is in point. There plaintiff brought an action guare clausum fregit and proved a record title to the close or premises in question. Defendant set up an affirmative defense,—adverse possession of the premises for a period of twenty years. Plaintiff’s record title was proved and not questioned, but at defendant’s request the court instructed the jury that the burden was upon plaintiff to prove the allegation that he was the owner of such close by the greater weight of the evidence, and that if the evidence was equally balanced or preponderated in favor of defendant, then upon that question their verdict should be for defendant. The instruction was held erroneous because the jury would understand therefrom that it required plaintiff to prove by a preponderance of the evidence, in order to establish his ownership and title, that defendant and his predecessor in title had not had adverse possession of the premises for the period of twenty years. And here the jury would understand from the instruction in question that in order to establish plaintiff’s claim, namely, for money paid out on transactions for defendant at his request, he would be required to prove by a preponderance of evidence that they were not gambling transactions, and that no such contract for credit as claimed by defendant had been entered into or violated; in other words, that he was required to disprove defendant’s claim. This, as stated in the Rich case, supra, he was not required to do. In view of the closeness of the evidence upon the issues, we are not satisfied that the jury were not misled to the prejudice of appellant by such instruction, and that there should be a new trial on that ground if for no other.

In view of this ruling we deem it necessary to refer to such instructions only as raise questions likely to be presented again on another trial. In number fourteen the jury were told that “if plaintiff knew, or by the exercise of ordinary prudence and care ought to have known * * * that the defendant * * * intended simply to speculate or wager upon the future prices of such commodities and to settle all such contracts by the payment or receipt of differences in market prices,” he could not recover.

In order to invalidate such contracts it was held in Jamieson v. Wallace, 167 Ill. 388, that it must appear that neither party has the intention to deliver the property, and that both parties have the intention of settling the differences only. To the same effect are Bartlett v. Slusher, 215 Ill. 348; Pratt & Co. v. Ash- more, 224 Ill. 587; First Nat. Bank of El Paso v. Miller, 235 Ill. 135; Pelouze v. Slaughter, supra; Clews v. Jamieson, supra.

In these cases, and others that might be cited, it was held that the question of intention was to be determined by a consideration of all the evidence and may be determined from the nature of the transaction and from the manner and method of carrying on the business.

It appears in the record that settlements on the Board of Trade are frequently made by “set-off” and by “ringing off,” and it was held in Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U. S. 236, where such methods were reviewed that they had all the “effects of delivery,” and agáin in Cleage v. Laidley, 79 C. C. A. 284, 149 Fed. 346, that contracts for future delivery made with the intention of settling them by “set-off” or by “ringing off” and by the payment of differences in accordance with the rules and practice of the Board of Trade, were valid transactions. In other words, such forms of settlement are not of themselves evidence of an agreement to settle such transactions by a payment of differences, such as is prohibited by our statute. It was important, therefore, that the jury, which was to determine from a consideration of the entire evidence whether plaintiff participated in the intention of defendant to settle by the payment of differences only, should have had a correct guide in the determination of that matter. It was not necessary to prove that plaintiff had actual knowledge of defendant’s intent; it was sufficient if it might be inferred from the character and nature of the transactions, or if the facts and attendant circumstances were sufficient to put plaintiff on notice of defendant’s intention. But, when the jury were told that in determining that question they might go beyond consideration of such matters in evidence and decide what a man of ordinary prudence ought to know, we think they were invited too near the line of speculation for safe guidance. At best, what would be ordinary prudence in the conduct of a business like appellant’s, involving hundreds of transactions with numerous customers, and all conducted under practically the same forms, whether it be the intention of the customer to gamble or not, and what he ought to know of the intention of each in each particular transaction, neither one unfamiliar with the business nor the average jury would be deemed competent to decide. The jury were given a sufficiently wide range for the determination of plaintiff’s knowledge with respect to defendant’s intention when they were told in another instruction that they might “take into consideration not only what was said by the parties in their communications with each other, but also all the facts and circumstances attending and surrounding the dealings between the plaintiff and the defendant as shown by the evidence; whether the defendant had acquired or expected to acquire in good faith the commodities purported to be sold by him, or whether or not he had the purpose in good faith to take the commodities purported to be bought by him, if the same should, in good faith, be delivered to him, and whether the purposes of the defendant were known to the plaintiff, and the magnitude of the transactions and the quantities of commodities bought and sold, and the manner of the settlement of the transactions, and the conduct of the parties in their dealings with each other as disclosed by the evidence, together with all other facts and circumstances in evidence in the case. We think the instruction under consideration went too far and gave the jury a test for charging plaintiff with knowledge of defendant’s intention, that is not applicable to such a state of facts as are presented in this record.

As to an instruction to the effect that if any of the trades upon which plaintiff seeks recovery resulted from illegal trades known as “puts and calls” it was his duty to separate the losses resulting therefrom from the other transactions sued on, it is enough to say that the correctness of such instruction depends principally if not entirely on whether plaintiff’s testimony can be properly construed into an admission that some of the trades sued on resulted from “puts and calls.” If not, the burden of proving them rested on defendant and the instruction was wrong. As a new trial must be granted on other grounds it would subserve no useful purpose to review this record as to its applicability, for if offered at a future trial its correctness must depend upon the then state of the record.

Nor is it necessary to consider the other instructions complained of, for such as may be questionable are not likely to be offered at another trial in the same form, and it would extend this decision unduly to enter into a full consideration of them.

In view of our holding, that upon errors assigned the case must be remanded for a new trial unless the cross-errors are well taken, it becomes necessary to consider the latter.

Intimately connected therewith is plaintiff’s contention that he is not a broker within the meaning of the ordinance. We will first consider that question.

Like other brokers on said Board of Trade appellant made contracts in his own name, and in case of delivery received possession of the property and paid therefor, therefore, he claims that he was a factor or commission merchant and not a broker, and not required to take out a license under said ordinance. In support of his position, reference is made to the definition of the term “broker” given in Braun v. City of Chicago, 110 Ill. 186, where it was said that a broker is one who is engaged for others in negotiating contracts relative to property with the custody of which he has no concern, and that he is thus distinguished from a factor who sells property of others when he has its possession. But such definition must be taken in connection with the fact expressly stipulated to in that case that the parties negotiated sales of property of which they never had possession, and, therefore, as stated in Hately v. Kiser, 253 Ill. 288, in referring thereto, the definition was “sufficiently accurate for that case.”

But. in the case of Banta v. City of Chicago, 172 Ill. 204, a different state of facts arose. A stockbroker, a member of the Chicago Stock Exchange, was prosecuted under a similar ordinance for failure to procure a license. The evidence disclosed that in the exercise of his duties and powers as such he received and had possession of the stock bought and sold for his customers; nevertheless, the court said that while in some respects such duties and powers pertain more nearly to the functions of factors or bankers, “they are now, and for many years have been, exercised and possessed by such brokers as well,” and added: “A broker may, in the course of a transaction, exercise some of the functions of a factor or of a banker and be none the less a broker. It is believed the meaning now most usually given, in common acceptation, to the word ‘broker,’ is, one who transacts the business in which it appears from the stipulated facts this appellant is engaged.”

In the application of this term we see no room for distinction between a broker on the Stock Exchange and one on the Board of Trade. The term is customarily applied to both, and the nature of their business justifies its use.

The transactions in question were engaged in during the years 1892 and 1893, after the decision in the Braun case, supra, and before that in the Banta case, supra, and plaintiff offered to prove that for ten years, including the period of such transactions, the city of Chicago did not enforce said ordinance against members of said Board of Trade; that on the contrary the city and its officials charged with the collection of license fees and the issuance of licenses under said ordinance construed the same and decided that members of the Board of Trade were not brokers. The rejection of such offer is assigned as error. The contention is that the term “broker” as employed in the ordinance has a doubtful meaning, and that the proof so offered and rejected was admissible under the doctrine of contemporaneous construction. But assuming that the construction given to a city ordinance by those intrusted with its enforcement is entitled to consideration, yet it would have no weight when the language of the ordinance is clear and free from any dzubt. Jarrot v. Jarrot, 7 Ill. (2 Gilm.) 1; Cook County v. Healy, 222 Ill. 310; Whittemore v. People, 227 Ill. 453. The ordinance expressly designates a “produce and grain broker,” and defines him as one “who, for a commission or other compensation, is engaged in selling or negotiating the sale of * * * produce or grain belonging to others.” The definition fits accurately the transactions described in the evidence and appellant’s own interpretation of them. Certainly not only is the language of the ordinance unambiguous, but the business described is precisely what appellant relies on as the basis of Ms action, namely, sales, etc., by appellant for a commission of appellee’s produce and grain. •

But appellant falls back on the Braun case, supra, and the definition of “broker” there given, as above cited, and says that the Court regarded the word “broker” in “tMs very ordinance” as open to two constructions. But a sufficient answer is that made above, that the language of the Court referred to must be interpreted with reference to the facts before it, and such was evidently the view of the Court in the Banta case, supra. What the Court says in the latter case, that a broker is none the less so because he may exercise some of the functions of a factor, was not less true when the transactions in question took place.

We tMnk that there was no ambiguity or doubt in the language of the ordinance that would justify resort to the doctrine of contemporaneous construction, and that the court did not err in refusing to receive evidence thereon, or in sustaining a demurrer to replications setting forth facts in relation thereto.

This brings us to the important question raised on the cross-errors whether the plea in bar of the entire action, to which a demurrer was sustained, was good. If so, then as plaintiff was not a licensed broker, the court should have directed a verdict for defendant.

That an unlicensed broker cannot recover commissions needs no discussion. It is sufficient to refer to Douthart v. Congdon, 197 Ill. 349, and cases there cited. But whether appellant, though unlicensed, may recover for advances made by him in transactions he negotiated on the Board of Trade for appellee presents a different question. The plea is predicated upon the claim that recovery cannot be had because it arises out of an illegal transaction, and reliance is placed upon certain general expressions found in authorities which if followed, without reference to the state of facts to which they were applied, might justify such conclusion. But when considered with reference to the facts before the court, and in connection with other authorities making a distinction between a cause of action bottomed on an illegal transaction and one merely collateral to it, they will be found inapplicable.

Appellee invokes the general rule that a “contract made in violation of a statute is void, and if the plaintiff cannot establish his cause of action without relying upon an illegal contract, he cannot recover” (Miller v. Ammon, 145 U. S. 421), and cites several cases resting upon the doctrine as stated in Bank of U. S. v. Owens, 2 Pet. 527, that “there can be no civil right where there can be no legal remedy, and there can be nd legal remedy for that which is itself illegal. ’ ’ Our attention is called to various authorities using expressions like these: ‘1 The law will not lend its aid to enforce a demand having its origin in a breach of the law itself.” Ellison v. Adams Exp. Co., 245 Ill. 415. “The general rule is that where a statute makes a particular business unlawful, or for unlicensed persons, any contract made in such business by one not authorized is void.” Buckley v. Humason, 50 Minn. 195, 16 L. R. A. 424.” The test whether a demand connected with an illegal transaction can be enforced at law is whether the plaintiff requires the aid of the illegal transaction to establish his cause.” Swan v. Scott, 11 Serg. & R. (Pa.) 155; Johnson v. Hulings, 103 Pa. St. 498. But in cases containing such expressions it will be observed that the cause of action when not upheld was founded on the prohibited or illegal transaction itself. Many were actions by unlicensed brokers, acting in violation of statutes or ordinances, to recover commissions only. Some were actions to recover proceeds from transactions directly prohibited. The rule is quite general which prohibits recovery in such classes of cases. But while an unlicensed broker, prohibited from transacting business without a license, will not be permitted to recover compensation for his services in negotiating contracts for his customer, his right to recover for advances made thereon at his request, if the contracts themselves are not prohibited or against public policy, rests upon a different basis and a different consideration.

This has long been the rule in the English courts, and our attention has not been directed to any authorities in this country that we deem in conflict therewith. The relation in the former case is that of customer and broker and unlawful, while in the latter case it is that of principal and agent and not unlawful.

Says the Court in Bibb v. Allen, 149 U. S. 481, page 489: “It is settled by the weight of authority that where a principal sends an order to a broker engaged in an established market or trade, for a deal in that trade, he confers authority upon the broker to deal according to any well-established usage in such market or trade, especially when such usage is known to the principal, and is fair in itself, and does not change in any essential particular the contract between the principal and agent, or involves no departure from the instructions of the principal; provided, the transaction for which the broker is employed is legal in its character, and does not violate any rule of law, good mor-, ais, or public policy. ’ ’

It appears from the record herein that plaintiff, in his capacity as such agent, under the usage of members of the Board of Trade, advanced and paid out money to other members thereof on defendant’s trades and account.

• In Pidgeon v. Burslem, 3 Exch. 465, page 470, a similar plea to a similar cause of action was held had as to the whole declaration, the Court saying: “The plaintiff’s disability to act as a broker not rendering the contract void, but only disentitling him to any recompense for his services, there is no reason why he should not recover from the defendant the money he has paid at his request, express or implied. The case differs altogether from those in which the contract is forbidden, as under the acts against stock-jobbing, or where the purpose for which the money was paid was illegal.” This was followed in Jessopp v. Lutwyche, 10 Exch. 611, and in Smith v. Lindo, 5 C. B. (N. S.) 586. In the latter case a broker on the London Stock Exchange sued to recover money paid by him on account of the defendant in the purchase of certain shares thereon. The plea set up that there was no request from defendant to pay for them “except by implication from the usage and custom of the trade and business relating thereto,” and that plaintiff was not licensed to act as a broker. The Court followed the Pidgeon case, supra, holding plaintiff’s disability as a broker did not render the contract void; that there was no reason why he should not recover the money paid out at defendant’s request, and that such usage and custom were sufficient to raise the implied request, and said: “Such a demand made by the plaintiff under the implied authority would be good as it is not made in pursuance of any illegal contract; nor does it appear to be a necessary part of the duty of a broker as such.”

The principle of liability on an implied request as above stated is laid down in Taylor v. Stray, 2 C. B. (N. S.) 175, and was applied to transactions on the Board of Trade, in Perin v. Parker, 25 Ill. App. 465, affirmed in 126 Ill. 201.

In Armstrong v. Toler, 11 Wheat. (U. S.) 271, Chief Justice Marshall said: “No principle is better settled, than that no action can be maintained on a contract, the consideration of which is either wicked in itself, or prohibited by law. How far this principle is to affect subsequent or collateral contracts, the direct and immediate consideration of which is not immoral or illegal, is a question of considerable intricacy, on which many controversies have arisen, and many decisions have been made.” The learned Chief Justice then refers to the opinion of Lord Mansfield in Faikney v. Reynous, 4 Burr. 2069, to the effect that “if one person apply to another to pay his debt, (whether contracted on the score of usury, or for any other purpose,) he is entitled to recover it back again,” and says: “This is a strong case to show that a subsequent contract, not stipulating a prohibited act, although for money advanced in satisfaction of an unlawful transaction, may be sustained in a court of justice;” and after saying that in most of the cases cited to the court for the plaintiff in error, the suit was brought by a party to the original transaction, or on a contract so connected with it, as to be inseparable from it, and that in them and all similar cases, “the consideration of the very contract on which the suit is brought is vicious, and the plaintiff has contributed to the illegal transaction,” the learned Judge draws a distinction between subsequent transactions founded upon a new consideration and those bottomed on the illegal transaction itself. So, in the case at bar, money paid out by appellant at the implied request of appellee on contracts negotiated on the Board of Trade which were not and conld not he prohibited or affected by the ordinance in question, rests upon a different consideration than that of a claim for commissions, which is founded upon the contract prohibited by the ordinance.

In Murray v. Doud & Co., 167 Ill. 368, it was said that conceding a broker could not, without a license, recover his commission, it did not follow that a contract consummated by him would be void, and that such a contract, though negotiated by an unlicensed broker, did not affect the right of action between the principals to it.

Under the authorities above cited, therefore, the plea was no bar to recovery for advances made in transactions on the Board of Trade at appellee’s request, express or implied, whether appellant was a licensed broker or not.

For the reasons' stated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Mary Sass, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 17,786.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Mary Sass against Chicago City Railway Company to recover damages for personal injuries. From a judgment for defendant, plaintiff brings error.

      Abstract of the Decision.
    1. Street railroads, § 142*—what instructions are erroneous. An instruction stating that a street car cannot be started without causing some “sudden motion and jerking” is erroneous where a motorman testified that “if you start a car slow it never jerks.”
    2. Carriers, § 412*—when doctrine of assumed rish does not apply. An instruction stating that a passenger on a street car “assumes the risk” of injury due to sudden motions of jerks is erroneous as .applying the doctrine of assumed risk to the' relationship of carrier and passenger and diverting the minds of the jury from the questions of negligence and due care.
    3. Negligence, § 224*—when instructions as to contributory negligence are unnecessary. Where evidence does not tend to show contributory negligence of a person injured by a street car, the giving of numerous instructions on such subject is unwarranted and prejudicial.
    4. Instructions, § 14*—when repetition of phrases is improper. Held that the giving of numerous instructions stating certain hypotheses and concluding with the statement that the jury “should find the defendant not guilty” was prejudicial error, since such instructions were calculated to impress the jury with the thought that the court was against the plaintiff and that they should find for the defendant.
    Guerin, Gallagher & Barrett and E. H. Williams, for plaintiff in error.
    James G. Condon and Watson J. Ferry, for defendant in error; Leonard A. Busby, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,882.
    1. Affidavits, § 6

      —nohat should he stated. Affidavits for the admission of testimony given at a former trial, because of the absence of witnesses, should state facts rather than conclusions.
    2. Evidence, § 455*—when lack of diligence in procuring witnesses is shown. Where a plaintiff sought to introduce evidence of a witness given at a former trial, because of the absence of such witness, held that his failure to make any effort to procure the attendance of such absent witness until the day before the trial showed lack of diligence.
    3. Evidence, § 455*—when evidence given at a former trial is admissible. Absence of a witness from the State is not ground for admitting his evidence, given at a former trial, unless it is shown that the deposition of such absent witness could not have been procured by the use of reasonable diligence.
    4. Appeai and erbor, § 1350*—what constitutes abuse of discretion. Abuse of discretion by a trial judge is shown when recognized rules of procedure are ignored, so as to result in substantial injustice.
    5. Depositions, § 5*—when may be taken. A contention that a deposition cannot be taken of a non-resident witness unless he has some residence outside of the State cannot be sustained.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 14, 1913.
    Rehearing denied October 28, 1913.
    John E. Kehoe and C. LeRoy Brown, for appellant; Leonard A. Busby, of counsel.
    James C. McShane, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

In the trial of this case, the court, over objection of defendant, admitted in evidence the testimony given by a witness at a former trial. No effort was made to subpoena Mm until January 18, 1911, the day before the trial began, and no effort was made to locate him after the latter part of September or the first part of October previous, when it was thought the-case would soon be reached for trial, and when he was reported as still living in Chicago. On December 18, 1910, he left CMcago and went to Omaha, Nebraska. On motion for leave to read such testimony, plaintiff’s attorney presented Ms own affidavit and one by the brother of the absent witness. One of the objections relied upon was their failure to show reasonable diligence to procure the attendance or deposition of such witness.

The material matters set forth in the affidavit of the attorney were that on January 18, when it appeared probable that the ease would be reached for trial the following day, he sent Ms representative to subpoena all the witnesses in the case, who reported that said witness had left the State in December; that affiant learned from other sources (not stated) that said witness intended to remain away indefinitely, and that affiant did not know his present whereabouts nor expect to be able to procure Ms presence or obtain his deposition. Neither the grounds of his expectations nor the facts upon which the conclusion as to the witness’ intention was reached were stated. The material parts of the affidavit of Michael McKeown, said witness’ brother, were that the latter left Chicago, December 18, 1910, on account of trouble with his wife resulting in Ms arrest for nonsupport and forfeiture of his bond, and that it was his intention “to remain indefinitely;” that affiant received a letter from his brother, from Omaha, but it did not give the latter’s address, and stated he was living under an assumed name (which affiant refused to divulge), and would go elsewhere if he did not secure employment; that he had not heard from his brother since December 27, and did not expect him to return for years, if at all. TMs affidavit also failed to state any other facts than before stated, upon which he based his expectations and knowledge of his brother’s intention. In stating conclusions rather than facts both were plainly insufficient. Dacey v. People, 116 Ill. 555; Wilhelm v. People, 72 Ill. 468; People v. Gasner, 152 Ill. App. 54. They failed to state facts from which the court could reasonably infer either a timely search in good faith, or inability to procure either the witness’ attendance or his deposition. They neither show inability to produce the witness nor that an attempt to find him would have been futile. The value of the rule requiring a statement of facts from which the court may draw conclusions, instead of a statement of affiant’s conclusions, is well illustrated in the case at bar. Affidavits in support of the motion for a new trial, one by the absent witness himself, showed that defendant found him immediately after the trial merely by addressing a letter to him at “General Delivery,” Omaha, and that he was willing to testify in the case. Had plaintiff resorted to this simple expedient, he might have procured either his attendance or his deposition. At least he could have laid good grounds for a continuance, had he desired it, until the presence or deposition of the witness could have been procured.

Had plaintiff sought a continuance of his case, his failure to make an effort to procure the attendance of the witness until the day before the trial would have been deemed a lack of diligence. Davids v. People, 192 Ill. 176; Bailey v. Kerr, 180 Ill. 412; Smith v. Chicago Junct. Ry Co., 127 Ill. App. 89. It was no less so in the case at bar. Reasonable diligence required not only an earlier effort to subpoena the witness, but a further effort to locate him so as to obtain his deposition.

But the necessity of an effort to obtain his deposition is questioned. “The more modern tendency is not only to require that the absence offered as a basis for admitting the former evidence should be permanent, but to require further that the party offering the evidence should show to the satisfaction of the court that he could not by use of reasonable diligence have procured the deposition of the absent witness. Mere absence from the jurisdiction at the time of the trial is a disability by no means equivalent to death, without affirmative evidence that a fruitless search has been conducted in good faith and with due diligence, and that, from ignorance of the witness’ whereabouts or other reason, his deposition could not have been taken.” 16 Cyc. p. 1098.

And such is the rule in this State. In Cassady v. School Trustees, 105 Ill. 560, the Court upheld the rejection of such evidence, saying: “For aught that appears, the plaintiffs in error may have had ample time to take his deposition and thus avail themselves of his testimony at the trial, had they seen proper to do so; and since nothing appears to the contrary, we must presume that such was the case.” In Gruver v. City of Dixon, 85 Ill. App. 79, the Court, in holding that such evidence was improperly admitted, said: “It does not appear that these witnesses could not have been produced, or their depositions taken to be used upon the trial of this case, and it was therefore improper for the court to admit the report in evidence.” In Illinois Cent. R. Co. v. Ashline, 171 Ill. 313, the Court, in passing upon the defective form in which testimony of that character was presented for review, clearly intimated the existence of such rule. A different rule may obtain in some other jurisdictions, but in Encyclopedia of Evidence, yol. 5, p. 906, Illinois is referred to as one of the States in which “parties must likewise show due diligence to procure the deposition of the absent witness,” and what we recognize as the rule on this subject is well stated in section 1627, 2 Chamberlayne on Evidence, as follows:

“In judging as to whether any particular absence from the jurisdiction shall be regarded as furnishing an adequate administrative necessity for admitting the evidence given at a former trial, a very important consideration is as to whether the proponent of the secondary evidence might reasonably have obviated all necessity for snch proof by the simple expedient of taking the deposition of the witness. * * * Until convinced upon this point by direct intrinsic or cogent cdrcnmstantial evidence, the judge is justified in declining to receive proof of the testimony given on the previous occasion.. The proof on these points should be complete and satisfactory. Indeed, certain courts have gone so far as to hold that the party against whom the evidence is offered is entitled to insist that the former evidence of an available witness should not be received.”

After discussing the relative value of a deposition and testimony given at a former trial, the author adds: “All these marks of difference suggest the necessity, in the interests of justice, of more- careful scrutiny in admitting the evidence of what a witness stated at a former trial.”

If, as urged by appellee, the right to receive such testimony was a mere matter of discretion for the trial judge, we should be compelled to hold that, under the circumstances here disclosed, it was abused. Where, in the exercise of a judicial discretion, recognized rules of procedure are so far ignored as to result in substantial injustice, it amounts to abuse thereof and constitutes error. The testimony of such witness was very important. It went to the very crux of the case, as to whether defendant’s car ran into the deceased or the deceased into the car. His testimony so read tended more strongly than that of any other witness to show the former, and hence emphasized defendant’s right to insist upon his attendance or deposition, with the attendant privilege of further cross-examination, unless a proper showing was clearly and satisfactorily made that neither could be procured. The value of that privilege is clearly demonstrated in the case at bar by the fact that the absent witness, in his aEdavit produced on the motion for a new trial, materially departs from the line of his former testimony upon this most important fact of the ease.

The contention of appellee that a deposition cannot be taken of a non-resident witness unless he has some residence outside of this State is not tenable and not in accord with the ruling in Gardner v. Meeker, 169 Ill. 40.

It is unnecessary to consider other questions in the case, as, for the error pointed out, the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Peter J. Kane, Appellee, v. W. M. Hoyt Company, Appellant.
    Gen. No. 17,901.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Dean Feanklin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Peter J. Kane, against W. M. Hoyt Company, a corporation, for damages for personal injuries. From a judgment for plaintiff for two thousand eight hundred and fifty dollars, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett, of counsel.
    John A. Bloomingston, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 164 —where master is not negligent. Where a plaintiff was injured by the fall of a freight elevator which he was operating, due to the breaking of a pinion, held that a verdict for such plaintiff was against the manifest weight of evidence, since it did not appear that the defendant was negligent in inspecting such elevator, or that an old break in such pinion, if it existed, could have been discovered by careful inspection.

2. Trial, § 40*—when jurors may examine injured person. Where a person injured suffered from a comminuted fracture of the kneecap, and the character and extent of such injury was a subject for expert testimony, it was error to permit some of the jurors to examine such injury to determine its extent.


text:
    The Employers’ Liability Assurance Corporation, Limited, of London, England, Appellee, v. Kelly-Atkinson Construction Company, Appellant.
    Gen. No. 17,965.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded,
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by The Employers ’ Liability Assurance Corporation, Limited, of London, England, against Kelly-Atkinson Construction Company, a corporation, for premiums and interest thereon claimed by plaintiff under certain policies for casualty insurance indemnifying defendant against loss from certain liability to its employes or the public. From a judgment for $38,365.36, defendant appeals.
    Appellant urges (1) that the policies are champertous and void; (2) that all except two of them are ambiguous and without consideration as to premiums not paid; (3) that as to most of the policies, appellee, by failure to object to pay-rolls furnished by appellant in order to fix the premium, is by its lack of diligence now estopped from objecting thereto; (4) that the statute of limitations had run; and (5) that the court erred in taking the case from the jury and directing a verdict for the plaintiff.
    Abstract of the Decision.
    1. Champerty, § 4

      —when provisions of indemnity insurance policy not. Provisions of a policy of indemnity insurance giving the insurer the option of defending against claims for damages covered by the policy and providing that the insured shall not settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiations for settlements or in legal proceedings without the written consent of the insurer, are not champertous.
    2. Insurance, § 120*—when ambiguity as to provisions concerning premiums cannot be asserted. Where a policy of employers’ indemnity insurance provides that in case the pay roll during the term shall exceed or be less than the amount as estimated at the time of the application the proportionate sum shall be paid by the insured as an additional premium or refunded to him as the case may be, the insured, after adopting the construction placed upon the policy by the insurer, when adjustments were made, submitting statements of what purported to be the total wages and either paying the additional premiums or receiving rebates called for, cannot assert that the contract is uncertain and ambiguous.
    3. Insurance, § 156*—estoppel to claim additional premiums. Where the premiums under a policy of employers’ liability insurance are to be determined by the amount of the insured’s pay roll, the insurer is not estopped by settlements made on the basis of pay rolls submitted by the insured, where it was not put upon notice that the statements therein were not truthful and that insured was not acting in good faith.

      Zane, Morse, McKinney, McIlvaine, Busby & Weber and Bastrup & O’Neill, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; Edward W. Everett and J. Sidney Condit, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number*

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number

   Mr. Justice Barnes

delivered the opinion of the court.

4. Fbauds, Statute of, § 68 —what contracts are in writing. A policy of indemnity insurance which plainly indicates the parties and their obligations and is complete without resort to parol evidence is to be regarded as a contract in writing, though not signed by the insured, where the insured accepted it and assented to and acted on its terms.

5. Teiai, § 199*—when directed verdict unauthorized. Where, in an action for premiums on an employer’s liability insurance policy, an issue of fact arises as to the amount of wages, on which the premium is based, and a witness for' plaintiff, defendant’s former bookkeeper, testified from private memoranda of the pay rolls kept by him as to such amount, and a witness for defendant, who reported the pay rolls from which the premiums were computed, testified they were correct, a verdict is improperly directed for plaintiff.


text:
    Jennie H. Smeeth, Appellee, v. Michael Zimmer, Sheriff, Appellant.
    Gen. No. 18,208.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edwabb M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 14, 1913.
    Rehearing denied October 28, 1913.
    Statement of the Case.
    Action of replevin by Jennie H. Smeeth against Michael Zimmer, Sheriff of Cook county, to recover property levied on by defendant under an execution on a judgment against plaintiff’s husband. From a judgment for plaintiff for a part of the property and for one cent damages, defendant appeals.

      Abstract of the Decision.
    1. Replevin, § 78

      —sufficiency of "bond. Fact replevin, bond runs to sheriff instead of coroner who served the writ no ground for dismissal of suit.
    2. Replevin, § 43*—when demand before suit unnecessary. Demand for return of the property before commencing suit, unnecessary where officer seized the property under an execution with full notice of plaintiff’s title.
    3. Trial, § 198*—when verdict may be directed on uncontroverted evidence. In an action of replevin, an instruction directing a verdict for plaintiff is not improper as talcing away from the jury the question, of credibility of witness, where the evidence in support of plaintiff’s title was not. contradicted by competent evidence.
    4. Appeal and Error, § 1572*—when clerical error in entering judgment mil not reverse. Misprision of clerk in failing to write up a judgment in replevin so as to provide for the return of the property to defendant in accordance with the verdict, held not cause for reversal as it can be amended below.
    A. W. Martin, Edward H. S. Martin and John Stelk, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; John D. Black and John C. Slade, of counsel.

      See Illinois Notes Digest, Vols. SI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Thomas Pedroff, Defendant in Error, v. Tony Vasil et al., Plaintiffs in Error.
    Gen. No. 18,473.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 14, 1913.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 26

      —statement of facts. Statement of facts must contain contract where finding of court with reference thereto is assigned as error.
    2. Municipal Court of Chicago, § 26*—what must appear in statement of facts. Errors relating to admission and exclusion of evidence cannot be considered when the statement of facts does not show what evidence was admitted and excluded.
    Statement of the Case.
    Action, by Thomas Pedroff against Tony Vasil, Steve Serbinoff and George Nichola, in the Municipal Court, to recover wages. From a judgment for plaintiff, defendants bring error.
    Louis Brandes, for plaintiffs in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Hefto Swefto, Defendant in Error, v. Tony Vasil et al., Plaintiffs in Error.
    Gen. No. 18,474.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Hefto Swefto against Tony Vasil and others to recover wages earned by plaintiff while in the employ of defendants. From a judgment in favor of plaintiff, defendants bring error.

      Abstract of the Decision.
    The state of the record and the questions raised in this case held the same as in Pedroff v. Vasil, (Gen. No. 18,473) ante, p. 375, and for the same reasons therein stated judgment is affirmed.
    Louis Brandes, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    George M. Watts, Defendant in Error, v. Frank O. Balch, Plaintiff in Error.
    Gen. No. 18,496.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Mabtdst, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by George M. Watts against Frank O. Balch to recover a balance claimed to be due on a contract and for damages for breach. From a judgment for plaintiff for $671.35, defendant brings error.
    Harry A. Biossat, for plaintiff in error.
    Eastman & White, for defendant in error; Ralph R. Hawxhurst, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 13 —statement of claim on contract. In suit on a contract, the covenants being' mutual and dependent, the statement of claim must allege tender of performance or facts excusing the same.

2. Municipal Court of Chicago, g 13*—pleading defenses. When statement of claim on a contract containing mutual and dependent covenants does not aver tender of performance -or excuse therefor, an affidavit of merits setting up want of tender, held a good defense.

3. Contracts, § 298*—necessity of tender of performance. Covenants in a contract whereby one party agrees to purchase and the other agrees to sell and deliver are mutual and dependant covenants, and neither party, without tender of performance, can demand performance of the other.


author: Mr. Justice Clark

text:
    Mary Rogowski, Appellee, v. Joseph Picha, Sr. and Joseph Picha, Jr., Appellants,
    Gen. No. 17,889.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Mary Rogowski against Joseph Picha, Sr., and others to recover for personal injuries sustained by plaintiff while a tenant of defendants by reason of the negligence of defendants in permitting a sidewalk to be in a defective condition. From a judgment for plaintiff, defendants appeal.
    Joseph F. Triska and Ernest R. Fifer, for appellants.
    John Stelk and Alfred H. Gross, for appellee.

      Abstract of the Decision.
    1. Landlord and tenant, § 258

      —when evidence of ownership insufficient. In an action for personal injuries alleged to have been sustained by plaintiff while a tenant of defendants on account of the defective condition of a sidewalk, plaintiff’s evidence of defendants’ ownership and possession, held, insufficient to make defendants jointly or severally liable.
    2. Landlord and tenant, § 258*—evidence of ownership. Mere fact that a person collects rent, not sufficient to establish liability of himself and son as joint owners or as joint possessors of the premises.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    George A. Bergtold, Appellee, v. Sidney W. Worthy, Appellant.
    Gen. No. 17,908.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John D. Tubnbatjgh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by George A. Bergtold against Sidney W. Worthy on an oral contract. From a verdict for plaintiff for $3,534.24, defendant appeals.
    Willard C. McNitt and Clark M. Cavenee, for appellant.
    Miles J. Devine, for appellee; John T. Murray, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.

Abstract of the Decision.

Vendor and tobchaseb, § 324 —when purchaser may recover money paid. In an action upon an oral contract by which a plaintiff was to obtain from a defendant his interest in certain lands, or in contracts for the purchase of such lands, where it appeared that the defendant sold such interest to another than the plaintiff, to avoid payment of interest, and taxes and forfeiture, held, that the defendant did not have a right to forfeit such contract but that it was rescinded by mutual consent, wherefore the plaintiff, or vendee, had the right to recover from the vendor money paid on the contract.


text:
    Hayes Pump & Planter Company, Appellee, v. The Assurance Company of America, Appellant.
    Gen. No. 17,917.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walkeb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 14, 1913.
    Rehearing denied October 28, 1913.
    Statement of the Case.
    Action by Hayes Pump and Planter Company, a corporation, against The Assurance Company of America for $4,251.76, with interest, on account of a loss by fire in Kansas City, Mo., October 12,1909. The basis of the claim, as appears from the statement of claim, is that there was an adjustment between the parties at this amount, and suit was brought not upon the policy itself but upon the implied promise to pay, created, if at all, by the alleged' settlement.
    The affidavit of defense denies in form the promise to pay, and sets out that the liability of the defendant, if any, is for the sum of $2,763.65. From a judgment for plaintiff for $4,251.76 and interest, defendant appeals.

      Abstract of the Decision.
    Insurance, § 485

      —what is effect of adjustment. Where an ad-. justment of fire losses was completed and agreed to and the total amount of the loss was properly ascertained, hut the amount chargeable to one company was erroneous because of a coinsurance clause in its policy, held, the adjustment gave rise to an implied promise to pay the sum justly apportionable to such company according to its policy, and the company was not required to pay a larger sum because of a misconception of its adjuster and the insured.
    Barger & Hicks, for appellant.
    Lasley & Lasley, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Frank B. Pease, Appellant, v. David L. Frank et al., Appellees.
    Gen. No. 17,925.
    1. Notice, § 27*—what is extent of notice of filing of attachment. The proper construction of section 9 of the Attachment Act, J. & A. IT 500, is that from and after the filing of a certificate of levy such levy shall take effect as to creditors of, and bona fide purchasers from “the attachment debtor” without notice; and it was not intended by the legislature that the filing of an attachment lien against real estate in which it might be claimed the defendant had an equitable interest should operate as notice to grantees or others claiming under the holder of the legal title, but rather to those to whom the owner of the equitable title might convey.
    2. Equity, § 404*—when master’s fees are not excessive. An allowance of two hundred and fifty dollars, where a master spent fourteen days’ time in connection with a case, there being numerous continuances, is not excessive.
    Appeal from the Superior Court -of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 14, 1913.
    Fred H. Atwood and Charles O. Loucks, for appellant.
    Charles L. Bartlett and James Turnock, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

The bill filed in this case is in aid of an execution issued on a judgment in an assumpsit suit in which a writ of attachment in aid had been levied on the right, title and interest of the defendant Havilah Davis in certain property described in the bill.

It appears that on July 15, 1899, one McG-raw, for the use of complainant-appellant, commenced an assumpsit suit in the Circuit Court of Cook county for seven hundred and eighteen dollars against Havilah Davis. An attachment in aid was issued and levied as heretofore stated. At this time the record title was in Susan M. Davis, and it is claimed in the bill that she held it in trust for the use and benefit of Havilah Davis. The title (subject to the attachment levy, if the contention of the complainant is sustained) passed by sundry conveyances to other defendants in the bill. As we understand the record, the conveyances through which the defendants claim title were all made prior to October 10, 1901. On that day a judgment was rendered against Havilah Davis in the assumpsit suit (in which the attachment in aid had been issued), and on November 30, 1901, a general and special execution was issued and delivered to the sheriff of Cook county. On February 28, 1902, a return was made, with the following indorsement by the sheriff: “The within named defendant not found, and no property of the within named defendant found in my county on which to levy this writ, I therefore return the same, no property found and no part satisfied, this 28th day of February, 1902.”

The master found that the legal right to said premises) or any portion thereof, was never held by Havilah Davis; that the title to no portion of the premises was held in trust by said Havilah Davis, by any of the defendants.

The master further found that the said defendants, other than Havilah Davis and Susan M. Davis, had no actual notice of the circumstances surrounding the conveyances from Frank to Susan M. Davis, Frank to Dobbs, and Dobbs to Wilson, nor of the fact that Havilah Davis was the owner of the equitable title to said premises under said arrangement, and that Havilah Davis was not in the chain of title.

The master also found the grantees of Susan M. Davis having no actual notice of the facts and circumstances surrounding the said conveyances and of the arrangement between the parties, and having no actual notice of the equitable' title of said Havilah Davis in the premises, and he not being in the chain of title, and there being no fraud shown on their part, that although the levy of the writ of attachment and the recording of the certificates thereof was brought to the attention of the defendants by a notation appearing in the abstract of title examined by them, it was not sufficient to put them upon inquiry and charge them with constructive notice, that they were therefore bona fide purchasers for value without notice.

A decree was entered in the case, fixing the master’s fees at the sum of two hundred and fifty dollars and taxing the same as costs, overruling all exceptions to the master’s report, confirming the same and dismissing the amended bill of complaint at complainant’s cost.

The following points are relied upon by complainant-appellant for reversal: First, that the levy of the attachment upon the property and the recording by the sheriff of the certificate in the recorder’s office is the only seizure that could be made of Havilah Davis’ interest in the property, and is a sufficient seizure to hold the property to abide the issue of the attachment; second, that actual notice of the levy of the attachment on Havilah Davis’ interest, which all the defendants had, is sufficient notice of his interest; third, that the defendants who acquired title to the property, or parts thereof, had actual knowledge of facts and circumstances connected with the conveyance of the premises by Havilah Davis and Susan M. Davis, sufficient to have put them on inquiry as to the equitable title of Havilah. Davis, and that by reason thereof they are chargeable with notice of the actual equitable title of said Havilah Davis; fourth, that the master’s fees of two hundred and fifty dollars are excessive.

The defendants who have followed the appeal assert that the questions to be determined are three in number, and that all of them should be answered in their favor: First, did Havilah Davis have an equitable interest in the premises in question at the time of the writ of attachment in the case of McGraw for the use of Pease v. Davis, to-wit, July 5, 1899? Second, was the levy of such attachment against Havilah Davis (who had no1 title of record) constructive notice to subsequent purchasers of the premises in question from Susan M. Davis (who had the title of record) and from her grantees, near and remote? Third, has appellant lost his lien under the attachment proceedings by reason of the fact that the special execution issued in said cause has been returned by the sheriff, “defendant not found and no part satisfied?”

We understand the contention of the appellant to be that when, on the assumption that a defendant in an attachment suit has an equitable interest in certain real property, the plaintiff causes a levy of the writ to be made upon such alleged equitable interest, and afterwards (no matter how long) a judgment in attachment is recovered, the land (or so much as may be necessary to pay the judgment) may be sold in satisfaction of the judgment, if it be shown that such equitable interest existed notwithstanding the fact that the holder of the legal title has conveyed it after the levy under the attachment writ; and that his further contention is that a suit in equity may be maintained in aid of the execution in the attachment suit.

If it be assumed (which we are not prepared to hold) that a court of equity may be resorted to in aid of a proceeding purely statutory, like attachment, and that appellant did not lose his lien under the attachment proceeding (if any he had) by reason of the fact that special execution was returned as above set forth, and if it further be assumed that Havilah Davis had an equitable interest in the premises in question at the time of the levy of the writ of attachment (which in our view of the ease it is not necessary to decide), we still have for. consideration the second question above referred to, namely, was the levy of the “attachment against Havilah Davis (who had no title of record) constructive notice to subsequent purchasers of the premises in question from Susan M. Davis (who had the title of record) and from her grantees, near and remote?”

We are of the opinion that the proper construction of section 9 of the Attachment Act (J. & A. )[ 500) is as contended by the appellees. That act provides that “when a writ of attachment is levied upon any real estate, in any case, it shall be the duty of the officer making the levy to file a certificate of such fact with the recorder of the county where such land is situated; and from and after the filing of the same, such levy shall take effect, as to creditors and tona fide purchasers, without notice, and not before.” The proper construction is that from and after the filing of the certificate of levy such levy shall take effect, as to creditors of and tona fide purchasers from, the attachment dettor, without notice, and that it was not the intention of the legislators' that the provisions of section 9 should have any other effect or force than is given to section 30 of the Conveyance Act (J. & A. |f 2262), which section is: “All deeds, mortgages and other instruments of writing which are authorized to be recorded shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers!, without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed of record.”

It was not the intention of the legislature that the filing of an attachment lien against real estate, in which it might be claimed the defendant had an equitable interest, should operate as a notice to grantees or others claiming under the holder of the legal title, but rather to those to whom the owner of the equitable title might convey. We are referred to no case directly in point, but are led to our conclusion by decisions analogous in principle, which have to do with the construction of section 30 of the Conveyance Act. St. John v. Conger, 40. Ill. 535; City of Chicago v. Witt, 75 Ill. 211; Carbine v. Pringle, 90 Ill. 302; Booker v. Booker, 208 Ill. 537.

■ The master’s fees were fixed at two hundred and fifty dollars. It would appear that he spent fourteen days’ time in connection with the case, and that there were numerous continuances which necessarily caused loss of time. We do not think the allowance excessive.

The decree will be affirmed.

Affirmed.


text:
    J. W. Goggin, Defendant in Error, v. Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 18,385.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court op Chicago, § 28

      —when propositions of law are necessary. Under section 61 of the Practice Act, J. & A. fl 8598, as to tendering propositons of law to be passed upon, which section has been adopted by the rules of the Municipal Court, such propositions are necessary to save questions for review.
    Error to the Municipal Court of Chicago; the Hon. John R. New-comes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by J. W. Goggin against Western Union Telegraph Company for damages dne to a mistake in transmitting a telegram. From a judgment for plaintiff, defendant brings error. .
    West & Eckhart, for plaintiff in error.
    George M. Weichelt, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Eli S. Hart, Appellee, v. John C. Schultz et al., on appeal of John C. Schultz, Appellant. Eli S. Hart, Appellee, v. John C. Schultz et al., on appeal of Carrie P. Schultz, Appellant.
    Gen. No. 18,415.
    Gen. No. 18,416.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeai and ebrob, § 1093

      —what brief should contain. Briefs consisting of printed arguments on the facts of a case into which are injected the views of counsel upon the proposition that a construction placed upon a contract by a master and chancellor is erroneous, the position of counsel not being supported by citation of reported decisions do not comply with Appellate Court rule 21.
    2. Costs, § 8*—when to be taxed against defendant. Where litigation was due to the failure of a real estate broker to make an accounting of certain transactions and where it appeared that such broker concealed portions of the transactions and deceived the plaintiff, held that all the costs of a suit for an accounting and other relief were to be taxed against such broker.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed in part and reversed in part.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Eli S. Hart against John C. and Carrie P. Schultz for an accounting and other relief. From a decree for complainant, defendants appeal.
    Robert F. Kolb and Robert W. Dunn, for appellant.
    Loesch, Scofield & Loesch, for appellee.

      See Illinois Notes Digest, Yols. XI tp XIV, samp topic and spctipn number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Louisa County Savings Bank, Defendant in Error, v. John Claney and W. P. Dickinson, Plaintiffs in Error.
    Gen. No. 18,510.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bnxs and notes, § 365

      —when indorsements may he disregarded. In a suit on a promissory note, where the plaintiff was the legal holder, indorsements showing that such note had been sent to Chicago for collection were properly disregarded.
    2. Jury, § 8*—when jury is not necessary. The failure to call a jury, as demanded by a defendant, is not reversible error where the court under the evidence would have been obliged to direct such jury to find a verdict for the plaintiff, in exact accord with the finding made by the court.
    Error to the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Suit by Louisa County Savings Bank, a corporation, against John Claney and W. P. Dickinson upon a promissory note. From a judgment for plaintiff, defendant brings error.
    W. O. Robinson, for plaintiffs in error.
    Jeffery & Campbell, for defendant in error; Charles V. Clark, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


author: Mr. Presiding Justice Graves

text:
    Thomas Piser, Plaintiff in Error, v. Serota and Gans et al., Defendants in Error.
    Gen. No. 17,586.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Coepobations, § 457

      —power to become accommodation indorser. A commercial corporation has no power to become an accommodation indorser of negotiable paper.
    2. Coepobations, § 454*—when indorsement on note not descriptio personae. Am indorsement on a promissory note “American Badge Co., Frank A. Smith, Pres.” is an indorsement of the corporation, and extrinsic evidence is not admissible to show who was intended to be bound.
    3. Coepobations, § 297*—personal liability of officers for ultra vires acts. An officer authorized to act for the corporation and who discloses for whom he is acting is not personally liable upon an indorsement upon a note made by him in the name of the corporation, when the indorsement is ultra vires the corporation.
    4. Bills and notes, § 247*—when purchaser charged with notice of want of power of corporation to indorse. One purchasing a promissory note, knowing that the name of a corporation was indorsed thereon for accommodation,' takes subject to all defenses arising from lack of power of such corporation to become such indorser.

      Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by Thomas Piser against Serota and Gans, doing business as Serota & Gans, American Badge Co., a corporation, Frank Smith, A. L. Mendelson and Max Gutkowsky, to recover on a promissory note in- ■ dorsed to plaintiff. From a judgment for defendants, plaintiff brings error.
    Harry M. Fisher, for plaintiff in error.
    William A. Jennings, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    M. Friedlander, Plaintiff in Error, v. I. V. Edgerton, Defendant in Error.
    Gen. No. 17,701.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 866

      —sufficiency of abstract. An abstract which is little more than an index is wholly insufficient.
    2. Appeal and ebbob, § 866*—what abstract must show. The abstract must show everything on which error is assigned for reversal of judgment.
    Error to the Municipal Court of Chicago; the Hon. Oscab M. Tobbison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Rehearing denied and opinion modified and refiled October 27, 1913.
    Statement of the Case.
    Action by M. Friedlander against I. V. Edgerton to recover the difference'between the value of a car of poultry and a check sent to defendants. From a judgment for defendant for $35.72 on a claim of set-off, plaintiff brings error.
    Rosenthal & Kurz, for plaintiff in error.
    Ela, Grover, March & Eckert, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

3. Appeal and ebeoe, § 864*—necessity of abstract. Court of review will not go to the record, to find reasons for reversing or affirming the judgment.


text:
    Martin Gnatek, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 17,762.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Stbeet bailboads, § 131

      —sufficiency of the evidence. Evidence held sufficient to sustain verdict of jury that street car company was not guilty in an action for injuries resulting from collision with a wagon.
    Error to the Superior Court of Cook county; the Hon. Homes Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by Martin Gnatek against Chicago Railways Company, a corporation, to recover for injuries sustained by plaintiff by reason of a car belonging to defendant colliding with a wagon driven by plaintiff. From a judgment for defendant of not guilty, plaintiff brings error.
    Brady & Levy, for plaintiff in error; Matthew P. Brady, of counsel.
    Philip Rosenthal, Frank L. Kriete and William H. Symmes, for defendant in error; John R. Guilliams, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Negligence, § 226*—when instruction on contributory negligence proper. Instruction that if plaintiff was injured while and because he was not in the exercise of ordinary care for his own safety, as an ordinary prudent and cautious person would exercise under the same circumstances, he could not recover, held proper.

3. Negligence, § 226*—when instruction does not ignore question of defendant’s negligence. An instruction that if the jury believes from the evidence that the sole cause of injury to plaintiff was his own negligence he cannot recover, held not erroneous because it ignores the question of defendant’s negligence.

4. Instructions, § 162*—words construed. Words “established his case” in an instruction, held not objectionable as not being equivalent to “establishing the issues essential to the maintenance of the action.”


text:
    Otto F. Fisher and Gustav Haller, trading as Otto Fisher and Company, Defendants in Error, v. Charles Levy Circulating Company, Plaintiff in Error.
    Gen. No. 17,785.
    1. Master and servant, § 1

      —what master servant is employed by. Where evidence does not show the circumstances of hiring of an employe, or what was said and done at the time of such hiring, but the witnesses merely state their conclusions on the subject, such evidence is insufficient to warrant a finding as to which of two companies hired such employe.
    2. ■ Master and servant, § 839*—when doctrine of respondeat superior applies. Under some circumstances, a servant who is employed and paid by one person may become the servant of another to the extent that the original employer will not be liable for his negligent acts, but such condition does not arise until the original employer surrenders all right of control over the employe.
    3. Master and servant, § 839*—what master servant is under control of. Where an employer furnished a horse, wagon and driver to a newspaper company to deliver its daily papers at a stipulated price for a stipulated amount of work, held that while such newspaper company could direct where the driver should deliver papers and make collections the evidence did not show any control over the management of the horse.

      4. Master and servant, § 865

      —what will he presumed. Where an employer furnished a horse, wagon and driver to a newspaper company to deliver its papers, it would be presumed, in the absence of proof of the contrary, that as to ail matters relating to the manner of driving, managing and handling the horse the original employer had control of the servant.
    5. Negligence, § 8*—what constitutes. The violation of a statute or city ordinance made for the protection of persons or property is such a violation of duty as will sustain an action for negligence, where injury to another is caused as the proximate result of such violation.
    6. Municipal Court of Chicago, § 14*—what court may take judicial notice of. The Municipal Court will take judicial notice of an ordinance prohibiting persons from leaving horses in streets unattended, without being securely fastened.
    7. Municipal corporations, § 102*—when ordinance need not he proved. Where the existence of an ordinance is admitted it need not be proved.
    8. Roads and bridges, § 240*—when negligence is question of fact. Whether a driver left a horse in a street unattended without being securely fastened, in violation of a city ordinance, held to be a question of fact, and the finding of jury as to such question, being based on conflicting evidence, would not be disturbed.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Bernstein, Grossman & Bernstein, for plaintiff in error.
    No appearance for defendants in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Plaintiff in error is a corporation engaged in the wholesale newspaper delivery business. It was under contract with the Chicago Journal Company to furnish a horse, wagon and driver to deliver its daily papers at a stipulated price per week for a stipulated amount of work. If more than the regular amount of work was done, the driver was paid additional wages for the extra work. The driver received his pay directly from plaintiff in error, who received its pay for the horse, wagon and driver directly from the Chicago Journal Company. Plaintiff in error made nothing out of the wages of the driver, hut paid him all it received from the Journal Company for his services. The driver came each morning to the place of business of plaintiff in error and got the horse and wagon, and with it reported to the Journal Company for duty. In regard to all matters connected with the business of the Journal Company, the driver was subject to the orders of the Journal Company. Under its orders he delivered papers to its customers at various stores and news stands and collected money of its customers on bills given him by it. There is a controversy over who hired the driver. Plaintiff in error contends that the Journal Company hired him, while defendant in error contends that it was plaintiff in error who did so. The evidence on this point is wholly insufficient to base a finding on, either one way or the other. No witness has undertaken to relate the circumstances of the hiring or what was said and done by any one at the time of the hiring, or who participated in what was done, but all were allowed to state their conclusions on the subject of who did the hiring. Both plaintiff in error and the Journal Company had authority to discharge the driver independent of the other. On the afternoon of May 19, 1911, near the corner of 41st avenue and West Madison street, the driver left his horse in the street for the purpose of going into, a nearby store to collect a bill. Whether the horse was left without fastening, or was left hitched to a weight on the ground, was a mooted question, there being most positive testimony both ways on that question. While the driver was in the- store collecting the bill, the horse ran away and ran into the rig of the defendants in error, killed their horse and damaged their wagon and harness. They brought suit in the Municipal Court for the damages so sustained, and on a trial by the court found the issues for defendants in error and entered judgment against plaintiff in error for $362.50! This writ of error is prosecuted to reverse that judgment.

The main contention of plaintiff in error is that the driver of the wagon was not its servant at the time in question, and that on the facts in this case it is not liable for the acts of the driver, whether negligent or not.

While it is true that under some circumstances servants who are employed and paid by one person may become the servants of another to the extent that the original employer will not he liable for their negligent acts, yet it may he laid down as a general proposition that before that condition arises the original employer must surrender all right of control over the employe. So long as the original employer retains the right to control the actions of the one employed, the relation of master and servant exists, and the rule respondeat superior applies.

The Court in Boniface v. Relyea, 36 How. Pr. (N. Y.) 457, says (p. 460): “There must be, besides the hiring, some degree of actual control over the person hired, and some right to direct him from time to time as the master may see fit; for the responsibility of the master begins and ends tvith his control over and his right to direct his servant.”

Judge Cooley, in his work on Torts, says, on page 1006, vol. 2: “His (the master’s) control of the other is the important circumstance.”

Our Supreme Court, in Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100, says: “He is the master who has the choice, control and direction of the servants. The master remains liable to strangers for the negligence of his servants, unless he abandons their control to the hirer. Control of servants does not exist, unless the hirer has the right to discharge them and employ others in their places. The doctrine of respondeat superior is applicable, where the person sought to he charged has the right to control the action of the person committing the injury. It follows, that the right to control the negligent servant is the test, by which it is to be determined whether the relation of master and servant exists; and, inasmuch as the right to control involves the power to discharge, the relation of master and servant will not exist, unless the power to discharge exists. (Shearman & Redfield on Negligence, secs. 160, 162; 2 Thompson on Negligence, p. 892, sec. 12; Erie v. Caulkins, 85 Pa. St. 247.) * * * ”

“"Where the owner or contractor furnishes the material to he used and retains direction and control over the details of the work and the men employed, he is liable for negligence of the men employed. (Jameson v. Morse Co., 165 Ill. 138.) ”

In the case of Consolidated Fireworks Co. v. Koehl, 190 Ill. 145, the Court says: “The test is whether in “the particular service which he is engaged to perform he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired.”

In Harding v. St. Louis Nat. Stock Yards, 242 Ill. 444, it is said: “* * * No absolute or arbitrary rule can be laid down by which it can be plainly seen in every case whether a person is the servant of the general or special master, as these terms are used in the decisions. The special facts of each case must be looked to in order to reach the proper conclusion. * * * The doctrine of respondeat superior is applicable where the person sought to be charged has the right to control the action of the person committing the injury. * * * The test in such case being whether in the- particular service the servant continues to be under the direction and control of his master or the other party.”-'

"While it is undoubtedly true that the Journal Company had the control of the driver to the extent that it could and did direct where and when he should deliver papers and make collections, there is nothing in the record to indicate that it either had or attempted to exercise any authority over him, as to the management or control of the horse, or that in performing the duties of delivering papers or collecting bills the handling of the horse in any particular way was necessary or a matter of the least concern to the Journal Company. That was a matter, however, in which plaintiff in error, the owner of the horse, for many reasons that might be suggested, was especially interested.

Incident to the relation of master and servant is the right of the master to direct and control the servant in the performance of his duties, and without something to show that such right has been surrendered by the general master it will be presumed that it continues so long as the relation exists. It must, therefore, in this case, in the absence of proof to the contrary, be0 presumed that as to all matters pertaining to the manner of driving, managing and handling the horse, plaintiff in error, the general master, retained the right to direct the driver, including the right to direct and require bim to obey the provisions of the ordinances of the city. If any negligence of the driver is shown by the evidence in this case, it was in leaving in the streets unattended a horse hitched to a vehicle, without securely fastening him. It follows that, as to the particular act in question, the driver was the servant and under the control of plaintiff in error, and the finding of the trial court in that regard is supported by the facts and the law.

It is next urged that the evidence in the record fails to establish that the driver’was negligent.

The law is well settled that the violation of a statute or city ordinance made for the protection of persons or property is such a violation of duty as will sustain an action for negligence where injury to another is caused as the proximate result of such violation. Chicago, B. & Q. Ry. Co. v. Gunderson, 174 Ill. 495; Browne v. Siegel, Cooper & Co., 191 Ill. 226; Swift & Co. v. Fue, 167 Ill. 443.

It is charged in the statement of claim filed in the Municipal Court that the driver on May 19, 1911, failed “to securely fasten the horse as required by” section 1424 of the Municipal Code of Chicago. Plaintiff in error did not challenge the sufficiency or accuracy of this statement of claim, but filed its affidavit of merits, in which it says, “* * * that said horse was securely fastened, as required by section 1424 of the Municipal Code of Chicago * * *.”

Counsel in his e argument here admits that an ordinance existed and was in force on May 19, 1911, in substance, prohibiting leaving horses unattended on the streets without being securely fastened. Section 1424 of the ¡Revised Municipal Code of Chicago of 1905 is as follows:

“1424. (Unfastened.) No person shall leave any horse or other animal attached to any carriage, wagon, cart, sleigh, sled, or other vehicle in any public way of this city, without securely fastening such horse or other animal, under a penalty for each offense of not less than two dollars nor more than ten dollars.”

This ordinance was repealed by the revision that was adopted March 13, 1911, and was not in force as section 1424 at the time of the injuries complained of in this case, but the identical language was in force at that time as section 1972 of the revision of 1911.

It is contended that the ordinance was not introduced in evidence and, therefore, cannot be considered by this court.

We are inclined to the view that when the judgments of nisi prims courts are presented to Appellate tribunals for review such Appellate tribunals must take judicial notice of all things of which the nisi prius courts are required to take judicial notice. Hanley v. Donoghue, 116 U. S. 1. It has been expressly held in this state that the Appellate Court will take judicial notice of the ordinances of the city of Chicago on review of a judgment in the Municipal Court, where that court, by section 54 of the act creating it (J. & A., 3371), is required to take such notice of the same. City of Chicago v. Baker, 157 Ill. App. 130. The Municipal Court was bound in this case to take such notice of such ordinance. City of Chicago v. Williams, 254 Ill. 360. As in that case, counsel here admits that the ordinance in question was in force on May 19, 1911. A fact that is admitted need not be proved. It being admitted that the ordinance existed, we are not bound to decide the question of the right of this court to take judicial notice of it. City of Chicago v. Williams, supra.

It was a question of fact whether the driver left the horse in the street unattended without being securely fastened, in violation of the ordinance. The evidence on this question was conflicting, and we are net able to say the finding of the court that it was so left was unwarranted.

The judgment of the Municipal Court is, therefore, affirmed.

Judgment affirmed.


text:
    James I. Julian, Appellee, v. Henry Pierson and Charles B. Pierson, Appellants.
    Gen. No. 17,897.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913,
    Rehearing denied October 24, 1913.

      Abstract of the Decision.
    1. Trial, § 195

      —when peremptory instruction may he given. A peremptory instruction for defendant should not be given where there is evidence in the record which fairly tends to establish the plaintiff’s right to recover as alleged in his declaration.
    2. Negligence, § 204*—what evidence precludes peremptory instruction. Where a plaintiff was knocked down and injured 'by a horse while crossing a street and the evidence tended to show due care by such plaintiff and negligence by the defendant’s servant, in that the horse was driven at an immoderate speed, a peremptory instruction was properly denied.
    3. Roads and bridges, § 240*—what are questions of fact. Whether a driver of a horse was negligent in driving rapidly and in not having hold of the lines, and whether the person knocked down and injured by such horse while crossing a street was exercising due care, held questions of fact as to which the jury’s verdict will not be disturbed unless manifestly against the weight of the evidence.
    4. Instructions, § 11*—when word must he explained. Where instructions, requested by the defendant, referring to acts that contributed to an injury, were modified by inserting the word “proximately” before “contributed,” held that the use of such word without a definition, if erroneous, was an error that the defendant led the court into, and of which such defendant could not complain, since in another instruction prepared by them and given at their request the term “approximately contributed” is used and, as used, the words were synonymous.
    Statement of the Case.
    Action by James I. Julian against Henry Pierson and Charles B. Pierson for damages for personal injuries. From a judgment for plaintiff for six hundred dollars, defendant appeals.
    Matz, Fisher & Boyden, for appellants.
    Frederick Peake and Edward H. Taylor, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

5. Instbuctions, § 154 —when modification is proper. In action for injuries sustained by a person who was knocked down by a horse which the defendant’s servant was driving, an instruction stating that if the accident was caused either wholly or in part by want of reasonable care “or attention to his situation” on the part of the plaintiff was properly modified by striking out the quoted words.

6. Witnesses, § 317*—when instruction is properly refused. Where the record does not show that a witness had been in the employ of a defendant, the refusal of an instruction as to the duty of the jury not to disregard the testimony of such witness because of such employment was not error.

7. Roads and bbidges, § 239*—what evidence is admissible to show negligence. Where a person was injured by being knocked down by a horse while crossing a street, evidence which dealt solely with the desire of the driver to proceed on his journey after the accident should have been excluded, but in view of other evidence showing the same fact, and showing fast driving before the accident, the admission of such evidence was harmless.


author: Mr. Presiding Justice Craves

text:
    John F. Devine, Administrator, Appellant, v. The South Park Commissioners, Appellee.
    Gen. No. 17,930.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William H. McSubelt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Jacob Adelman, deceased, against the South Park. Commissioners, a corporation, to recover damages for the death of plaintiff’s intestate. From a judgment for defendant, plaintiff appeals.

      Abstract of the Decision.
    Parks, § 9

      —when park commissioners liable. An action cannot be maintained against park commissioners as a body corporate for negligence resulting in damage or injury to individuals, since such commissioners are a body corporate exercising political functions.
    Lee D. Mathias and Charles H. Robinson, for appellant.
    Robert Redfield, for appellee; Tolman & Redfield and Henry P. Chandler, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Craves

delivered the opinion of the court.