text:
    Minnie Moore, Appellee, v. Abraham F. Botto et al., Appellants.
    Gen. No. 15,378.
    1. Words and phrases—“heir” defined. The word “heir” imports succession to property by death, and in common speech is frequently used to designate one who succeeds to any kind of property on the death of the owner.
    2. Statutory law—upon .incompetency of parties in interest. The word “heir” in the statute on evidence was intended to have a broad signification, so as to mean the heir at law in relation to real estate, and those persons who are entitled under the statute of descent, in relation to personal estate.
    3. Evidence—when testimony of agent does not disqualify party in interest. In an action where one of the parties sues or defends in a representative capacity, it is only where an agent testifies to a transaction or conversation between such agent and the opposite party that such party may testify concerning the same conversation or transaction.
    4. Pleading—what essential to deny execution. In order to put in issue the execution of notes in suit, the defendant must deny their execution under oath; a plea of non assumpsit, therefore, is sufficient, but a special plea which does not deny execution, though verified, is insufficient to require proof of execution by the plaintiff in the action.
    Judgment by confession. Appeal from the Circuit Court of Cook county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Statement by the Court. Plaintiff took judgment by confession for $3,091.17 against defendants on two promissory notes purporting to have been made by defendants, one for $1,500, dated April 10, 1902, due March 28,1906, with interest at six per cent per annum from date; the other for $1,000, dated February 2, 1903, payable three years and six months after date, with interest at five per cent per annum. The first note was payable to the order of James H. Moore and was endorsed: “Pay to the order of Minnie Moore. Estate of James H. Moore, deceased, by Minnie Moore, administratrix.” The second note was payable to the order of A. F. Botto, was endorsed by him, by James H. Moore, and also bore the same endorsement as the first note. An order was entered in the cause, giving the defendants leave to plead, the judgment to stand as security. The defendants filed three pleas: the first, non assumpsit; the second, that the supposed promises, etc., were made upon consideration of money won by the payee, James H. Moore, by gaming, etc.; the third, that the supposed promises, etc., were made upon the consideration of money won by plaintiff’s assignor from the defendants by gaming, etc. Issues were made and joined on the pleas. The plaintiff then filed additional counts, to which the defendants filed pleas in substance the same as those filed to the original counts, and on such pleas issues were made and joined. The cause was submitted to a jury and a verdict returned finding the issues for the plaintiff and assessing plaintiff’s damages at $2,100. Defendants’ motion for a new trial was denied and judgment entered that as to the sum of $2,100, the judgment theretofore entered stand in full force; that plaintiff have execution for said sum with interest from the date of the rendition of the judgment, and that on payment of said sum, interest and costs, the said judgment he satisfied, etc. From this judgment the defendants prosecute this appeal.
    Julius Limbach, for appellants.
    Steele & Thompson, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court..

It is clear that the jury found for the defendants as to the $1,000 note, and for the plaintiff as to the $1,500 note, for the damages assessed by the jury is the face of that note, with interest according to its terms up to the date of the trial. We shall therefore consider only the question whether the judgment as to the $1,500 note is proper.

James H. Moore, the payee of said $1,500 note, died intestate, leaving the plaintiff, his widow, hut no child or descendants of a child, and under the statute all of his personal estate, after the payment of debts, descended to the plaintiff. By an amendment to her declaration plaintiff alleged that she was the sole heir and distributee of the estate of James H. Moore, and received said notes as her distributive share of said estate from his administratrix.

The trial court refused to permit the defendants to testify to matters occurring during the lifetime of James H. Moore. The statute provides that no party shall testify as to such matters where the adverse party sues or defends, “as the executor, administrator, heir, legatee or devisee of any deceased person.” The contention of appellants is that the word “heir” in this statute does not include the plaintiff. The note ' in question descended to plaintiff under the statute of descent. If it had been given to her by the will of her husband, clearly the action on it would be one in which she sued as legatee of her deceased husband, and in that case the defendants could not testify in their own behalf. If the word “heir” in the statute on evidence is to be given the meaning which it bears at common law, as the person entitled to succeed to real estate in case of intestacy, then where a plaintiff sues as an heir of real estate, or as a legatee of personal estate, an adverse party cannot testify; but if the subject-matter of the action is personal estate, which descended to the plaintiff under the statute, an adverse party may testify. The word “heir” imports succession to property by death, and in common speech is frequently used to designate one who succeeds to any kind of property on the death of the owner. The word is so used in judicial decisions. In Sturgis v. Ewing, 18 Ill. 176, 181, Judge Catón said: “By the forty-sixth Section of the Statute of Wills, the widow of an intestate who dies, leaving no child or the descendants of a child, is made the heir of her deceased husband, and as such is entitled to receive one-half of all his real and personal estate after the payment of his debts.” In Cross v. Carey, 25 Ill. 461, where all of the personal estate of her deceased husband descended to the widow under the Statute of Wills, Judge Walker called the widow, “the heir of her husband.” We think that the word “heir” in the statute on evidence was intended to have a broader signification, so as to mean the heir at law in relation to real estate, and those persons who are entitled under the statute of descents, in relation to the personal estate; that the plaintiff sued in this case as the “heir” of her deceased husband, within the meaning of the word as used in the statute on evidence, and therefore that the .testimony of the defendants was properly excluded.

Percival Steele testified that James H. Moore was his client, and further testified as to acts and conversations between Moore and defendants occurring at the time of the execution of the $1,500 note. He did not testify to any act or conversation occurring between himself and the defendants or either of them. The contention is that the defendants were competent to testify under the following provision of the statute: “When in such action, suit or proceeding, any agent of any deceased person shall, in behalf of any person or persons suing or being sued in either of the capacities above named, testify to any conversation or transaction between such agent and the opposite party or party in interest, such opposite party or party in interest may testify concerning the same conversation or transaction.” The testimony of Steele does not bring the case within either the reason or letter of the statute. It is only where an agent testifies to a transaction .or conversation between such agent and the opposite party, that such party may testify concerning the same conversation or transaction. Here Steele testified to no transaction or conversation between himself and the defendants,'but only to a transaction and conversation between his deceased principal, Moore, and the defendants, and the trial court properly held that the defendants were not, by the statute, made competent to testify to such transaction or conversation.

With the original declaration and with the additional counts were filed copies of the notes sued on. To the original declaration the defendants filed as a first plea, non assumpsit and two special pleas. Following the last special plea is the following affidavit:

‘ ‘ On this-day of December, A. D. 1905, before me personally appeared Abraham F. Botto and Katie Botto and made oath that they have read the above plea subscribed by them, and that they know the contents thereof, and that the same is true of their own knowledge, except as to the matters which are therein stated to be on their information and belief, and as to those matters they believe them to be true.”

The only affidavit filed with the pleas to the additional counts is an affidavit that the defendants verily believe that they have a good defense to the suit on the merits. The only pleas denying the execution of the notes sued on are the two pleas of non assumpsit, and neither of those pleas is verified by affidavit. The trial court therefore did not err in admitting the notes in evidence without proof of their execution.

We find no error in the other rulings of the trial court on questions of evidence or instructions, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Patrick H. O’Donnell, Administrator, Appellee, v. Erie Railroad Company, Appellant.
    Gen. No. 15,451.
    Master and servant—duty as to machinery. Held, under the evidence, that the defendant owed the deceased the duty to use reasonable care to keep a platform and machinery in such position and condition as to be reasonably safe and free from danger to one properly passing by, although not employed to use the same; that the defendant was bound to anticipate that a person, especially a hoy, passing by a windlass, the handle of the crank of which was only two feet above the dock, might jump or step upon the handle.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Rehearing denied January 23, 1911.
    W. O. Johnson and Gale & Johnson, for appellant.
    Theodore G. Case, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $2,000 recovered in an action under the statute for causing death by negligence. Plaintiff’s intestate was an office boy in the service of defendant at its warehouse and dock in Chicago. The dock extended from Randolph street to Washington on the east side of the south branch of the Chicago river, and was seventeen feet wide. East of and adjoining the dock was a two-story warehouse of defendant, in the south end of which, on the second floor, was the office of defendant, in which the deceased was employed. The floor of the warehouse was several feet above the dock. About the middle of the warehouse was a door opening on the dock. From this door a platform extended to the edge of the dock, which was so constructed that the outer end of it could be raised or lowered, so that whether a vessel at the dock was light and high up out of the water, or laden and deep down in the water, the platform served as a gang plank over which freight was taken from the vessel to the warehouse. This plat form was called by some of-the witnesses a “tramway,” apparently because under it were two endless chains running parallel with the platform, to" which were attached dogs or clutches extending above the surface of the platform, by means of which articles discharged from the vessel onto the platform were carried into the warehouse. The platform was raised by means of a windlass worked by hand. There were two posts ten or twelve feet high placed on a line north and south, eight feet from the warehouse and nine feet from the edge of the dock. The axis of the windlass was an iron shaft attached to these posts about two feet above the dock. There was another shaft directly over the first, attached to the top of the posts, and from this shaft the platform was suspended by chains. There was a wheel on each shaft and over the wheels passed an endless chain, so that as the windlass was turned, the upper shaft was also turned, and the platform raised by the winding of the chains by which it was suspended around the upper shaft. The crank which turned the axis of the windlass was at the south end of the shaft just south of the south post. Its arm was about two feet and its handle two and a half or three feet long. On the axis of the windlass was a ratchet wheel with a dog or pawl to engage with the teeth of the wheel and prevent it from turning in the opposite direction. The platform was so heavy that at least four men were required to work the windlass by which it was raised. It was the custom of the defendant, when the work of unloading a boat ceased, to lower the platform down to the dock and remove the crank from the windlass. There had been no boat at the dock for several hours before the time of the accident, yet the platform had not been lowered" nor the crank removed from the windlass. As the deceased was so near to the crank as to be struck by it, the dog or pawl became detached and disengaged from the ratchet wheel, and the weight of the platform caused the windlass to turn backward with such force that the crank, striking the deceased, inflicted on him such injuries as caused his instant death.

We think that from the evidence the jury might properly find that the deceased, when he came to his death, was, in the course of his employment and in the proper discharge of its duties, passing north along the dock, intending to go beyond the platform. He had nothing to do with the handling of freight nor with the platform in question or the machinery by which it was raised or lowered. We also think that the defendant owed the deceased the duty to use reasonable care to keep the platform and machinery in such position and condition as to be reasonably safe and free from danger to one properly passing by, although not employed to use the same; that the defendant was bound reasonably to anticipate that a person, especially a boy, passing by a windlass, the handle of the crank of which was only two feet above the dock, might jump or step upon,the handle.

The testimony of the only witness who saw plaintiff alive after he left the office of defendant, tends to show that he jumped or stepped upon the handle of the crank and that the crank immediately began to turn backward, striking deceased and causing his death. The dog or pawl when in place in the ratchet wheel prevented the weight of the platform from turning the shaft backward, and it is clear that it was because the dog or pawl became detached and disengaged that the weight of the platform caused the shaft and crank to turn backward. There is evidence on the part of plaintiff that the dog or pawl was at the time of the accident, and had been for some days before that time, loose; that some days before the accident, as the men were raising the platform, they had one man hold the cog in place; and evidence on the part of the defendant that the dog or pawl was not loose or in any way defective. Then the jury had the fact that the pawl became detached and disengaged without any apparent cause other than the jumping of the deceased on the handle of the windlass and the fact that the handle was left on the windlass contrary to the usual custom.

The negligence alleged in the declaration is the negligent failure to keep the dog in a reasonably safe condition, and the negligent failure to remove the crank from the windlass.

We cannot say, on the evidence in the record, that the jury might not properly find that the defendant was guilty of negligence alleged in the declaration which directly contributed to the death of plaintiff’s intestate, and that the latter was in the exercise of reasonable care for his own safety. It follows from what has been said that in our opinion the court did not err in refusing to give for the defendant the following instruction:

“If you believe from the evidence that the deceased, Arthur Krause, jumped upon the handle of a certain machine, while he was playing and was not then and there doing any work required of him by the defendant, and he was then and there killed by reason of said handle turning round, then you should find the defendant not guilty.”

The record is, we think, free from error, and the judgment is affirmed.

Affirmed.


text:
    Edward P. Hoffman, Appellant, v. William Grace Company, Appellee.
    Gen. No. 15,457.
    Personae injuries—when judgment in action for, not disturbed. Where, taking the evidence most favorable to the plaintiff as true, and drawing therefrom the inferences most favorable to the plaintiff that can reasonably be drawn therefrom, the evidence fails to show that the defendant was guilty of the negligence alleged in the declaration, a verdict of not guilty is properly directed.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Jacob C. Le Bosky, Will J. Bell and H. F. Dickinson, for appellant.
    F. J. Canty, E. E. Gray and R. J. Folonie, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment of nil capiat entered on a directed verdict of not guilty, at the close of plaintiff’s case, in an action on the case for personal injuries. The defendant was engaged in erecting the steel frame of a certain building, and the plaintiff was in the service of the defendant. Ten stories of the frame had been erected and some of defendant’s employes were engaged in raising with a derrick and tackle the plank used for a temporary floor at the eighth story, to the tenth, to be used in laying a temporary floor at that story. Plaintiff was at work on the eighth floor, in charge of a small party of men engaged in putting in place small beams, etc., that could be put in place without a derrick. A load of plank had been hoisted to the tenth floor and one of the planks slipped out of the load, fell and struck the plaintiff, inflicting on him the injuries complained of.

The negligence alleged in the declaration is that the defendant “so carelessly, negligently and improperly fastened and secured a bundle of planks on the eighth floor to the said derrick or hoisting apparatus on the tenth floor, of said structure that in hoisting same by means of said derrick, one of the planks in such bundle or load slipped therefrom as said bundle was being tipped or slanted for the purpose of guiding or steering same through the opening in the tenth floor of said building or structure, and then and there fell to the eighth floor of said building, and struck and injured the plaintiff.” In the load so hoisted were 36 planks, 3 inches thick, 12 inches wide, 24 to 28 feet long, and each weighing about 90 pounds. A chain with a hook at its end was passed around the load three inches from the middle, and hooked around that part of the chain leading to the derrick. As the load was hoisted the chain slipped through the hook and was drawn tight around the load by its weight. There was a tag line attached to the load, which was used to steady the load. Because the chain was passed around the load a few inches from the middle, the load tilted at an angle of about forty-five degrees. As it reached the tenth story, in order to hoist it through a space about ten feet square, men standing on the beams at that story caught hold of the load and caused it to tilt more until it was nearly perpendicular. All of the witnesses who testified on the subject, testified that the chain was fastened and the load hoisted in the usual way. Plaintiff testified that he saw Littau put the chain around the load, and further testified on cross-examination as follows: “Q. The way these things are done is to wrap the chain around the timbers to. be hoisted, taking a hook in the chain and hooking it on top of the bundle? A. Yes. Q. Is that the way he was doing it? A. I think it was.” Littau testified that he fastened the chain around the load in the way he usually did; that the chain and hook are the same as are ordinarily used; that he had seen many planks hoisted on different jobs; that he had seen chain loads of planks with more planks than the load in question and seen them with less; that the way they get a load through an opening was to tilt it; that nothing broke or gave way; that one plank came out from the center of the load and the rest of the load hung there for twenty minutes.

Our conclusion on a careful examination of the evidence is, that taking the evidence most favorable to the plaintiff as true, and drawing therefrom the inferences most favorable to the plaintiff that can reasonably be drawn therefrom, the evidence fails to show that the defendant was guilty of the negligence alleged in the declaration, and therefore a verdict of not guilty was properly directed. This conclusion renders it unnecessary to consider the other questions argued by counsel on either side, and the judgment is affirmed.

Affirmed.


text:
    Howard Boender, Appellee, v. City of Harvey, Appellant.
    Gen. No. 15,467.
    1. Instructions—approved form as to obligation of city with respect to its streets. The following instruction upon this subject is approved:
    “Where a street throughout its entire width is open for public travel, the city must exercise ordinary care to keep it in a reasonably safe state of repair throughout its entire width.”

      2. Negligence—what essential to establish proximate cause. To warrant a finding by the jury that the negligence of the defendant was the proximate cause of the injury, the evidence must he such that the jury might properly find that the injury was the natural and probable consequence of such negligence, and that it ought to have been foreseen by the defendant in the light of the attending circumstances.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Rehearing denied January 23, 1911.
    Statement by the Court. This is an appeal by the defendant from a judgment for $750 recovered by the plaintiff in an action on the case for personal injuries. Center avenue in the city of Harvey is a residence street, runs north and south, and is eighty feet wide. At the time of the accident there was on the east side of the street, about eight feet from the lot line, a cement sidewalk five feet wide. On the street side of the sidewalk were spaces eight feet wide, called by the witnesses “parkways.” Between the “parkways” was an unpaved roadway thirty-seven feet wide, over which a heavy scraper or grader was passed about once a month. On each side of the roadway were shallow ditches or gutters, and in them and on the adjacent “parkways” were weeds. On the “parkway” on the east sida of the street was a pile of six or more timbers, each thirty feet long and a foot square, piled in two or three tiers. In or near the east gutter, in the weeds, and about two feet south of the south end of the pile of timbers, was a stone of the estimated weight of twenty pounds. Plaintiff was a milkman and delivered milk from a wagon in the street to customers on each side of Center avenue. He was going, with a milk can in one hand, from his wagon to the house of a customer, the north line of which was some feet south of the south end of the pile of timber. He intended to pass south of the south end of the timbers, but struck his foot against the stone in the ditch, stumbled and fell on the pile of timbers, and received the injuries complained of.
    Frederic R. De Young, for appellant.
    McCaskill and Son, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

We do not think that the trial court erred in instructing the jury that: “Where a street throughout its entire width is open for public travel, the city must exercise ordinary care to keep it in a reasonably safe state of repair throughout its entire width.” Spring Valley v. Gavin, 182 Ill. 232; Montgomery v. Wright, 72 Ala. 411; Bacon v. Boston, 3 Cush. 174; Stafford v. Oskaloosa, 64 Ia. 251.

The negligence alleged in the first count of the declaration is, that the defendant negligently, etc., permitted said street to become and remain obstructed with rocks and timbers, on which plaintiff stumbled and fell, etc. The second count repeats the allegations of the first, and alleges that the defendant negligently permitted grass to grow in the street around and above said obstructions so as to hide them from view, whereby they became dangerous, etc. The third count alleges that the defendant negligently permitted certain obstructions to be placed and to remain in said street, etc., whereby, etc.

It does not appear from the evidence that the stone had been seen by any one before the plaintiff struck his foot against it. It had apparently fallen or been thrown among the weeds that were growing in the gutter and “parkway,” for it was lying on and surrounded by weeds. It was not in a traveled portion of the street. Hill, a witness for the plaintiff, testified •that he saw a stone a short distance south and west of the pile of timbers a few hours after the accident; that he did not think that the stone had been lying there a great while; “it might have been there several days, but it did not look as if it had been there a great while. ’ ’

Onr conclusion from the evidence is, that the jury might not properly find the defendant guilty of negligence either in permitting weeds to grow and remain in the space between that portion of the street which had been graded and used as a roadway, and the sidewalk, or in failing to discover and remove from such space the stone against which plaintiff struck his foot.

The pile of timbers had been in the “parkway” for a year or longer, and we think that the jury might properly find from the evidence that the permitting such a pile of timbers to remain on the “parkway” for such a length of time constituted and was negligence on the part of the defendant; that such negligence directly contributed to the injury of the plaintiff, and that the injury would not have been sustained but for such negligence. The view of the stone was obstructed by the weeds. Plaintiff testified that he did not see the stone before he struck his foot against it. He knew that the pile of timbers was on the “parkway,” but he testified that he intended to pass south of the end of the pile; and from the evidence the jury might properly find that he fell on the timbers only because he struck his foot against the stone. We think that from the evidence the jury might properly find that the plaintiff was not guilty of contributory negligence.

The conclusion most favorable to the plaintiff which, in our opinion, the jury might properly reach from the evidence, is that two causes contributed to produce the injury, both in their nature proximate; the one the striking of plaintiff’s foot against the stone and his consequent stumbling, an occurrence as to which neither party was at fault; the other the negligence of the defendant in permitting the pile of timbers to remain on the “parkway,” and that the injury would not have been sustained but for such negligence of the defendant. To warrant a finding by the jury that the negligence of the defendant was the proximate cause of the injury, the evidence must be such that the jury might properly find that the injury was the natural and probable consequence of such negligence, and that it ought to have been foreseen by the defendant in the light of attending circumstances. Seith v. Commonwealth Elec. Co., 241 Ill. 252, and eases there cited.

In the opinion in the Seith case Mr. Chief Justice Cartwright said: “To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence. * * * The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural" and probable consequence of his own negligence, and if so, the connection is not broken.”

It appears from the evidence that, persons who had occasion to go from wagons to houses were in the habit of passing directly from the wagon to a house, and it is common knowledge that delivery clerks, expressmen, laundry men and others who use wagons, go directly from their wagons to houses, and do not go by way of the nearest crosswalk or street intersection.

"We think that from the evidence the jury might properly find that the injury to the plaintiff was the natural and probable consequence of defendant’s negligence in permitting the pile of timbers to remain on the “parkway;” that in the light of the attending circumstances the defendant might have reasonably anticipated the intervening cause, the accidental stumbling and falling of the plaintiff in passing near to such timbers, and therefore might properly find that the negligence of the defendant was the proximate cause of plaintiff’s injury. It follows from what has been said that, in our opinion, the evidence is sufficient to support the verdict, and the judgment will be affirmed.

Affirmed.


text:
    Dora Golden, Appellee, v. Mary Gartleman, Appellant.
    Gen. No. 15,474.
    1. Tobts—right of action by wife to recover for alienation of husband’s affections. In Illinois a wife may, on the same grounds and with the same rights as a husband, recover for the loss of her husband’s affections against one who has alienated them.
    2. Evidence—what not competent in action for alienation of affections. The general reputation of the defendant for chastity is not competent in an action for alienation of affections.
    3. Evidence—what essential to competency of evidence of good character. In civil cases where character is in issue, the weight of authority is that evidence of good character should not be received unless the reputation has been attacked by general evidence of bad character.
    Action in case. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    George S. Foster, for appellant.
    No appearance by appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action on the case by a wife against defendant for alienating the affections of plaintiff’s husband, plaintiff had judgment for $1,250, and the defendant appealed. In Illinois a wife may, on the same grounds and with the same rights as a husband, recover for the loss of her husband’s affections against one who has alienated them. Betser v. Betser, 186 Ill. 537.

A husband'is entitled to recover substantial damages from one who has committed adultery with his wife, although he proves no resulting expense or loss of services. Shannon v. Swanson, 208 Ill. 52.

On the trial a witness for the defendant, who had testified that she had known defendant fifteen years and had lived near her, was asked by defendant’s counsel: “During all the time you have lived in that community did you ever hear any charge against defendant’s morality or chastity in any way ¡I” And answered, over the objection of the plaintiff, and without any ruling of the court: “No, I never could tell something bad about Mrs. Gartleman.”

We think the testimony was irrelevant and for that reason was properly stricken out. In Crose v. Rutledge, 81 Ill. 266, it was held in a similar action brought by a husband, that the general character of the defendant for chastity was not involved. In Israel v. Brooks, 23 Ill. 526, it was held that evidence of the previous good or bad character of the plaintiff was admissible in an action for malicious prosecution. In the opinion Mr. Justice Breese said: “We know, in no action save criminal prosecutions and actions for defamation, can the character of the party, as a general rule, be inquired into, but in such a case as this there seems to be great propriety in admitting it.”

Here the plaintiff offered no evidence tending to show that the character of the defendant for chastity was bad. In civil cases where character is in issue, the weight of authority is that evidence of good character should not be received unless the reputation has been attacked by general evidence of bad character.

The declaration alleged that the defendant committed adultery with plaintiff’s husband. We think that on the evidence the jury might properly find that the defendant had committed the act she was alleged to have committed, and that therefore the verdict cannot be said to be against the evidence.

Finding no error in the record, the judgment is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    John Woodstrom, Plaintiff in Error, v. Charles E. Freeman, Defendant in Error.
    Gen. No. 15,371.
    1. Landlord and tenant—when implication of holdover under expired lease arises. The implication that a tenant is holding over under the terms of an old lease arises only when proof of an election on the part of the landlord to take the contrary view of the tenant’s position and liability is wanting.
    2. Landlord and tenant—when tenancy at will arise.s. A tenant holding over not under the terms of an expired lease hut under an arrangement for a new one, void and unenforceable under the Statute of .Frauds, is a tenant at will.
    Error to the Municipal Court of Chicago; the Hon. Max Ebebhaedt, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    G. W. Spunner and H. N. Bell, for plaintiff in error.
    Carl R. Chindblom, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the tiourt.

This is a writ of error to the Municipal Court. That court, February 2, 1909, rendered a judgment of nil capiat and for costs against the plaintiff in error, who was also plaintiff below. The suit was for rent claimed to he due to the amount of $100 from the defendant Freeman to the plaintiff Woodstrom, for a flat at 1734 Oakdale avenue in Chicago, from May 5,1908, to July, 20,1908, at the rate of $40 a month.

The defendant held a lease of these premises which belonged to the plaintiff, running from October 1, 1906, to April 30,1908, at said rate. About March 29, 1908, according to the evidence, the plaintiff and defendant had a conversation about another term for a year. The evidence which the plaintiff offered at the trial shows that at that time it was understood between them that the plaintiff was to prepare a written lease and take it to the defendant to be signed, but that he did not do so and that no new lease was signed. On April 29, 1908, there was another conversation between plaintiff and defendant, in which differences evidently arose between them. The result was, as the plaintiff testified, that the defendant told the plaintiff that he would leave the next day, April 30th. But on May 1, 1908, the defendant wrote to the plaintiff saying that as the plaintiff wanted him to move, he would do so as soon as he could, and that plaintiff might put up his rent sign.

The plaintiff offered in evidence his letter to the defendant in reply, dated May 2,1908, in which he denied having given defendant notice to move. He said among other things: “You agreed to renew your lease some four weeks ago. * * * Therefore should you desire to move at this time I will hold you responsible for rent of the flat for whatever period it may be vacant up to and including April 30, 1909. As you know, a verbal agreement backed up with sufficient evidence, is just as legal as a written agreement. ’ ’

The introduction of this letter was objected to by the defendant, and the objection was sustained by the court and the letter excluded from the jury, which is one of the alleged errors complained of.

The defendant moved out of the flat on May 5, 1908, and on May 9th his wife came and" removed some things which had been left therein. After the defendant moved out, the plaintiff put up some rent signs and advertised the flat, but did not rent it till July 20, 1908. The plaintiff sent the defendant a check dated May 5, 1908, for $6.65, which the defendant received and cashed. He testified: “I supposed it was for rent from April 30, 1908, to May 5, 1908, and received it as such.”

The facts thus recited having been put in evidence by the plaintiff he rested his case, and the court instructed the jury to find for the defendant and entered judgment on the verdict rendered in accordance with said instruction. This instruction and the entry of the judgment are assigned for error.

The questions presented are therefore whether on the facts as shown the court should not have held as a matter of law, and so instructed the jury, that by holding over from May 1st to May 5th, the defendant became liable, at the election of the plaintiff in error, to be treated as a tenant for another year under the terms of the original lease; or at least have left it to the jury whether or not these facts did not work a renewal of this lease by implication of law.

These questions are not free from difficulty. The exclusion of the letter of the plaintiff to the defendant may have been erroneous, but this error was immaterial because the evidence never went to the jury at all. If the letter had been admitted it would, in our opinion, have strengthened rather than weakened the defendant’s case. We shall not undertake to" discuss fully the nice questions of law raised by the other assignments of error, but limit ourselves to a statement that we agree generally with the position taken by the counsel for defendant, that the implication that a tenant is holding over under the terms of an old lease arises only when proof of an election on the part of the landlord to take the contrary view of the tenant’s position and liability is wanting. Such seems to be the law as laid down in this State in the cases on the subject, notably in Weber v. Powers, 213 Ill. 370.

In the case at bar consideration of the letter of the plaintiff of May 2, 1908, would have strengthened the proof that the landlord was relying, not on the old lease, but on the arrangement for a new one, which it must be conceded was void under the Statute of Frauds, unenforceable and void.

And we are not prepared to hold, as urged by plaintiff in error, that under the facts proven the tenant became a monthly tenant, liable until he had given a thirty days’ notice of his intention to terminate the tenancy.

The tenant was liable as a tenant at will for use and occupation for the five days, and the landlord received and cashed a check which he understood was rent for that period.

We do not think that a verdict of a jury for the plaintiff could have been sustained on the evidence even had the issues been left to them, and shall affirm the judgment of the Municipal Court.

Affirmed.


text:
    William A. Pridmore et al., Appellees, v. Robert Wilson et al., Appellants.
    Gen. No. 15,384.
    Brokers and factors—when entitled to commissions. An agent for the sale of real estate whose authority was not exclusive is entitled to commissions if he is instrumental in the bringing together of the buyer and the seller and thus becomes the procuring cause of the sale although the actual conclusion of the sale may have been effected without his presence and knowledge.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    William A. Jennings, for appellants.
    Louis T. Ore, for William A. Pridmore, appellee.
    Mather & Hutson, for Edwin Bowes, Jr., Fred M. Bowes and John R. Bowes, appellees.
   Mr. Justice Brown

delivered the opinion of the court.

The appellees (plaintiffs) in this cause brought suit against the appellants (defendants) in the Circuit Court to the August term thereof 1906. It came to trial before a jury at the October term thereof 1908, and resulted in a verdict for the plaintiffs for the sum of $2,500. A motion for a new trial was made by the defendant^ and overruled by the court and judgment rendered on the verdict. The defendants thereupon appealed to this court and have assigned various errors in this court, but insist in argument only on the positions that the verdict and judgment thereon were against the weight of the evidence; that the court erred in refusing one instruction hereinafter referred to; and that the verdict, even if it were to be for the plaintiffs, should in no event have been for more than $2,000.

The claim of the plaintiffs was for commissions as real estate brokers on the sale of real estate in Chicago belonging to the defendants and sold by them for $100,000 to the “Robinson Estate,” of which one Frederick Robinson of Racine, Wisconsin, who conducted the negotiations for the purchasers, is an heir, and of which one Fuller, who took the title, is trustee.

There is no contradiction by defendants of the facts that the defendants, who were the owners of the property at 1322 and 1326 Michigan avenue, wished to sell it for $100,000, and that they had given authority to the three Bowes Brothers, who were doing business under the name of the Bowes Investment Company, to sell it for that price. This, as appears from a letter from the defendants to the Bowes Investment Company, of the date of April 3, 1906, introduced in evidence, was an exclusive authority or agency at that time. The defendants say: “We have not given an option' to anybody on the Michigan Avenue property. We have quoted a price of $100,000 to quite a number back some months ago, and we have also written today The Walter H. Wilson Co. that you have the property for sale. We will take pleasure in doing same with any other inquiries we receive.”

In the early part of 1905—a year before this letter—there is evidence to show the defendants had told one of the Bowes that if they could secure a purchaser for the property at $100,000, the defendants would consider it favorably, and that Mr. Bowes had said that if the defendants would give them (the Bowes Investment Company) the exclusive agency for the sale of the property, that they would sell it for a commission of two per cent.

After writing the letter of April 3, 1906, to the Bowes Investment Company, the defendants, who resided in Middletown, Ohio, received a letter and a telegram from the plaintiff Pridmore, who, like the Bowes Brothers was a real estate agent and broker in Chicago, concerning the sale of the property. There had been previous correspondence between the defendants and Pridmore concerning it, and Pridmore had been also corresponding about it with Robinson, who subsequently became the purchaser.

We allude here to the particular letter and telegram mentioned only to call attention to the fact that the answer of the defendants by telegram and letter to Pridmore referred him to the Bowes Investment Company, in the letter the defendants said: “We had so many inquiries in regard to the property from different parties that we concluded to put it into the hands of the above firm, thinking it best for ourselves. Would be pleased to have you confer with Bowes Investment Company and you may be able to divide if you make the sale on commission.”

The exclusive agency thus conferred or evidenced was apparently alluded to as an “option” thereafter, but it is quite plain that only this exclusive agency is meant when that word is used in the correspondence.

The plaintiffs were making, through Mr. Pridmore, who had formed an alliance with the Bowes brothers to carry through a sale of the property if possible on the basis of an equal division of the commissions, a vigorous effort to sell the property to the Eobinson Estate.

There had been talk in the letters written on the part of the defendants of a possible withdrawal on May 1, 1906, of the property from sale at the price theretofore set, and alluding to the sale which he was trying to negotiate with the Eobinson estate, Pridmore wrote to the Bowes Investment Company, under date of April 28,1906, suggesting that he wanted a little more time to carry the deal through. This letter F. M. Bowes sent to the defendants.

May 1st the defendants wrote to the Bowes Company acknowledging the receipt of Pridmore’s letter, which had been forwarded to them by F. M. Bowes, and saying:

“As your option which we extended to yesterday is out for the sale of the property, we have concluded to withdraw all options and give the sale of the Michigan avenue property to any broker who reports the sale first. There are so many inquiries about it that we have concluded to put it in that shape and hope that you will be the party who will first report to us a sale of the property.”

We think that despite the use of the word “option” in this letter, the real intent and meaning of it are shown by the other evidence to be that the exclusive agency theretofore existing in the Bowes brothers was revoked and that thereafter they were on the same basis, both as to authority and compensation, as any real estate broker would have been who, without any express contract regarding commissions, had been given authority, but not exclusive authority, to offer the property for sale.

Under the law applying to such cases, if they were instrumental in bringing together the buyers and sellers, and thus became the procuring cause of a sale of said property, they were entitled to the usual, reasonable and ordinary commissions, although the actual conclusion of the sale may have been effected without their presence or knowledge.

The property was sold by the defendants to the Robinson Estate some time in May, 1906, and apparently, although the evidence is confusing on this point, for $100,000.

That the jury were justified in finding under the evidence in this cause that the plaintiffs jointly were the original procuring cause of this sale, that they found the purchasers and brought buyers and sellers together, in pursuance of authority given them for that purpose, seems plain. That the amount awarded as compensation was justified by the evidence as the usual, ordinary and reasonable commission, is also plain. The fact that there was, after May 1st, the intervention of another party and that the plaintiffs were not present at or informed of the final consummation of the deal should not deprive them of their fairly earned reward.

Appellants complain of the refusal of an instruction offered by them. It was not applicable to the evidence in the cause and would have been misleading.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Hollis C. Gilbert et al., Appellees, v. O. K. Houck Piano Company, Appellant.
    Gen. No. 15,401.
    1. Pleading—effect of filing plea without leave. If a plea Is filed after tbe defendant’s time to plead, as fixed by order of court, has expired, without leave of court, and without notice to the plaintiff either before or after filing it, it forms no part of the record.
    2. Contbacts—lohen fraudulent representations no defense to action upon. If after knowledge of the fraud inducing the execution of the contract the party defrauded for a consideration ratifies the contract, an estoppel arises to preclude a reliance upon such fraud as a defense to an action upon such contract.
    3. Lottery—what not. Held, that the so-called “word contest” method of advertising was not a lottery within the meaning of the national or state laws.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Marvin E. Barnhart, for appellant.
    Pierson & Pease, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago for $1,763.83 and costs, rendered in 'a case of the fourth class by that court in favor of the appellees, who do business under the name of H. C. Gilbert & Company, against the O. K. Houck Piano Company, a corporation. The cause was tried by the court without the intervention of a jury. This attack upon the judgment is based on three positions:

First, that a plea of the defendant on file, unreplied to, asserts that the contract, on which the finding and judgment of the court in favor of the plaintiffs were based, was obtained by fraud.

It is argued that the allegations of this plea thus stand admitted. As the plea in question was filed more than six months after the defendant’s time to plead, as fixed by order of the court, had expired, and was filed, so far as the record shows, without leave of court and without notice to the plaintiffs, either before or after filing, it forms no part of the record. Davis v. Lang, 153 Ill. 175. We need not discuss, therefore, the effect of its allegations.

Secondly, the appellant claims that the evidence introduced under the pleadings recognized by the court, show that the contract sued on was procured from it by the plaintiffs by false and fraudulent representations, which vitiated it as a binding obligation.

It is unnecessary here to pass on questions involving the rights of the respective parties under a contract induced by extraneous fraudulent representations not made a part of the contract, or the necessity of rescission. For after the defendant company knew that the “copyright” which the plaintiffs had represented that they owned did not and could not cover a complete system or method of conducting a “Word Contest” for advertising purposes, but only referred to some printed matter used in connection with such contest, it ratified the contract and, in consideration of a concession made by the plaintiffs in the accounting, promised to pay money according to its terms, and actually did so.

This certainly estopped it from afterward claiming any benefit from the alleged fraudulent inducements. But we do not think that the evidence satisfactorily established fraud in securing the contract, nor that the court erred in his rulings on the admission of evidence in relation thereto.

A third ground of attack on the judgment is, that the contract between plaintiffs and the defendant company and the business to be done thereunder were in violation of the United States postal laws, which forbid the use of the mails for “letters, postcards or circulars concerning lotteries, gifts, concerts or enterprise offering prizes dependent on lot or chance.” As the so-called “Word Contest” method of advertising, which the plaintiffs contracted with the defendant company about, required the use of the mails, it is claimed that it was unlawful. If it was a lottery, having the element of gambling in it, it would have been unlawful, whether there was a use of the mails involved in it or not. If it were not “a lottery or gift enterprise offering prizes dependent on lot or chance,” then it was not unlawful under the postal laws.

With the justice of the contract between plaintiffs and defendant we have nothing to do, nor have we with the merits or expediency of this method of advertising pianos. But the method is no more a lottery and depends no more on lot or chance than a distribution of school prizes does.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Chicago Manual Training School Association, Appellee, v. Ingvard M. Scott, Appellant.
    Gen. No. 15,406.
    1. Pabent and child—liability of step-father. If a man takes the children of his wife by a former marriage into his family he stands in loco parentis as to them and becomes bound by his wife’s contract made for their maintenance and education.
    2. Husband and wife—effect of section 15 of act of March SO, 1874, upon liability of step-fathers. Section 15 of the act of March 30, 1874, “To revise the law in relation to husband and wife,” providing that the expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and that in relation thereto they may be sued jointly or separately, does not change the liability of the step-father from that laid down by the common law.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Benjamin Levering, for appellant.
    Charles Scribner Eaton, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

In this case judgment was rendered by the Circuit Court of Cook county October 10, 1908, against the defendant, appellant here, in favor of the plaintiff, appellee here, for $150.14. The judgment was for the tuition of one Edward Maguire at the Chicago Manual Training School (owned and conducted by the appellee corporation) for the school year beginning about September 1, 1901, and ending at the summer vacation in 1902.

Edward Maguire was the stepson of the defendant, Ingvard M. Scott. The tuition was charged at $110. It is not claimed that this amount was an unreasonable one for the tuition furnished, but it was claimed in the lower court and is here claimed, that the defendant is not liable for it, and that even if he is, no interest should have been added, as it was, to the $110.

The cause was submitted to a jury under certain instructions of the court hereafter noted, both as to the liability of defendant and as to allowing interest on the original charge for tuition. The verdict was for the plaintiff and assessed the damages at $150.14. A new trial was denied and judgment was thereupon given for that amount.

Edward Maguire was the son of Henry E. Maguire and his wife, who, prior to 1897, was Vivian M. Maguire. In that year she procured a divorce from Henry E. Maguire and by the decree was granted the “care, custody, control and education” of Edward Maguire. Shortly thereafter she married the defendant and became Vivian M. Scott. After that time, up to and beyond the time for which the tuition claimed in this case was given to Edward Maguire, the defendant, Mrs. Scott, and Edward Maguire lived together, Mr. and Mrs. Scott kept house at 943 Wabansia avenue in Chicago, and there Edward Maguire lived with them. In 1897 Edward Maguire was thirteen years old (according to his testimony as to his age given in 1908), and was attending a public grammar school in the city of Chicago. In 1899 he was taken by his mother, Mrs. Scott, to the Chicago Manual Training School and there remained a pupil until June, 1902. His tuition was paid up to the term which began in September, 1901. Mrs. Scott testified that the money which paid that tuition was given to her for that purpose by the boy’s father, Henry E. Maguire, who wanted his son to be educated at the Manual Training School. As to the third year, however, Mrs. Scott testified: “I was unable to pay the schooling, and I sent a note to Mr. Belfield so that the boy could continue school. His father asked me to, saying he would pay it, but in the meantime he took sick and died and that is why the other schooling was not paid.”

The note referred to in this testimony is one signed by Vivian M. Scott alone, by which, under date of January 23, 1903, she promised to pay to the order of the Chicago Manual Training Association $110 four months after date., The note was not paid. Demands were made for payment from her alone apparently, until the suit at bar was brought before a justice of the peace in July, 1906, by the plaintiff against both Ingvard Scott (the appellant here) and Vivian M. Scott. The justice gave judgment against both for $132, and Ingvard M. Scótt alone appealed to the Circuit Court. A rule on him to file a transcript was obtained in September, 1906. An appeal summons was taken out by appellee and served on Vivian- M. Scott, but on the case being called for trial in the Circuit Court, the appellee discontinued the suit against Vivian M. Scott and surrendered the note in the court “to have it marked cancelled.”

The case was submitted to a jury under instructions of the court, the essential doctrines of which were: First. That the giving of the note should not be regarded by the jury as payment or as a defense to the action if the defendant was otherwise liable, unless they held that the defendant had proven that 'the note had been given and received as absolute payment of the indebtedness. Second. That if Edward Maguire was a member of the defendant’s family and held out by the defendant to the world as such, the defendant was to be considered as voluntarily assuming the relation of parent to said Edward Maguire, and if defendant knew that the said Edward Maguire had been placed by his mother, the defendant’s wife, at the plaintiff’s school, and made no opposition thereto, and if the plaintiff had furnished him an education suitable to his social position at a reasonable charge, then the plaintiff was entitled to recover the unpaid portion of said charge from the defendant, although the law would have allowed the defendant to refuse to provide for said Edward Maguire and to refuse to take him into his family, and although if he had not taken said Maguire into his family and stood towards him in the relation of a parent, he would not have been liable for such charge. Third. That if the plaintiff had made repeated efforts to collect the amount claimed to be due the plaintiff from the defendant, and the defendant had unreasonably and vexatiously delayed payment of the same, interest should be allowed on the sum found to be due from the time that it became due. Fourth. That it was for the jury, from the evidence, to decide the questions of fact involved in these preceding propositions.

The jury found for the plaintiff and added interest to the charge of $110, making up the amount to that for which judgment was given, $150.14. A new trial was afterward denied. This appeal followed.

A motion to instruct the jury for the defendant, made both at the close of the plaintiff’s case and at the conclusion of all the evidence, was overruled, and it is of the essence of the appellant’s complaint here that this was error, although he also' claims that á new trial should have been granted because the verdict was against the weight of the evidence, and that the verdict was excessive in that it added interest unwarrantably.

It is to be noted that it is not specifically assigned for error that the instructions given were erroneous, nor that those refused (except the peremptory one) were improperly refused. The denial of a new trial is the only matter complained of in the assignments which involves the instructions. It is, however, argued in the appellant’s brief that the doctrine concerning a stepfather’s liability was incorrectly laid down by the judge of the trial court, in that “it is not the law that taking a child into his home and admitting it in a qualified way into the family renders a stepfather liable for his necessaries and education, but that to accomplish that result the child must be so admitted into the family as to create the relation of parent and child.”

We do not think the instructions as given were wrong or misleading in this regard. The common law doctrine has perhaps never been better stated, after all, than by Lord Kenyon in 1799, in Stone v. Carr, 3 Espinasse 1, when he said that if a man took the children of his wife by a former marriage into his family, he did then stand in loco parentis as to them, and was bound by his wife’s contracts made for their maintenance and education.

By comparison of this case with Tubb v. Harrison, 4 Dunford and East. 118, from which Lord Kenyon distinguishes it, it can be seen clearly that the test applied by Lord Kenyon to the question of the stepfather’s liability, is the one applied by the lower court in the case below.

And we think that the common law rule, thus declared, is supported by subsequent cases outside of Illinois and by text writers of authority. Mulhern v. McDavitt, 16 Allen 404; Williams v. Hutchinson, 3 Comstock 312; Eckhoff v. S. W. & S. W. R. R. Co., 106 Mo. App. 541; Lantz v. Frey, 14 Pa. St. 201; St. Ferdinand Loretto Academy v. Bobbs, 52 Mo. 357; 2 Kent’s Commentaries 192; 29 Cyc. 1667.

In Academy v. Bobbs (supra) an instruction in the exact language of the first instruction of the court below in the case at bar was approved by the Supreme Court of Missouri. And we do not think that the cases in Illinois which touch on this question are inconsistent with this early declared doctrine of the common law. For example: Brush v. Blanchard, 18 Ill. 47; Mowbry v. Mowbry, 64 Ill. 378.

The cases which treat of rights of a step-parent against the property of step-children for compensation for support, or of rights of step-children against stepparents for compensation for services, are not, however, much in point where the question is between such step-parent and third parties furnishing necessaries or education to the step-children.

Section 15 of the Act of March 30, 1874, “To revise the law in relation to husband and wife,” providing that the expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and that in relation thereto they may be sued jointly or separately, does not change the liability of the stepfather from that laid down by the common law, but the cases decided under it strengthen, so far as they have any effect, the case of the plaintiff here; For the test of whether there was a “family” under the meaning of the statute has been made the living together of husband and wife, or of husband, wife and children, and holding themselves out as one family. This is especially true of the decisions of the Appellate Courts of Illinois. See, for example: Cole v. Bentley, 26 Ill. App. 260; Hoyle v. Warfield, 28 Ill. App. 628; Arnold v. Keil, 81 Ill. App. 237; and Featherstone v. Chapin, 93 Ill. App. 223.

The present case differs in its facts from those of which the cases heretofore cited treat, in that it involves the education of the child of a woman previously divorced, whose natural father lived for some time after the divorce and for a time provided for the boy pecuniarily, although he was not a member of his natural father’s family. Perhaps on that account it is, as appellee’s counsel in his brief suggests, peculiarly interesting to an increasing class of persons, but we cannot see that the legal question is changed or complicated by this situation.

The jury were left to decide on the fact of the family relation under what we think were correct instructions as to the law.

The appellant, however, contends that the verdict was without support in the evidence, or at least contrary to its weight, even if the instructions are to be considered as correctly stating the law. With this proposition we do not agree. We shall not discuss the evidence. We have considered it and do not hold the verdict plainly against its weight by any means.

As to the interest, the question may be somewhat doubtful, but we think, under all the circumstances, the jury may have been justified in allowing it, and that the instruction was not so erroneous or misleading as to justify reversal.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Joseph F. Ryan, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,437.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    John E. Kehoe and C. Le Roy Brown, for appellant.
    James C. McShane, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee, plaintiff, obtained judgment against appellant, defendant, in the Circuit Court for personal injuries.

The appellee was injured in attempting to board the front platform of appellant’s car at or near Archer avenue and Canal street. Questions of fact, such as the sobriety of the appellee, giving a signal to stop, the place the car stopped, the usual place of stopping, whether the car was moving or not at the time appellee attempted to board same, and most, if not all, of the circumstances thereof were controverted. The testimony on these points was often in very sharp conflict.

Appellant complains that the verdict is clearly and manifestly against the preponderance of the evidence. After a careful consideration of all the evidence, refraining here from going into an analysis of the same, which could be of no particular benefit, we do not agree with this contention. Neither do we believe that the damages are excessive.

Appellant also complains of three instructions given in behalf of appellee. We do not think the objections urged to these instructions, or any of them, are tenable.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Wilbur Richardson, Appellee, v. Wells Brothers Company, Appellant.
    Gen. No. 15,453.
    1. Pleading—when declaration sufficient after verdict.. A declaration which states defectively a good cause of action is sufficient after verdict.
    2. Instructions—when upon doctrine of assumed risk not erroneous. An instruction which states to the jury that the servant does not assume risks growing out of the negligence of the master is not erroneous where there is no evidence that the servant had reason to anticipate danger from the acts which resulted in his injury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Rehearing denied January 23, 1911.
    F. J. Canty, E. E. Gray and R. J. Folonie, for appellant.
    Edward Maher and Guerin, Gallagher & Barrett, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This was an action on the case for personal injuries sustained by Wilbur Richardson while in the employment of Wells Brothers Company. Appellee, the plaintiff, recovered a judgment in the Superior Court of Cook county, and appellant, the defendant, now seeks a reversal of the same.

The plaintiff at the time he received the injuries of which he complains was at work wrecking an alley about thirty feet wide, extending north and south from Randolph to Washington streets, between the old and new structures of the Marshall Field building. The space underneath the alley, called a basement, was used for storage or subway purposes. The surface of the alley, being the roof of the basement, was supported by six-inch cast iron columns, twelve to fifteen feet high, through the center of the alley, about fifteen feet apart north and south. On these columns a steel .header beam rested. From the header beam extended cross beams east and west, about six feet apart, at right angles to the header beam, the east and west ends resting in stirrups. Between these cross beams were brick arches covered with concrete with a top dressing of asphalt, which was the surface of the alley. These arches were, according to some witnesses, eight to twelve inches thick, and according to others twelve to fifteen inches thick.

Along the center of the alley, beginning at the third column, cribbing consisting of six by six inch blocks four feet long was built at the side of the columns. This cribbing reached to the header beam, except the three south ones, which did not reach the beam by six inches. The east ends of the cross beams were supported by drums made of six-inch timber with jack screws at each end. The space, about fifteen feet square, between the header beams and the east or the west side of the alley and the cross beams extending east or west from the columns, was called a panel— making an east and west row of panels through the alley. • The arches of the southwest panel had been broken down the forenoon of the accident with pickaxes and mauls. Then with a derrick and boom a steel beam weighing about eighteen hundred pounds had been lowered into this open space and used as a ram to break loose the columns. In this way three of the columns were broken and hung suspended when the beam was raised up above the surface of the alley and used to drop on the adjacent panel of the alley to break down the arches. The beam had been dropped several times on this panel—some said for a half hour —when the superintendent, about two o’clock in the afternoon, called the plaintiff and said, “Richardson, pull this boom around.” Richardson, a structural iron worker, had begun working at this alley that morning taking out the “walk lights” in the east side of the alley, beginning at the south end of the alley and working north. When the superintendent ordered him to help pull the boom around he left his work and walked south fifteen or twenty feet and took hold of the tag line by which the boom was guided. Eichardson helped pull the boom around, let go of the line, turned and started back to his work. As he started back the beam was dropped and the panel went down with about four others to the north, plaintiff falling in the basement with brick and concrete, receiving serious injuries. This in a general way describes the situation as we understand it. It appears that the brick arches, the foundation of the alley surface, were supported by a frame work of columns and cross beams. Of course the more this frame work was bent down the greater the tendency to loosen and destroy the brick arches, and it would seem that the superintendent, in the exercise of ordinary care, would have known this. Eichardson had only worked there that day; his work had been confined to taking out the lights in the east side of the alley. He had not been down in the basement, and there had been no occasion for him to go down; he did not know of the columns being loose and the short cribbing or the cutting of the tie rods and stirrups, the construction of the brick arches, or anything of the nature of the structure underneath. Neither did the situation up to that time appear such that in the exercise of ordinary care on his part he would leave his work to go down into the basement to make an examination of the same.

The first count among other allegations avers that the plaintiff was employed by the defendant; that the work then being done was necessary work; that plaintiff was then and there engaged in its work, etc.; the plaintiff had no knowledge of the danger, etc.; that the defendant did the work negligently, etc., and without warning, etc., to the plaintiff of the danger, etc. Defendant contends that this count does not state a cause of action. The defendant did not demur to same, but pleaded the general issue. The point relied upon “that it contains no allegation whatever that the plaintiff had any business or right at the place where he was hurt,” under the authorities Mackey v. N. M. Co., 210 Ill. 115, and McAndrews v. Ry. Co., 222 Ill. 232, we think is not well taken. We do not think it can be successfully contended that this count states a defective cause of action, and it is good after verdict. Grace & Hyde Co. v. Sanborn, 225 Ill. 138; Chenoweth v. Burr, 242 Ill. 312.

In our opinion the proof supports the first count. It is therefore not necessary to consider the sufficiency of the second count.

The defendant next complains of the fourth and fifth instructions given on behalf of plaintiff.

The fourth instruction pertains to the assumption by the servant of the ordinary risks incident to his employment. Objection is made especially to that portion of the instruction which states that the servant does not assume the risk growing out of the negligence of the master, relying upon the authority Kath v. East St. L. S. Ry. Co., 232 Ill. 126, where a similar instruction was held erroneous. In that case there was evidence that the plaintiff had knowledge for several months prior to the accident of the defect complained of as the master’s negligence, and we do not think it is in point. The case at bar seems to fall within the rule announced in Williams v. Morris, 237 Ill. 254, where the evidence, as in the case at bar, showed that the plaintiff had no knowledge of the defect, and in which the court say, pp. 260-1: “A servant only assumes the usual and ordinary risks of the employment in which he is engaged, and not extraordinary hazards which may arise in the course of his employment from the negligence of the vice-principal of the master and of which he has no notice and from which he has no reasonable grounds, from the employment in which he is engaged, to fear danger of an opportunity to protect himself from injury.” While it is true plaintiff was .engaged in the wrecking of the alley, yet at the work in which he was engaged at the time there was no evidence showing any reason why he should anticipate any danger to himself. It seems to us the distinction on the point urged by the defendant is clearly expressed in Klofski v. Railroad Supply Co., 235 Ill. 146. On page 156 the court say: “The master’s negligence is not an ordinary and usual risk of the employment, hence a servant does not assume dangers arising therefrom by his contract of hiring, but the servant, knowing of such negligence, may assume the risk, and in such cases he assumes it because he knows of it and not because it has become an ordinary one.”

The court instructed the jury at the request of the defendant, in at least four different instructions, in substance that if . they believed from the evidence that the plaintiff at and before the time of the accident knew, or by the exercise of ordinary care on his part could have known, of the danger of being injured as shown by the evidence, he assumed the risk of such danger and could not recover. We conclude that under the evidence in this case there was no error in giving instruction four.

It is claimed instruction five was misleading. It announced a correct proposition of law, and we think under the evidence was properly given; but if not, we can see no harm in it to the defendant.

The judgment of the Superior Court will be affirmed.

Affirmed.


text:
    Jacob Kraft, Appellee, v. John Hora, Appellant.
    Gen. No. 15,470.
    Negotiable instruments—when action not premature. Where notes are given pursuant to the terms of a contract which provides that in the event of a certain contingency happening such notes become actually due and payable, such contingency having happened, suit thereafter brought upon such notes is not premature.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Morris Loeff, for appellant; E. M. Seymour, of counsel.
    S. E. Thomason, for appellee; Robert M. Cutting, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

Appellee brought suit against appellant in the Municipal Court on a contract and three notes described therein. At the close of all the evidence the court instructed the jury to find the issue for appellee, and judgment was entered on the verdict.

The contract and notes were dated August 4, 1908. The notes were signed by appellant and Herman Hecker, who is not a party to the action, payable to the order of appellee three years after date. The contract provides in substance that the parties, appellant and appellee, had owned and operated a roller skating rink at Forest Park; that said partnership was thereby dissolved; that appellee thereby assigned and transferred all right, title and interest therein to appellant; that said appellant assumed all the liabilities of said partnership and would save the said appellee harmless therefrom; that same was a final and complete accounting between the said parties, and recited in payment thereof the giving by said appellant of his three promissory notes for an aggregate sum of $3,534.30, all payable to said appellee three years after date. The contract also contains the following provision:

“ (4) It is understood and agreed between the parties that if at any time the said first party shall allow suit to be brought against said second party or against first and second party jointly on any of the partnership indebtedness now incurred without settling the claim upon which suit is so brought and securing the dismissal of said suit within ten days from the date said suit is brought as aforesaid, then the notes made by the said first party, payable to said second party, and hereinbefore described, shall become immediately due and payable at the option of the second party. ’ ’

The appellant claims that the contract and a set of notes without Hecker’s signature had been executed and delivered and subsequently appellee became dissatisfied with the notes and destroyed same, and then the notes in controversy, with Hecker’s signature, were executed and delivered to the appellee; and complains that the court erred in instructing the jury, because there was evidence tending to support the defense that the notes sued on were not those delivered under and with the contract.

There was some testimony that a set of notes had been signed by appellant and tendered to appellee, which he refused to accept, and they were destroyed. There was a conflict in the testimony as to the date and circumstances of the signing of the contract and notes, also as to the time of delivery of the same. That a set of notes had been signed, rejected and destroyed; the exact date of the signing of the papers, or any of them, during the negotiations to adjust their differences, except as bearing on the time of delivery, were not material. The question was: Were the notes in evidence delivered under and with the contract? On a careful examination of the record, we find no conflict in the testimony on this question and no evidence tending to support appellant’s claim.

The other objection urged by appellant is, that the suit was premature.

It was shown by appellee that the partnership of Hora and Kraft bought some hardwood flooring from the Hettler Lumber Co., and at the time of the delivery of the above mentioned contract were debtors of said Company; that said Company began a suit August 17, 1908, in the Municipal Court against said Hora & Kraft as co-partners, and summons served on appellee. The appellee in September, 1908, declared the notes due and demanded payment; not being paid, thereafter, on September 23, 1908, he began this suit, and appellant was served herein September 25, 1908. On October 14, 1908, a stipulation was filed in the Hettler Lumber Co. suit, dismissing same.

The only evidence presented by appellant pertaining to said Hettler suit was that he paid $150 on account August 5th, and at that time did not settle in full because he wanted a correct statement; that suit was then begun and he settled it about four days thereafter on their reducing the claim $22, which he says was about correct. The argument is then made that appellant could not control the action of the court in dismissing the Hettler suit. There is no evidence that he made any attempt to have same dismissed except the filing of the stipulation October 14, 1908. The proposition appellant relies upon in this respect is, that the appellee was not justified in declaring a breach of the contract and exercising his option.

Daniels on Neg. Insts. (5th ed.), vol. 1, p. 178, says: “Where there is a contemporaneous written contract affecting the terms of a bill or note, it is to be construed together with the bill or note in so far as each may be given effect and there is no repugnancy between them.” Defenses on Com. Paper by Joyce, sec. 310; Bailey v. Cromwell, 4 Ill. 71; Duncan et al. v. Charles, 5 Ill. 561; Davis v. McVickers, 11 Ill. 327. On p. 179 the same author further says: “The time of payment as fixed in the note may be controlled by a separate written agreement made at the time of the execution of the note.” Citing numerous authorities. Hunter v. Clarke, 184 Ill. 158. In Glancy v. Elliott, 14 Ill. 455, the court held a note made payable on the happening of a contingency became payable when the contingency upon which the money was to become payable happened. Stout v. Hill, 45 Ill. 326.

From the evidence it clearly appears that the contingency upon which these notes would become payable had happened. The appellant refers us to no authority sustaining his argument, and we are not aware of any rule of law that would warrant the court in holding, under the facts and circumstances in evidence in this case, that the appellee should not be permitted to exercise his legal rights under the terms of his contract.

The judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Mack

text:
    H. O. Stone et al., Appellees, v. Moloney-Bennett Belting Company, Appellant.
    Gen. No. 15,115.
    Brokers and factors—when not entitled to commissions. A real estate agent who ceases his activities in the renting of property and who abandons his negotiations with a particular party who afterwards makes a lease, is not the procuring cause thereof and is entitled to no commissions.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed January 6, 1911.
    Pam & Hurd, for appellant.

      Edwin L. Harpham, F. J. Crowley and Lambert Kaspers, for appellees.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

This is an appeal from a judgment for $175 broker’s commission claimed to have been earned in connection with a sublease made by the defendant to Kutroff, Pickard & Company of a portion of certain premises leased to but not entirely occupied by defendant.

Plaintiff knowing that defendant would want to sublet a part of the premises, secured on January 14, 1905, “an exclusive renting agency of all space in the building which you are not using for yo.ur own business, malting a special effort to get you the best tenants at the highest rentals, you to pay us five per cent, of the average yearly rental at the time each lease is closed.”

No rental price was fixed by the parties. There is a conflict in the testimony as to the period of the exclusive agency. Defendant claimed that it was to end on May 1, 1905, when it would occupy the part of the premises needed for its own business. Plaintiff at first claimed that it was for the entire period of defendant’s lease but subsequently on May 9, 1905, wrote to defendant as follows:

"5/9/1905.
Moloney-Bennet Belting Co.,
Randolph & Franklin Sts., City.
Gentlemen:
We have your favor of the 6th and have today instructed our man to remove our signs from the building.
We find that attached to the contract is a memorandum written to the writer by Mr. Lawton, dated January 14th, in which he stated that you were to have the right to negotiate leases directly with tenants after May 1st, 4 unless we had been previously negotiating with them.’ This explains our position, and we therefore return herewith the list sent you on the 5th, giving the parties with whom we have been negotiating, and if any of them go into the building, we shall expect you to pay us commission according to the contract.
Respectfully yours,
(Signed) H. O. Stone & Co.”
Dict. J. R. Magill.”

Defendant replied denying any such obligation, expressing dissatisfaction that plaintiffs had secured no tenant up to that time, offering to permit plaintiffs to secure tenants thereafter and to pay corn-missions in case plaintiffs finished negotiations and made leases, but refusing to pay commissions in cases defendant itself rented to any of the parties named.

The name of Kutroff, Pickard & Co. was not on the list sent by plaintiffs to defendant, and there is no claim made that this name was omitted by mistake.

Under these circumstances we are of the opinion that plaintiffs did not have any exclusive agency after May 1st by virtue of the original contract and that as Kutroff, Pickard & Co’s name was not on the submitted list, defendant would not be liable even if it had agreed to plaintiffs’ proposal in the letter of May 9th.

Plaintiffs moreover offered no evidence whatsoever in support of their later contention that they were entitled to commissions on leases made by defendant after May 1st in case plaintiffs had been previously negotiating with the sublessee. Their own agent, who drew up the original proposition of January 14, 1905, to defendant, testified as follows on cross-examination:

“Q. Wasn’t there a memorandum to that effect, that they (referring to defendant) were to have a right to rent after the 1st of May put upon that contract? A. There was a memorandum put on by Mr. Magill in our contract. It was typewritten, and attached to it.”

The memorandum referred to was not offered in evidence but the foregoing answer contradicts the claim made by plaintiffs in their letter of May 9th as to its contents.

If therefore plaintiffs are entitled to commissions on this sublease it must be on the ground that they were the brokers through whose agency the sublease was effected. Most of the facts in the case are not disputed. In the beginning of March, 1905, one Poucher, the local agent of Kutroff, Pickard & Company, a New York house, accompanied his friend French, a real estate man, on a search for a store. Passing the premises in question and finding plaintiffs’ rent signs thereon, they telephoned plaintiffs to send over a representative. Mr. Russell, plaintiffs’ salesman, came and showed them through- the building, fixed the price at $5,000 and on the same day, as he testifies, told Moloney, defendant’s president, that he had submitted the matter to Poucher. Moloney denies this conversation. Subsequently Russell gave French a blue print of the premises. Poucher submitted the matter to his firm. They rejected it, as Poucher testifies because of the price. Nothing further was done by plaintiffs in regard to the sublease to these parties though they continued to advertise this property with other properties until May 14th and kept their 11 to rent ’ ’ signs up until about the same date. Poucher, not finding suitable premises before May 1st, extended the lease on the premises that he then occupied, to January 1, 1906. On May 3, 1905, he wrote French that he would need a place on January 1, 1906, at about $300 a month and subsequently he looked at a dozen or more places.

About the end of June, 1905, Poucher and Moloney meeting on the suburban train,- took up the matter because of some suggestion made by a clerk of defendant. Poucher told Moloney that the price was too high and they finally compromised on $3,500, at which price the lease was made on July 20th, effective September 1, 1905.

Would a jury be justified on these facts in finding that plaintiffs were the procuring cause of this sublease? Defendant contends that they establish clearly that the original negotiations were at an end; that the lease resulted from entirely new and independent negotiations in which plaintiffs had no part. Plaintiffs contend that it was for the jury to determine whether or not the transactions with Poncher were continuous, from the time of the original interview with Bussell; that it might be true—and they claim on the basis of rejected testimony that it was true— that they did nothing further because they believed defendant had instructed them to await further orders. Notwithstanding the fact that plaintiffs were the brokers through whom the matter of leasing to Kutroff, Pickard & Company was originally brought to defendant’s attention, that the. only reason for the failure to rent in the beginning was the price and that the premises were subsequently rented to the same parties when the price was reduced, we are of the opinion that a jury would not under this evidence be justified in finding that plaintiffs were the procuring cause of the lease. Their complete inactivity for nearly four months and their failure to list the name of these parties in their letters of May, 1905, demonstrate that they had completely abandoned any negotiations with Poncher.

Poucher’s renewal of his old lease, and his efforts to secure other properties demonstrate that he had abandoned all negotiations, with plaintiffs and defendant. These were renewed, not with plaintiffs but with defendant alone and at its instigation.

The jury should have been instructed to find for defendant. The clear preponderance of the evidence is against the plaintiffs. It is therefore our duty to reverse the judgment of the trial court.

Reversed.


text:
    Zander Reum Company, Defendant in Error, v. Congregation B’Nei Moshe, Plaintiff in Error.
    Gen. No. 15,121.
    Mechanic’s lien—section 7 of act construed. The fair construction of section 7 of the present act is that the lien may be perfected as against a creditor, encumbrancer or purchaser by either, suing or filing a claim within four months, but as against the owner by either suing or filing a claim within two years after the completion of the work.
    Mechanic’s lien. Appeal from the Superior Court of Cook county;1' the Hon. Farlan Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 6, 1911.
    Louis T. Orr, for plaintiff in error; Harvey L. Cavender, of counsel.
    Cody & Eaton, for appellee; Chester Firebaugh, of counsel.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

This is an appeal from a decree allowing complainant a mechanic’s lien for extra work in the sum of $343.85 over and above the sum of $750, admittedly due and paid into court by the defendant as the balance due under the original contract.

The main controversy of fact is whether the work was extra or included under the terms of the original contract.

A careful consideration of the evidence satisfies us that the trial court correctly held with the complainant that while the plans showed the presence of certain columns in the buildings, the specifications submitted to complainant by the architect and on which the bid was made, did not provide for plastering these columns; that after the work was begun and when new specifications were handed to complainant containing such a provision, it at once objected and stated that this would be done only as an extra, whereupon the architect and the chairman of the building committee directed it to proceed, promising payment in case the work was an extra. We concur too in the finding of the court as to $18.90 being a proper charge for patching the settlement cracks.

No claim for lien was filed with the clerk of the Circuit Court and it is doubtful under the evidence whether this suit was begun within four months after the completion of the work. The only testimony as to the time of completion is that it was done “about the 12th or 13th of September, along in there somewhere; I don’t know exactly the date.” The bill of complaint was filed on the 12th of January next following. If it were essential that the bill be filed within four months, this evidence would not be sufficient to justify a finding that the work was completed not earlier than September 12th.

In our judgment, however, under section 7 of the Mechanic’s Lien Law of 1903, suit may be brought as against the original owner with whom the contract was made, at any time within two years after the completion of the work. This Act differs radically from the prior Act construed in Bloomington Hotel Co. v. Garthwait, 227 Ill. 613, and Kelly v. Springer, 235 Ill. 493. The former Act did not contain the provision inserted in section 7 of the present Act, that as to the owner the claim for lien may be filed with the clerk, not within four months, but within two years after the completion of the contract, or of the extra work. The fair construction of section 7 of the present Act is that the lien may be perfected as against a creditor, encumbrancer or purchaser by either suing or filing a claim within four months, but as against the owner by either suing or filing a claim within two years after the completion of the work.

The decree will be affirmed.

Affirmed.


text:
    In the matter of the Estate of Vaclav Bastl, Deceased, Josie Simek, Administratrix, Appellee, v. Anna Urban, Appellant.
    Gen. No. 15,123.
    Administration of estates—nature of appeal affecting widow’s award. An appeal from an order confirming the report of appraisers as to a widow’s award is not a suit at law to be tried on the short cause calendar.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiix, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed January 6, 1911.
    Foster, Bradley & Stetson and Mortimer L. Samplyner, for appellants.
    Novak & Pollack, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

On an appeal to the Circuit Court by the next of kin from an order confirming the report of appraisers as to a widow’s award, the issue as to the proper amount was submitted to a jury, on a call of the short cause calendar, over the protest of the appellant and a personal judgment was entered on the verdict against appellant and in favor of the administratrix.

A year later and after this appeal was perfected this judgment was set aside and á judgment entered fixing the widow’s award at the amount of the jury’s verdict to be paid in due course of administration.

These judgments must be reversed.

The entire proceedings in the Circuit Court were erroneous. The appeal from the order of the Probate Court was not a suit at law to be tried on the short cause calendar. The appellant was therefore justified in not offering any evidence on that trial.

In Miller v. Miller, 82 Ill. 463, at 470, the Supreme Court says:

“While the statute does not, in express words, require that this estimate of value by the appraisers should be approved by the court, in order to give it binding force as such, it has long been the practice to do so, and it seems very appropriate that it should be so.
“The county court, from its general powers in supervising the administration of estates, has the power, for cause shown, to sét aside an appraisement bill, or a report of appraisers making out and certifying to that court an estimate of the value of the items of property mentioned in the statute as ‘the widow’s award,’ and to order the appraisers to consider the subject again, and make another appraisement bill, or another estimate of the value of the items allowed by statute to the widow as the widow’s award, and for cause shown, the court might remove the appraisers and appoint other appraisers, and charge them with these duties. But, while the county court has this supervisory authority, it has no power to revise and modify the appraisement bill or the appraisers’ estimate of the value of the property allowed as the widow’s award. The county court has no power to substitute the judgment of the court for the judgment of the appraisers, for the statute has made the estimate of the appraisers effective, and not an estimate made by the county court. As well might the circuit court, where a verdict of a jury has been returned, take up the verdict and revise and modify it, and enter this modified verdict as the verdict in the case.
“The form of the judgment in the county court in this case is, ‘that said award be approved, and that it be paid to said Kate L. Miller, widow of said decedent, in due course of administration. ’ The issue tried in this ease was made upon objections interposed by appellant against the approval of the award, which was, in substance, a motion or application on the part of appellant for .an order of the county court setting aside the award, and the judgment, in_ substance, is a judgment refusing to set the same aside.
“When the case came to the circuit court by appeal, the circuit court could not properly exercise any power in the case save that which the county court could and should have done. The Circuit Court, properly, could only have ordered the estimate of the appraisers to be set aside, or have refused to make such order.”

The judgment rendered in the Circuit Court will be reversed and the cause remanded to that court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

Me. Justice Baldwin took no part in the decision of this case.