text:
    Bertha Ferenc, Plaintiff in Error, v. Walden W. Shaw Auto Livery Company, Defendant in Error.
    Gen. No. 23,546.
    1. Parties, § 31

      —when amendment substituting corrected name of defendant is not substitution of new defendant. Where suit is brought against and service had upon the right defendant, but by a wrong name, an amendment substituting defendant’s correct name wherever the incorrect name appears in the title of the cause, the process and the pleadings, does not amount to substituting a new defendant.
    2. Parties, § 39*—when error to refuse to allow amendment by substituting name of new corporation in place of old as defendant. Where a corporation operating automobiles sold its assets and good will to its stockholders, subject to existing liabilities, and these stockholders, together with others, form a new corporation which continues the business, though the latter, while not active in business, did not dissolve, but maintained its office with those of the new company, and one injured by an automobile operated by the new company brought suit, naming the old company as defendant, process being served upon one who, at the time, was an agent of the new company but had been an agent of the old up to the time of the sale of the assets, and these facts are disclosed at the trial, the case constitutes one of a suit against a right defendant by a wrong name, and it is error to refuse to permit plaintiff to amend by substituting the name of the new company for that of the old.
    3. Partees, § 39*—how misnomer of defendant must be taken advantage of. Where the real party in interest and the one intended to be sued is actually served, but under a wrong name, he must take advantage of the misnomer by a plea in abatement, or he will be concluded by the judgment or decree therein as though he were described by his true name.
    Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 24, 1918.
    C. Helmer Johnson, for plaintiff in error; Arthur H. Chetlain, of counsel.

      D’Ancona & Pflaum;, for defendant in error.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This was an action on the case brought by Bertha Ferenc, the plaintiff, in which she sought to recover damages for personal injuries alleged to have been suffered by her owing to the negligence of one of the servants of the defendant corporation in driving an automobile owned by the defendant. The defendant filed a plea of not guilty and also a special plea of non-ownership. During the trial of the case it developed that the Walden W. Shaw Auto Livery Company was a corporation organized under the laws of the State of Illinois in 1908, and operated an automobile and taxicab business in Chicago until the summer of 1910. In September of that year, the Walden W. Shaw Livery Company was organized as a Maine corporation and took out an Illinois license and proceeded to conduct an automobile livery business for public hire in the City of Chicago. At that time the Walden W. Shaw Auto Livery Company sold all of its assets, including the good will of its business, to its stockholders subject to existing liabilities, and these stockholders, together with other automobile taxicab interests, formed the new company. The Walden W. Shaw Auto Livery Company ceased doing an active business but did not dissolve and continued to maintain its corporate existence. The business offices and garage of the Walden W. Shaw Livery Company were on Wabash avenue in the City of Chicago and the office of the Walden W. Shaw Auto Livery Company was maintained at the same place.

The accident complained of occurred on December 22,1913. When the facts which have been stated were disclosed at the trial, the plaintiff moved the court to amend all papers and proceedings in the case by crossing out the word “Auto” from the name of the defendant wherever that name appeared in the title of the cause and in the process and the pleadings. This motion was denied by the court.

It was admitted that the automobile causing the injury complained of in the declaration was at the time of the injury owned and being operated by the Walden W. Shaw Livery Company, and that sendee of process was had upon one C. J. West, who was one of the agents of the Walden W. Shaw Livery Company at the time of the service of the summons in this case. The plaintiff offered to prove that she was injured in the way set out in the declaration by an automobile owned by the Walden W. Shaw Livery Company, through the negligence of one of its employees, while in the exercise of due and ordinary care for her own safety, and that she suffered the damages alleged as a result of her injuries. The defendant objected to that evidence and the court sustained the objection. Thereupon the court directed the jury to find the defendant not guilty. Verdict and judgment to that effect followed. From that judgment the plaintiff has appealed.

The plaintiff contends that the court erred in both of the rulings referred to. In the view we take of this case, the vital question is, Who was served with the summons in this cause, the Walden W. Shaw Auto Livery Company or the Walden W. Shaw Livery Company? From the agreed statement of facts appearing in the record, we are led to the inevitable conclusion that the service was not had upon the Auto Livery Company, but upon the Livery Company. In stating the facts, counsel for the defendant said that C. J. West had been an employee of the Auto Livery Company from the time of its organization until it ceased conducting an active business, whereupon he became an employee of the Livery Company, and continued such from the time of its organization down to and including the time of the claim made in the declaration in this suit. It also appears from the statement of the trial court that the service of process in the case at bar was had upon C. J. West, who was one of the agents of the Walden W. Shaw Livery Company at the time of the service. We, therefore, have here a clear case of a suit brought against and service had upon the right defendant by the wrong name, and the amendment sought to be made by the plaintiff would not have amounted to substituting one defendant for another as it would have been if the service had been had on the Walden W. Shaw Auto Livery Company.

As was stated by our Supreme Court in Pennsylvania Co. v. Sloan, 125 Ill. 72, at page 77: “The law undoubtedly is that where the real party in interest and the one intended to be sued is actually served with process in the cause, even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit; and, if he does not, he will be concluded by the judgment or decree rendered the same as though he were described by his true name. ” Citing Pond v. Ennis, 69 Ill. 341. The case of Proctor v. Wells Bros. Co. of New York, 262 Ill. 77, has been cited by both sides of this case in support of their respective positions. In that case the plaintiff was an employee of the Wells Brothers Company of New York and was injured in connection with his employment: He began an action against “Wells Brothers Company, a corporation” and a summons was issued and served upon that company. The defendant, which was an Illinois corporation, filed a plea of the general issue and another averring that it was not then and there in possession or control of the premises, property, machinery, appliances or persons as alleged in the declaration. Later an order was entered for the amendment of all proceedings and papers in the case by changing the title of the defendant to “Wells Brothers Company of New York, a corporation.” An alias summons was issued against that company. This summons was served and the suit was dismissed as to the original defendant. The new defendant filed a plea of the general issue and also several pleas setting up the statute of limitations. Replies were made to these pleas and the trial was had resulting in a judgment for the plaintiff. This court reversed the judgment of the trial court and held that the latter should have instructed the jury to find for the defendant because the action had been barred by the statute of limitations.

On appeal to the Supreme Court, the judgment of this court [181 Ill. App. 468] was affirmed. In its opinion, the Supreme Court comments on the fact that the person upon whom the original summons was served was secretary of the Wells Brothers Company, 'but was not an officer or agent of Wells Brothers Company of New York, and that the two corporations were conducted as distinct and separate companies. On page 81 the court says that if the plaintiff had actually begun his suit against the defendant Wells Brothers Company of New York by the name of Wells Brothers Company only, and had he caused the summons to be served on an officer or agent of the Wells Brothers Company of New York, the amendment of the name from Wells Brothers Company (as the suit was originally brought) to Wells Brothers Company of New York would not have affected the plaintiff’s right to proceed to judgment; or, if the cause had gone to judgment without the amendment, the defendant Wells Brothers Company of New York would have been bound by the judgment. The court proceeds to say: * ‘Where the real party in interest and the one intended to be sued is actually served with process in the cause,. even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit, and, if he does not, he will be concluded by the judgment or decree rendered, the same as if he were described by his true name.”

We do not deem it necessary to take np the other assignment of error. For the reasons indicated, the trial court erred in denying the plaintiff’s motion for leave to amend, and the judgment of the trial court will therefore be reversed and the cause will be remanded to the Superior Court for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Thomson

license: Public Domain

text:
    William H. Fisher, Appellee, v. William H. Wecker, Appellant.
    Gen. No. 23,565.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 24, 1918.
    Statement of the Case.
    Action by William H. Fisher, plaintiff, against William H. Wecker, defendant, to recover rent alleged to be due under a written lease. Judgment by confession was entered for plaintiff for $147.50, which included an attorney’s fee of $20. Defendant, on motion, was later permitted to appear, and defend, and on the trial by the court without a jury it was shown, and conceded by plaintiff, that defendant was entitled to a credit of $20 as of the day the judgment by confession was entered. After hearing the evidence, the court found the issues for the plaintiff and entered an order reducing the judgment by confession by the amount which defendant had paid and affirmed the judgment by confession as reduced and ordered it to stand as the judgment of the court. From this judgment for plaintiff for $127.50, defendant appeals.

      Abstract of the Decision!
    1. Judgment-^when change in amount of judgment by confession does not preclude allowance of attorney’s fee in final judgment. Where a judgment by confession which includes an attorney's fee is, on a subsequent hearing on the merits, reduced by an amount which defendant paid on the day the judgment by confession was entered and, as reduced, is affirmed, the issues being found for the plaintiff, the change in the amount of the judgment by confession does not preclude the including of the attorney’s fee in the final judgment.
    2. Judgment—when attorney’s fees are properly taxable against defendant upon reopening judgment by confession. If, after a judgment by confession has been reopened, defendant has been allowed to plead and a trial has been had on the merits, the finding is against the defendant, it is proper to include a reasonable sum as attorney’s fees in the final judgment, whether or not the judgment by confession has been vacated.
    3. Judgment—what is proper order on reopening judgment by confession and giving leave to plead. Where defendant has a judgment by confession reopened and is given leave to plead to the merits, it is not proper practice to vacate the judgment by confession, but the order giving defendant leave to plead should direct further that the judgment stand as security and that no further proceedings be taken thereon until further order of the court.
    4. Landlobd and tenant, § 325

      —when evidence sustains verdict for plaintiff for rent. In an action to recover rent, evidence as to payment held not to preponderate in defendant’s favor, but to support a verdict for plaintiff.
    Leon A. Berezniak, for appellant.
    Adams, Crews, Bobb & Wescott, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom

text:
    James F. Bishop, Administrator, Appellee, v. Chicago Telephone Company, Appellant.
    Gen. No. 23,641.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 188

      —when evidence insufficient to show causal connection between cancer and injuries sustained by fall. In an action to recover for the death of plaintiff’s intestate, a telephone installer in defendant’s employ, .in which it was alleged that the death was caused by cancer of the breast and that the cancer was the result of a fall caused by the weak and insecure condition of a spike in a pole on which deceased was working, evidence held
      insufficient to establish, a causal connection between the cancer and the injuries sustained by reason of the fall.

      Appeal from the Circuit Court of Cook county; the Hon. Richabd " S. Tuthux, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with findings of fact.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by James F. Bishop, administrator of the estate of Abraham Foster, deceased, plaintiff, against Chicago Telephone Company, defendant, to recover for the death of plaintiff’s intestate alleged to have been caused, while in defendant’s employment, through falling from a telephone pole by reason of the weak and insecure condition of a spike in the pole, which condition was caused by defendant’s negligence. From a judgment for plaintiff for $3,500, defendant appeals.
    Holt, Cutting & Sidley, for appellant.
    Edgar J. Cook, for appellee.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

2. Appeal and error, § 1772*—when judgment reversed. Even though the questions involved on an appeal are mainly of ■ fact, ■ yet when the Appellate Court, on a due examination of the evidence, concludes that the verdict and judgment are against the weight of the evidence and that the evidence is insufficient to support the verdict, the judgment will be reversed.

3. Master and servant, § 685*—when spike in telephone pole not shown to he defective. In an action to recover for the death of an employee, alleged to have resulted from injuries received by a fall caused by the defective condition of a spike in defendant’s telephone pole on which he was working, evidence held insufficient to show that the spike was defective.


text:
    Julius Ettelson and Isaac Ettelson, Appellants, v. Frank Sonkopp et al., Appellees.
    Gen. No. 23,656.
    (Not to Ibe reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding.
    Heard in this court at the October term, 1917.
    Judgments affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Garnishment by Julius Ettelson and Isaac Ettelson, plaintiffs, against Frank Sonkopp and Frank Trentler, garnishees, in which the Drovers National Bank filed an intervening petition, claiming the value of the garnisheed property in the hands of the garnishees was due it. It appeared that the principal debtor had sold certain property to the garnishees, giving them a bill of sale, and had received part of the purchase price in cash and the balance in notes secured by a chattel mortgage on the property. After the execution of the bill of sale the plaintiffs in garnishment had judgment entered by confession against the debtor and on the same day the garnishee summons was sued out in the same court and served the following day. It appeared that a third person to whom the notes of the garnishees had been indorsed had discounted the notes with the intervening petitioner. There was a judgment discharging the garnishees and a judgment in favor of the intervening petitioner. From these judgments, the plaintiffs in garnishment appeal.
    Abstract of the Decision.
    1. Exemptions, § 17

      —when exemption in property passes to proceeds of purchase price. The mere fact that property sold by a husband and mortgaged back to him is exempt from sale on execution does not invalidate the sale by him, and any exemption which might have been claimed as to such property passes from the property to the purchase price on the transfer.
    2. Fraudulent conveyances, § 15*—when Bulk Sales Act inapplicable. The Bulk Sales Act [Callaghan’s 1916 St. Supp. f 10021(1) et set?.], does not apply to a transaction which does not involve a sale of merchandise, but of the fixtures, utensils and a horse and wagon used by the seller in conducting a butcher shop.
    3. Garnishment, § 63*—when no recovery against garnishees proper. Where the judgment of plaintiffs in garnishment did not become a lien on the debtor’s personalty until 15 days after he had transferred it to the garnishees and 13 days after the recording of a chattel mortgage thereon from the garnishees to such debtor, plaintiffs in garnishment cannot recover against the garnishees.
    4. Garnishment, § 146*—when judgment for intervening petitioners not disturbed. Even though the judgment in a garnishment proceeding in favor of an intervening petitioner is informal in form, it will not be disturbed on appeal where it is not disputed for that reason by any of the parties.

      Blum & Blum, for appellants.
    Jacob J. Schwartz, for appellees.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

5. Appeal and error, § 1709*—waiver by court of error in failing to separately doclcet distinct appeals. Where there are two appeals in a record, each separate and distinct, each should be docketed separate, but the Appellate Court will, in its discretion, waive the irregularity in the interests of justice.


text:
    In the Matter of the Estate of Kossuth H. Bell, Deceased. Emma M. Bell, Appellee, v. Emily Browne, Administratrix of the Estate of Kossuth H. Bell, Deceased, Appellant.
    Gen. No. 23,814.
    1. Evidence, § 324

      —when testimony of counsel inadmissible to explain order of court. Testimony of counsel on a former hearing as to what took place orally before the trial judge, offered for the purpose of explaining an order, is properly excluded where there is nothing unintelligible in the order.
    2. Appeal and error, § 731*—lohat not properly part of record. Evidence of colloquies between the trial judge and counsel have no proper place in the record on appeal and will be disregarded.
    3. Executors and administrators, § 288a*—what constitutes prima facie case in proceeding in Circuit Court on claim for alimony against estate. One filing a claim in the Circuit Court against an estate for alimony makes a prima facie case by the introduction of copies of the order for alimony, the appeal bond given on the appeal from the order, the opinion and judgment of the Appellate Court affirming the order and the bill of costs of the Appellate Court therein, and is not required to offer in evidence the claim filed in the Probate Court, from the judgment of which the appeal was taken to the Circuit Court. 1
    4. Divorce, § 84*—what is effect of appeal from order for alimony pendente lite on right to change order. An order for alimony pendente lite which is appealed from cannot, pending the appeal, be interfered with or changed by any other judge of the same court; when the appeal is perfected by the filing of the bond on appeal, the questions arising under that order are beyond the jurisdiction of that court, and until the reviewing court has pronounced its judgment and the matter is through its mandate again before the trial court, the latter court cannot again interfere.
    5. Appeal and error, § 1815

      —necessity of trial court acting in accordance with mandate of reviewing court. Where a trial court is reinvested with jurisdiction by the mandate of the reviewing court, it can act only in accordance with that mandate.
    6. Divorce—what is immaterial in determination of appeal from order allowing alimony. An order vacating an order entered allowing alimony pending an appeal from an order allowing alimony pendente lite is not material, whether entered with or without jurisdiction, in the determination of the appeal from the order allowing alimony.
    7. Divorce—what is effect of giving and approving appeal bond. An order allowing alimony pending an appeal from an order allowing alimony pendente lite is accepted as a condition of the appeal evidenced by the giving and approving of the appeal bond.
    8. Appeal and error, § 306*—what is final order. An order for the payment of alimony which is for a specific amount payable absolutely is final and appealable.
    9. Abatement and revival, § 65*—what is effect of abatement of suit in which alimony is granted by death of defendant. Even though the suit in which alimony is granted is abated by defendant’s death, it does not follow that the amount due under the order before his death cannot be recovered in an independent action.
    10. Abatement and revival, § 65*—when accrued alimony may be recovered in action on appeal bond of husband after his death. Where defendant dies pending an appeal by him from an order granting alimony, the alimony which has accrued up to the time of his death may be recovered in an action upon the appeal bond, and the surety on the bond who is held therefor has recourse against the estate.
    11. Divorce, § 90*—what is nature of order to pay alimony pendente lite after judgment. An order to pay alimony pendente lite is a judgment of the court, and after judgment it becomes a vested right which cannot be devested by a subsequent order of the court.
    12. Divorce—what is effect of affirmance on appeal of order to pay alimony. The affirmance on appeal of an order to pay alimony pendente lite makes the right to alimony final.
    13. Abatement and revival, § 65*—what is proper claim against estate of husband in favor of wife. While the death of the husband abates a suit for separate maintenance, the amount due, at the time of his death, under an order for alimony pendente lite is recoverable by the widow and is properly a debt provable against his estate.
    14. Appeal and ebbob, § 1812

      —when judgment nune pro tunc proper on appeal from order for alimony pendente lite after death of husband pending appeal. The Appellate Court has authority to enter its judgment nune pro tunc, on an appeal of a husband from an order for alimony pendente lite, as of a date prior to the date of the death of the husband who died while the appeal was pending, and the parties and the court will be bound by such judgment in the absence of a further review.
    15. Executobs and administbatobs, ,§ 217*—when claim for alimony legally cognizable in Probate Court. The claim of a widow against her deceased husband’s estate for the amount unpaid under a decree for alimony pendente lite is legally cognizable in the Probate Court against the decedent’s estate in that court.
    16. Executobs and administbatobs, § 204*—what claims are provable against estate. All claims of every nature against a decedent are provable against his estate in the due course of its administration.
    17. Executobs and administbatobs, § 327*—what constitutes claim of seventh class. The claim of a widow against her deceased husband’s estate for the amount unpaid under a decree for alimony pendente lite is one founded on a money decree which is to be treated as any other obligation of the decedent at the time of his death and is recoverable as a claim of the seventh class against his estate.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoke, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    William A. Bogan, for appellant.
    Archibald Cattell, for appellee; Carl A. Waldron, of counsel.

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

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Preliminary to our opinion we call attention to the irrelevant matter found in this record, which is filled with the testimony of counsel on a former hearing as to what took place orally before the trial judge in an attempt to explain an order which requires no explanation; there is nothing in it of doubtful meaning needing oral proof to make it intelligible. The learned trial judge ruled against the pertinency of this proof and properly disregarded it in arriving at his conclusion. Then again, much space is taken up in colloquies between the trial judge and counsel, which have no proper place in the record and are disregarded. It is not what the judge said upon the trial that is before us for review, but the judgment and decree which the record shows he entered. The judge’s logic may be faulty, but it is not before us for review; it is the soundness or unsoundness of the decree which he entered and from which this appeal is prosecuted which we are to determine. None of the many authorities cited by counsel for appellant has any application to the so-called Burke order on either fact or principle; they are in no way analogous thereto.

Emma M. Bell was the wife of Kossuth H. Bell and is now his widow. She filed a bill in the Superior Court of Cook county against her husband for divorce, which she subsequently amended to make it a bill for separate maintenance. October 31,1.911, an order was entered allowing Mrs. Bell $250 a month as alimony pendente lite and until the further order of the court. From this order the husband prayed an appeal to this court, which was allowed and perfected by the giving of an appeal bond and the appeal was duly prosecuted, each of the parties appearing in this court and filing briefs in support of their respective contentions. This court affirmed the order appealed from. See Bell v. Bell, 182 Ill. App. 496.

Kossuth H. Bell died July 12, 1913, and the judgment of affirmance was entered nunc pro tunc as of the day preceding his death. On the same day the above-mentioned order for alimony was entered, and as a condition of allowing the appeal there was entered an order allowing Mrs. Bell $250 a month for alimony pending the appeal taken by the husband from the order allowing alimony pendente lite. These two orders were entered by Judge Brentano. A change of venue was taken from- Judge Brentano and the cause was taken before Judge Burke, who on November 3rd thereafter entered an order- on the application of the husband vacating the order for alimony pending the appeal entered before Judge Brentano. Subsequently, on December 3rd, there was entered, at the direction of Judge Burke, an order allowing Mrs. Bell $25 a week for her support and maintenance.

There is no dispute as to the foregoing recorded facts.

After her husband’s death Mrs. Bell filed against his estate in the Probate Court her claim for alimony due to the time of his death under the unvacated decree of Judge Brentano. This claim was allowed for the sum due under the decree after giving the estate credit for the sums paid by Bell in his lifetime under the so-called Judge Burke order. From the judgment of the Probate Court an appeal was taken to the Circuit Court and the claim tried de novo before the late Judge Honoré. He found the gross amount due under the alimony order to be $5,250. He allowed as interest on unpaid instalments $738.74, and gave credit for payments made by Bell in his lifetime of $2,125 and entered judgment for $3,863.74, from which this further appeal is prosecuted.

There is no challenge of the correctness of the computation as made by the court, but appellant insists that the cause of action on the order for alimony abated with the death of the husband; that the subsequent order by Judge Burke allowing $25 a week super-. seded all other orders made in the case for the payment of alimony, and that the proofs do not sustain the judgment.

The evidence in the record is amply sufficient to support the judgment if, as matter of law under the facts, a recovery can be had. The evidence proffered by the claimant consisted of copies of the order for alimony appealed from, the appeal bond given on that appeal, the opinion and judgment of this court on the appeal, and the bill of costs of this court in the appeal case. This was sufficient to make a prima facie case for claimant. The proceedings before the Probate Court, including claimant’s claim, were filed in the Circuit Court when the appeal was perfected in that court. They are found in the record here. Appellant complains that the claim filed in the Probate Court was not introduced in evidence on the trial in the Circuit Court. This was at most but the pleading of claimant and need not be offered in evidence in either court. If it had been offered and received it would have failed to prove anything more than it purported to be, viz., the pleading of claimant.

The order for alimony appealed from could not, ■ pending the appeal, be interfered with or changed by any other judge of the same court. When the appeal was perfected by the filing of the bond on appeal, the questions arising under that order were beyond the jurisdiction of that court; and until the reviewing court had pronounced its judgment and the matter was, through the mandate of that court, again before the trial court, it could not again interfere; and when reinvested with jurisdiction it could act only in accord with the reviewing court’s mandate. Moreover, the subsequent order of Judge Burke did not pretend to vacate the order appealed from, but did vacate the order allowing alimony pending the appeal. While this order was, we think, entered without jurisdiction, it is not material to our decision, because it is the order appealed from and affirmed by this court which is here involved. Furthermore, the order attempted to be vacated was accepted as a condition of the appeal evidenced by the giving and approval of the appeal bond. Hohenadel v. Steele, 237 Ill. 229; Holmes v. City of Chicago, 205 Ill. 536.

The order for the payment of alimony was for a specific amount payable absolutely, and was therefore appealable, upon which theory the appeal was prayed. Although the suit in which the alimony was granted abated by the death of defendant, it by no means follows that the amount due under that order prior to his death could not be recovered in an independent action. Certainly it could be recovered" in an action upon the appeal bond under its covenants and conditions. If judgment were obtained against the surety upon the bond and such surety paid the judgment, he would have recourse against the decedent’s estate for the amount he might be compelled to pay as such surety, decedent being the principal in the bond. That the alimony decree was final and appealable is not open to doubt in this jurisdiction. It has been so held in Blake v. Blake, 80 Ill. 523; Harding v. Harding, 144 Ill. 588.

The order to pay alimony was a judgment of the court. After judgment it became a vested right which could not be devested by a subsequent order of the court. The affirmance of that judgment on appeal made it final. Gordon v. Baker, 182 Ill. App. 587; Cole v. Cole, 142 Ill. 19; Craig v. Craig, 163 Ill. 176.

While the death of the husband abated the suit, nevertheless the amount due to the time of such death is recoverable by the widow and is properly a debt provable against decedent’s estate. Dinet v. Eigenmann, 80 Ill. 274, is, we think, authority for this holding. In that case, where the wife had died, the alimony decree was enforced against the husband for the amount unpaid under the decree at the time of her death. We think the converse of this proposition, presented in this case, is by parity of reasoning likewise maintainable. As said in Knapp v. Knapp, 134 Mass. 353:

“If a writ of scire facias can be brought against the husband to obtain an execution against him for alimony, which, by a decree of the court, he has been ordered to pay, there is no good reason why the same process should not be used to enforce such a decree by obtaining execution against his estate for arrears of alimony due at the time of his death.”

In Paulin v. Paulin, 195 Ill. App. 350, an action was successfully maintained for the amount unpaid under a decree for alimony rendered in an Ohio court of competent jurisdiction.

We do not think the question of the power of the court to vary an order for alimony, owing to a subsequent changed financial condition of the parties, is -presented by this record, which record rests upon the verity of the order of October 31, 1911, affirmed on appeal to this court. Bell v. Bell, supra. Nor do we think that the question of the right of this court to enter its judgment nunc pro tune as of a date prioto the death of appellant’s testate is open for discussion. This court did so upon authority which it regarded as sufficient. The parties and the court are equally bound by this judgment in the absence of a further review.

The claim of appellee for the amount unpaid under the alimony decree was legally cognizable in the Probate Court against decedent’s estate in that court. Thomson v. Black, 200 Ill. 465. All claims of every nature against a decedent are provable against his estate in the due course of its administration.

The property rights of appellee as the widow of her husband are controlled by the statutes of this State if she shall renounce her husband’s will, or by his will without such renunciation; but the claim in this record is one founded on a money decree and is to be treated the same as any other obligation of decedent at the time of his death. It is recoverable as a claim of the seventh class against his estate. As such it was allowed both by the Probate and Circuit Courts.

The costs of the supplemental abstract will be taxed as costs in the cause.

It follows that the judgment of the Circuit Court must be and it therefore is affirmed.

Affirmed.


text:
    United Vacuum Sweeper Company, Appellant, v. W. L. Groth, Appellee.
    Gen. No. 23,861.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by United Vacuum Sweeper Company, complainant, against W. L. Groth, defendant, to compel the specific performance of a contract. The chancellor, after sustaining a general demurrer to the bill, dismissed it for want of equity, from which decree complainant appeals.
    Warren Pease and Howard P. Bishop, for appellant.
    Huff & Cook, for appellee; Joseph G. Slottow, of counsel.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Corporations, § 426 —when contract with officer of competitor for purchase of stock and for services is void as against public policy. On a bill for the specific performance of a contract for the sale to complainant, a foreign corporation, by defendant, a director and officer in a competing corporation, of certain shares of stock in the latter in exchange for certain shares of stock in complainant, it appeared that the contract provided that defendant should be elected a director and officer of complainant and that this agreement was carried out; that it also provided that other persons, who were parties to the contract solely for complainant’s benefit, agreed to protect defendant against liability incurred by him to the competing corporation while acting as its officer, such liability to be assumed by complainant; that the stock in the competitor should be, when transferred to complainant, held by it and not transferred on the competitor’s books until such time as it was deemed necessary to do so; that it was the intention of defendant and the persons acting on complainant’s behalf that defendant was to remain a director of the competitor company and represent complainant; that the contract also recited that the third persons in question were desirous that defendant should remain with the competitor until a majority of the latter’s stock had been obtained and that it should be regarded as confidential between them and him. Held, that such a contract was void as against public policy, notwithstanding complainant’s charter authorized it to purchase’ and acquire stock from other corporations.

2. Corporations—when foreign corporation has no power to acquire stock in domestic corporation. The facts that the charter of a foreign corporation gives it power to purchase and acquire stock from other corporations and that it is licensed to do business in Illinois do not give it the right to acquire and own stock in an Illinois corporation.

3. Corporations—when contract of foreign corporation with officer of domestic corporation is ultra vires and void. The contract of' a foreign corporation with an officer and director of an Illinois corporation which has for its main object the acquiring by the foreign corporation of stock of the Illinois corporation and the merging of the latter into the former, is beyond the powers of the foreign corporation, ultra vires and void.

4. Corporations, § 426*—right of one corporation to control another. The public policy of Illinois will not permit the control of one corporation by another.

5. Corporations, § 426 —when contract of foreign corporation with officer of domestic corporation is in fraud of rights of stockholders of latter. A contract between a foreign corporation and one who is a stockholder and officer of a competitor company which has for its objects the elimination of the competitor and the enabling of the foreign corporation to acquire the competitor’s business and property, is in fraud of the rights of stockholders of the competitor who are not parties to the contract.

6. Estoppel, § 49*—when cannot he invoked. • Estoppel cannot be invoked to enforce an illegal act.

7. Estoppel, § 49*—when cannot he invoked to enforce contract. The doctrine of estoppel cannot be invoked to enforce an ultra vires contract of a corporation on the ground that the party against whom it is invoked has received the benefit of the contract.

8. Corporations, § 342*—when contracts of unenforceable. Contracts of a corporation which are ultra vires and unlawful cannot be enforced.

9. Corporations, § 352*—ratification of ultra vires contract. An ultra vires contract of a corporation cannot be ratified by either party because it could not have been authorized by either.


text:
    Caryl C. Clarke et al., Appellees, v. National Council of the Knights and Ladies of Security, Appellant.
    Gen. No. 23,885.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of facts.
    Opinion filed April 29, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Caryl C. Clarke and Myron Gr. Clarke, minors, by Frank B. Pease, next friend, and Holly C. Clarke, plaintiffs, against National Council of the Knights and Ladies of Security, defendant, to recover on a benefit certificate issued by defendant. From a judgment for plaintiffs for $2,548.98, defendant appeals.
    Abstract of the Decision.
    1. Insurance, $ 788

      —when no recovery may be had on benefit certificate because of use of intoxicants. In an action to recover on a benefit certificate, where the insured stated in his application that he did not drink intoxicants daily or habitually, that he had never been addicted to the excessive or intemperate use of liquor, and signed a certificate that he was temperate in his habits, sound physically and mentally and a fit subject for insurance, and further declared that his answers and statements in the application were true, warranted them and agreed that they should form the basis of his agreement, and further agreed, if accepted, to abide faithfully by the by-laws, rules and regulations, and where the certificate provided that, if the member should .become intemperate in the use of alcoholic drinks, the certificate should be null and void, and the by-laws contained a similar provision as well as provisions that no insurance should be paid where death resulted directly or indirectly from the use of intoxicants, nor where false answers were given in the application as to the applicant’s physical and mental condition, or where he made false representations or concealed any of . his personal habits which were in violation of the order, there can be no recovery on such certificate where the evidence shows that both before and after making the application the insured was intemperate and habitually overindulged in intoxicants and received medical treatment therefor, and that he died of chronic alcoholism.
    2. Insurance, § 752*—when statements in application as to use of intoxicants are material. Statements of an. applicant for insurance as to his habits in regard to the use of intoxicants are material, where their falsity renders the certificate null and void under the conditions and the by-laws of the society by which he agrees to be bound.

      A. W. Fulton and John Y. McCormick, for appellant.
    Fred H. Atwood, Charles O. Loucks and Vernon E. Loucks, for appellees; Geary Y. Stibgen, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Gustave Albrecht, Appellee, v. Auditorium Lyceum et al., Appellants.
    Gen. No. 24,133.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Mebritt W. Pinckney, Judge, presiding.
    Heard in this court.
    Reversed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Bill in the nature of a creditor’s bill by Gustave Albrecht, complainant, against Auditorium Lyceum and Chautauqua Association, a corporation, Theodore Tumquist, Edna B. Severingham and Auditorium School of Lyceum Arts, a corporation, defendants, to enforce payment of a judgment against the Association, an execution upon which had been returned nulla bona. From an order, entered on motion of complainant, appointing a receiver for the Association, defendants appeal.
    Julian C. Byer, for appellants.
    Sims, Welch & Godman, for appellee; Elmer G., Godman, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Receivers, § 12 —bond as condition precedent to appointment. Compliance with Rev. St. ch. 22, sec. 53 (J. & A. ¶ 2743), regarding the giving of a bond by complainant, is a sine qua non to the court’s power to appoint a receiver, unless by the order itself the giving of such a bond is dispensed with.

2. Appeal and ebbob, § 1165*—when Appellate Court may not determine whether rules of trial court as to appeal bond complied with. Where an appeal bond, on an appeal from the Circuit Court, is in proper form and is approved by the court, the question whether the person giving it complied with the rules of the court is not for the Appellate Court, but for the court to which the bond was presented and by which it was approved.

3. Appeal and ebbob, § 1289*—when assumed that rules of Circuit Court relative'to appeal bonds complied with. Where the rules of the Circuit Court are not in the record on an appeal therefrom, the Appellate Court will assume that the rules of the Circuit Court relative to appeal bonds were complied with to the satisfaction of the presiding judge.


author: Mr. Justice Dever

text:
    E. M. Bulkley et al., trading as Spencer Trask & Company, Appellants, v. Northern Trust Company, Executor, Appellee.
    Gen. No. 23,640.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by E. M. Bulkley and Others, partners, trading as Spencer Trask & Company, plaintiffs, against Northern Trust- Company, as executor, etc., of E. A. Salmstein, deceased, defendant, to recover broker’s commissions on a sale of stock. From a judgment for defendant, plaintiffs appeal.
    Abstract of the Decision.
    1. Principal and agent, § 19*—revocation of agency by death of principal. A standing order given by a customer to a broker, effective until executed, to sell a certain number of shares of a certain stock at a specified price is revoked by the customer’s death.
    2. Principal' and agent, § 19*—when rule as to revocation of agency by death of principal not applicable. The rule that the principal’s death revokes all agencies created by him is subject to some exceptions, particularly where the agency is coupled with an interest.
    3. Pbincipal and .agent, § 19

      —changeability of third persons with knowledge of revocation of agency by death of principal. While the general rule of law protects third persons who have dealt with an agent, the law nevertheless charges such persons with knowledge of the fact that the agent’s authority is revoked by the principal’s death.
    Holt, Cutting & Sidley, for appellants.
    Huttmann, Cloyes & Carr, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    James E. Hills, Appellant, v. Joseph Hopp, Appellee.
    Gen. No. 23,772.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations—when' contract to repurchase stock not unilateral nor lacking in mutuality. In an action to recover on a contract for the repurchase of stock, where the evidence shows that defendant was, at the time of the sale, the holder of a large majority of the stock; that he stated, before the sale, that he was engaged in the film business; that he would furnish films at cost to the company, which was organized to conduct a moving picture business; that he did not desire to borrow from banks but to help people of moderate means; that the investment in the stock was sure to be profitable; that if plaintiff would purchase the stock, he, defendant, would take it back at any time, if plaintiff became dissatisfied with the purchase, and plaintiff did purchase, the contract to repurchase was not unilateral and not lacking mutuality.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Action by James R. Hills, plaintiff, against Joseph. Hopp, defendant, to recover on a contract for the repurchase of certain stock sold by a corporation to plaintiff. From a judgment for defendant, plaintiff appeals.
    Frederick A. Bangs, for appellant; Richard H. Colby, of counsel.
    Grossberg & Haffenberg, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Corporations—when contract to repurchase stock is based on sufficient consideration. The promise by the holder of a large majority of the stock in a corporation that, if another would purchase stock in the corporation, the promisor would repurchase it if the promisee became dissatisfied with the purchase, is based on sufficient consideration.

3. Corporations—when error to exclude evidence of interest of one agreeing to repurchase stock in corporation and of manipulation of assets. In an action against one holding stock in a corporation to recover on his promise that, if the promisee would purchase stock in the corporation, he would repurchase it if the latter became dissatisfied with the purchase, it is error to exclude evidence of the extent of the promisor’s interest in and control of the corporation at the time of the trial and his manipulation of its assets.

4. Corporations—when holder of dominant interest not relieved from liability for refusal to repurchase stock. In an action to recover on an agreement for the repurchase of stock, where the evidence shows that the promisor had a dominant interest in the corporation when the agreement was entered into, he is not relieved from liability by the fact that the stock was not purchased directly from him but was by him transferred to the corporation which thereafter sold it to the promisee.

5. Frauds, Statute of, § 25 —when contract to repurchase corporate stock not within. A contract to repurchase stock if the buyer should become dissatisfied with his purchase does not come within the Statute of Frauds, even though demand for such repurchase is made more than a year after the agreement is entered into, as such a contract may or may not be performed within a year.

6. Gaming, § 16*—what is not option or gambling contract. An agreement of a dominant stockholder in a corporation that, if another will buy stock therein, he will repurchase the stock in case the latter becomes dissatisfied with his purchase, is not an option or gambling contract.

7. Corporations—what is nature of sale of stock under agreement to repurchase. A sale of stock under an agreement to repurchase in case the buyer becomes dissatisfied is, in legal effect, a sale of personal property with a condition attached that the buyer may return the property in a reasonable time, if dissatisfied.

8. Corporations—when demand of dominant stockholder to repurchase stock not too late. In an action against the dominant stockholder in a corporation by one who had purchased stock therein on an agreement with defendant that the latter would repurchase such stock in case plaintiff became dissatisfied with it, a demand for such repurchase made about 17 months after the sale does not come too late in view of defendant’s continued interest and probable control of the company, and where it appears that it transferred valuable assets to him, after the sale, in disregard of the rights of other stockholders.


author: Mb. Justice Dever

text:
    Mamie Jahr, Appellant, v. Joseph Hopp, Appellee.
    Gen. No. 23,773.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Action by Mamie Jahr, plaintiff, against Joseph Hopp, defendant, to recover on an agreement to repurchase certain stock sold by a corporation to plaintiff. From a judgment for defendant, plaintiff appeals.
    The decision herein is controlled by that in Hills v. Hopp, ante, p. 365.
    Frederick A. Bangs, for appellant; Richard H. Colby, of counsel.
    Grossberg & Haffenberg, for appellee.
   Mb. Justice Dever

delivered the opinion of the court.


text:
    William F. Scheck, Appellant, v. Joseph Hopp, Appellee.
    Gen. No. 23,774.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewabt, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Action by William F. Scheck, plaintiff, against Joseph Hopp, defendant, to recover on an agreement to repurchase certain stock sold by a corporation to plaintiff. From a judgment for defendant, plaintiff appeals.
    The decision herein is controlled by that in Hills v. Hopp, ante, p. 365.
    Frederick A. Bangs, for appellant; Richard H: Colby, of counsel.
    Grossberg & Haefenberg, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Roy E. Schneider, Appellant, v. Joseph Hopp, Appellee.
    Gen. No. 23,775.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stbwabt, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Action by Boy E. Schneider, plaintiff, against Joseph Hopp, defendant, to recover on an agreement to repurchase certain stock sold by a corporation to plaintiff. From a judgment for defendant, plaintiff appeals.
    The decision herein is controlled by that in Hills v. Hopp, ante, p. 365.
    Frederick A. Bangs, for appellant; Bichard H. Colby, of counsel.
    Grossberg & Haffenberg, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Charles D. Timms, Appellant, v. Joseph Hopp, Appellee.
    Gen. No. 23,776.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewabt, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Action by Charles D. Timms, plaintiff, against Joseph Hopp, defendant, to recover on an agreement to repurchase certain stock sold by a corporation to plaintiff. Prom a judgment for defendant, plaintiff appeals.
    The decision herein is controlled by that in Hills v. Hopp, ante, p. 365.
    Frederick A. Bangs, for appellant; Richard H. Colby, of counsel.
    G-rossberg & Haffenberg, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


author: Mr, Justice Dever

text:
    Edward Thiede, Appellee, v. Joseph Hopp, Appellant.
    Gen. No. 23,967.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R, , Stewabt, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.'
    Statement of the Case.
    Action by Edward Thiede, plaintiff, against Joseph Hopp, defendant, to recover on an agreement to repurchase certain stock sold by a corporation to plaintiff. From a judgment for plaintiff, defendant appeals.
    The decision herein is controlled by that in Hills v. Hopp, ante, p. 365.
    Frederick A. Bargs, for appellant; Richard H. Colby, of counsel.
    Grossberg & Happerberg, for appellee.
   Mr, Justice Dever

delivered the opinion of the court.


text:
    William J. Thomas for use of Reid, Murdoch & Company, Appellee, v. Thomas Stenhouse, Appellant.
    Gen. No. 23,803.
    (Not to be reported in full.)
    Abstract of the Decision.
    Joint adventures, § 8

      —when evidence supports verdict for plaintiff in action to recover share of proceeds of property. In an action by one of two joint owners of property against the other to recover his proportion of the proceeds of the sale of the joint property, evidence held sufficient to support a verdict for plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by William J. Thomas for the use and benefit of Reid, Murdoch & Company, plaintiff, against Thomas Stenhouse, defendant, to recover plaintiff’s share of the proceeds of the sale of joint property. From a judgment for plaintiff for $157.05, defendant appeals.
    Norman K. Anderson and Benjamin Clarke, for appellant.-
    Worth Allen, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

_____________


text:
    Albert Hassell, Appellee, y. State Bank of West Pullman, Appellant.
    Gen. No. 23,816.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —what is form of cases of fourth class. The form of cases of the fourth class in the Municipal Court of Chicago is to be regarded as whatever the evidence makes it.
    2. Municipal Court of Chicago, § 13*—when action of fourth class is in tort for conversion. Where the evidence introduced on the trial of a fourth-class case in the Municipal Court of Chicago by the payee of a check against the bank for paying the check on a forged indorsement shows an actual conversion of plaintiff’s check by defendant, the action will be held to be one in tort for conversion.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Trover by Albert Hassell, plaintiff, against State Bank of West Pullman, defendant, to recover on a check drawn to plaintiff’s order and paid by defendant on a forged indorsement. From a judgment for plaintiff for $300, defendant appeals.
    Harry A. Biossat, for appellant.
    Sinden, Hassell & Osusky and C. P. Gardner,, for appellee; John H. McAuliffe, of counsel.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Municipal Court of Chicago, § 28 —when statement of claim in action of fourth class for paying check on forged indorsement deemed sufficient in absence of objections in trial court. In a fourth-class case in the Municipal Court of Chicago for paying, on a forged indorsement, a check drawn payable .to plaintiff’s order, a statement of claim which charges the payment of the check by defendant to a third person without plaintiff’s authority or indorsement is, in the absence of objections thereto at the trial, sufficient to support a judgment for plaintiff.


author: Mr. Justice Me Surely

text:
    W. H. Collins Ice Cream Company and Isidore Wineberg, Appellants, v. Morris Talmage et al., Appellees.
    Gen. No. 23,608.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Creditors’ bill by W. H. Collins Ice Cream Company, a corporation, and Isidore Wineberg, complainants, against Morris Talmage, Joseph A. Hottinger and Mary E. O’Connell, defendants, to enforce judgments against defendants. From a judgment dismissing the bill for want of equity, complainants appeal.
    George W. Brown, for appellants.
    Richard I. Gavin, for appellees.

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

   Mr. Justice Me Surely

delivered the opinion of the court.

Abstract of the Decision.

1. Chattel mortgages, § 128 —when after-acquired goods not covered. A chattel mortgage on a stock of goods and store fixtures which contains no words providing that the mortgagee shall have any lien on after-acquired goods and fixtures does not cover goods and fixtures thereafter purchased.

2. Chattel mortgages, § 265*—what is insufficient posting of notices of sale. The statutory provision (J. & A. If 7603) requiring the posting of notices of a sale under a chattel mortgage is' not complied with by the posting on the building of notices which, by agreement between the mortgagor and mortgagee, are immediately torn down by the former.

3. Fraudulent conveyances—when sale under chattel mortgage fraudulent as to creditors. Where property worth more than $3,000 is sold at a chattel mortgage sale, statutory notice of which had not been given, for $950 to a dummy acting for the mortgagee, such sale is fraudulent and invalid as to creditors and the mortgagee holds the property in trust for their benefit.


author: Mr. Justice McSurely

text:
    Barbara Klomp, Administratrix, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 23,658.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Action by Barbara Klomp, administratrix of the estate of William Klomp, deceased, plaintiff, against Chicago, Milwaukee & St. Paul Bailway Company and Commonwealth Edison Company, defendants, to recover for the death of plaintiff’s intestate. The Edison Company was found not guilty under an instruction of the court. From a judgment for plaintiff for $5,000 against defendant Railway Company, the latter appeals.
    Abstract of the Decision.
    1. Commerce, § 4

      —when stationary engineer not engaged in interstate. An engineer in charge of the operation of a steam crane which is used for hoisting concrete and pouring it into forms for a retaining wall and for shifting the forms, the retaining wall forming a support for material used to elevate a part of a track in a city’s limits over which passes a division of a railroad which connects with other divisions of the railroad running into other States, is not engaged in interstate commerce so as to come under the Federal Employers’ Liability Act.
    2. Master and servant, § 110*—when negligence of employer in requiring employee to operate crane near electric wires not proximate cause of death of employee 6y shock. The negligence of an employer in requiring an employee to operate a crane so near electric wires as to bring it in contact with the wires is not the proximate cause of his death, where it appears that an electric wire was broken by coming in contact with the crane cable and that after the wire had fallen, against the warning of his fellow employees and while it was clear that it was a “live” wire, he picked it up and held it, though there was no emergency or danger to others requiring him to do so, and received- a shock which killed him.
    3. Negligence, § 196*—when proximate cause question for court. While the question of what is proximate cause is, ordinarily, for the jury, whether there is any evidence tending to show that the negligence charged was the proximate cause is a question of law.
    4. Master and servant, § 110*—when negligence not proximate

      cause of death of employee. If the negligence complained of, in an action for the death of an employee, merely furnished a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of the condition was not the proximate cause of the injury, and if the act which was the immediate cause of the injury was such as in the exercise of reasonable diligence would not be anticipated, the first act or omission was not the proximate cause of the injury.

      O. W. Dynes and Carl S. Jefferson, for appellant; H. H. Field, of counsel.
    Charles C. Spencer, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

5. Master and servant, § 110*—when act of employee in picking up live wire cannot reasonably be guarded against by employer. A master cannot reasonably anticipate or guard against the act of an .experienced engineer in its employ, who has good health and good eyesight and is warned by his associates, in picking up an electric wire which is evidently and visibly “live.”

6. Master and servant, § 579 —when burden of showing that employee picked up live wire to save others is on plaintiff. Where an experienced engineer, contrary to the warnings of his associates, picks up an electric wire which is obviously “live,” the burden of showing that he did so to save others who were exposed to danger by the wire is on the plaintiff, in an action to recover for the engineer’s death.


text:
    Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, Appellant, v. James S. Templeton et al., trading as James S. Templeton & Sons, Appellees.
    Gen. No. 23,692.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, plaintiff, against James S. Templeton, James E. Templeton and Kenneth S. Ternpleton, copartners, trading as James S. Templeton & Sons, defendants, to recover demurrage. From a judgment for defendants, plaintiff appeals.
    Abstract of the Decision.
    1. Cabbiebs, § 81*—what is not notice to consignee of arrival of freight. Notice of the arrival of freight which is not addressed to any person but merely to an elevator located on the carrier’s track is not notice to the consignee.
    2. Cabbiebs, § 81*—when elevator company not agent of consignee of grain for purpose of notice of arrival. Where the consignee of grain directs it to be consigned to him at the elevator of an elevator company, pursuant to the request of the carrier’s agent that he send there such' grain as needed treatment, the elevator company is not the consignee’s agent so that notice can be given him of the arrival of the grain, but is an independent contractor.
    3. Masteb and sebvant, § 1*—what is not notice to employer. Notice to an independent contractor is not notice to his employer.
    4. Cabbiebs, § 208

      —when consignee not UaMe for demurrage. A consignee is not liable for demurrage where he was not given notice of the arrival of the cars as required by the demurrage riiles.
    Loesch, Scofield, Loesch & Bicharos, for appellant; Theodore Schmidt, of counsel.
    Jeffery, Campbell & Clark, for appellees; Charles V. Clark, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Patrick Reynolds, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,729.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 2

      —when burden on party asserting that employer not under to show such fact. Under section 2 of the Workmen’s Compensation Act of 1913 [Callaghan's 1916 St. Supp. 1f 5475(2)], an employer is conclusively presumed to be under the act, regardless of any course of conduct on its part, and the burden of proof is on the party asserting the contrary to show the doing of those things which the statute prescribes as essential to remove the employer from the operation of the act.
    2. Workmen’s Compensation Act, § 2*—necessity of proving both filing of notice of rejection of act by employer and posting of notices. The filing of the notice with the Industrial Board required "by sections 1 and 2 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. Iff 5475(1), 5475(2)], by an employer of an election not to be bound by the act, and the posting of the notice therein required, are separate and independent acts, each of which must be proven, proof of one not being an admission or proof of the performance of the other.

      Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by Patrick Reynolds, plaintiff, against Chicago City Railway Company, defendant, to recover for personal injuries received while in defendant’s employ. From a judgment for plaintiff for $3,600, defendant appeals.
    Franklin B. Hussey and Charles LeRoy Brown, for appellant; John R. G-uilliams, of counsel.
    James C. McShane, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Workmen’s Compensation Act, § 2 —when timgly rejection of act for forthcoming year not shown. Proof of the receipt by the Industrial Board less than 60 days before the expiration of the calendar year of an employer’s notice of its rejection of the Workmen’s Compensation for the forthcoming year is not sufficient to show the filing of the election to reject provided for in section 1 of the Act of 1913 [Callaghan’s 1916 St. Supp. f 5475(1)], even though it is shown that the notice was mailed more than 60 days before the expiration of the year, but to a wrong address.


text:
    Julius Thomas, Appellee, v. John Howatt, Appellant.
    Gen. No. 23,744.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by Julius Thomas, plaintiff, against John Howatt, defendant, to recover damages for personal injuries received through collision with defendant’s automobile. From a judgment for plaintiff for $750, defendant appeals.
    MacChesney, Becker, Angerstein & Bollo, for appellant ; Nathan William MacChesney, Thomas C. Angerstein, Egbert P. Bollo and George W. Anger-stein, of counsel.

      Abstract of the Decision.
    Automobiles and garages, § 3

      —when verdict for plaintiff for injuries received in collision of motorcycle with automobile not disturbed. In an action to recover for personal injuries alleged to have been received through defendant’s negligence in driving his automobile, whereby he caused it to collide with plaintiff who was riding a motorcycle, where the evidence, though conflicting, is sufficient to support a verdict for plaintiff, a judgment in his favor will not be disturbed.
    Thomas B. Lantry, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Abe Sackim, Appellee, v. Emil J. Krimsky, Appellant.
    Gen. No. 23,771.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Nels A. Larson, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by Abe Sackim, plaintiff, against Emil J. Krimsky, defendant, to recover on a guaranty for the payment of rent and performance of the covenants of a lease. From a judgment for plaintiff, defendant appeals.
    M. E. Gtallioh, for appellant.
    Howe & Levy, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebbob, § 1752*—when judgment affirmed for insufficiency of abstract. An affirmance of a judgment id warranted where appellant’s abstract fails ■ to show what was the judgment complained of.

2. Appeal and ebbob, § 1287*—when presumed that defense was inadequate. Where the abstract is silent as to an affidavit of merits, on appeal from a judgment against defendant, the presumption is in favor of the judgment and that the defense was inadequate.

3. Landlord and tenant, § 72 —when lease construed as providing for payment of rent in monthly instalments. Where a lease, after naming the sum payable for the entire term, proceeds: “Payable as follows: One Hundred ($100) dollars on the 15th day of October, 1916, and .............. ($......) on the 15th day of each and every succeeding month of the term,” it is to be interpreted as meaning that $100 shall be paid on account of rent on the 15th day of each month during the term, and the objection that this construction might operate to compel the payment eventually of $50 more than the sum payable for the entire term is of no force where plaintiff’s brief disclaims any intention of demanding more than the total sum specified, and admits that plaintiff would have no such right.


author: Mr. Justice MoSurely

text:
    William C. Hartray, Administrator, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,791.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Action by William C. Hartray, administrator of the estate of Frank Jagielski, deceased, plaintiff, against Chicago Railways Company, defendant, to recover for the death of plaintiff’s intestate which was alleged to have been caused by the negligent operation of defendant’s street cars. From a judgment for plaintiff for $7,500, defendant appeals.
    Abstract of the Decisión.
    1. Death, § 36

      —necessity of pleading bringing of action for within >one year. The statutory provision (J. & A. if 7214) that an action to recover for a death shall be commenced within one year after the death is not a statute of limitations, but is a condition annexed to the right of action given by the statute forming a part of the right itself, and the bringing of the action within the prescribed time is an essential fact which must appear from the declaration.
    2. Pleading, § 50*—when declaration does not state cause of action. A declaration which fails to state a fact, the existence of which is necessary to entitle plaintiff to recover, does not state a cause of action.
    Weymouth Kirkland and Charles LeRoy Brown,t for appellant; John R. Guilliams, of counsel.
    C. Helmer Johnson, for appellee; James D. Power, of counsel.

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

   Mr. Justice MoSurely

delivered the opinion of the court.


text:
    Rozalie Mrazek, Appellee, v. Marie A. Tollar, Appellant.
    Gen. No. 23,810.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1313

      —when presumed that court properly advanced cause for hearing. Where, in an action on promissory notes, on defendant’s motion to vacate a judgment by confession entered against him, leave is given to plead, the judgment being allowed to stand as security, and defendant files the plea of general issue and a special plea that the notes were given without consideration, and pursuant to the showing made by plaintiff’s affidavit the case is placed on the short-cause calendar, but, on defendant’s motion to strike because the cause was not at issue, leave is given plaintiff to file a replication instanter, the case is stricken from the short-cause calendar and advanced, over defendant’s objection, to the head of the trial calendar and set for immediate hearing, the act of the trial court in so advancing the cause is not an abuse of discretion which, in the absence of a showing that defendant’s rights were prejudiced," constitutes reversible error, but, it will be presumed, in the absence of such a showing, that the court so acted for good and sufficient reason.

      Appeal from the Circuit Court of Cook county; the Hon. Robebi B. Cbowe, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by Rozalie Mrazek, plaintiff, against Marie A. Tollar, defendant, to recover on promissory notes. Judgment by confession was entered against defendant, and defendant’s motion to vacate was denied. From the judgment, defendant appeals.
    Jambs E. White, for appellant.
    Jones & Keener, for appellee; Jambs S. Wight, of counsel.

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

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

   Mr. Justice MoSurely

delivered the opinion of the court.

2. Bills and notes, § 12*—validity of note in plural form signed 6y only one person. That notes which were intended to be signed by two persons were, in fact, signed by- but one does not render them invalid as incomplete, a note in plural form but signed by one person only being a valid obligation of the signer.

3. Bills and notes, § 50*—when notes are' founded on good consideration. Notes given in consideration of the release of a trust deed and of an equitable lien against the property are founded upon a good consideration.

4. Bills and notes, § 327 —what is not a defense in action to recover on notes given in consideration of release of mortgage. In an action to recover on promissory notes given in consideration of the release of a mortgage on real estate, defendant cannot set up that her title to the premises was superseded by a' paramount title and that she was evicted merely because a forcible detainer suit was instituted against her where, before the issue therein was determined, she satisfied the lien upon which the claim to possession was based.


author: Mb. Justice McSubely

text:
    Leokadja Skoczdople and Joseph Skoczdople, Appellees, v. Peoples Life Insurance Company, Appellant.
    Gen. No. 23,828.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance—what is best evidence of payment of premiums. In an action to recover on a policy of life insurance, the best evidence of payment of the premiums is the defendant's receipt book.
    2. Insurance, § 664

      —when default in payment of premiums not shown. In an action to recover on a policy of life insurance, evidence held to show that the insured was not so in default in the payment of the premiums' on his policy at the time of his death as to invalidate the policy under the conditions upon which it was issued.
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Rehearing denied May 13, 1918.
    Statement of the Case.
    Action by Leokadja Skoczdople and Joseph Skoczdople, plaintiffs, against the Peoples Life Insurance Company, a corporation, defendant, to recover on a policy of life insurance. From a judgment for plaintiffs for $70, defendant appeals.
    Walteb H. Eckebt, for appellant.
    No appearance for appellees.

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

   Mb. Justice McSubely

delivered the opinion of the court.


text:
    Thomas J. Healey, Administrator of the Estate of Ella N. O’Neill, Deceased, Appellee, v. Charles Heidel and Henry A. Beck, trading as Heidel & Beck, Appellants.
    Gen. No. 23,836.
    1. Negligence, $ 46

      —when independent contractor not liable to third persons for injuries due to defective construction or installation. The general rule is that where an independent contractor is employed to construct or install any given work or instrumentality, and has done so and it has been accepted by the employer and the contractor has been discharged, the latter is no longer liable to third persons for injuries received as the result of defective construction or installation.
    2. Negligence, § 46*—when independent contractor liable for injuries to third persons after work has been accepted. Exceptions to the general rule relieving an independent contractor from liability to third persons for injuries received after his work has been accepted and he has been discharged arise where the thing dealt with is imminently dangerous in kind, or where it is to be used for a particular purpose requiring security for the protection of life, or where it is rendered dangerous by a defect of which the contractor knows but which he deceitfully conceals and which causes an accident, where the thing is used for the particular purpose for which it was constructed.
    3. Negligence, § 46*—when independent contractor not liable for death of third person due to Icnown defect after worlc has been accepted and he has been discharged. The exception which renders an independent contractor liable to third persons, even after the acceptance of his work and his discharge, where injury is caused by a defect, known to him but deceitfully concealed, while the appliance is being used for the purpose for which it was made, does not apply to a death resulting from a fall caused by the pulling out and breaking of a window parting stop while deceased was holding on the window in leaning out to wash it, which stop had been installed by the contractor and merely fitted in a groove without nailing or other fastening, where there was no evidence of concealment, but it appeared that the work had been twice examined and had been accepted, that the fitting of the stop in a groove without other fastening was good workmanship, that another method of fastening the stop would not have prevented the accident and that, when the accident happened, the stop was not being used for the purposes for which it was constructed, but the general rule exempting the contractor from liability applies.
    4. Negligence, § 52

      —when proximate cause of injury to third person due to defect in work of independent contractor is intervening negligence of owner of building. When one for whom a building has been erected by an independent contractor accepts the building, the law presumes that it was done to his satisfaction and that it there became his own and he assumed the duty to take care that it was free from dangerous defects, and that if he knew or by the exercise of reasonable care could have discovered a defect which causes an injury to a third person, his negligence intervenes and cuts off the causal connection between the contractor’s fault and the injury.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 29, 1918.
    Koch, Leedle & Rapp, for appellants.
    Litzinger, Healy & Reid, for appellee; James J. Finn, of counsel.

      See Illinois Notes Digest, Yols. XI to XV, and. Cumulative Quarterly, sume topic an<l section number.

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

   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal defendants seek the reversal of a judgment against them of $1,250 recovered in an action in which plaintiff asserted the death of Ella N. O’Neill through the negligent and improper performance of a contractual obligation of the defendants. It is argued as ground for reversal that the evidence fails to show any actionable liability of the defendants.

It appears from the evidence that on July 18, 1910, the defendants were contractors and builders in Chicago ; that on that date Nicholas O’Neill, husband of the deceased, owned a lot upon which he wished to erect a two-flat building; that defendants made him a written proposition for its construction, including material and labor to be performed according to plans and specifications prepared and submitted by O’Neill; that the specifications required all material to be of the best and the work to be executed in a thorough, workmanlike manner. This proposition was accepted by 0 ’Neill at the agreed price of $7,000. In August, 1910, the defendants commenced the construction of the building, which was completed and delivered to O’Neill on or about November 1, 1910, who after inspecting it paid the defendants in full and accepted the building and took possession of it, renting the upper flat and occupying the lower flat himself.

On June 11,1912, at about 11 o’clock in the morning, the deceased, Ella N. O’Neill, was washing windows and cleaning in the second flat. When last seen she was sitting on a window sill, with her body outside of the window and her legs hanging over the sill into the room; she had the lower sash of the window pulled down so that it came across her legs, and was holding onto it with her left hand and was washing the outside of the windowpane with her right hand. A noise was heard by a decorator who was working in the flat, who ran into the room where Mrs. O’Neill had been working, but she had disappeared from the window and was lying on the ground underneath so injured that she subsequently died. Nicholas O’Neill was called home, and about 4 o’clock made an inspection of the premises and the window. He testified that he found the lower sash of the window and a portion of what is known as the parting, stop down in the yard; that the stop was broken and had no nails in it. The parting stop is the narrow strip of wqod, inserted in a groove in the sides of the window frame, which divides and runs between the upper and lower window sashes. The jury properly could conclude that while Mrs. O’Neill was leaning backward holding onto the lower sash the parting stop pulled out at the lower end and broke about halfway up, so that the lower sash of the window swung outward causing her to lose her balance and fall. Plaintiff sought to show that the defendants were negligent in the construction of the window sash in that this parting stop was not nailed to the frame; and one witness testified to this effect. As against this a number of witnesses testified on behalf of the defendants that as a general practice the parting stop was not nailed in but was held tightly in the groove in which it was inserted; that the lower sill of the upper sash and the upper sill of the lower sash are both cut with a bevel, called the check rail, which projects over the parting stop and holds it in place. There was also testimony that in the spring or early summer of 1911, at the request of Nicholas O’Neill, the defendants sent the foreman who had charge of the construction of the building to inspect the doors and windows of the second flat, and he testified that he went all over them and that the parting stops in the various windows were in place and fitted properly.

Do these facts disclose a case for which defendants can be held answerable to the plaintiff in an action in tort? The general rule is that where an independent contractor is employed to construct or install any given work or instrumentality, and has done the same and it has been accepted by the employer and the contractor discharged, he is no longer liable to third persons for injuries received as the result of defective' construction or-installation. Among many cases stating the rule thus are Field v. French, 80 Ill. App. 78; Empire Laundry Machinery Co. v. Brady, 164 Ill. 58; Curtin v. Somerset, 140 Pa. St. 70; Fitzmaurice v. Fabian, 147 Pa. St. 199; First Presbyterian Congregation v. Smith [163 Pa. St. 561], 26 L. R. A. 504, and cases there annotated. In Wharton on Negligence (2nd Ed.), sec. 438, the reason for the rule is said to be “that otherwise there would be no end to suits; but a better grotind is that there is no causal connection * * * between the injury and the contractor’s

negligence.” See also the opinion in Wood v. Sloan, 20 N. M. 127, and the cases annotated upon this subject in volume 12, beginning at page 562, of Negligence and Compensation Cases Annotated.

Although the reported decisions are not uniform in classifying the exceptions to this general rule, they may be fairly classified as follows: (1) Where the thing dealt with is imminently dangerous in kind, such as poisonous drugs incorrectly labeled, dangerous chemicals, unwholesome food, a defective gun, explosives, arid the like; (2) where the subject-matter of the contract is to be used for a particular purpose, requiring security for the protection of life, such as a scaffold (Devlin v. Smith, 89 N. Y. 470; Empire Laundry Machinery Co. v. Brady, 164 Ill. 58); (3) where the thing is rendered dangerous by a defect of which the constructor knows but deceitfully conceals, which causes an accident where the thing is used for the particular purpose for which it was. constructed; examples are wooden appliances made of defective wood whose defects are concealed by paint, such as a stepladder (Schubert v. J. R. Clark Co., 49 Minn. 331; Krahn v. J. L. Owens Co., 125 Minn. 33).

Obviously the instant case does not fall within the first two classes of exceptions. Does it fall within the third? We are of the opinion that it does not.

The existence of the defect claimed is at least doubtful. The weight of the evidence tends to prove that it was good workmanship not to use nails to fasten the parting stops but to rely upon their fit in the grooves and the check rails to hold them in place; that they fitted properly is not denied. But even if the absence of nails was a defect, the evidence fails to show any deceit by the defendants. The manner of construction in this respect was apparent to the sight of any one. The owner inspected it before he accepted the building; subsequently he made another examination, and in Ms complaint about the windows did not mention the absence of nails in the parting stops. At most, defendants may have failed in the matter of judgment as to the best manner of doing the work, but' there was no concealment or deception practiced by them.

Plaintiff’s expert witness testified that one nail 1% inches long should have been placed at the bottom of the stop, which is a pine strip % by % inch in size. There was evidence that there was nothing directly back of it to which a nail could be fastened, so that the nail would have to be driven at a slant. This makes it very doubtful whether the use of such a nail would have prevented this accident. It cannot be said to have been proven that the absence of the nail alone caused the stop to become unfastened.

The accident was not caused while the stop was being ' used for the particular purpose for which it was constructed. The purpose of the parting stop is to guide and hold the sashes in position. It is about 5 feet long, and about half of its % of an inch width is set in a groove in the frame, the other half running along the side of the window sash. Plaintiff’s expert witness says they should be placed so that they can readily be removed, which is necessary whenever the weights or window cords need attention. Evidently they were not constructed for the purpose of withstanding any considerable strain, and were not intended or built to support the pull or weight of a strong person, weighing 160 pounds, such as the evidence shows Mrs. O’Neill to have been.

The evidence fails to establish the elements necessary to bring this case within any exception, and we must apply the general rule and hold that when the owner accepted the building the law presumes that it was done to his satisfaction; that it then became his own, and he assumed the duty to take care that it was free from dangerous defects, and that if he knew or by the exercise of reasonable care could have discovered the defect, his negligence intervenes and cuts off the causal connection between the fault of the contractor and the injury. Curtin v. Somerset, 140 Pa. St. 70; Field v. French, 80 Ill. App. 78, and cases noted in 26 L. R. A. 504.

At the close of the taking of evidence the defendants asked the court to instruct the jury to bring in a verdict of not guilty, which motion was refused. Such an instruction should have been given, and for the error in refusing defendants’ motion the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Thomas J. Sullivan, Appellee, v. Thomas E. O'Brien et al., Appellants.
    Gen. No. 23,847.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon; Fbedebick A. Smith, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Creditor’s bill by Thomas J. Sullivan, complainant, against Thomas E. O’Brien, Mary L. O’Brien, Charlotte L. O ’Brien and Helen Durkin, defendants, to set aside, as in fraud of creditors, a conveyance by Thomas E. and Mary L. O’Brien, husband and wife, of their property to Charlotte L. O ’Brien, their daughter. From a decree for complainant, defendants appeal.
    Edward Drobnts and Leo J. Kramer, for appellants.
    M. H. Hoey, for appellee.

      Abstract of the Decision.
    Fraudulent con vet a nobs, § 96

      —when voluntary conveyance 6y parent to child is set aside. On a creditor’s bill to set aside, as in fraud of creditors, a conveyance by parents to a child, the evidence held to show a case coming within the rule that even if there is no fraudulent intent, a voluntary conveyance to a child in consideration only of love and affection, where the grantor is in embarrassed or failing circumstances, and the conveyance has the effect of withdrawing the property from the claims of creditors, leaving no unincumbered funds in the grantor’s hands for the payment of debts, will be set aside.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    John Chidley, Appellee, v. Richard Bray and A. T. Kates, Appellants.
    Gen. No. 23,870.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by John Chidley, plaintiff, against Richard Bray and A. T. Kates, defendants, to recover damages for personal injuries received while in defendants’ employ. From a judgment for plaintiff for $4,000, defendants appeal.
    Wallace E. Shibba and Kelly, Hale, Dammann & Coolidge, for appellants; J. F. Dammann, Jb. and Wallace E. Shibba, of counsel.

      Abstract of the Decision.
    1. Negligence, § 47

      —when reasonable and probable cause of accident adopted. In an action by a servant to recover for personal injuries received through the operation of a machine, where the injury may be attributed either to a wholly speculative and inexplicable cause or to one that is natural, reasonable and probable, the Appellate Court will accept the latter.
    2. Master and servant, § 683*—when verdict for plaintiff for personal injuries received while operating machine is not sustained by evidence. In an action by a servant to recover for personal injuries received while operating a machine, evidence held to show that the machine was not out of- repair, defective and unsafe, but that the injury was caused by plaintiff’s own action in operating it, and not to support a verdict for plaintiff.
    Boyle & Mott, for appellee; Edward Boyle and James Arthur Miller, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.