text:
    Charles H. Commons, Appellant, v. Taylor A. Snow, Appellee.
    Gen. No. 20,873.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Fbed C. Hill, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Charles H. Commons against Taylor A. Snow to recover $5,790.54. The parties had been partners in two firms, Taylor A. Snow & Company and the Co-operative Home Purchasing Society and the partnerships had been -dissolved, Snow succeeding to the business of the former firm and Commons to that of the latter. At the time of dissolution it was agreed that each partner was discharged from liability to the other. Plaintiff testified that the sum involved was borrowed from the Co-operative Home Purchasing Society by the Haberer & Snow Company, the predecessor of Taylor A. Snow & Company. At the trial the court instructed a verdict for the defendant, upon which a judgment of nil capiat was entered and the plaintiff appeals.
    Abstract of the Decision.
    1. Partnership, § 386

      —when partner may sue another partner. One partner cannot maintain an .action at law against his co-partner, either in an original suit or by way of set-off, upon any transaction relating to the partnership business, unless there has been a final accounting and settlement of all the partnership matters, a balance is struck and a promise to pay such balance.
    2. Partnership, § 404

      —what will he presumed after dissolution. After a partnership has been dissolved it will be presumed that there was an adjustment of the accounts, and that all accounts were taken into consideration in arriving at the amount to be paid the retiring partner, and that the debt of the selling'partner was taken into account in fixing the sale price.
    3. Partnership, § 337*—who may interpret effect of releases on dissolution. Where a partnership is dissolved, the effect of releases of claims in evidence is a question for the court’s interpretation.
    4. Contracts, § 164*—when contract need not he construed.
      Where language of a contract is unequivocal, although the parties may have failed to express their real intention, there is no room for construction, and the legal effect of the agreement must be enforced.

      Fred H. Atwood, Frank B. Pease, Charles O. Loucks and Vernon R. Loucks, for appellant; Harold L. Reeve, of counsel.
    Frank B. Dyche, 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 Holdom

delivered the opinion of the court.

5. Partnership, § 337 —when release of partner not restricted. A final clause of a general release executed to partners on dissolution, stating that the property shall be the undisputed personal estate of each partner, does not restrict or detract from the instrument as a general release.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Jones & Laughlin Steel Company, Appellee, v. Andrew J. Graham, Appellant.
    Gen. No. 19,891.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Jones & Laughlin Steel Company, a corporation, against Andrew J. Graham to compel the payment of certain notes. It appeared that Jones & Laughlin, Limited, a partnership or joint stock association and other creditors obtained judgments against one William D. Kent of Chicago. Executions on said judgments were placed in the hands of the sheriff and a sale was to be made when an agreement was entered into with Graham, a friend of Kent’s whereby Jones and Laughlin in effect agreed that they would release their lien on Kent’s property in consideration that Graham would purchase such property, cause a corporation of $25,000 capital stock to be organized, transfer the property free from all liens to said corporation in consideration of receiving fifty-one per cent, of the capital stock thereof, and would cause the corporation to execute and deliver to Jones and Laughlin its collateral notes in exchange for the personal notes of Kent then held by them, and cause to be deposited with some trust company to be agreed upon said fifty-one per cent, of said capital stock as collateral security for the payment of said notes; otherwise Graham should pay the Kent notes. A similar agreement was entered into with William P. Bend and Edwin Walker, a copartnership as W. P. Bend & Company, who were creditors. The evidence showed that while the corporation, W. D. Kent Iron Company, was formed and executed the notes provided for in the contract, Graham did not cause said notes to be delivered to Jones and Laughlin, though delivery was demanded. Neither was fifty-one per cent, of the stock deposited with a trust company as agreed upon, though the creditors agreed upon a certain company of which Graham and the corporation had knowledge. Later Jones and Laughlin, for a valuable consideration and by written assignment, assigned their interest in the contract to Jones & Laughlin Steel Company.
    This suit was brought to compel the alternative promise to pay the amount of the notes, and a similar suit was brought by William P. Bend, successor to the copartnership of W. P. Bend & Company. The two cases were tried before a court without a jury, the issues being found in favor of the plaintiff. The court assessed the damages of the Jones & Laughlin Steel Company at the sum of $2,712.32, overruled motions for new trial and in arrest of judgment, and entered judgment against Graham, who brings this appeal.
    William A. Doyle, for appellant.
    Musgrave, Oppenheim & Lee, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 5 —what is test as to whether promise is original or collateral. In an action on a contract where the question involved is whether the promise is original or collateral, the test is whether the credit is given to the person sought to be charged or someone else.

2. Tender, § 2 —when necessary. Under a contract whereby a person agreed to deliver notes of a corporation to another in exchange for individual notes held by such other or pay the amount of said notes, and the person never tendered such notes, the other party was not required to prove a tender of the individual nptes before recovering on the alternative promise to pay the amount of such notes.

3. Assignments, § 1 —what contracts are assignable. A contract whereby a person agrees to deliver notes of a corporation to another in exchange for individual notes held by such other, or pay the amount of such notes, is assignable by the payee.

4. Judgment, § 649 —what is proper method of releasing lien. Where a judgment creditor agreed to release his lien in consideration of an agreement with a third party by which the debt was to be paid, it was immaterial that the lien was released by such creditor instead of being assigned to the third party and released by him, especially since the arrangement adopted was suggested by the third party’s agent.


text:
    John Fanning, Administrator, Appellee, v. City of Chicago, Appellant.
    Gen. No. 20,292.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by John Fanning, administrator of the estate of James Fanning, deceased, plaintiff, against the city of Chicago, defendant, in the Superior Court of Coolc county. From a judgment for plaintiff for $5,000, defendant appeals.
    The action was to recover for death of plaintiff’s intestate in an accident which occurred on the afternoon of August 11,1910, in a public alley in the rear of the premises at Nos. 1315-45 West Twenty-first place in Chicago. The Eagle Tank Company, which employed deceased as a teamster, had a place of business at the address named, and was originally a defendant to the action, which was dismissed, as to it, during the trial.
    In the first count of the declaration, to which there was a plea of the general issue, it was alleged in substance, inter alia, that on August 11, 1910, said Eagle Tank Company was operating a tank manufacturing establishment at the address named, which premises “adjoined and abutted upon a certain public highway * * * which said public highway was known as a public alley,” located between Twenty-first place and Twenty-first street, and extending in an easterly and westerly direction; that defendant negligently permitted said alley to be and remain in a dangerous and obstructed condition in that certain steam pipes were permitted to extend across said alley at a height of about ten feet above the surface, from and connected with the premises of said Eagle Tank Company; that said pipes were an obstruction, and rendered the use of the alley by the public dangerous, all of which, at the time of the accident, defendant knew or in the exercise of reasonable care should have known. The count further alleged, in substance, that deceased was employed by said Eagle Tank Company prior to and at the time of death, as a teamster, and as such it was his duty to drive through said alley in entering and leaving the premises of said Eagle Tank Company; that on the day of the accident, deceased, in the discharge of his duties and in the exercise of reasonable care, was unavoidably struck by said pipes with great force, and knocked off the wagon he was driving, falling to the ground and receiving injuries which on the same day caused the death sued for. It was also alleged that deceased left a widow and next of kin, and that plaintiff served notice on October 4, 1910, as required by statute.
    No witness saw the accident. A witness named Van Cleave, an engineer in a factory near by, testified, in substance, that he saw the deceased mounting his wagon just prior to the accident, and saw him again just as he fell to the ground. The wagon was loaded with wood and metal, the wood being staves about sixteen feet long, and there was also a conical top of a tank and an iron ladder. Witness was sitting reading a paper when the accident happened. Deceased, according to the witness, climbed on his wagon over the front wheel and right at the front end of the load, and in a standing position, the team standing still. The next thing the witness saw was deceased in the act of falling off the back corner of the wagon, over the left hind wheel, his body being nearly to the ground. The wagon was then still going, just passing the corner of the building and just past the pipes. Deceased fell on the left side of the wagon, which would be the north side, between the wagon and the tank company’s building. Witness saw some of the conical top fall from the right-hand side just as the wagon made the turn. He went to deceased’s assistance, and found his body about three or four feet east of the pipes, and testified that it ‘ ‘ seemed like the front part of his body or head struck the ground. It was as if he was diving in the water.” He also testified that when the wagon was standing still and he saw deceased climbing on the wagon, “the horses’ heads could not have been more than eight feet west of the pipes”; that one of the horses had a nervous disposition; and “couldn’t stand very good”; that deceased was six feet or more tall, and “a good horseman and an ordinarily careful man”; and that the load was about eight inches higher than the stakes.
    One Walsh, a witness for plaintiff, testified as to certain experiments he made the following day, the result of which was that he found that when he stood on a lumber wagon with a load of tank lumber several inches above the stakes, the pipes crossed him “right at the shoulders, ’ ’ and that when he sat on top of the load, the pipes were about eighteen inches above his head.
    One Olsen, president of the tank company, testified that the alley was a “public alley”; that deceased had been employed by the company about a year, driving wagons, loaded with lumber and other materials for making tanks, through the alley and under the pipes; that the pipes were one-inch pipes, about thirteen feet from the ground, and had been there since January, 1909, when his company took possession of the premises. Witness further testified that the load of deceased’s wagon at the time of the accident was lumber of different lengths, prepared to be put together to form a tank, the lumber consisting of bottoms and staves dressed on a circular shape so they did not lie flat; that the load when on the wagon was between eight and nine feet from the ground, and there was no chain around the load. Further, that the accident happened on a clear day and that deceased “was a careful man. ’ ’
    ■ The court admitted, over the defendant’s objection, the verdict of the coroner’s jury, part of which was that “the jury are of opinion that,” in effect, the accident was caused by deceased being knocked off his wagon by the pipes in question, and also containing a recommendation that there be an investigation as to the ownership of the pipes, and that they be moved to such a height that wagons, either loaded or empty, may pass under them with safety.
    The only evidence offered by defendant was certain portions of Van Cleave’s testimony before the coroner’s jury. Defendant also offered to prove that it was customary when such a load as deceased was driving was to be hauled more than four miles, to fasten it on with a chain, or other device, but on objection by plaintiff, the evidence was excluded. Motions made by defendant at the close of plaintiff’s evidence and at the close of all the evidence for a peremptory instruction in favor of defendant were denied. On request of defendant the court instructed the jury to disregard the portion of the coroner’s verdict quoted, and not to consider it in making their verdict.
    William H. Sexton, John W. Beckwith and N. L. Piotrowski, for appellant; David R. Levy, of counsel.
    Gorman, Pollock, Sullivan & Livingston, 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 Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal corporations, § 974 —when evidence sufficient to show that alley is public. In an action against a city to recover for death alleged to be due to obstructions negligently permitted to remain in an alley, where the declaration alleges the alley to be a public alley, and where there is uncontradicted evidence supporting the allegation, held that the fact alleged was sufficiently proved, where the point was not raised in the trial court, and where the case was there tried, without objection, on the theory that the alley was public, although no evidence was offered to show an acceptance or dedication of the alley.

2. Negligence, § 196 —when proximate cause a question of fact. In an action to recover for death, although there may be two equally tenable theories as to what was the proximate cause of the accident causing the death sued for, one of which would excuse defendant, yet if there is evidence tending to show that defendant’s negligence is such proximate cause, the question as to proximate cause is a question of fact for the jury, and their verdict is final.

3. Municipal corporations, § 1098 -—when evidence sufficient to show negligence in permitting obstruction of street. In an action against a city to recover for death due to a fall from a high load, which fall was caused by deceased’s striking steam pipes maintained across a public alley in which deceased was driving a team, evidence held to tend to show that the pipes were an obstruction, and that the city in permitting them to remain in the ■ alley was negligent.

4. Negligence, § 156 —when due care may be shown by circumstantial evidence. In an action for death' caused by deceased’s being knocked off a high load by coming in contact with pipes which defendant negligently maintained in an alley where the accident occurred, where there was no direct evidence as to the care used by deceased other than that he was an ordinarily careful man, and a good horseman, held that the jury were warranted in finding deceased not guilty "of contributory negligence, although it appeared that at the time of the accident, deceased must have been standing on top of the load, which was loosely built up on a lumber wagon and not bound on with a chain or other device, for the reason that due care on the part of deceased may be shown as well by circumstances as by direct testimony, and may be inferred from deceased’s habits, and what are known to be the instincts of self-preservation in persons possessed of their natural faculties and are ordinarily sober and careful of their safety.

5. Appeal and error, § 1622 —when error in admitting evidence cured. The verdict of a coroner’s jury being competent evidence, its admission was not error although a portion of it may be prejudicial to defendant, where the court, at the request of defendant, instructed the jury to disregard such prejudicial portion and not to consider it in making their verdict.

6. Appeal and error, § 1466 —when admission of evidence harmless. In an action to recover for death due to a fall from a high load, the admission of testimony of a witness who did not see the accident, but testified as to the conduct of the deceased prior to it and to what happened immediately after, as tending to show that deceased’s fall was caused by being struck by pipes maintained by defendant across the alley where the accident occurred, held not prejudicial error.

7. Appeal and error, § 1466 —when admission of evidence as to experiments harmless. In an action to recover for death due to a fall from a high load, the admission of testimony of a witness who did not see the accident, as to experiments made by him after the accident, as to whether one standing on a load similar to that on which deceased was standing at the time of the accident, and which tended to confirm the theory of the plaintiff that the accident was caused by deceased’s being struck by the pipes, held not prejudicial error.


text:
    Kalmon Schiowitz, Defendant in Error, v. Louis J. Sleph and Simon Sleph, Plaintiffs in Error.
    Gen. No. 29,395.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by. Kalmon Schiowitz, plaintiff, against Louis J. Sleph and Simon Sleph, defendants, in the Municipal Court of Chicago, to recover for the conversion of copper metal. To reverse a judgment for plaintiff for $875.33, defendants prosecute this writ of error.
    Plaintiff’s statement of claim alleged in substance, that on September 22, 1912, he agreed to sell and deliver to defendant Louis J. Sleph a quantity of copper metal, which he then possessed,' for the sum of $823.84; that defendant Louis J. Sleph tendered in payment a check on the Fort Dearborn National Bank, falsely representing that -there were sufficient funds to pay the same an presentation by means of which defendant Louis secured possession of the goods in question, which he delivered to defendant Simon Sleph; that the check was not properly drawn; that both defendants, well knowing the goods to be the property of plaintiff, have refused to deliver the same to plaintiff, though often requested, and converted the same to their own use. The affidavit of defense denied the conversion.
    The material facts are in substance as follows: Defendant Louis was treasurer of Sowers-Sleph Company, a corporation, and the son of defendant Simon. Sowers-Sleph Company was a tenant of premises owned by Sleph, Sandrowitz & Goldblatt, of which firm defendant Simon was senior partner, and which was engaged in the business of smelting and refining. Sowers-Sleph Company owed the partnership $140 for back rent. Plaintiff had had previous dealings with both defendants. The copper metal in" question was bought for so much a pound, and on being weighed in the presence of both parties was found to be worth about $823. As plaintiff insisted on cash in payment, defendant Louis gave a check on the Fort Dearborn National Bank, to the order of plaintiff, for $800, signed by the president of Sowers-Sleph Company. Defendant Louis did not countersign the check, though there was a space on the face of the check for such counter signature by him as treasurer. Defendant Louis also gave his personal check for the balance, $23. He testified that he had sold the metal to defendant Simon before he purchased it from plaintiff. On presentation at the bank the same day payment was refused, both for want of counter signature by the treasurer of Sowers-Sleph Company and because of insufficient funds. Making no attempt to cash the $23 check, plaintiff went to the place of business of defendant Simon and there “found all the stuff.” In answer to a demand for the goods, defendant Simon informed plaintiff that defendant Louis would pay for them. Plaintiff saw defendant Louis, but he failed to pay. "When plaintiff, with his attorney, again saw defendant Simon, he refused to give plaintiff either money or goods.
    Abstract of the Decision.
    1. Appeal and error, § 965

      —what matters reviewable. Where a record shows no objections to rulings on evidence at the trial, or a motion to find the issues for plaintiff in error, or propositions submitted to be held as the law of the case, a writ of error presents nothing to the Appellate Court except the question of the sufficiency of the evidence to sustain the finding.
    2. Trover and conversion, § 39*—when evidence sufficient to support verdict. In an action in trover to recover for goods secured by one of the defendants from plaintiH by a defective check, which goods were delivered to the other defendant, who converted them, evidence held to sustain a finding for plaintiff, it appearing from the evidence that there was a preconcerted arrangement between defendants to obtain the goods with a fraudulent purpose to escape making payment therefor.
    3. Trover and conversion, § 46*—when judgment not excessive. In an action to recover for the conversion of'goods on October 22, 1912, a judgment entered February 16, 1914, for $875.33 held not excessive, where the finding and judgment included interest, and it appeared that the interest on the amount of the judgment, from the date of the conversion to the date of the judgment, at five per cent, per annum, was correctly computed.
    Herman Waldman, for plaintiffs in error; Ernest C. Reniff, of counsel.
    Voss & Page, for defendant in error; S. H. Gilbert, of counsel.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Lucy Shanholtz, Defendant in Error, v. B. H. Hellen and Myrtle E. Hellen, trading as Michigan Central Park Company, Plaintiffs in Error.
    Gen. No. 20,465.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in the Branch Appellate Court at. the October term, 1914.
    Reversed with finding of facts.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Lucy Shanholtz, plaintiff, against B. H. Hellen and Myrtle E. Hellen, trading as the Michigan Central Park Company, defendants, in the Municipal Court of Chicago, to recover for money had and received. To reverse a judgment for plaintiff for $759.50, defendants prosecute this writ of error.
    Plaintiff’s amended statement of claim alleged, in substance, that prior to March 14, 1911, defendants were engaged in Chicago in selling Michigan lands, and represented to plaintiff that her son-in-law, one Asa H. Daugherty, had purchased a parcel of land in Crawford county, Michigan, and further represented, in order to induce plaintiff to purchase land and to get some of plaintiff’s money, that they had for sale a lot of land adjoining that of Daugherty, which was “of a good quality and of a rich and productive soil,” of the same character as land in the vicinity on which had been raised sixty to sixty-five bushels of potatoes to the acre, and that the parcel offered, which was of forty acres, was worth $800. It was also alleged that at this time the plaintiff knew nothing of the value of character of land in Crawford county, and relying on defendant’s representations agreed to purchase the land for $800, and paid defendants’ $400 down; that on April 4th plaintiff, relying on said representations, commenced to clear the land and caused a house to he erected thereon; that all the representations made were false and fraudulent, and were intended to deceive plaintiff; that the land purchased did not adjoin any land purchased by said Daugherty, and that its soil was not as represented, not yielding more than five to ten bushels of potatoes to the acre. The statement of claim further alleged that plaintiff after discovering the fraud removed from the land in the fall of 1911, and notified defendants that she would make no further payments; that defendants on April 29, 1913, notified plaintiff that the contract would be cancelled unless payment was made within ten days; and that plaintiff has abandoned the land and buildings because of the fraud, and has never paid more than $400 on the contract.
    In defendants’ affidavit of merits there is a denial that defendants received any money from plaintiff without consideration, or that defendants made false representations to plaintiff. It is further alleged, in substance, that plaintiff executed a written contract for the sale of the land in question, and entered and made improvements thereon, and that thereafter plaintiff forfeited all rights under the contract by failing to make payment as provided in the contract, whereby defendants had the right to declare the contract void, which was done on or about April 29,1913.
    The main witnesses for plaintiff were plaintiff, said Daugherty and plaintiff’s daughter, wife of said Daugherty, and one Bleier. Daugherty testified, in substance, that on November 17, 1910, he, with three other men, signed a contract for the purchase of the land which defendants represented to plaintiff had been purchased by him, although he later claimed that he had selected another parcel. Plaintiff testified that she had been farming all her life, and in March, 1911, she went to defendants’ office, and informed defendant B. H. Hellen that she wanted to purchase the land adjoining that of Daugherty, and said defendant stated that though the land was raw and uncultivated, there was “black, sandy loam,” and was “good soil and would produce almost anything,” and that “almost all kinds of grain would grow there.” Plaintiff testified ¿hat on March 14, 1911, she signed a contract for the purchase of the land, which contract provided that in case the payments were not made as provided in the contract, defendants should have the right to declare the contract void, and take immediate possession of the property and remove plaintiff therefrom. In such case defendants were to retain any payments made on the contract, and all improvements made on the land, as stipulated damages.
    Plaintiff also testified that at the time the contract was made she did not know whether her son-in-law purchased the identical land adjoining her tract, as was represented by defendants, but supposed the land was four or five miles from Roscommon, Michigan, and that she did not see the land until after the contract was signed; further, that when she did see the land, on April 4, 1911, she found it “raw timber land, with small trees and underbrush” on it, but did not make “very much” of an examination of the soil, though there was nothing to hinder her from so doing; that plaintiff erected a house, in which she and her husband lived for a time, and, after clearing the land, planted potatoes, corn and beans; that before she abandoned the land she found that the soil was “just solid, yellow sand.”
    Plaintiff’s daughter, Mrs. Daugherty, testified that in June, 1911, the soil was all “solid, yellow sand,” and she thought it worth little. Witness Asa Daugherty further testified that he acted as agent in selling the land to plaintiff, and received a receipt for $40 from defendants to apply on payments due under his own contract for assisting in the sale to plaintiff; that after contracting with defendants for the land adjoining plaintiff’s land, lie, in company with plaintiff, called on defendant B. H. Hellen, claiming that defendants had sold him the wrong land, which defendants denied, resulting’ in his bringing suit against defendants to recover back the money paid. He also testified that the soil of plaintiff’s land was yellow sand.
    Witness Bleier, who sold the land to Daugherty for defendants, testified that no intentional fraud was committed as to him, and if there was a mistake made as to the land which Daugherty selected, it was a mistake of Daugherty’s and not that of defendants, whose practice was at that time, where a buyer wanted to exchange his parcel for another of equal size, to make the exchange.
    Defendant B. H. Hellen testified that he had been selling Michigan lands for about thirteen years, the lands being situated in Roscommon and Crawford counties; that he recalled a contract with Daugherty, which had been drawn up by Bleier, at the time of which said defendant had no knowledge that Daugherty had selected or desired any other land than that which he bought, and said defendant only became aware of such claim when Daugherty visited him; that he acted in good faith in selling plaintiff her land, supposing that it did adjoin that of Daugherty as he represented ; that he knew from personal inspection that the soil of plaintiff’s land was not yellow sand, as testified to, and that he knew it was a good soil for apples and corn, and would produce almost any crop suited to the climate; that less than one acre of the land sold to plaintiff had in 1913 produced about fifty bushels of com. As to the character and quality of the soil, said defendant’s testimony was corroborated by many witnesses.
    Plaintiff also testified that about the time of the visit to defendant B. H. Hellen in company with Asa Daugherty, she again visited said defendant and asked him to deed her twenty acres of the land purchased, and to take back and sell for her benefit the other twenty acres. She also testified that on June 6, 1912, she wrote to said defendant a letter, which was in part as follows: " The lowest I will take for the 20 acres of land that I have already paid for is $650. * * * Ton can sell the other twenty acres for what you please. * * * I would like a deed and abstract for that 20. * * * That would give me a chance to trade it here and send you buyers, for there is lots of people round here who would like to go there. * * * Sell the land as soon as you can and get as much down on it for me as you can, and the rest in monthly payments.” This suit was commenced on June 4,1913.
    Abstract of the Decision.
    Vendor and purchaser, § 336

      —when evidence insufficient to show misrepresentation. In an action for money had and received, to recover back money paid under a contract for the sale of land, alleged to have been procured by fraud, where the amount sought to be recovered back was one-half the contract price, held that evidence was insufficient to prove that defendants made such misrepresentations as to entitle plaintiff to recover, but rather tended to show that plaintiff was sick of her bargain, it appearing that no claim of fraud was made or suit brought for more than a year after such fraud was alleged to have been discovered, during which time plaintiff repeatedly urged defendants to deed to her one half the land and to take back the other half fixing a sale price for the half she wished deeded to her which was in excess of half of the contract price. '
    Louis J. Pierson, for plaintiffs in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Me. Presiding Justice Gridley

text:
    Frank Andree, Defendant in Error, v. George W. Sheehan, Plaintiff in Error.
    Gen. No. 20,555.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fisheb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Frank Andree, plaintiff, against George W. Sheehan, defendant, in the Municipal Court of Chicago, to recover on contract. To reverse a judgment for plaintiff for $330, defendant prosecutes this writ of error. The original action was of the fourth class, in contract, against the defendant, together with one Walter E. Lund and the Merchants Pulverizing Company, a corporation. Defendant Lund was never served, and at the conclusion of plaintiff’s evidence the court ordered the action dismissed as to the corporation defendant, and that the trial proceed against defendant Sheehan.
    It appeared from the evidence that April 3, 1911, plaintiff gave defendant a written option to purchase certain machinery for “one-tenth interest in a new company.” Plaintiff had previously given such an option to one Fiedler for $1,500. On June 14th, defendant and Lund, as first parties, made a written contract with Fiedler, as second party, wherein first parties agreed, inter alio,, to organize an Illinois corporation, to be known as the Merchants Pulverizing Company, to which second party was to transfer the machinery in consideration of receiving one-tenth of its stock, and this part of the agreement was duly carried out. The fourth clause of the agreement provided that the first parties “will pay all the money necessary for the purpose of completely setting up and installing the said machinery and pay for all the material necessary to be used in and about the installation of the same. ’ ’
    Plaintiff testified, substantially, that shortly after the written option of April 3,1911, was signed, defendant requested plaintiff to do the engineering work in installing the machinery, which he commenced on April 29th, and was engaged thereon for thirty-three days, during the period from April 29th to June 9th; that a fair and reasonable charge for such work was $10 per day; and that while at work installing the machinery defendant visited the premises several times and expressed satisfaction with the progress of the work. Plaintiff also testified that defendant said to plaintiff: “Go ahead and put in the machinery and see that everything is set up. * * * I fix you up and pay you for whatever labor you do and time you lose there.”
    Defendant admitted saying to plaintiff that “we” would pay expenses of hauling machinery and pay “millwrights to put up the machinery,” but denied any promise to pay plaintiff for installing it.
    The corporation was not fully organized until after plaintiff performed the labor sued for.
    On September 18, 1911, under instructions from Sheehan and Lund, representing the corporation, an attorney at law secured a written release from plaintiff to the said corporation of “whatever right, title or interest, if any, I may have or might claim against or in * * * the goods, chattels and property, * * * now located at the plant of the Merchants Pulverizing Company * * * and delivered, obtained and installed under or pursuant to a certain option dated April 3,1911, and signed by me.” Defendant testified that this release was obtained to “finish our records.”
    Thompson, Clark & Stevenson, for plaintiff in error; Morton J. Stevenson, of counsel.
    Baker & Holder, for defendant in error; G. Raymond Collins, of counsel.

      Abstract of the Decision.
    1. Parties, § 26

      —when joint obligor not necessary party. A written contract between two persons as first parties and another as second party, containing a promise by such first parties for the benefit of third persons, does not make parties to the contract co-partners, so as to make such second party a necessary party in an action by one of those benefited to recover on the contract, although both such first parties are proper parties to such action, if served, and if the question of their joint liability is raised in the trial court.
    2. Contracts, § 224*—how provisions construed. In an action to recover on a promise contained in a contract to which plaintiff was not a party, which promise was to “pay all the money necessary for the purpose of completely setting up and installing the said machinery,” contract construed and clause quoted held to be a promise for the benefit of third persons to. pay for all the labor done in installing said machinery.
    3. Release, § 16*—how construed. A release of “whatever right, title or interest, if any, I may have or might .claim against or in * * * the goods, chattels and property” located at a named place and obtained under an option of a named date, held not to operate to release a claim for labor performed in setting up machinery obtained under the option and located at the place named, where it appeared that the release contained no reference to such claim for services, and that the object of obtaining such release was merely to finish the records of the corporation owning the machinery.
    4. Contracts, § 384*—when evidence sufficient to support judgment in action on. In an action to recover on a contract containing a promise for the benefit of third persons, where plaintiff was one of the class intended to be benefited by such promise, evidence held to support a verdict for plaintiff.

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

   Me. Presiding Justice Gridley

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Washington Porter, Plaintiff in Error.
    Gen. No. 20,705.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Prosecution by the City of Chicago against Washington Porter, charging defendant with permitting property owned by him, known as the Medina Hotel, in the City of Chicago, to be used as a house of ill-fame or assignation within the limits of the City of Chicago, in violation of section 2017 of the Chicago Code of 1911. To reverse a judgment of conviction, defendant prosecutes this writ of error.
    Defendant had been the owner of the property for twenty-five years, and at the time when it was alleged to have been maintained in violation of the ordinance it was occupied by persons named Karr and Stites, under lease from defendant.
    At the trial it appeared that one Smith had been previously convicted, as proprietor of the hotel, of " keeping a disorderly house for the encouragement of drinking and fornication,” and. there was evidence tending to show that certain portions of the building* had been used as a house of ill-fame, or assignation, and for the practice of fornication and prostitution.
    The complaining witness in the case was the pastor of a church in Chicago, and the evidence tends to show that he was active in trying to suppress vice.
    On motion of defendant the court struck out the testimony- of a witness to a conversation with defendant, in which defendant said he had over four hundred tenants, and paid $60,000 taxes, and that it was about all one man could do just to keep general track of those things.
    Abstract of the Decision.
    Appeal and ebrob, § 1514

      —when argument of counsel ground for reversal. Id. a prosecution wherein defendant was charged with permitting his property to be used as a house of ill-fame or assignation, in violation of an ordinance, where it appeared that the property in question was occupied by lessees of defendant, held reversible error to overrule defendant’s objection to language of the prosecuting attorney in his closing argument to the jury, representing defendant as a rich man who received the profits of vice, while pretending to be respectable, and who in order to prevent conviction and to preserve his respectability made a defense which cast discredit on a preacher who was doing a great work, it appearing that the court did not rebuke counsel for his language.

      In his closing argument the prosecuting attorney said:
    “The only purpose of the defense in this case has been to assassinate the character of a high minded preacher who is engaged in doing a great work, to make this earth the same kind of a place we want it to be in heaven; and they do that in order to save themselves the humility of being fined by this jury, so that it cannot be said that he is not a respectable man. He parades around in his riches as a great man, as a man of honor, a respectable citizen, and he makes his money how? * * * I will tell you how he gets a part of it, and whether he gets it directly or indirectly has absolutely nothing to do with this case. * * * We have not investigated yet; we have not got complaints from other parts of town. In other parts of town the preachers are not as aggressive unfortunately. If they were, we would find out some more about this man, and we would Imow where he gets some of his money. * * * He gets it out of those prostitutes up there in that hotel who are compelled to sell their souls and their bodies in order to put gold into his coffers. ’ ’
    These remarks were duly objected to, but the objection was overruled and the remarks and ruling were excepted to, whereupon the attorney made further remarks of the same nature.
    Childs & Childs, for plaintiff in error.
    John W. Beckwith, for defendant in error.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Harry S. Mecartney, Appellee, v. City of Chicago, Appellant.
    Gen. No. 20,711.
    1. Municipal corporations, § 455

      —when detion ex delicto not •Maintainable for failure to pay condemnation judgment. An action in tort cannot be maintained by the defendants in a condemnation judgment against a city upon such judgment, upon the theory that the negligence of the city in failing to take steps to collect and pay the amount of the condemnation judgments, created a cause of action in their favor independent of such judgments, where the defendants in such condemnation suit relinquished possession of the property, under agreement with the city, prior to the termination of such suit, and the ordinance under which the improvement was made provided for payment by means of special assessments and general taxation.
    2. Mandamus, § 76

      —when proper remedy to compel payment of condemnation judgment. Where a city fails to exercise due diligence to levy and collect taxes and assessments for the payment of judgments rendered in condemnation proceedings instituted under an ordinance authorizing an improvement, which provided for payment by means of special assessments and general taxation, the remedy of the holders of such judgments is by mandamus to compel the performance of the city’s duty in that respect.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiix, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed October 5, 1915.
    Statement by the Court. This is an appeal from a judgment of the Circuit Court of Cook county for $31,208.66, rendered April 25,1914, against the City of Chicago in favor of Harry S. Mecartney, plaintiff, in an action in tort commenced December 13, 1912, and •based upon three certain condemnation judgments entered in said Circuit Court in the year 1894. The declaration consists of four counts,—the first reciting the recovery of said three judgments, giving credit for payments made thereon and alleging the city’s negligence in failing to make and collect the special assessments to pay said judgments. The other three counts are merely separate counts on each of the three judgments and contain no matter not included in the first count. The concluding paragraph of said first count is as follows:
    “In consequence of which negligence and failure of defendant, the plaintiff has been kept out of his moneys due upon said judgments, and has been put to great damages, costs and attorney’s fees and other expenses in attempts to collect said moneys, and in commencing and prosecuting* suits to collect the same, and in commencing* the present suit therefor, and has otherwise been caused and been put to great delay, damages, costs and fees and other expenses to the amount of, to-wit, $20,000, exclusive of the amounts due upon said judgments, and interest thereon. Wherefore, plaintiff avers that he has been injured and damaged in the sum of, to-wit, $50,000, and therefore he brings this suit. ’ ’
    The city demurred to the declaration but the demurrer was overruled. Subsequently the city filed to the declaration a lengthy “answer,” which is much in the nature of an answer in chancery. On these pleadings the parties without objection went to trial. On the hearing before the court without a jury, opposing counsel stipulated that practically all the facts stated in the declaration and answer were to be taken as true. Plaintiff was the only witness sworn, and he testified as to his persistent efforts to get the city to bring to a conclusion the special assessment proceedings, and as to the various collateral suits brought or conducted by him in his attempts to secure a general judgment against the city. He further testified that his cash expenditures in said suits for costs, printing and other expenses had exceeded $1,000, that he had incurred expenses for services of other attorneys in the sum of $1,000, and that the reasonable value of his own services, including the services of his assistants, in the present case was $2,500, and he claimed upon the trial that he was entitled to recover said sums as damages. Plaintiff also claimed upon the trial that he was not only entitled to recover, as damages, the unpaid portions of said judgments, but also interest thereon, at the rate of five per cent, per annum, from the date the city entered into possession of the land condemned (viz., September 1, 1893), not as interest directly upon said judgments but as damages for withholding money that was due. Plaintiff made a computation as to the interest, in which he applied the partial payments made upon said judgments, first to the- payment of the accrued interest and the balance to the principal of said judgments in the same manner as partial payments are credited on promissory notes. This computation showed that there was due and unpaid on said judgments on April 25, 1914, the sum of $26,670.66. The court allowed said sum as damages, and added thereto the sum of $4,538 as additional damages, to cover costs and attorneys’ fees paid or to be paid by plaintiff. This latter item is made up of $1,038, costs paid out; $1,000 attorneys’ fees paid in litigations conducted for the purpose of enforcing payment of said judgments; and $2,500 for attorneys’ fees incurred and to be incurred in the present suit. The court found the defendant guilty and assessed plaintiff’s damages at the sum of $31,208.66. The motions of the city for a new trial and in arrest of judgment were overruled and judgment on the finding was entered against the city. Prior to the entry of the finding the plaintiff submitted six propositions of law, all of which the court marked “held,” and the city submitted thirty-four propositions of law, eight of which were marked “held” and twenty-six were marked “refused.”
    On July 24,1893, the City Council of Chicago passed an ordinance for the widening of South Park avenue from Fifty-fifth street to Fifty-sixth street, and for the taking of certain parcels or strips of land owned by different parties for such purpose. The ordinance provided that the cost of the improvement should be “paid for by a special assessment to be levied upon the property benefited thereby to the amount that the same may be legally assessed therefor, and the remainder of such cost to be paid by general taxation in accordance with article IX” of the Cities and Villages Act of 1872 (J. & A. 1388). In pursuance of the provisions of said act, on August 29,1893, a condemnation petition was filed in the Circuit Court of Cook county to acquire the following parcels or strips of land, viz.: (1) The east thirty-seven feet of Lot 13 (except boulevard) in Block 2, Yerby’s subdivision, etc.; (2) the east thirty-seven feet of the south one hundred and fifty feet of Lots 15 and 16 in said Block 2; and (3) the east thirty-seven feet of said Lots 15 and 16 (except the south one hundred and fifty feet thereof) in said Block 2. Lots 13 and 15 fronted east on South Park avenue, and Lot 16 was west of and adjoining Lot 15. At this time Nina Thomasson and Gwynn Garnett were the owners of the strip of land first above mentioned and the remaining’ portion of Lot 13. Harry S. Mecartney, plaintiff herein, was the owner of the strip secondly above mentioned and the remaining portion of the south one hundred and fifty feet of Lots 15 and 16, and George D. Phelps of the strip thirdly above mentioned and the remaining portion of Lots 15 and 16 (except the south one hundred and fifty feet thereof). Separate jury trials were had to fix the compensation to be paid to the several owners, and at the January term, 1894, one judgment was rendered for $12,025; at the October term, 1894, another judgment was rendered for $4,162.50; and at said October term another judgment was rendered for $3,312.38. These awards for said lands condemned aggregated the sum of $19,499.88. Subsequently Mecartney, by assignments filed of record, purchased all of the rights to compensation for the taking of all of these strips of land. After the filing of said original condemnation petition, to-wit, on September 1, 1893, the city, with the actual and express consent of the owners of said strips of land (viz., said Thomasson and Garnett, Mecartney and Phelps), took actual and permanent possession of said strips of land for the purposes of a public street, and the same have been since continuously and exclusively used for such purposes and as a part of said South Park avenue.
    To raise the aggregate sum of said awards for said lands condemned, viz., $19,499.88, in accordance with said condemnation ordinance, various supplemental petitions were filed by the city under section 53 of article IX of said Cities and Villages Act (J. & A. ft 1443). The first of such supplemental petitions was filed on December 4, 1894. Under this petition an assessment was made and returned for the,full amount of said awards and costs, apportioned among the lots and parcels of land alleged to be benefited. A large part of the whole assessment was levied upon the parts of the lots which remained after taking the east thirty-seven feet thereof for the street. Objections were filed by Mecartney and others, which were sustained, and the city dismissed the petition. A second supplemental petition was filed on December 28, 1895. Objections were also filed by Mecartney and others to this assessment as returned, and on February 4, 1897, said petition was dismissed. On February 20, 1897, the city filed a third supplemental petition, and in July, 1897, the third assessment roll was filed. Prior to this time, on April 1,1897, the property of Mecartney and Phelps (viz., Lots 15 and 16, except the east thirty-seven feet of Lot 15 taken for the street) had been subdivided, and was then known as Sublots 1 to 8, inclusive, of Edgar M. Snow & Company’s subdivision of Lots 16 and 15 (except the east thirty-seven feet of said Lot 15 in Block 2, Yerby’s subdivision, etc.). These lots were assessed' the aggregate sum of $9,017.64. Various objections were filed to said assessment roll by Mecartney and others, and on April 7, 1898, a trial was had upon said objections, and the jury found said assessment correct as against all the property except said Sublots 1 to 8, inclusive, and reduced the assessment against said lots to the aggregate sum of $6,770. On July 2,1898, Macartney’s motion for a new trial as to said lots was allowed, but a judgment of confirmation of the assessment was entered as against all the other property assessed. The total amount of the assessment as so confirmed was $12,033.74, and said amount, except $1,885, was subsequently paid over to Mecartney by the city. The item of $1,885 was contested by the owner of the land against which it was assessed, and a judgment of sale was rendered in December, 1902, against said land for said sum of $1,885, which judgment of sale was in June, 1903, affirmed by the Supreme Court (Bass v. People, 203 Ill. 206). In the year 1910 said land was sold under said prior judgment and said sum was collected and paid over to Mecartney, making a total sum of $12,033.74 paid him on said condemnation judgments.
    On June 22, 1901, the new trial was had as to said Sublots 1 to 8, inclusive. A jury was waived and the court found that the benefits had been determined in the original condemnation proceedings, and that snch determination was res adjudicata in said assessment proceedings, and the court sustained the objections of Mecartney and dismissed the petition for said assessment as to said property. In April, 1904, the city sued out a writ of error from the Supreme Court to reverse said judgment, and that court in October, 1905, reversed the judgment and remanded the cause (City of Chicago v. Mecartney, 216 Ill. 377). For some unexplained reason no remanding order was filed in the Circuit Court within the statutory period of two years.
    No further steps were taken by the city until January 24, 1910. On that day the city council passed an ordinance annulling the assessment theretofore made by the city, and directing* the corporation counsel to have a new assessment made. On January 25,1910, an order was entered in said condemnation proceedings dismissing all supplemental petitions filed therein and vacating all orders entered upon said supplemental petitions, and the city on the same day, by leave of court, filed the fourth and last supplemental petition for a new assessment against all lands benefited by said improvement, and the court thereupon appointed commissioners to spread new assessments. Subsequently the assessment roll was filed, in which roll the property against which the former assessment had been confirmed as above (except the “remainder” of said Lots 15 and 16, or Sublots 1 to 8, inclusive, as subdivided) was reassessed the same amount that had been confirmed against it under said former assessment, but such property was in each instance credited with the same amount on said roll by having the assessment marked “paid.” Upon said Sublots 1 to 8, inclusive, the aggregate amount of the assessment was $7,783.60. This amount added to the $12,033.74, paid on the condemnation judgments, was more than sufficient to pay the face of said judgments, $19,499.88. It appears from the assessment roll that one Frank J. Willoughby was then the owner of Sub-lots 1 and 2, and that parties other than Mecartney and Phelps were the owners of the other sublots, and that “no dollars” were assessed against the city for public benefits. Objections to this assessment of $7,783.60 were filed by the then owners of said lots, but on June 14, 1910, said assessment was confirmed. The objectors appealed to the Supreme Court of Illinois, which court in April, 1911, affirmed said judgment of confirmation (City of Chicago v. Willoughby, 249 Ill. 249). The objectors sued out a writ of error from the Supreme Court of the United States, and in November, 1914 (subsequent to the entry of the judgment in the present case), said writ of error was dismissed by said Supreme Court (Willoughby v. City of Chicago, 235 U. S. 45).
    In November, 1895 (thirteen months after the last of the three condemnation awards was entered), two assumpsit suits against the City of Chicago were filed in the Circuit Court of Cook county. The plaintiff in one of those suits was the present plaintiff, Harry S. Mecartney, and the plaintiff in the other suit was said George D. Phelps, for use, etc. In October, 1901, a third assumpsit suit, entitled Nina Thomasson and Gwynn Garnett, for use of Harry S. Mecartney, against the City of Chicago, was commenced in said court. In the amended declarations in said three suits it was alleged, in substance, that the city had begun supplemental proceedings to collect the amounts of said awards by special assessment, but had failed to prosecute the same with reasonable diligence and had abandoned said proceedings, whereby it was claimed that a general liability in assumpsit had accrued. The city demurred to the declaration as amended. The demurrers were overruled and, the city electing to stand by the demurrers, judgments aggregating nearly $23,000 were entered in said three suits against the city. From these judgments the city appealed to this Appellate Court, which court, by decisions rendered in October, 1909, reversed the judgments and remanded the causes with directions to sustain said demurrers (Mecartney v. City of Chicago, 150 Ill. App. 275; Thomasson v. City of Chicago, 150 Ill. App. 281; Phelps v. City of Chicago, 150 Ill. App. 281). In pursuance of the mandate of this court the lower court sustained the demurrers and, plaintiffs electing to stand upon their amended declarations, said suits were dismissed at plaintiff’s costs, from which judgments the several plaintiffs appealed to this Appellate Court, and this court, in January, 1913, affirmed said judgments (Mecartney v. City of Chicago, 177 Ill. App. 23; Phelps v. City of Chicago, 177 Ill. App. 25; Thomasson v. City of Chicago, 177 Ill. App. 26). Appeals from the judgments of this court in each of said cases to the Supreme Court were prayed and allowed. In the Supreme Court the three casés were consolidated and heard as one case, and that court in December, 1913, affirmed the judgment of this Appellate Court in each case (Thomasson v. City of Chicago, 261 Ill. 131).
    In said original condemnation proceeding, commenced August 29, 1893, as aforesaid, Harry S. Mecartney filed an intervening petition on November 17, 1909. This was shortly after the decision of this Appellate Court in the assumpsit suit of Mecartney v. City of Chicago, 150 Ill. App. 275. In said petition Mecartney prayed for an absolute and unconditional judgment against the city for the balance remaining unpaid upon said condemnation awards together with interest from September 1, 1893. The petition was amended in January, 1910, and, as amended, it set forth in detail the facts regarding the entry of the condemnation judgments, aggregating $19,499.88, as aforesaid, the taking" of possession by the city on September 1, 1893, of the land condemned for the purposes of a street, the subsequent attempts to assess a large part of the amount of said judgments upon the remainder of the lots after taking the part condemned, the length of time consumed in such attempts and the apparent final abandonment of all efforts to collect. The petition alleged that the city’s power to collect had been exhausted, that petitioner’s rights had been grossly violated, and that to deny him a judgment in the premises after such a lapse of time and such proceedings, or to require him to wait longer for his money, would amount to taking his property without just compensation and without due process of law, and would be an impairment of petitioner’s contract rights, contrary to the provisions of the Constitution of this State and of the United States. The city filed a demurrer, which was overruled, and then filed an answer, denying that the special assessment proceedings had been prosecuted in a negligent manner, and alleging that the same had been brought to trial as speedily as practicable, and further denying that the city had either abandoned its efforts to collect or that its power to collect had been exhausted. The city’s answer also set up the proceedings in said three assumpsit suits, and asserted that the decision of this Appellate Court therein (150 Ill. App. 275) was res adjudícala of all questions involved. By a supplemental answer filed in J uly, 1910, the city alleged the further fact that between January and J uly, 1910, a fourth supplemental proceeding for a special assessment had been prosecuted in which, after a jury trial, a judgment of confirmation was entered against the remaining portions of said Sublots 1 to 8, inclusive, for $7,783.60, from which judgment an appeal had been prosecuted to the Supreme Court. (This appeal was subsequently decided in favor of the city in the case of City of Chicago v. Willoughby, 249 Ill. 249, as above mentioned.) The Circuit Court, after hearing the evidence of the facts alleged in said intervening petition and answer, denied and dismissed said petition, and from that order Mecartney appealed to this Appellate Court, and this court in October, 1912, affirmed the order and judgment of the Circuit Court dismissing said intervening petition (City of Chicago v. Macartney, 172 Ill. App. 586). From the decision of this court an appeal was allowed and perfected to the Supreme Court, which court in October, 1913, affirmed the judgments of the Circuit Court and of this court (City of Chicago v. Thomasson, 259 Ill. 322).
    Phillip J. McKenna and. Howard F. Bishop, for appellant; John W. Beckwith, of counsel.
    Enoch J. Price, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

By the first proposition of law submitted by the plaintiff and marked “held” by the trial court, the court held, as a matter of law, that the city had been negligent, prior to the bringing of the present action, in performing its duty to levy, collect and pay over such special assessments as it lawfully could to the owners of said condemnation awards for the property taken. By the second proposition of law the court held, as a matter of law, that the plaintiff had proved a valid cause of action against the defendant for negligence and delay in paying said awards. By the third proposition the court held that the time which elapsed between the entry of said awards and the beginning of the present action was much more than a reasonably time within which to make payment for the property taken. By the fourth proposition the court held, as a matter of law, that legal interest should be allowed as part of the damages in this case upon said awards from September 1, 1893. By the sixth proposition the court held, as a matter of law, that plaintiff’s disbursements for expenses and attorneys’ fees properly incurred in attempting to enforce the city’s liability growing out of said awards were proper elements of damages in this ease. It was on these theories that the trial court, in this tort action, assessed plaintiff’s damages at the sum of $31,208.66, and entered a general judgment against the city in that amount. This sum was made up of the sum of $26,670.66, which according to plaintiff’s computation was the amount unpaid on said awards together with interest at the legal rate from September 1,1893, to April 25,1914, 'and the further sum of $4,538, costs and attorneys’ fees paid or to be paid by plaintiff. Among the propositions of law submitted by the city the court held, as matters of law, by the fifth proposition, that the said awards were not judgments against the city directly, but were to be paid strictly in accordance with the terms of the original condemnation ordinance, and in accordance with the provisions of article IX of the Cities and Villages Act of 1872 (J. & A. 1388); by the fourteenth proposition, that the reQovery of fees or costs is a statutory question, and must be governed by the terms of the statute under which the proceeding is brought; by the twenty-sixth proposition, that no money or property of this plaintiff has been wrongfully obtained by the city; and by the twenty-seventh proposition, that no money or property of this plaintiff has been illegally withheld by the city.

By the decisions in Mecartney v. City of Chicago, 150 Ill. App. 275, in Mecartney v. City of Chicago, 177 Ill. App. 23, and in Thomasson v. City of Chicago, 261 Ill. 131, it was decided that plaintiff could not recover the balance due on said awards in an action in assumpsit. And by the decisions in City of Chicago v. Mecartney, 172 Ill. App. 586, and in City of Chicago v. Thomasson, 259 Ill. 322, it was decided that, on the intervening petition filed by plaintiff in the condemnation proceedings, the court had no jurisdiction to enter an absolute and unconditional judgment against the city for the balance of said awards with interest.

The ordinance passed by the City Council of Chicago on July 24, 1893, for the widening of South Park avenue between Fifty-fifth and Fifty-sixth streets and for the taking of the strips of land mentioned for that purpose, provided that the cost of the improvement should be “paid for by a special assessment'to be levied upon the property benefited thereby to the amount that the same may be legally assessed therefor, and the remainder of such cost tó be paid by general taxation in accordance with article IX” of the Cities and Villages Act of 1872 (J. & A. ¶ 1388). After the passage of said ordinance, and in pursuance of the provisions of said act, on August 29, 1893, the city filed a condemnation petition in the Circuit Court of Cook county to acquire said strips of land. Three days after the filing of said petition, to-wit, on September 1, 1893, the city, with the actual and express consent of the then owners of said strips of land (namely, the plaintiff in the present case, and Thomasson and Gfarnett and Phelps) took actual and permanent possession of said strips of land for the purposes of a public street, and the same have been since continuously and exclusively used for such purposes and as a part of said South Park avenue. At the January term, 1894, of the said court, compensation was awarded to the owners of one strip of land taken in the sum of $12,025; at the October term, 1894, to the owner of another strip taken in the sum of $4,162.50; and at said October term to the owner of the third strip taken in the sum of $3,312.38. These awards aggregated the sum of $19,499.88. Thereafter the plaintiff in the present case became the assignee of all of said judgments and entitled to receive said aggregate sum. To raise said sum, in accordance with said ordinance, the city filed from time to time four supplemental petitions under section 53 of article IX of said Act (J. & A. ¶ 1443), with the results as above outlined in the ‘ ‘ statement of the ease.” It appears that the plaintiff, Mecartney, as assignee of said judgments, has had paid to him by the city on said judgments the total sum of $12,033.74, or nearly two-thirds of the aggregate amount of said judgments or awards. It further appears that under the fourth supplemental petition, filed by the city on January 25, 1910, an assessment was levied on certain sublots, mentioned in said statement of the case, in the aggregate amount of $7,783.60, for the purpose of paying the balance of said awards; that objections to the assessment were filed; that on June 14, 1910, the assessment was confirmed; that the objectors appealed to the Supreme Court of this State, which court in April, 1911, affirmed said judgment of confirmation (City of Chicago v. Willoughby, 249 Ill. 249); that said objectors by writ of error took the case to the Supreme Court of the United States; and that in November, 1914, said writ of error was by that court dismissed (Willoughby v. City of Chicago, 235 U. S. 45).

Section 1 of said article IX of the Cities and Villages Act of 1872 (J. & A. ¶ 1388) provides “that the corporate authorities of cities and villages are hereby vested with power to make local improvements by special assessment or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance prescribe.” Section 2 (J. & A. ¶ 1389) provides that “when any such city or village shall, by ordinance, provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall be made by special assessment or by special taxation of contiguous property, or general taxation, or both.” In the above cited case of City of Chicago v. Thomasson, 259 Ill. 322, our Supreme Court held (p. 327) that, at the time when said condemnation petition was filed, it was only under the provisions of said article IX of said Act that the city might condemn property for a local improvement; that said article provided for a purely statutory proceeding and was a complete code in itself; that under the statute payment might be made in any one of the modes provided, but that the adoption of any one or more of these modes by a local improvement ordinance excluded the idea of payment in any other manner. The court said (p. 328):

“We are unable to find in this act any authority for the entry of such a judgment as is prayed for by the petition under consideration. By voluntarily delivering possession of the strip sought to be condemned by the city, the owners of the lots in question established a relationship to the city in reference to this proceeding that was not contemplated by the statute, and thereby deprived themselves to some extent of the protection vouchsafed landowners by this statute in the matter of securing the payment of the damages awarded them. ’ ’

The court further said (p. .330, italics ours):

“Having consented that the city should immediately enter upon their property and take possession of and damage the same, the appellant and the other property owners voluntarily loaived their right to demand their award for damages before the land could be taken and the city thereupon acquired a vested right in the property. The owners, as is said in the Barbian case (80 Ill. 482) also acquired a vested right in the compensation, and the rights of both parties thereby became absolute and irrevocable except by common consent. The liability of the city, however, as to the manner in which payment for damages should be made ivas not changed. The agreement between the property owners and the city, whereby the city at once acquired possession and the right to take the property could not and did not change the terms and provisions of the original ordinance, which provided that the cost of the improvement should be paid for by special assessment to be levied upon the property benefited thereby to the amount that the same might be legally assessed therefor, the remainder to be paid by general taxation. While the property owners, on delivery of possession to the city, immediately acquired a vested right in their compensation, they did not acquire a right to have that compensation provided for and paid to them in any other manner than that specified in the ordinance. At the time possession was given the ordinance authorizing the improvement had been passed. Its terms were known and the condemnation proceeding's therein provided for had been begun. By thus delivering. possession to the city the property owners placed themselves without the provisions of the statute. * * * They were bound by the provisions of the ordinance, and, although out of possession, must aivait payment according to its term. However, they were not left remediless. They had.at hand the means to compel the city to perform any duty legally devolving upon it. If the city failed to exercise due diligence in making the assessment against the property specially benefited, it could, after demand, be compelled to do so by mandamus. * * * That the city has failed to exercise due diligence in proceeding to collect assessments with which to pay for the damages done in the taking of this property cannot be denied. For years at a time no steps were taken or attempted to be taken in this proceeding. This situation may be partially accounted for by the fact that appellant was all the time contending that his lots * * * (being the only ones specially benefited which had not been assessed) were not liable for special assessment in this proceeding, and it is possible that for this reason he did not desire to proceed by mandamus.”

Our conclusion is that, under the facts disclosed and because of the reasoning and holdings of our Supreme Court in City of Chicago v. Thomasson, supra, the trial court erred in entering against the city the general judgment appealed from. In- our opinion the court should have dismissed the suit. The questions as to the allowance of interest, costs and attorneys’ fees, much discussed in the briefs of counsel, need not therefore be considered.

The judgment of the tiircuit Court of Cook county is reversed.

Reversed.


text:
    W. D. Johnson, Defendant in Error, v. Myer Janowitz, Plaintiff in Error.
    Gen. No. 20,780.
    (Not to be reported in full.)
    Error to the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in the-Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    Bills and notes, § 443

      —when evidence sufficient to show consideration. In an action to recover on notes, where the plaintiff is the payee named in the notes sued on, and where defendant, -in a special plea, alleged that the notes were given in payment for a part interest in a business purchased of a third person, and that defendant was induced to give the notes sued on by the false representations of such third person, of which plaintiff had notice, and also alleging a total failure of consideration, evidence held to warrant a peremptory instruction for plaintiff.
    Statement of the Case.
    Action by W. D. Johnson, plaintiff, against Myer Janowitz, defendant, in the County Court of Cook county, to recover on ten promissory notes of fifty dollars each, made by defendant, payable to the order of plaintiff. To reverse a judgment of five hundred and thirty dollars for plaintiff, defendant prosecutes this writ of error.
    Israel Cowen, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Morris Bayofski by Benjamin Bayofski, Appellee, v. Morris Rosenberg and Nathan D. Rosenberg, Appellants.
    Gen. No. 20,825.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavahagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Morris Bayofski, by Benjamin Bayofski, his next friend, plaintiff, against Morris Bosenberg and Nathan D. Bosenberg, defendants, in the Superior Court of Cook county, to recover for personal injuries. From a judgment for $1,500 for plaintiff, defendants appeal.
    Plaintiff, a boy five years old and residing with his father, was injured on December 31, 1911, by falling from a porch.
    The declaration alleged, in substance, that on the day of the accident defendants were the owners of the building in question, a three-story apartment house, situated at the corner of West Taylor and Baffin streets in Chicago, and as such had the control of the porch or platform in question, and the stairway and railing appurtenant thereto, which porch formed the means of entering and leaving the apartments in the building, and was used in common by lessees of such apartments, one of whom was plaintiff’s father, whose apartment was in the rear on the second floor; that it was the duty of defendants to keep the same in a reasonably safe condition, but that they negligently permitted the same to become unsafe and out of repair, which defendants knew or by the use of reasonable care might have known; that on the day aforesaid, the railing was defective, so that while plaintiff, in the exercise of due care, was standing near or against the railing on the porch, the same gave way, causing plaintiff to fall or be thrown from the platform to the ground, a distance of twenty feet or more, whereby his head and body were lacerated and bruised, and he was otherwise greatly injured, etc.
    It appeared from the evidence that the building fronted north on West Taylor street, and ran back along the east side of Laflin street about seventy-five feet. There were three platforms or porches in the rear, one for each floor, about seven feet wide, running the entire width of the rear of the building. The stairs of each porch rose from the westerly or Laflin street side, and the top landing of each flight of stairs was about twenty-five feet from the west end of each porch. The porches and stairs were used in common by all tenants, including the Bayofski family, who lived in the rear apartment on the second floor. The railing in question was on the second floor porch at the Laflin street end thereof, and was of the ordinary sort, constructed of wood, three and one-half to four feet high, with a top board and small perpendicular palings, with spaces between. It was even with the west line of the building and at its inner end was fastened to the building, and at its outer end to an upright post or column which supported the porches.
    The testimony of several of plaintiff’s witnesses tended to show that plaintiff was leaning against and over the railing, when the entire west end thereof gave way and plaintiff and the railing fell to the sidewalk. One witness for defendants, a helper in a blacksmith’s shop directly across Laflin street, testified that he saw plaintiff climb on the railing and fall to the ground, saw persons carry the child away, and then, in about eight minutes saw a man “push the railing with his side * * * and it fell over.” The testimony was conflicting on the questions whether defendants had actual or constructive notice of the defective condition of the railing.
    Abstract of the Decision.
    1. Pleading, § 390

      —when ownership not put in issue. Where a declaration alleges that personal injuries sued for were caused by the breaking of a defective porch rail in defendant’s apartment house, and that defendants had control of such porch, a plea of the general issue does not put in issue the question whether defendants were owners of the building and had control of the porch.
    2. Landlord and tenant, § 230

      —where evidence sufficient to support verdict for injury by porch rail breaking. In an action to recover for personal injuries caused by the breaking of a defective porch railing in defendants’ apartment house where plaintiff’s father, with whom he resided, was one of the tenants, the breaking of which railing caused plaintiff to fall to the ground, a distance of about twenty feet, evidence held to support a verdict finding defendants guilty of negligence in maintaining such railing in such porch, it appearing that defendants had control thereof, and although the evidence was conflicting as to whether defendants had actual or constructive notice of the defect.
    3. Damages, § 120

      —when $1,500 excessive for injury to child. In an action to recover for personal injuries caused by falling from the porch of an apartment house, a verdict of $1,500 for plaintiff held excessive to the amount of $750, it appearing that plaintiff was a child five years of age, and that the injuries were lacerations of the head and slight fracture of the skull, causing unconsciousness for a short time, and necessitating hospital treatment for eight days, and it also appearing that within three or four weeks after the accident, and subsequently, neighbors saw plaintiff playing around evidently in good health.

      Plaintiff’s injuries consisted in a slight fracture of the skull, and cuts and lacerations of the head. He was unconscious" for a short time after the fall, and was taken to a hospital, where he remained for eight days. Neighbors testified that three or four weeks after the accident, and subsequently, plaintiff was seen playing around as usual, and in apparent good health.
    Isidore Fried and Aaron R. Eppstein, for appellants.
    Francis X. Busch and Fred Plotke, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    William S. Douglas, Appellant, v. William E. Dee, Appellee.
    Gen. No. 20,841.
    (Not to foe reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by William S. Douglas, plaintiff, against William E. Dee, defendant, in the Circuit Court of Cook county, on appeal from a judgment of a justice of the peace of Cook county, to recover a commission for the sale of a truck, under a contract that defendant should ,pay plaintiff, as a commission for the sale, any amount in excess of $1,550 for which the truck should be sold. The sale was made for $1,875. After a trial by jury in the Circuit Court, and verdict for plaintiff for $240, defendant moved for a new trial and to dismiss for want of jurisdiction, and the court allowed both motions. From a judgment for defendant for costs, plaintiff appeals.
    Charles Kramer and John S. Dornblaser, for appellant.
    John M. Quinlan, for appellee.

      Abstract of the Decision.
    1. Justices of the peace, § 247

      —what nature of proceedings on appeal. On appeal from the judgment of a justice of the peace, the case must he tried de novo, unless the evidence shows that the justice had no jurisdiction of the subject-matter of the action, the court having in such case the same, and no other or more extensive jurisdiction than the justice whose judgment is appealed from.
    2. Dismissal, non-suit and discontinuance, § 33

      —what proper time to entertain motion to dismiss. A court has no power to entertain a motion to dismiss for want of jurisdiction until the evidence is heard, for the reason that the question of jurisdiction can only he determined from the evidence.
    3. Coubts, § 69*—when want of jurisdiction cannot he waived. Although the want of jurisdiction of the parties to an action may he waived, the want of jurisdiction of its subject-matter cannot be waived, for the reason that jurisdiction of such subject-matter cannot be conferred on a court by consent.
    4. Pleading, § 78*—how jurisdiction questioned. Want of jurisdiction may he taken advantage of either by plea or by motion to dismiss, and a motion to dismiss on the ground of want of jurisdiction to take any action at all may he made at any time.
    5. Costs, § 14*-—when allowed on dismissal for want of jurisdiction. Where the court properly allows a motion to dismiss for want of jurisdiction, judgment against plaintiff for costs is also proper.
    6. Dismissal, non-suit and discontinuance, § 33*—when proper to dismiss for want of jurisdiction. A motion to dismiss for want of jurisdiction is properly allowed where the evidence fairly tends to show that plaintiff’s claim is for an amount in excess of the jurisdiction of the court, unless plaintiff, not later than the conclusion of all the evidence, disclaims the right to recover more than the amount fixed as the limit of the jurisdiction of the court, and a remittitur at a later time is ineffectual to cure the want of jurisdiction.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Frances Miklaszewski, Appellee, v. City of Chicago, Appellant,
    Gen. No. 20,853.
    (Mot to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavakagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Rehearing denied October 15, 1915.
    Abstract of the Decision.
    Municipal corporations, § 1013

      —when city not liable for injury by ice on sidewalk. In. an action against a city to recover for personal injuries caused hy a fall on a slippery sidewalk, where it appeared that the snow and ice causing the conditions complained of were not such as to amount to an obstruction, held error to deny defendant’s motion for a peremptory instruction in its favor, although it appeared that the condition of the sidewalk which caused the accident was due to the act of the servants of defendant in piling snow upon a vacant lot adjacent to the part of the sidewalk where the accident occurred, from which, after the snow melted, water ran on the sidewalk and by freezing caused such conditions, for the reason that such conditions do not constitute a defect in the sidewalk which renders the city liable to plaintiff for the accident sued for.

      Statement of the Case.
    Action by Frances Miklaszewski, plaintiff, against the City of Chicago, defendant, in the Superior Court of Cook county, to recover for personal injuries, the result of falling on a slippery sidewalk. From a judgment for plaintiff, defendant appeals.
    It appeared that the condition of the sidewalk in question at the time of the accident was due to the act of the servants of defendant in piling snow upon a vacant lot adjacent to that part of the sidewalk where the accident occurred, which later melted, letting the water run on that part of the sidewalk and freeze there. It further appeared that at the time of the accident there was a thin coating of snow above the ice on the sidewalk.
    John W. Beckwith and N. L. Piotrowski, for appellant; David R. Levy, of counsel.
    Gorman, Pollock, Sullivan & Livingston, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Olaf Nelson, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 20,864.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Enoch: E. Newlin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Rehearing denied October 19, 1915.
    Statement of the Case.
    Action by Olaf Nelson, plaintiff, ag’ainst the Chicago City Railway Company, defendant, in the Circuit Court of Cook county, to recover for personal injuries due to being struck by an electric street car. From a judgment for plaintiff for $6,500, defendant appeals.
    Franklin B. Hussey and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Rost & Smith and Ashcraft & Ashcraft, for appellee; Edwin M. Ashcraft and John A. Irrmann, of counsel.

      Abstract of the Decision.
    Street railroads, § 97

      —when evidence shows negligence in crossing before car. In an action to recover for personal injuries caused by being struck by a rapidly moving electric street car, a verdict finding plaintiff not guilty of contributory negligence held not justified by the evidence, where plaintiff’s own testimony shows that at the time of the accident he was not in the exercise of due care for his own safety, as it appears that while on the west side of the street, and seeing such car rapidly approaching, he nevertheless started to cross to the east side of the street, and in so doing attempted to pass in front of such car, although he knew he would be struck by the car unless its speed was checked; and such conduct is not rendered less negligent by other testimony tending to show that plaintiff’s companions, who were standing on the east side of the street near a “stop-ball,” had signaled said car to stop thereat, which said car was bound to do on such signal, in consequence of which plaintiff testified that he expected the speed of said car to “slack up.”

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Rosina De Benio and Angelina De Benio, Appellees, v. Catholic Order of Foresters, Appellant.
    Gen. No. 20,872.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 15, 1915.
    Statement of the Case.
    Action by Eosina De Benio and Angelina De Benio, plaintiffs, against the Catholic Order of Foresters, defendant, in the Municipal Court of Chicago, to recover on a benefit certificate issued by defendant to Francesco De Benio for $2,000, payable on death of insured to plaintiffs, the beneficiaries named therein. From a judgment of $2,100 for plaintiffs, defendant appeals.
    It appeared, in substance, that plaintiffs, at the time of death of insured, were his “wife .and daughter,” as they were described in the certificate, and in insured’s application for membership in defendant’s society. But at the time of such application, plaintiff Rosina and insured were living in adultery. Prior to death, insured secured a divorce from his wife, and contracted a valid marriage with plaintiff Rosina, and continued to live with her until death. Insured continuously remained a member of defendant’s society until death, and was in good standing therein, defendant being ignorant of the facts aforesaid.
    The defense, in substance, was that insured, in making application for membership in defendant’s society, made false statements as to facts which were material to the risk, in that he stated in said application: “I direct in case of my decease that all benefit to which I may be entitled * * * shall be paid to: $1,000 Rosina—Angelina $1,000 each, dependent upon me as, the first my wife and second my daughter.”
    The defense also went on the ground that said application contained an agreement that “any untrue or fraudulent statement” or “any concealment of facts” made therein should operate to “forfeit the rights of myself and my family, or dependents, to all benefits and privileges therein.”
    It was stipulated that proofs of death were duly made, and that if plaintiffs recovered they should recover $2,100, being the amount of benefit provided in the certificate, with interest.
    Edmund S. Cummings, for appellant.
    Brown & Navigato, for appellees.

      Abstract of the Decision.
    Insurance, § 821

      —when policy not avoided by false description of beneficiary. In an action to recover on a benefit certificate issued by defendant, a fraternal beneficiary society, the member falsely represented as his wife one of the beneficiaries named therein who in reality was a woman with whom insured was living in adultery, which false statement was also incorporated in the policy, but where insured contracted a legal marriage with such beneficiary prior to his death, a judgment for plaintiffs for $2,100, the amount of the certificate, with interest, held not erroneous, for the reason that statements in such certificates as to the relation which the designated beneficiary bears to insured are descriptio personae, not affecting the designation if the beneficiary is otherwise eligible, and because where the eligibility of a beneficiary depends on such beneficiary’s sustaining a particular relation to insured, such eligibility is determinable as of the time of death of insured, and so determined, such statement was true.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Nathan K. Aranoff, Appellant, v. Adolph Major, Appellee.
    Gen. No. 20,875.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Bill by Nathan K. Aranoff, complainant, against Adolph Major, defendant, in the Superior Court of Cook county, to enjoin defendant from negotiating' or transferring three promissory notes of $1,500 each, and to compel defendant to indorse on each of said notes a payment of $1,000. From a decree dismissing the bill for want of equity, plaintiff appeals.
    Abstract of the Decision.
    Bills and notes, § 451

      —when evidence insufficient to show payment. On a bill to restrain defendant from negotiating promissory notes, and to compel" the indorsement thereon of certain payments alleged to have been made by plaintiff, a decree approving the master’s report that such payments were not in fact made as alleged, and dismissing the bill for want of equity, held warranted by the evidence.
    Moses, Rosenthal & Kennedy and Oscar Blumenthal, for appellant; Walter Bachrach, of counsel.
    M. H. Hoey, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.