text:
    The People of the State of Illinois, Defendant in Error, v. Arnt Hendrickson, Plaintiff in Error.
    Gen. No. 19,781.
    (Not to be reported in full.)
    Abstract of the Decision.
    Husband and wine, ,§ 274

      —when evidence shows husband guilty of wife abandonment. A finding of guilty in a prosecution for wife abandonment held sustained by the evidence, where it appeared that defendant wilfully deserted his wife on a certain date without any intention of resuming cohabitation, that upon reguest he failed to provide for the family, and that the wife did not consent to the separation.
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Arnt Hendrickson for wife abandonment. The defendant was found guilty and ordered to pay his wife nine dollars per week for one year for her support. To reverse the order defendant prosecutes a writ of error.
    Charles J. Trainor, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Fitch

license: Public Domain

text:
    William T. Huguley et al., Appellants, v. Henry Hamburg et al., Appellees.
    Gen. No. 19,963.
    1. Corporations, § 727

      —when court will talce jurisdiction of bill concerning affairs of foreign corporations. The rule that courts of equity will decline to take jurisdiction of a controversy relating to the affairs of a, foreign corporation, where the wrongs complained of are merely against the sovereignty by which the corporation was created or the laws of its existence, or are such as to require for their redress the exercise of the visitorial powers of the sovereign, or where full jurisdiction of the corporation or of its stockholders is necessary to such redress and is wanting, does not apply when a bill is filed on behalf of a foreign corporation, by minority stockholders, to set aside an alleged fraudulent conveyance made by such corporation’s agents to another corporation over which the court has acquired jurisdiction by its voluntary appearance. *
    2. Corporations, § 727*—when jurisdiction of bill not defeated for want of jurisdiction of parties. On a bill filed in behalf of a foreign corporation by the minority stockholders to set aside an alleged fraudulent conveyance made by the corporation’s agents to another corporation, the fact that one of the agents had not entered a general appearance, or was not served with process, will not defeat the jurisdiction of the court where it does not appear its jurisdiction over the person of such agent is indispensable or even necessary in order to grant the relief.
    3. Equity, § 211*—grounds for general demurrer. The mere fact that a bill prays for more kinds of relief than may be properly granted is no ground for sustaining a general demurrer to the bill and dismissing it for want of equity.
    4. Equity, § 211*—when bill not obnoxious on general demurrer. Where a bill in equity sets out various claims to the interposition of the court and a general demurrer is filed, the demurrer will be overruled if any of the claims afford a proper case for the jurisdiction of the court.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 31, 1914.

      Lewis, Folsom & Streeter and J. G. Grossberg, for appellants.
    Winston, Payne, Strawn & Shaw, for appellees; Walter H. Jacobs and Charles J. McFadden, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the. opinion of the court.

To an amended hill of complaint filed by appellants in the Superior Court, the court sustained a general demurrer, and the complainants electing to stand by their bill, as amended, it was dismissed for want of equity. This appeal followed.

The amended bill states that the Princeton Copper Mining and Smelting Company, hereinafter réferred to as the Princeton Company, is a corporation organized under the laws of the State of Soutli Dakota, with an authorized capital stock of $2,500,000, represented by 2,500,000 shares of the par value of $1 each, of which about 2,000,000 shares have been actually issued; that the complainants own, in the aggregate, 328,950 shares of such stock, and that the defendants, Henry Hamburg and L. Devere Hamburg, own about 1,200,000 shares; that the Princeton Company was organized for the purpose of engaging in the business of mining and smelting, and prior to the year 1910, had its principal office and place of business in the village of Hamburg, Cochise county, Arizona; that the two Hamburgs reside at that place, and that by reason of their large holdings of stock in the company, they have, for a number of years, completely controlled the affairs thereof; that Henry Hamburg is the president and general manager of the company and L. Devere Hamburg is the secretary and treasurer; that none of the complainants resides in Arizona, and that few, if any, of the stockholders, other than the two Hamburgs, reside in Arizona; that the complainants became stockholders in the year 1905; that ever since that time, the two Hamburgs have had charge and possession of all the assets and property of the Princeton Company, and have used and appropriated to their own use “large amounts of money or property, the precise amount of which is unknown to complainants, which, in the aggregate, amounts to many thousands of dollarsthat the property of said company, in addition to land, consists of improvements, machinery, fixtures and personal property, which cost the company over $100,000; that in 1910, said Hamburgs, for the purpose of defrauding the complainants and other stockholders of the company, organized a corporation under the laws of Arizona, called the “Hartford-Arizona Copper Mining & Smelting Company,” to which they transferred, without any consideration whatever, and against the protest of the complainants, all the property and assets of the Princeton Company, “the pretended consideration at the time being, as your orators are informed, an exchange of stock of the Princeton Company for the stock in the said Hartford-Arizona Company, and among such stockholders as they, the said Henry Hamburg and L. Devere Hamburg, chose to favor, your orators not being of that number;” that after such transfer, the two Hamburgs caused themselves to be elected to the same official positions, respectively, in the new company, that they had occupied with the Princeton Company, and “continued in substantial exclusive charge and management” of the Hartford-Arizona Company, with offices in the same place as before, and conducted the affairs and business of the Hartford-Arizona Company in the same manner as before, except the change of the corporate name, and except that the complainants, and other stockholders whom said Hamburgs wished to exclude were not on the purported list of stockholders of the new company; that said Hamburgs have failed and refused to account to the Princeton Company for the disposition of its property; that said Hamburgs selected and controlled the board of directors of both companies and both said boards have neglected and refused to institute any proceedings against said Hamburg’s to compel them to account, and that it would be useless to demand of either of said boards that they should institute such proceedings. The bill states that it is filed by the complainants in their own behalf and in behalf of all other stockholders of the Princeton Company who are similarly situated, and prays that an account may be taken under the direction of the court; that the Hartford-Arizona Company “may be decreed to restore and return” to the Princeton Company all the property so transferred and to give an account of the income and profit derived therefrom; that a receiver may be appointed for both companies, and for such other and further relief as equity may require.

The bill as amended also contains other allegations of fraud on the part of said Hamburgs in selling stock of the Hartford-Arizona Company, but, in the view we take of this case, it is unnecessary to consider such allegations in order to determine whether the court erred in sustaining the general demurrer and dismissing the bill for want of equity.

The decision of the chancellor seems to have been based upon the contention of appellees, which is repeated and relied upon in this court, viz., that “courts of equity will decline to take jurisdiction of a controversy relating to the affairs of a foreign corporation where the wrongs complained of are merely against the sovereignty by which the corporation was created or the law of its existence, or are such as to require for their redress the exercise of visitorial powers of the sovereign, or where full jurisdiction of the corporation and of its stockholders is necessary to such redress and is wanting.” This contention is a quotation taken almost verbatim, from the opinion of the Supreme Court in the case of Babcock v. Farwell, 245 Ill. 14. The sentence thus quoted is found on page 34 of the volume in which the opinion is published, but it is by no means the whole of the court’s opinion in that case, nor does it, when removed from its context, and standing aloné, fairly express the substance of the rule laid down in that case. Further on in the same opinion the court states the remainder of the rule, and this remainder is more in point in this case than the sentence relied on by appellants. On page 36, it was said: “Where, however, the relief sought is within the general jurisdiction of a court of chancery, where all the parties necessary to the full and proper adjustment of the rights involved are before the court and where the relief sought does not require the exercise of the visitorial power of the government, we think the court should exercise the power of determining controversies brought before it instead of remitting suitors to a foreign jurisdiction. * * * In many cases, under various circumstances, the courts have entertained jurisdiction of a suit brought against a foreign corporation and its directors or agents to compel the restoration of property misappropriated by such officers. In such case, though the act complained of is, in part, that of the corporation itself, and though the complainant is affected only in his capacity as a stockholder, the suit is, in effect, for the benefit of the corporation itself. The corporation, under such circumstances, may maintain a suit against its defaulting directors wherever they may be found, and there is no good reason why a stockholder who seeks to enforce precisely the same rights in favor of the corporation may not maintain a similar suit. '* * * Where minority stockholders seek to have restored to the corporation property fraudulently appropriated to their own use by directors who, together with the corporation itself, are personally subject to the jurisdiction of the court, we think it is the better doctrine that the court should exercise its jurisdiction for the determinar tion of the controversy.” The doctrine thus declared was applied in two later cases reported in the same volume, viz.: Edwards v. Schillinger, 245 Ill. 231, and Voorhees v. Mason, 245 Ill. 256.

We think these eases are decisive of the questions involved in this ease. Here a part, at least, of the relief sought, viz., the restoration to the Princeton Company of property alleged to have been misappropriated by its officers and agents, as well as the accounting prayed for, is clearly within the general jurisdiction of a court of chancery. Such relief does not require the exercise of the visitorial power of the government, but merely the exercise of the corrective powers of a court of equity. Henry Hamburg, the president and general manager of the Princeton Company, the Princeton Company itself and the Hartford-Arizona Company, all entered their general appearance in this .case and the demurrer was filed by them jointly and severally. These defendants thereby became personally subject to the jurisdiction of the Superior Court in this case. The appearance of the other Hamburg does not seem to have been entered, nor was there any service of process upon him. But it does not appear from any allegation in the bill of complaint that jurisdiction over the person of L. Devere Hamburg is indispensable, or even necessary, in order to compel the Hartford-Arizona Company and Henry Hamburg to “restore and return,” or to account for, the property alleged to have been fraudulently appropriated by them and now alleged to be in their possession and control. While the bill contains unnecessary allegations and prays for more kinds of relief than it might be feasible or proper to grant, yet, in its essential features, it is a bill brought on behalf of the Princeton Company, by minority stockholders, to set aside an alleged fraudulent conveyance made by that company’s agents to another corporation over which the court has acquired jurisdiction by its voluntary appearance. This relief, at least, is clearly within the jurisdiction of the Superior Court. The mere fact that other relief is also prayed for is no ground for sustaining a general demurrer to the bill, and dismissing the bill for want of equity. The rule in that respect is that where a bill in equity sets out various claims to the interposition of the court and a general demurrer is filed, the demurrer will be overruled if any of the claims affords a proper case for the jurisdiction of the court. Snow v. Counselman, 136 Ill. 191; Gooch v. Green, 102 Ill. 507.

For the reasons stated, the decree of the Superior Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


text:
    William T. Huguley, Appellant, v. Henry Hamburg et al., Appellees.
    Gen. No. 19,962.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 31, 1914.
    Statement of the Case.
    The bill filed in this case recites the same facts, in substance, as those set up in the bill filed in the ease of Huguley v. Hamburg, reported on p. 21, ante, and the legal questions involved are substantially the same. The only difference between the cases is that the bill in this case sets up the facts in more detail and also avers sundry additional facts for the purpose of showing that the officers of the Princeton Company refused to allow certain transfers of appellant’s stock to be made upon the books of the company, as requested by the complaining stockholders, and prays for more extended relief. A general demurrer was filed to the bill on the sole ground of want of equity on its face, which demurrer was sustained, and therefore the decision in the case above mentioned held controlling.
    Abstract of the Decision.
    Appeal and errob, § 422

      -—when hill cannot he complained of as ■ multifarious. A bill cannot be complained of on review as multifarious, where such, question was not raised either in the trial court or the reviewing court.
    Lewis, Folsom & Streeter and J. G. Grossberg, for appellant.
    Winston, Payne, Strawn & Shaw, for appellees; Walter H. Jacobs and Charles J. McFadden, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Julia C. Harle, Appellant, v. Henry Hamburg et al., Appellees.
    Gen. No. 19,964.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 31, 1914.
    Statement of the Case.
    The hill filed in this case contained, in substance, - the same allegations as in the case of Huguley v. Ham

      burg, reported on p. 21, ante. A general demurrer was sustained to the bill and the decision in that case held controlling.
    Lewis, Folsom & Streeter and J. G. Grossberg, for appellant.
    Winston, Payne, Strawn & Shaw, for appellees; Walter H. Jacobs and Charles J. McFadden, of counsel.
   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Illinois Life Insurance Company, Defendant in Error, v. Edward T. Kennedy, Plaintiff in Error.
    Gen. No. 20,003.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by Illinois Life Insurance Company, a corporation, against Edward T. Kennedy on a judgment note given by defendant to plaintiff for the amount of the first premium on a life insurance policy. A judgment by confession had previously been entered against the defendant, and it was afterwards opened to allow defendant to make a defense. Upon a trial before the coupt the defense failed, and judgment by confession was permitted to stand. To reverse the judgment, defendant prosecutes a writ of error.

      Abstract of the Decision.
    1. Insurance, § 156

      —when provision in application no defense in suit on note given for premium. In an action on a promissory note given for the amount of the first premium on a life insurance policy, it cannot be claimed as a defense that there was no consideration for the note, for the reason there was a clause in the application for the policy that the insurance company should incur no liability “until the first premium had been actually paid to and accepted by the company, or its authorized agent,” where the evidence showed that the company accepted the note in payment of the premium, and that plaintiff, when he accepted the policy, signed a receipt stating that the premium had been paid.
    2. Insurance, § 328*—provisions in application which may he waived. A provision in an application which provides that the insurance company shall incur no liability “until the first premium has been paid to and accepted by the company, or its authorized agent,” and until the policy has been actually delivered to and accepted by the insured, is for the benefit of the company alone and may be waived by it.
    3. Insurance, § 156*—what does not constitute defense in' suit on note given for premium. The mere fact that an insurance company accepts a promissory note instead of cash in payment of the first premium does not constitute such a violation of the Act of 1891 (J. & A. If 6491), prohibiting unjust discrimination by life insurance companies between insurants of the same class, so that it may be availed of as a defense to a suit on the note, and 'this especially where there is no evidence that any discrimination was made in the instant case, even though the acceptance of the note in some cases and not in others could be held to be a discrimination.
    Earl J. Walker, for plaintiff in error.
    Henry W. Price and Hugh T. Martin, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    S. F. Sayrs, Defendant in Error, v. John Yangas and E. F. Thompson, Plaintiffs in Error.
    Gen. No. 20,053.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hbfiby C. Beiteeb, Judge, presiding. Heard in the Branch Appellaté Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.
    Rehearing denied January 13, 1915.
    Statement of the Case.
    Action by S. F. Sayrs against John Yangas and E. F. Thompson on a stav-of-execution bond given to plaintiff by Thompson with Yangas as surety, to recover the amount of a judgment, cost and interest, and the value of the use of the premises for the period during which Thompson remained in possession after the judgment was rendered, said judgment having been recovered by plaintiff against defendant in a suit for the possession of certain premises, and affirmed by the Appellate Court. See Sayrs v. Thompson, 172 Ill. App. 207. The defendants filed an affidavit of merits. The court entered an order stating, in substance, that the defendants by their affidavit had admitted the amount of the original judgment, costs and interest to be due and that the affidavit showed a defense to only a portion of plaintiff’s demand. A judgment was thereupon entered against the defendants for the amount of the original judgment, interest and costs, hut reserved “for future determination and adjudication the matter of the balance of the plaintiff’s demand. ’ ’ The defendants sued out a writ of error from that judgment, but were again unsuccessful and the judgment was affirmed. See Sayrs v. Yangas, 187 Ill. App. 23. The defense interposed to the reserved claim for the value, use and occupation of the premises was that the premises had no rental value whatever because of the alleged untenantable condition of the same. A trial was had by a jury and plaintiff recovered a verdict and judgment for two hundred dollars. To reverse the judgment, defendants prosecute error.
    Abstract of the Decision.
    1. Appeal and ebbob, § 1012

      —when remarks of court not presented for review. Alleged prejudicial remarks of the trial court are not presented for review when not shown in the abstract of the record.
    2. Landlord and tenant, § 206*—when instruction on duty of owner to make repairs proper. An instruction to the effect that an owner of property is under no obligation to keep his premises in repair when the person who is in possession is occupying the same, without any agreement and without permission of the owner, held to correctly state the law applicable to the case.
    3. Appeal and ebbob, § 1884*—admissibility of evidence in suit on stay bond. In an action on a stay-of-execution bond to recover the amount of the judgment, costs and interest and the value of the use of the premises after the judgment was rendered, refusal to permit the defendant to prove an alleged agreement on the part of the plaintiff to make repairs, held proper where the offer related to a period of time prior to the original judgment
    4. Appeal and ebbob, § 1884*—admissibility of evidence in suit on stay bond. In a suit on a stay-of-execution bond to recover for the use and occupation of the premises since the rendition of the judgment, it is not error to refuse to permit defendant to prove that he paid for repairs made on the premises where there was no proof tending to show that the plaintiff agreed to reimburse him for the same.
    Thompson, Clark & Stevenson, for plaintiffs in error.
    M. B. Waltz and Henry T. Chace, Jr., for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Margaret Hood, Plaintiff in Error.
    Gen. No. 20,068.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Shebidan E. Pbt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Prosecution in the Municipal Court hy the People of the State of Illinois against Margaret Hood for a violation of section 10 of the Motor Vehicle Act (J. & A. ¶ 10,010). Upon a jury trial the defendant was found guilty and fined fifty dollars and costs. To reverse the judgment, defendant prosecutes a writ of error.
    The information alleged that plaintiff in error “heretofore, to-wit: On the 25th day of September, A. D. 1913, at the City of Chicago, aforesaid, did then and there, upon a public highway situated within the corporate limits of the City aforesaid, drive a motor vehicle at a speed greater than is reasonable and proper, having regard to the traffic and the use of the way, so as to endanger the life or limb or injure the property of any person. Informant further says that the above violation then and there occurred upon a public highway within the jurisdiction of the South Park Commissioners in violation of section 10, Illinois Motoij Vehicle Law.” •
    A motion to quash the information was made and overruled.
    Edward H. Morris, for plaintiff in error.
    Maclay Hoyne, for defendant in error; E. E. Wilson and James C. Dooley, of counsel.

      Abstract of the Decision.
    1. Automobiles and garages, § 1

      —when information sufficient to charge violation of statute as to speed. An information charging a violation of section 10 of the Motor Vehicle Act (J. & A. If 10,010) held not defective for the reason it charges the offense disjunctively, in that it alleges not only that defendant drove a motor vehicle “at a speed greater than is reasonable and proper having regard to the traffic and the use of the way,” hut also “so as to endanger the life or limb or injure the property of any person;” the violation of the statute is charged by the first clause, and the second clause may he regarded as surplusage.
    2. Automobiles and garages, § 1*—when allegation in information need not he proved. In an information charging a violation of section 10 of the1 Motor Vehicle Act (J. & A. If 10,010), an allegation that the violation occurred upon a public highway within the jurisdiction of the South Park Commissioners is immaterial and need not he proved, where there was another allegation in the information that the violation occurred upon a public highway in the city of ■ Chicago; and that fact was proved.
    3. Automobiles and garages, § 1*—necessity of proof showing violation of statute within limitation period. A conviction for a violation of section 10 of the Motor Vehicle Act (J. & A. jf 10,010) cannot be sustained where the proof does not show that the offense was, committed within eighteen months before the commencement of the prosecution as required by the Criminal Code, div. IV, sec. 4 (J. & A. If 4011), and this although the information is sufficient on its "face to charge the commission of the offense within such time, since the information is not evidence and cannot supply the lack of proof.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


author: Mr. Justice Pam

text:
    Thomas A. Barron, Plaintiff in Error, v. Isidor Levinson, Defendant in Error.
    Gen. No. 18,567.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by Thomas A. Barron against Isidor Levinson to recover damages for injuries to plaintiff’s flat alleged to have been caused by defendant as a tenant. It appeared that in April, 1910, the defendant rented a flat from the plaintiff and occupied it from that time until May 30, 1911, under a verbal lease from month to month. On May 1, 1911, plaintiff served on the defendant a thirty days’ notice to quit. Defendant moved out on May 30, 1911, but retained the keys of the flat. The next day the plaintiff called on the defendant and asked him for the keys. Defendant refused to give them up but sent them by mail the next day. Plaintiff thus received the keys on June 2, 1911. According to the plaintiff’s evidence, in which he is corroborated by three other witnesses, he found, when he entered the vacant flat on June 2nd, that some of the glass globes of the chandeliers were broken and scattered around the floor and others were missing; that several of the window shades were torn, and a large piece torn out of one of them had been thrown on the front porch; that one of the inner doors had been cut in several places as by an axe; that part of the grillwork between the first and second rooms was broken and one of the posts had apparently been chopped by an axe; that most of the window cords had been cut and some were hanging loose; that the woodwork was scratched, dented and splintered; and upon the papered walls of the parlor and bedrooms had been written in colored chalk and with indelible pencils the words “Beware of Bats,” and “Beware of Bed-Bugs.” The undisputed evidence was that the flat was in good condition when the tenant moved in, and that the plaintiff was required to expend a considerable sum of money to repair the damage thus found after the tenant had moved. There was also evidence that a bitter feeling existed between the landlord and tenant. As opposed to this evidence, defendant testified that when he left the flat there “was no damage except such as might be termed ‘ordinary wear and tear,’ ” and he produced two witnesses who testified that they were present when he moved out, and ‘ ‘ saw no damage. ’ ’
    Abstract of the Decision.
    1. Landloed and tenant, § 197

      —when ■finding as to injury to premises 6y tenant contrary to evidence. In an action by a landlord to recover damages to his flat alleged to have been caused by the defendant as his tenant, a finding in favor of defendant held contrary to the weight of the evidence, where a preponderance of the evidence showed that the damage was done after notice to quit had been served on defendant and before he turned over the keys to the flat, and it also appeared that he refused to turn over the keys on the next day after he moved out, hut returned them by mail so that plaintiff did not receive them until two days thereafter, and it did not appear that defendant denied that he was at the premises in the interim between the time he moved out and the time plaintiff received the keys by mail, from which fact a reasonable inference would arise that the damage was deliberately committed either by the defendant himself or by some one for whose acts he was responsible.

      A trial was had by the court without a jury and the court found the issues for the defendant, upon the ground, as stated in the statement of facts certified to this court, “that the evidence failed to show that the defendant did or committed the acts complained of, or that the same were permitted to be done to the knowledge of the defendant.” To reverse the judgment, plaintiff prosecutes a writ of error.'
    Rost & Smith, for plaintiff in error.
    Gorman, Pollock, Sullivan & Livingston, for defendant in error.

      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 Pam

delivered the opinion of the court.

2. Evidence, § 40*—when failure to deny material fact raises presumptive evidence would be unfavorable. There is a well-established principle of law that where a fact material to the issue is within the knowledge of one of .the parties to a lawsuit, the failure to disclose such fact, when the opportunity is offered, gives rise to the presumption that the evidence would have been unfavorable.


text:
    George W. Reddig et al., Copartners, trading as Reddig Company, Defendants in Error, v. Norman Friedenwald, Plaintiff in Error.
    Gen. No. 19,493.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fisiieb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by George W. Reddig, R. R. Reddig and F. 0. Reddig, copartners, trading as Reddig Company, against Norman Friedenwald to recover for work and materials furnished to the defendant. The trial was before the court without a jury. To reverse a judgment entered on a finding in favor of plaintiff for $161.48, defendant prosecutes a writ of error.
    Sidney N. Ware, for plaintiff in error.

      Abstract of the Decision.
    Principal and agent, § 181

      —when finding that defendant acted in capacity of principal warranted by evidence. In an action to recover for work and materials furnished where the only issue in the case was whether the defendant when ordering the material acted in the capacity of principal or agent, a finding in favor of plaintiff held warranted by the evidence, it appearing that there were but two witnesses, one for each of the parties, and that the trial court found against the contention of defendant
    Benner & Weld, for defendants in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Simeon P. Shope et al., Copartners, trading as Shope, Zane, Busby & Weber, Appellees, v. Henry D. Laughlin, Appellant.
    Gen. No. 19,637.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the April term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by Simeon P. Shope, Jokn M. Zane, Leonard A. Busby and Harry P. Weber, copartners, trading as Shope, Zane, Busby & Weber, against Henry D. Laughlin for services rendered to defendant by plaintiffs as attorneys and for money advanced, and also for services rendered and money advanced by a firm to whose business the plaintiffs succeeded. A trial was had before the court and a jury and a verdict was returned in favor of plaintiff for five thousand dollars. To reverse the judgment, defendant appeals.

      Abstract of the Decision.
    1. Attobney and client, § 135

      —when findings in suit for compensation sustained by the evidence. In a suit by law firm for services rendered to defendant, where the defendant claimed that he was not personally liable for the reason that the services were \ rendered for corporations in which he was interested, that he was • coerced into signing certain notes in payment because of his dependency upon plaintiff’s firm in the various matters of litigation, and that certain payments made by him were misapplied, held that under the evidence in the record such questions were for the jury, and that the findings of the jury in favor of plaintiffs was sustained by the preponderance of the evidence.
    2. Attobney and client, § 134*—admissibility' of assignment of claim for legal services. In an action by the assignee of a claim . for attorneys’ fees, where one of the counts of the declaration set forth the assignment, and during the trial an additional count was filed, held that the assignment could properly be introduced in evidence under the original declaration and that it was unnecessary to file the additional count.
    3. Attobney and client, § 134*—admissibility of assignment of claim for legal services. In an action by a law firm for services rendered, where a part of the claim was for services rendered by a ■firm to whose business the plaintiffs’ firm succeeded, and such part of the claim was sued for by plaintiff as assignee, held that a copy of the assignment was properly admitted in evidence as against the contention of defendant that it was not admissible, for the reason that the assignment did not cover the accounts for services sued for which were rendered to corporations in which defendant was interested, and that no foundation was laid for the introduction of a copy of the last assignment.
    4. Tbial, § 271

      —when refusal to submit special interrogatories not improper. Refusal of court to submit to the jury numerous special findings, held not error where the findings involved mere evidentiary facts and the giving of them would practically have subjected the jury to cross-examination as to the reasons for arriving at their conclusions.
      5. Instructions, § 143*—when requested instructions properly refused. The refusal of two certain requested instructions held proper, where one of them contained the words “under the other instructions of the court,” and could he controlling only upon the facts when specially limited to the other instruction or if the two instructions were given as one instruction, and the other instruction if standing by itself would tender an immaterial issue.

      Loomis C. Johnson and Randolph Laughlin, for appellant.
    John M. Zane and Harry P. Weber, for appellees.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

6. Instructions, § 140*—when requested instructions may he properly refused. A requested instruction held not improperly refused, where it was cautionary in its nature and moreover bad in form and covered by another instruction given.

7. Appeal and error, § 1541*—when giving of instruction not prejudicial. The fact that an instruction given on behalf of plaintiffs referred to facts not denied by defendant, held not prejudicial under the facts of the case on the ground that it directed the jury’s attention to particular evidence.

8. Instructions, § 137*—when properly refused. A requested instruction may be properly refused where there is no evidence in the record upon which to base it.

9. Attorney and client, § 135*—when finding as to amount of compensation sustained hy the evidence. The amount of a verdict for the services of a firm of attorneys, held not excessive because the defendant was not credited with a certain sum paid by a note, where it was a controverted question of fact whether or not a reduction had been made, and it was admitted by defendant that there was a conflict on that issue.


text:
    Colonial Sugar Company, Defendant in Error, v. Railway Terminal & Warehouse Company, Plaintiff in Error.
    Gen. No. 19,862.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.

      Statement of the Case.
    Action brought in the Municipal Court of Chicago by the Colonial Sugar Company against the Railway Terminal & Warehouse Company a corporation, for damages to the contents of three cars of sugar stored by plaintiff in the warehouse owned and operated by defendant. At the time the suit was brought, James D. Pugh and Andrew McAnsh were also joined as defendants, but before the trial they were dismissed out of the case, and the cause proceeded against the Railway Terminal & Warehouse Company alone. Trial was had before the court without a jury. To reverse a judgment entered on a verdict for plaintiff for $485.67, the Railway Terminal & Warehouse Company prosecutes error.
    Defendant conducted a storage warehouse in the city of Chicago. Plaintiff shipped three cars loaded with bags of sugar, for storage, to the defendant, at its warehouse in Chicago. These cars were directed to F. C. Van Ness, care of the Railway Terminal & Warehouse Company, the defendant; and when delivered to the Warehouse Company, a warehouse receipt was issued to the said F. C. Van Ness. The contents of these cars were unloaded at the warehouse. The bags were stored in tiers seven or eight bags high, on the main floor of the warehouse, which is slightly above the street level, within twenty or twenty-five feet of doors that remained open practically the entire day. These doors led out directly onto a switch track, and beyond the switch track is a public roadway. There was evidence to prove that dust and dirt had collected on the bags and that the sugar was lumpy and of a dirty or grayish color.
    Q. J. Chott and Frank H. Culver, for plaintiff in error.

      Abstract of the Decision. .
    1. Warehousemen, § 13

      —when liable for damage to goods stored. In an action against a warehouse company for damage to sugar while stored in defendant’s warehouse, a verdict for plaintiff held sustained hy the evidence, where it appeared that defendant permitted the sugar to be stored so as to be exposed to the weather and the dust from the street.
    2. Warehousemen, § 19*—right to limit liability by provision in warehouse receipt. The Act relating to Railroads and Warehouses, (Hurd’s R. S. 1911, ch. 114, §§ 243b, 261, J. & A. « 90002, 9020), held not to permit a warehouse company by a provision in a warehouse receipt to limit its liability for failure to exercise ordinary care for the property intrusted to it for safe-keeping.
    3. Warehousemen, § 19*—limitation of liability in warehouse receipt construed. A provision in a warehouse receipt that: “All damage to goods or property occasioned by fire, water, leakage, shrinkage, breakage, ratage, vermin, heat, frost, change of weather or from inherent qualities of the property, by riot or any accident or providential cause at owner’s risk,” held not to exempt the warehouse company from liability for negligence in permitting goods to be stored in the warehouse near an open door so as- to be exposed to the weather and the dust of a street.
    4. Warehousemen, § 29*—when plaintiff’s right to sue cannot be urged on review. Where a judgment was recovered against a warehouse company for damage to goods while in storage, held that defendant could not urge on review that the suit should have been brought by the person in whose name the warehouse receipts were issued, where the plaintiff sued as owner, and defendant’s affidavit of merits did not deny plaintiff’s ownership, and there was evidence that defendant recognized plaintiff as such owner.
    Hoyne, O’Connor & Irwin, for defendant in error; Carl J. Appell, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Clarence E. Welch, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 19,977.
    (Not to be reported in full.)
    Appeal from, the Superior Court of Cook county; the Hon. Theodobe Beentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by Clarence E. Welch against the Chicago & Alton Railroad Company, a corporation, to recover damages for personal injuries sustained by plaintiff while in defendant’s employ'as a brakeman. To reverse a judgment entered on a verdict in favor of plaintiff for ten thousand dollars, defendant appeals.
    The facts showed that plaintiff was injured by stumbling over a pile of cinders on the railroad track when he went between moving cars to disconnect the air hose for the purpose of stopping the train in order to avoid a collision with other cars at certain depot grounds, while switching.
    Plaintiff’s declaration charged that the movement of the cars was an interstate commerce movement and therefore the Federal Employers’ Liability Act applied.
    The gravamen of the charge in the three counts remaining in the declaration when the casé went to the jury was: That the defendant did not provide a reasonably safe place for the plaintiff to work, in that defendant negligently permitted “piles of cinders unnecessarily to be and remain upon its track known as its Peoria main, at Dwight, Illinois, and had negligently failed to use reasonable care to inspect, discover and remove them, thereby making the track not reasonably safe for the plaintiff to work on; that defendant could have discovered the cinders had it used reasonable care; that plaintiff could not have, and was ignorant of them; that while walking on the track between the cars, which obscured his view of them, he tripped, stumbled over them, and was injured.”
    Abstract of the Decision.
    1. Masteb and sebvant, § 698

      —when recovery for injury to brakeman sustained by the evidence. In an action for injuries sustained by a brakeman alleged to have been caused by the negligence of defendant in permitting a pile of cinders on the railroad track, where the defense was that plaintiff assumed the risk, a verdict for plaintiff held sustained by the evidence, where it was conceded that the pile of cinders caused the injury, and it appeared that plaintiff had no knowledge of the cinders or that he had worked on the line at the particular place in question for several months prior to the injury.

      Because of the application of the Federal Employers’ Liability Act, the defense of fellow-servant was eliminated, and the defense of plaintiff’s contributory negligence was urged only in mitigation of the damages.
    The defense relied on at the time of the trial, as shown by the briefs and argument of counsel, was that the accident was the result of a danger of which the plaintiff had assumed the risk, and the defendant confines its brief and argument on this appeal to that issue, and contends that the pile of cinders was: (1) An incidental risk and hazard ordinarily connected with the plaintiff’s employment; or (2) an extra hazard of which he had had actual notice; or (3) an extra hazard of which he will be presumed to have had notice because they were so patent and obvious; because they were at all times on the Peoria main; because he was by and on this track innumerable times when cinders were on it.
    Winston, Payne, Strawn & Shaw, for appellant; Silas H. Strawn, Edward W. Everett and J. Sidney Condit, of counsel.
    Francis J. Woolley, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

2. Master and servant, § 766*—when refusal to direct verdict for defendant proper. In an action against a railroad company for injuries sustained by plaintiff alleged to have been caused by a pile of cinders in the track, over which he stumbled when he went between moving cars to disconnect the air hose in order to stop the train for the purpose of avoiding a collision, refusal of court to direct a verdict for defendant on the ground that plaintiff was charged with notice of the pile of cinders and that he assumed the risk, held not error, where there was evidence tending to show that plaintiff had not worked at the particular place in question for many months and that he had no knowledge of the pile of cinders, and it also appearing that a rule of the company had been posted in the form of a bulletin at various places on the line forbidding the dumping of cinders on tracks at the place in question.


text:
    Mary M. Springer, Plaintiff in Error, v. David Bradley Manufacturing Company, Defendant in Error.
    Gen. No. 19,996.
    1. Contracts, § 51

      —when finding as to letters constituting sustained by the evidence. A finding of the trial court on conflicting evidence that a letter alleged to have been written by defendant to plaintiff was mailed to and received by plaintiff and that plaintiff replied by letter and that the two letters constituted a binding contract, held sustained by the evidence.
    2. Appeal and error, § 1414*—when findings of trial court will not be disturbed. In a case tried without a jury, the findings of the trial court on conflicting testimony will not be disturbed by the Appellate Court, unless clearly and manifestly against the weight of the evidence.
    3. Account stated, § 3*—when account in defendant's boohs binding on plaintiff. An account as shown in the books of defendant is binding on- plaintiff where the plaintiff in a stipulation admitted that the books showed the indebtedness, and this though the stipulation reserved to plaintiff the relevancy and admissibility of the account, where it further appeared that the account was made a part of a letter addressed to plaintiff by defendant and plaintiff in a letter written in reply acquiesced and agreed to the account as stated.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torbisoh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement by the Court. This is an action brought in the Municipal Court of Chicago by Mary Morgan Springer, plaintiff in error, hereinafter referred to as the plaintiff, against the David Bradley Manufacturing Company, a corporation, hereinafter-referred to as the defendant, for the sum of $3,397, which represents dividends which plaintiff claims were due her from defendant at the time this suit was brought, viz., April 5,1912. Plaintiff’s statement of claim and amendment thereto set forth that the plaintiff owned 316 shares of stock of the defendant; that from January 31, 1910, up to April 5, 1912, various dividends had been declared, the aggregate dividends . totaling $3,397. It was stipulated between the parties that all the foregoing dividends were declared, not from earnings of the said Company, but from money realized from the sale of ’ assets disposed of in the liquidation of the defendant. To the plaintiff’s statement of claim defendant filed a statement of defense and .set-off, verified by J. Harley Bradley, president of the defendant. This statement of defense and set-off did not deny that plaintiff was the owner of the 316 shares of stock, and that as a result, of the sale of assets of the defendant' Company in liquidation, dividends accrued on plaintiff’s 316 shares to the amount of $3,397. Defendant, however, in the statement of defense and set-off, alleges the fact to be that the 316 shares of stock came into the possession of the plaintiff by reason of a distribution of the estate of Mary Ella Morgan, mother of the plaintiff, who died on or about November 1, 1899; that this distribution was made by written agreement under date of July 25, 1900, to which plaintiff, her father and her five brothers and sisters were parties; that by this agreement all the personal and real property, with the exception of a certain piece of property known as 389 West Adams street, was divided equally among the signers of this agreement, and that these 316 shares of stock represented one-seventh of the number of shares of stock of the defendant owned by the mother, Mary E. Morgan, deceased; that at the time of the death of the said Mary E. Morgan, there was due from her to the defendant $14,444.18, and that after her death, debts of her estate to the extent of $4,357.19 were paid by the defendant, the entire indebtedness being in the sum of $18,801.37; that in a letter written January 15, 1900, the plaintiff was one of five members of her immediate family to request the defendant to advance moneys to the family for household expenses, and agreed to pay her pro rata share of the advances so made, viz., one-fifth; that the advances were to be made in the name of Marion S. Morgan, trustee, a sister of the plaintiff; that acting under said letter, defendant advanced said Marion S. Morgan, trustee, the sum of $9,962.22; that defendant had advanced to plaintiff for personal use, up to November 1,1901, the sum of $1,040; that on October 31st two dividends—one of six per cent, and one of one per cent—were declared on the stock of the defendant Company; that in a letter written by the defendant to the plaintiff on December 10, 1901, defendant directed the attention of the plaintiff to the fact that an agreement had been entered into by the plaintiff and her father and her five brothers and sisters, whereby each should have one-seventh of the estate of Mary Ella Morgan, deceased mother, and pay one-seventh of all claims against the same; the letter also directed the attention of the plaintiff to the fact that she was one of five that had agreed to pay their pro rata share of the moneys advanced to Marion S. Morgan, trustee, a sister of the plaintiff, for household expenses; further, that an account had been opened on the books of the defendant Company with each one individually, and in order that she might understand fully the amount . of the indebtedness and the manner in which it was divided, he inclosed statements of the various accounts as they stood on the books of the Company; that said letter further stated that dividends earned by the stock up to that time had been credited to the account of the plaintiff, and that further dividends, when declared, would be credited to the account; that the account would bear interest at the rate of six per cent, payable quarterly, the same as the dividends; that to make everything plain, he inclosed another statement showing how her personal account stood on the books, which statement showed that there was an indebtedness from her due the Company of $3,462.90, which included all cash advanced to her directly for her own personal use; the letter further provided for an advance of $60 per month for plaintiff’s schooling; that the letter also, asked her, in acknowledging receipt of this letter, to state whether this manner of handling the estate account was perfectly satisfactory; that inclosed in said letter were the various statements of accounts mentioned therein; that plaintiff in a written reply to the said letter approved the account set forth in that letter, acquiesced therein, and stated it was as agreed upon; that said letter of December 10, 1901, and the aforesaid reply thereto, constituted a written contract by which the plaintiff undertook to pay one-seventh of the indebtedness due from Mary Ella Morgan, deceased, her estate, and the pro rata share of advances . made to Marion S. Morgan, trustee, and the moneys advanced to her directly for her personal use, and interest on these accounts as mentioned in the letter of December 10, 1901.
    The statement of defense and set-off further set forth the exact state of the account as defendant claims between the plaintiff and the defendant at the beginning of this suit; that the total sum of the indebtedness, without allowing any credits, amounted to $16,638.17; that this account was made up of the moneys due defendant by reason of the plaintiff’s liability for one-seventh of the indebtedness due defendant for moneys advanced to the mother, Mary Ella Morgan, and her estate, for her pro rata share of the moneys advanced to Marion S. Morgan, trustee, for household expenses, viz., one-fifth thereof, the interest on said indebtedness, and the cash advances which at the time this suit was instituted amounted to $7,671.19. The statement further shows that there was a credit against this of $10,526.31, which consisted of dividends declared before liquidation of the defendant Company and subsequent thereto, and certain moneys due the plaintiff from J. Harley Bradley, trustee, with reference to certain property held by him on behalf of the plaintiff and the other heirs of the deceased mother’s estate, which payments had been credited to the plaintiff’s account; and that after allowing all just credits, there was due on the claim of defendant’s set-off, $6,111.86. To this claim of set-off plaintiff filed an affidavit of merits admitting that the estate had not been probated, and denying that the 316 shares of stock came into her hands by virtue of the agreement dated July 25, 1900, alleging that she took them by inheritance from her deceased mother. It, however, admitted the signing of the agreement of July 25th referred to as exhibit “A;” it further denied that plaintiff agreed to pay one-seventh of the alleged indebtedness of Mary Ella Morgan incurred during her lifetime, or of the estate after her death; denied having entered into any agreement to pay defendant one-fifth of the alleged advances to Marion S. Morgan, trustee, for household expenses; denied that she wrote a letter in reply to defendant’s letter of December 10, 1901, (which is designated as exhibit “B”), and therefore did not expressly or by implication agree or consent to the terms of the said letter. In this affidavit of merits plaintiff sets up further, by way of defense, that the amount representing one-seventh of Mary Ella Morgan’s indebtedness, viz., $2,685.91, and the amount representing one-fifth of the indebtedness against Marion S. Morgan, trustee, viz., $1,932.40, were promises to pay the debt of another, and not being evidenced by any note or memorandum in writing signed by the plaintiff, were within the statute of frauds, and therefore could not be enforced; that even if it could be held that the agreement was in writing, that so much of the advances as was made more than ten years" prior to the beginning of this suit was barred by the statute of limitations; however, there being no agreement or memorandum in writing, that the entire claim was barred because the right of action did not accrue within five years next preceding the commencement of this action. However, in the plaintiff’s brief, items to the amount of $1,696.56 were admitted by the plaintiff- as having accrued within the five years prior to the commencement of this suit, and it was conceded should have been allowed against the claim of the plaintiff. Upon the issues here presented, the cause was submitted to the court without a jury. The court found the issues against the plaintiff on defendant’s plea of set-off, assessed the damages at $5,693.81, and entered judgment on this finding, to reverse which judgment the plaintiff has sued out this writ of error.
    William Slack, for plaintiff in error.
    Gardner, Carton & Thomson, for defendant in error; John M. Zane, of counsel.

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

   Mr. Justice Pam

delivered the opinion- of the court.

The court in its finding allowed the entire claim of the defendant against the plaintiff, save certain items in the nature of compound interest which had been in-eluded in the indebtedness due the defendant from Mary Ella Morgan, the mother. Although many issues are presented by the various contentions of the parties to this litigation, the one issue determinative of the case is, whether or not a contract or agreement had been entered into between the plaintiff and the defendant by reason of the letter in evidence referred to as exhibit “B,” claimed to have been written by the defendant to the plaintiff on December 10,1901, and a letter in reply thereto, which defendant claims to have received from the plaintiff. The plaintiff denies ever having received the letter referred to as exhibit “B,” and further denies not only that she wrote a reply, but, having failed to receive the letter, she could not have written a reply thereto. The relationship of the parties has an important bearing on the determination of this issue.

Mary Ella Morgan, deceased mother of the plaintiff, was the sister of J. Harley Bradley, president of the defendant Company. The evidence shows that an account was carried on the books of the defendant with her; that bills incurred by her were paid by the defendant Company; that it was customary for the Company to pay bills presented which bore the “O. K.” of either Mrs. Morgan or her brother, J. Harley Bradley; and the payments as made were" charged to her account. It was admitted by stipulation of the parties hereto that at the time of the trial the books of the defendant showed an indebtedness of Mary Ella Morgan to defendant of $18,801.37. The evidence showed that of this amount $14,444.18 was for debts incurred during decedent’s lifetime, and $4,357.19 for debts paid after her death.

On January 15, 1900, a short time thereafter, plaintiff, together with her father, her two sisters and a brother, wrote the following letter to J. Harley Bradley, who was then president of the defendant Company:

“Chicago, Jan. 15, 1900.
Mr. J. H. Bradley,
63 N. Des Plaines St., Chicago.
Dear Brother :
Marion, Margia, David and Mary have thought over question of expenses, and consented to have the $5,000 charged pro rata with me; $1,000 each, with understanding that when a dividend be declared, on the stock, it will be credited back and not stand against the principal. Above is, I think, what you desire. So if you will send a check amounting to $416.50 made out to Marion S. Morgan on the first of each month, beginning Feb. 1st, I think everything will be satisfactory.
(Signed) Gr. C. Morgan,
Marion Sherman Morgan,
Margia Cynthia Morgan,
David Bradley Morgan and
Mary A. Morgan,” (plaintiff).

From this letter it is evident that the family wished to arrange for at least certain family expenses to be paid by the defendant, and that the dividends due on the shares of stock held in the mother’s name be applied in payment of any indebtedness created by any advance made by the defendant in pursuance of this letter. At this time plaintiff lacked about six months of her majority.

The estate of Mary Ella Morgan was never probated, but on July 25, 1900, an agreement was entered into between the father and the sisters and brothers of the plaintiff and herself, which provided for the distribution of the. ©state. At this time plaintiff had already reached her majority. By this agreement all the personal and real property of the estate of Mary Ella Morgan was divided into seven equal parts, save that the father, Gr. C. Morgan, in addition to his one-seventh, was given the house known as 389 West Adams street, Chicago. At this time, under the stipulation previously referred to, the books of defendant showed an indebtedness due from Mary Ella Morgan and her estate, of $18,801.37.

On October 31, 1901, two dividends were declared, one of six per cent, and one of one per cent. Under the distribution agreement of July 25th, supra, plaintiff was entitled to 316 shares of capital stock. On this stock, under the dividend declared, plaintiff was entitled to a credit of $2,212. J. Harley Bradley testified that on December 10, 1901, he wrote plaintiff the following letter:

“Chicago, December 10, 1901.
Miss Mary Morgah,
Vassar College.
My Dear Niece :
After thinking over your mother’s estate and the manner in which it is now kept on our books, and discussing it with Geo. Jr., we have decided that the best thing to do, while all are well, and in position to understand and express their views, to divide the estate in accordance with the agreement entered into by all of you; viz.: that each one should have one-seventh of the estate and pay one-seventh of all claims against the same, and we have opened an account with each one individually, and in order that you may understand fully the amount of the indebtedness and manner in which it is divided, I give you herewith statement of the various accounts as they now stand on our books, viz.: Account of Mrs. M. E. Morgan; account estate Mrs. M. E. Morgan No. 1; account estate Mrs. M. E. Morgan No. 2; account Marion S. Morgan, trustee; the last account, Marion S. Morgan, trustee, you will readily understand, is the account in which five of you agreed to advance so much towurds the running expenses of the house; the statement shows the division, and how it is arrived at. To make everything plain, I enclose another statement showing how your personal account stands on our books after paying the 6 per cent, dividend of July 1st and 1 per cent, quarterly dividend of October 1st, which leaves an indebtedness, as you will see by statement, of $3,462.90. There will be 3 per cent, more dividend payable 1 per cent, quarterly, due July 1, 1902, which will be credited to your account, and you will be notified when the dividend is declared, and shown exactly how your account stands after the credit. The account will bear interest at 6 per cent., payable quarterly, the same as the dividend. You will understand that this is a dividend for this year only; no assurance of dividend next year, although we live in hopes of dividend each year. Understand these statements represent simply what has been drawn before your mother’s death on her account, and after her death up to this time. There is also a $10,000 note at the First National Bank which is also a part of the estate indebtedness, and which will have to be secured by a proportionate amount of stock from each individual heir. There is also a $6,000 note which is secured by certain collateral, and guaranteed by myself to H. A. Gardner. This, I think, covers the whole history of the estate, and while the heirs are not liable for .the $6,000 note, excepting Mr. Morgan, Sr., I presume if there should be a bonanza in it, you would all be glad to be, for that reason I think it ought to be a part of ■the indebtedness of the estate, although, your father may feel differently when I talk to him about it. I hope after January 1st to get these notes in shape. I believe a better rate (of interest) can be obtained after January 1st. The $6,000 note will have to be secured by bonds of the Indianola Water Works, and which amount of stock proportionately divided that will make it perfectly good." Now, in acknowledging receipt of this, state whether this manner of handling the estate account is perfectly satisfactory. If it is, I will then have entries made on the books in accordance with statement rendered, and the stock will then be divided, and the company will simply hold double the amount of stock as security to the indebtedness. Believe this plan wise and.better for all than to let matter stand as separate account. Still, I shall be governed entirely by the views of those most interested. Shall arrange • so you get $60 a month on your account for schooling.
(Signed) J. Harley Bradley.
. P. S.—The amount of stock in your name is 316 shares.”

J. Harley Bradley further testified that with said letter were inclosed the statements mentioned therein.

Notice was served upon the plaintiff tó produce said letter. It was not forthcoming, plaintiff claiming never to have received it. Mr. Bradley testified that he dictated the letter to his stenographer, Mrs. Maude Smith, and that after Mrs. Smith had transcribed it from her notes, it was handed to him for signature; that he signed same and returned it with all the inclosures to the stenographer for mailing. A copybook, which was admitted to be the copybook of the defendant, was shown to Bradley, who identified a letter therein as being a copy of the original, including his signature, which he dictated, signed and directed Mrs. Smith to mail to the plaintiff.

Mrs. Maude Smith, the stenographer, called as a witness on behalf of the defendant, was shown a letterpress copybook containing a copy of the letter claimed to have been written on December 10, 1901, and identified by Mr. Bradley as a copy of the original he had dictated to Mrs. Smith, signed and directed her to mail to the plaintiff. She testified that the letter-press copybook was used in the regular course of business; that the original letter just above referred to was dictated to her by Mr. Bradley; that she had transcribed same, submitted it for his signature, that it was then taken back to her desk and copied into the letter-press copybook and then put into an envelope with the inclosures and mailed, i. e., put on the mailing desk; and that either she or a man who was dead at the time of the trial attended to depositing letters in the U. S. mail box; that the letter-press copybook referred to was used in the regular course of business; that the letter addressed to the plaintiff appears on page 38 thereof; that letters of a similar character were dictated, signed and directed to be mailed to Sate Allen, a sister; Gr. C. Morgan, (didn’t say whether senior or junior); David Morgan, a brother; Marion S. Pierce, a sister; that these letters appear, respectively, in the same letter-press copybook on pages 35, 43, 46 and 49, all bearing the same date—December 10, 1901; that as in the letter written to the plaintiff, these letters and inclosures were placed in envelopes, stamped and put on the mailing desk.

Bradley further testified that a reply was received to this letter (of December 10, 1901) from the plaintiff ; that the letter in reply was sent to the factory and was placed among the factory files because it related to the account kept on the books of the company; that a diligent search had been made for said letter in all possible places, viz., in the office, in the desk in the vault, that hours had been spent hunting for. the missing letter, but that it could not be found. The evidence shows that a fire occurred at defendant’s factory in February, 1911, wherein many letters were destroyed. The court permitted Bradley, over the objection of the plaintiff, to testify as to the contents of the letter. He testified that the plaintiff in said letter stated that she had received defendant’s letter of December 10, 1901; that the action proposed therein was satisfactory and that it was as agreed upon. Plaintiff denied the receipt of the letter of December 10, 1901, and denied having written a letter in answer thereto.

This letter of December 10th clearly called to the attention of the plaintiff the fact that the real and personal property of the estate of Mrs. Morgan had been divided into seven parts; that the parties to this agreement each should have one-seventh thereof, and assume one-seventh of all claims against same; that an account had been opened on the books for each individual, so that they might understand fully the amount of the indebtedness and the manner of dividing it. Attention was then called to the account of Mary Ella Morgan, the mother, during her lifetime, and payments made on behalf of her estate; and also to the account created by reason of the letter of January 25, 1900, whereby the plaintiff and four others requested defendant to advance a certain amount per month to Marion S. Morgan, trustee, for household expenses ; (this account is shown on the books in the name of Marion S. Morgan, trustee). The letter further stated, “to make everything plain,” there was inclosed a statement of her personal account as it appeared on the books after crediting it with the $2,212 dividend of October 31, 1901, which statement showed an indebtedness of $3,462.90. The letter further called attention to another dividend to be declared July 1, 1902, of three per cent., which would be credited to her account; that “the account will bear interest at six per cent. (6%), payable quarterly the same as the dividends,” and calls attention that while there was a dividend this year, there was no assurance of a dividend next year or any other year; that the accounts inclosed with this letter showed how the balance due on November 1, 1901, was arrived at; that the letter also asked plaintiff in acknowledging receipt of it, to state whether this manner of handling the estate account was perfectly satisfactory.

At the trial “a table of balances and analysis” was prepared by the defendant, which 'was considered by the court as a correct statement of the account between the plaintiff and defendant; and after having found the issues in favor of the defendant on its plea of set-off, the court used this table as a basis of his finding as to the amount due the defendant from plaintiff.

' The only respect in which this “table of balances and analysis” differs from the account submitted in the letter of December 10, 1901, is that the court having found that interest upon the accounts of Mary Ella Morgan, estate of Mary Ella Morgan, and Marion S. Morgan, trustee, had been compounded, deducted the interest so compounded. The new total as arrived at by such reduction accounts for the change in the amount claimed by the defendant due it from the plaintiff, in its statement of defense and set-off, and the amount allowed as found by the court upon which he based his judgment.

In using this “table of balances and analysis” as the basis of its judgment, it is evident that the court held, that the letter of December 10,1901, from defendant to plaintiff, and the reply thereto by the plaintiff to the defendant, constituted a contract. To arrive at that conclusion, the court had to determine: (1) That the letter of December 10, 1901, was sent and a reply received ; and (2) as a matter of law, that such letter and reply thereto constituted a valid and binding contract between the parties.

In arriving at its conclusion as to whether or not the letter of December 10, 1901, had been sent and a reply received, the court, trying this case without a jury, was called upon to weigh the evidence.

On the question whether or not the letter of December 10th had been sent, there is the testimony of J. Harley Bradley that he dictated the letter to the stenographer; the testimony of the stenographer who took the dictation of the letter; the fact that this letter appeared in a copybook used in the regular course of business; that it was one of a series of letters appearing in due order in said copybook; that other letters in this series in the copybook were addressed to the brothers and sisters of the plaintiff.

As to whether or not plaintiff wrote a reply to that letter, there is the testimony of J. Harley Bradley, president of the defendant Company, against the testimony of the plaintiff. There are circumstances in ° the evidence which might be cited by this court as corroborative of both the testimony of Bradley on behalf of the defendant, and that of the plaintiff on her own behalf. The court, in finding the issues for the defendant, must have concluded that the defendant had shown by the greater weight of the evidence that the letter of December 10, 1901, was sent, and that the plaintiff replied thereto in the manner and in terms as testified to by J. Harley Bradley. Plaintiff complains that this finding is clearly and manifestly against the weight of the evidence.

The court, trying this case without a jury, saw and heard hoth of them testify, and in arriving at a conclusion as to which side had maintained the issues contended for by a preponderance of the evidence had the right to take into consideration the appearance and demeanor of the witnesses on the stand. We would not be warranted in disturbing the finding of the court unless it were clearly and manifestly against the weight of the evidence. In the case of Hess v. Killebrew, 209 Ill. 193, the Court said, (p. 200):

“Where the trial court, in a trial without a jury, has had an opportunity of seeing the witnesses and of hearing their testimony as it is delivered orally, the findings of such court upon mere questions of fact, when the testimony is conflicting, will not ordinarily be disturbed, on appeal, unless such findings are clearly and manifestly against the preponderance of the evidence. Lane v. Lesser, 135 Ill. 567; Burgett v. Osborne, 172 id. 227; Delaney v. Delaney, 175 id. 187; Phelan v. Hyland, 197 id. 395.”

In the case of Calvert v. Carpenter, 96 Ill. 63, Mr. Justice Mulkey, in delivering the opinion of the court, uses language which we think is especially applicable to the case at bar. He says (p. 67):

“It can scarcely be repeated too often, that the judge and jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review. All we can do is to follow with the eye the cold words of the witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie here. There- is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed, in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by this court. For this reason the rule is firmly established, that where, as in this case, there is an irreconcilable conflict in the testimony, this court will not reverse the judgment of the trial court, where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict.”

While we are mindful that the rule as stated in the last sentence has been modified by a more recent decision (Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 625), nevertheless such decision does not detract from the truth and vigor of the sentiment expressed by the court as to the value of personal observation of the witnesses by the trial judge in determining the credibility of the witnesses. Having in mind the views so clearly expressed in the above quotations, and after a careful examination of the record, we feel that we cannot say that the finding of the court under the circumstances in evidence in this case was clearly and manifestly against the weight of the evidence.

The court, after having determined that the defendant had proven by a preponderance of the evidence that the letter of December 10, 1901, was sent and was received by the plaintiff, and that the plaintiff replied acknowledging receipt of that letter and expressing her accord therewith, construed these two letters as constituting a binding and valid contract between the plaintiff and defendant. Our reading of the letters and evidence in this case satisfies us that the construction placed on these letters by the trial judge was the correct one.

Necessarily having determined that a contract existed between the parties, there remained only the question of accounting.

Upon this question there was practically no issue in the ease. Plaintiff in the stipulation admitted that the books showed the indebtedness of the mother, and while it reserved to the plaintiff the relevancy and admissibility of the account, yet inasmuch as that account was made a part of the letter, and the court having held that the plaintiff acquiesced and agreed to said accounting in that letter, the account shown in the books became binding upon the plaintiff. There was no dispute as to the amount paid on account of Marion S. Morgan, trustee under the agreement of January 15, 1900, nor was there any dispute as to the entire amount advanced personally to the plaintiff by the defendant. The testimony shows that in addition to the $1,040 advanced to her up to November 1, 1901, there were additional advances made to her, so that at the time of the trial the entire amount was shown to have been $7,671.19.

While the plaintiff complains that the court erroneously permitted interest to be charged in the defendant’s claim of set-off, yet the contract in this case permitted interest to be charged at the rate of six per cent.

Plaintiff also raised the question that that part of the claim which arose out of the indebtedness incurred by the deceased mother during her lifetime, and the amount paid out by defendant for the indebtedness against her estate, could not be enforced because they were based upon a promise to pay the debt of another, and that there was no memorandum in writing evidencing same. In view of the fact that we are of the opinion that there was a written contract, this contention necessarily must fall.

Plaintiff further contended that the entire action was barred by the statute of limitations. She, however,' concedes that under section 17 of the Limitation Act (Hurd’s R. S. of Illinois, ch. 83, J. & A. ¶ 7212), defendant had the right to set off claims against the plaintiff which were not barred on January 31, 1910, being the earliest item sued for by the plaintiff. This issue is disposed of by our holding that there was a written contract entered into by the parties in December, 1901. By this written contract, plaintiff agreed to pay all items prior to that period, and authorized charging her account with later items making up the amount of the judgment not covered by this written agreement.

Finding no reversible error, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Benjamin Wolf, Plaintiff in Error, v. Elizabeth Gloor, Defendant in Error.
    Gen. No. 20,050.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by Benjamin Wolf against Elizabeth G-loor to recover a balance alleged to be due for legal services rendered and expenses incurred in securing the appointment of defendant as guardian of her grandchild, Catherine Gloor. A trial was had before the court and a jury, resulting in a verdict in favor of defendant. To reverse a judgment entered tin the verdict, plaintiff prosecutes a writ of error..
    George A. McCorkle and Benjamin Wolf, for plaintiff in error.
    Anderson, Anderson & Anderson, for defendant in error.

      Abstract of the Decision.
    Attorney and client, § 135

      —when evidence sufficient to sustain verdict. In an action by an attorney for a balance due for legal services and expenses incurred in securing the appointment of defendant as guardian of her grandchild, where evidence was introduced as- to the value of the services and there was evidence to show that defendant had paid plaintiff five hundred dollars, held that a verdict for defendant was sustained by the evidence.

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

   Mr. Justice Pam

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Levy Goldstein, trading as L. Goldstein & Company, Defendant in Error, v. Gustave Freudenberg, trading as G. Freudenberg & Company, Plaintiffs in Error.
    Gen. No. 19,486.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by Levy Goldstein, trading as L. Goldstein & Company, against Gustave Freudenberg, trading as G. Freudenberg & Company, to recover $242.50 alleged to be due from defendant to plaintiff as a commission for securing a purchaser for certain real estate. Plaintiff’s statement of claim was as follows:
    “On or about December, 1909, plaintiff and defendant, were both duly licensed real estate brokers in the City of Chicago. Plaintiff further represents that on or about said time, the said defendant had listed for sale a certain property at No. 1435 Milwaukee avenue by one Mandel Brown. Plaintiff, further alleges that the said defendant, through his agent, Herman Weinberger, submitted the aforesaid real estate to plaintiff for the purpose of securing a purchaser therefor, and that said defendant through his said agent agreed to pay plaintiff one-half of any and all sums which he would receive as compensation for the sale of said real estate to any customer secured by said plaintiff. Plaintiff further alleges that he secured one L. Herman as a purchaser for said premises and that the said defendant has received as compensation for the sale of said premises, the sum of four hundred and eighty-five dollars ($485), one-half of which amounting to two hundred forty-two dollars and fifty cents ($242.50), and said defendant refused and still refuses to pay said sum, to the damage of the plaintiff in the sum of two hundred forty-two dollars and fifty cents ($242.50), therefore he brings his suit.”
    The defendant filed an affidavit of merits, the material part of which was as follows:
    “Defendant denied that he did heretofore at any time have listed for. sale a certain property at No. 1435 Milwaukee avenue, by one Mandel Brown. This affiant further denies that one Herman Weinberger was at any time heretofore his duly authorized agent for any purpose whatsoever. This affiant further denies that he did at any time heretofore offer Herman Weinberger or any one else whatsoever the real estate at No. 1435 Milwaukee avenue to the plaintiff for the purpose of securing a purchaser for said real estate; and defendant further denies that he agreed to pay to the plaintiff one-half of any sums which he would receive as compensation for the sale of said real estate.”
    The case was tried by the court without a jury; the issues were found against the defendant and the plaintiff’s damages were assessed at $177.50. A motion for a new trial was overruled. To reverse a judgment entered on the finding, defendant prosecutes a writ of error.
    Shaeffer & Kompel, for plaintiff in error.

      Abstract of the Decision.
    1. Brokers, § 88

      —nohen finding of court not contrary to law. In a suit by one real estate agent against another for a commission for procuring a purchaser for real estate, where it was alleged that an agent of defendant had listed the property with plaintiff, held under the evidence that a finding in favor of plaintiff was not contrary to law for the reason that the alleged agent was without authority to act for defendant, or that he exceeded his authority.
    2. Brokers, § 84*—admissibilty of evidence. In a suit by one real estate agent against another to recover a commission for procuring a purchaser for real estate listed with plaintiff by an alleged agent of defendant, held that the evidence was sufficient, to show that the alleged agent was an agent of the defendant so as to justify the admission of the testimony of plaintiff as to a conversation he claimed to have with such person as defendant’s agent.
    3. Evidence, § 173*—when telephone conversation admissible. A telephone conversation is admissible where it was held by the plaintiff with the defendant, at. the defendant’s place of business or with someone there that professed to represent him, and where it was in relation to the business of the defendant carried on at that place.
    4. Appeal and error, § 1512*—when action of court in stopping witness not reversible error. The trial court is not shown to have erred in excluding evidence offered by defendant, where the defendant as a witness was asked a question by his counsel and the witness answered it and then proceeded to say more, and the court stopped him with the remark: “Don’t say anything more,” it also appearing that counsel for defendant not only failed to object to the action of the court, but expressly acquiesced therein.
    5. Appeal and error, § 1506*—when refusal to permit witness to testify not reversible error. Action of trial court in refusing to permit a witness to testify, held not an abuse of discretion requiring a reversal, where it appeared the witness violated a rule excluding witnesses from the courtroom, and no objection was made to the action of the court nor any showing made that he would testify to any fact material to the issues in the case.
    I. B. Perlman and H. J. Rosenberg, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Abraham Manaster, Defendant in Error, v. Herman Molner, Plaintiff in Error.
    Gen. No. 19,743.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Rehearing denied and additional opinion filed December 31, 1914.
    Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by Abraham Manaster against Herman Molner to recover one month’s rent of $105,. alleged to be due under a certain lease made between plaintiff as lessor and one S. Silber as lessee, which lease was guarantied by the defendant. The lease provided that the lessor should construct a bakeshop in the rear portion of the first floor of the building, and was made when the premises were occupied by one Goldstein. Bent was collected from said Goldstein after the making of the lease, and Goldstein claimed that the landlord had elected to treat him as a tenant from year to year. A forcible entry and detainer suit was brought against Goldstein and resulted in a verdict for the defendant, whereupon an appeal was prayed. Silber occupied the portion of the premises not occupied by Goldstein and some other property also belonging to the plaintiff. At the trial the issues were found in favor of the plaintiff, and this writ of error followed.
    Jacob C. LeBosky, for plaintiff in error.
    Tenney, Harding & Sherman, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 88 —when tenancy from year to year created. Evidence held to show that a landlord acted as an agent of his lessee in collecting rent from another person who occupied the premises at the time of the making of the lease, and such landlord did not by accepting the rent elect to treat such other person as a tenant from year to year of the premises.

2. Judgment, § 457*—when decree is res adjudícala. A person cannot be injuriously affected by a judgment or decree of court who was not a party to such judgment or decree and was not in any way interested therein.

3. Judgment, § 457*—when party bound by former adjudication. Evidence held to support a finding that a party was not interested in a prior forcible entry and detainer suit, wherefore the judgment in such suit was not res adjudicate.

4. Landlobd and tenant, § 448*—when different premises are substituted. Evidence held not to sustain a contention that there was a substitution by a landlord of other premises for those leased.


text:
    August Jacobs, Defendant in Error, v. Henry T. Jurgensen et al., trading as Jurgensen Tea Company, Henry T. Jurgensen, Plaintiff in Error.
    Gen. No. 19,767.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action of forcible entry and detainer by August Jacobs against Henry T. Jurgensen and John F. Jurgensen, trading as Jurgensen Tea Company. The action proceeded against Henry T. Jurgensen alone, the other party not being served, and it appearing that such other party had terminated business relations with the defendant. The premises involved were leased to the defendant under a lease providing for forfeiture if the rent remained unpaid after the first of the month. It appeared, however, that the check in payment of the rent was usually mailed by the defendant to the plaintiff a few days after the first, and on the occasion in question such monthly check was not received until thirteen days after the first of the month, when it was returned and these proceedings instituted. At the close of the trial a verdict was directed for the plaintiff, whereupon the defendant, Henry T. Jurgensen, brought error.
    Abstract of the Decision.
    1. Landlord and tenant, § 470

      —when waiver of forfeiture will he presumed. Where a lease provided that the landlord might declare a forfeiture of the same because of the failure of the lessee to pay the rent when due, such landlord had the right to waive the forfeiture, and waiver would be presumed until he did some act manifesting an intention to declare a forfeiture.
    2. Appeal and error, § 913*—when stenographic report complete, Where a certificate to the stenographic report states that it contains “all the evidence and testimony offered, heard or received on the hearing of the above entitled cause,” it cannot be contended that the report is not in fact complete.
    John C. Trainor, for plaintiff in error.
    G. A. Dahlberg, for defendant in error; Gurdon Williams, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Mary Christ, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 19,918.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoobtt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Rehearing denied January 8, 1915.
    Statement of the Case.
    Action on the case by Mary Christ against the Chicago Railways Company to recover damages for perr sonal injuries, alleged to have been caused by the negligence of the defendant in jerking or starting a street car as the plaintiff was alighting therefrom. The defendant filed pleas of the general issue and nonownership. The case was tried before a court and a jury, and verdict returned finding the defendant guilty and assessing plaintiff’s damages at one thousand five hundred dollars. The plaintiff remitted five hundred dollars from the amount assessed, a motion for new trial was overruled and judgment entered on the verdict for one thousand dollars. To reverse said judgment, the defendant appealed.
    Charles L. Mahony and Alfred B. Davis, for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    Spencer Ward, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1410 —when verdict will not-be disturbed. In an action for personal injuries sustained while alighting from a street car, a verdict in favor of the plaintiff was not manifestly against the weight of the evidence.

2. Damages, § 112*—when verdict not excessive. In an action for personal injuries sustained by a woman while alighting from a street car, due to the car starting suddenly, a verdict of fifteen hundred dollars reduced to one thousand dollars was not excessive.

3. Appeal and error, § 1535*—when instruction cannot be com^ plained of. In an action for personal injuries sustained while alighting from a street car, the giving of an instruction as to the burden of proof which omitted the element of the number of witnesses testifying pro and con upon the controverted material facts .in the case was error, but a defendant was not warranted in complaining of it where the record did not show that the question óf the number of witnesses was an important element in the case,, and that it suffered by the giving of the instruction.

4. Appeal and error, § 1544*—when erroneous instruction as to contributory negligence harmless. In an action for personal injuries sustained while alighting from a street car, the giving of an instruction as to the burden of proof, stating that the jury “should” take into consideration the elements named in the instruction, was erroneous as misleading and as tending to invade the province of the jury, and the word “may” should have been used, but in view of the state of the record, the giving of the instruction was harmless error.

5. Appeal and error, § 1565*—when modification of instruction harmless. In an action for personal injuries, the modification of an instruction as to the credibility of witnesses, by striking out the words requiring the jury to consider testimony “the same as you would receive the testimony of any other witness,” did not constitute reversible error, as the meaning of the instruction was not changed by the modification.

6. Appeal and error, § 1565*—when modification of instruction as to contributory negligence harmless. In an action for personal injuries sustained by a passenger while alighting from a street car, where an instruction requiring the plaintiff to use her faculties with ordinary care only “in looking out for danger” was modified by striking out the quoted words, the modification was not harmful to the defendant, as in the instruction as given there was no limitation as to the care that the plaintiff was required to use to avoid injury.