text:
    Edward W. Morrison, Appellee, v. Moir Hotel Company, Appellant.
    Gen. No. 22,756.
    1. Taxation—what is nature of a tax levy. A tax levy is a legislative function, the formal vote or action of the body authorized to make the levy, and is not merely the ministerial action of ascertaining the rate per cent.
    2. Taxation—when State levy may he made. Under the Constitution of the State no time is fixed within which a State tax levy may be made.
    3. Taxation, § 134

      —when presumed taxes are levied. It will be presumed that the statutes relating to the levy of taxes on real estate provide for such levy prior to April 30th.
    4. Municipal corporations, § 1196*—when ordinance levying tax may he passed. An ordinance of a city levying, a tax may be passed at any time after the annual appropriation bill has been adopted and prior to the time the certified copy of the tax levy ordinance is required to be filed with the county clerk.
    5. Taxation, § 316*—when taxes become a lien on real estate. Under Rev. St. 1915-16, ch. 120, secs. 303, 306 (J. & A. H1Í 9524, 9527), taxes for the year 1911 on real estate were assessed as of April 1, 1911, and became a lien on that date, although the assessment may not have been actually made until after that date.
    6. Taxation—what considered as date of assessment. In the absence of evidence as to when an assessment on real estate was actually made, the date when the taxes assessed became a lien must be considered as the date of the assessment.
    7. Landlord and tenant, § 199*—when taxes are rent. The covenant by a lessee in a lease to pay taxes is an agreement to pay them as part of the rent.
    8. Landlord and tenant, § 199*—how covenant to pay taxes construed. Any construction of a covenant of a lease that the lessee should pay taxes on the leased premises levied or assessed during the term of the lease which would impose upon the lessee the payment of taxes levied or assessed prior to the beginning of such term would be inequitable and unjust.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed March 26, 1917.

      Campbell & Fischer and Matthias Concannon, for appellant.
    James R. Ward, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover certain taxes which it is said defendant was obligated to pay by virtue of the provisions of a written lease of premises in Chicago .from the plaintiff to the defendant. Upon trial the court instructed a verdict for the plaintiff for $1,912.22, upon which judgment was entered, from which the defendant has appealed.

The evidence shows a lease for a term commencing April 30,1911, and ending April 30,1921, at a specified rent, payable in monthly instalments. It contained provisions that the lessee should—

“pay to the said lessor, his heirs, administrators, executors or assigns the said rent, in installments hereinafter specified for said demised premises from April 30th, 1911, together with all water rates, taxes and assessments * * * levied or assessed annually, or from time to time upon the said demised premises, or any building or improvement situated thereon, or levied or assessed upon the interest of the lessor in or under this lease, or in or to said premises or improvements, or any part thereof, each year during the existence of this lease, in apt time to prevent sale or forfeiture thereof * * *.”

It was also provided that—

“the lessor shall have the right, at his option, at all times during said demised term, to pay all water rates, taxes * * * when due and payable, and to pay, cancel, and clear off all taxes, tax sales, * * * and to redeem said premises from the same, from time to time in default of the lessee so to do, and the amount so paid by the lessor * * * shall be added and be additional rent due from the lessee to the lessor.”

Plaintiff also introduced a tax receipt, in the ordinary form, issued from the county collector’s office of Cook county, indicating that Edward W. Morrison had paid one-third of the taxes upon the leased premises in full of “State, county, city, town, school, road, park, drainage and corporation taxes due for the year 1911,” and the attorney for the plaintiff testified that this payment was made on behalf of the plaintiff. The remaining two-thirds of the taxes for the year 1911 •had been paid by the defendant. No other material evidence was given upon the trial by plaintiff. The defendant introduced no evidence, but made a written motion to instruct the jury to find for the defendant, which motion was refused. We are of the opinion that this motion should have been allowed for the reason that under the lease the defendant was obligated to pay only those taxes levied or assessed after April 30, 1911 (the beginning of the term of the lease), and plaintiff failed to prove upon the trial that any of the taxes sought to be recovered were levied or assessed after that date.

Plaintiff contends that under the statutes of Illinois the taxes of any year are “levied or assessed” after April 30th of that year. We do not agree with this contention.

What is a tax levy? Inspection of the statutes and of decisions of our courts leads us to conclude that a tax levy is the formal vote or action of the body authorized to make the levy. It has been defined as “the formal and official action of a legislative body * * * determining and declaring that a tax of a certain amount, or of a certain percentage on value, shall be imposed on persons and property subject thereto.” 37 Cyc. 964.

In Gray v. Board of School Inspectors, 231 Ill. 63, it is said that to levy a tax is “to determine by vote the amount of tax to be raised.” The levying of taxes is not merely the ministerial action of ascertaining the rate per cent. Under our statute the power to levy taxes is given in express language. Section 25, chapter 34 (J. & A. 2769), provides that: “The county boards of the several counties shall have power * * * to cause to be annually levied and collected taxes for county purposes.” Section 62, article V, chapter 24 (J. & A. ff 1334), grants to the city council power “to levy and collect taxes,” and in section 1, article 8, chapter 24 (J. & A. ff 1383), the manner in which the city council shall levy taxes is specified, distinguishing between the fixing of the rate per cent, and the levying of a tax. The same distinction is observed in section 118, chapter 120 (J. & A. ff 9337), and this distinction is recognized in People v. Bowman, 253 Ill. 234; People v. Chicago, B. & Q. R. Co., 266 Ill. 150, and many other cases.

It is established by the foregoing that the levy of a tax is a legislative function, and the mere ministerial duty imposed upon the governor, auditor, treasurer and county clerk of ascertaining “the rate per cent.” as provided by the statutes is not the levy of a tax.

The declaration counted only for taxes paid by plaintiff and levied by the State of Illinois, County of Cook, City of Chicago, and South Park Commissioners, and we shall confine ourselves to these bodies with reference to the time of the tax levy. When were these taxes levied? The Constitution, section 1, article 9, provides that the General Assembly “shall provide such revenue as may be needful by levying a tax,” but no time is fixed within which such levy may be made. So far, then, as appears from anything before us, the levy for state taxes may have been made prior to April 30, 1911.

The board of county commissioners, under section 61, paragraph 6, chapter 34 [J. & A. If 2810(6)] of the statute, must pass an annual appropriation bill within the first quarter of each fiscal year; and.it has heen decided in People v. Chicago, B. & Q. R. Co., 266 Ill. 150, that “the fiscal year of Cook County begins on the first Monday of December of each year.” By section 121 of chapter 120 (J. & A. f[ 9340) it is provided that where, the county board is “required to pass an annual appropriation bill within the first quarter of the fiscal year, the tax levy above provided for may be made at any time after such annual appropriation bill shall be in full force and effect.” It follows, therefore, that the Board of Commissioners of Cook county must have adopted an appropriation bill some time in the early part of March, 1911, and the tax levy for the county taxes for that year might have been made by that board some time before April 30,1911, the date of the commencement of the term of the lease.

Coming now to cities, we find that under the provisions of paragraph 3, section 1, article V, chapter 24, section 62, chapter 24 [J. & A. f[ 1334(3)], that city councils have power “to levy and collect taxes for general and special purposes on real and personal property,” and by section %, article VII, chapter 24 (J. & A. j[ 1361), it is provided that the annual appropriation bill shall be passed “within the first quarter of each fiscal year,” and by section 1, article VII (J. & A. f[ 1360), it is provided that the fiscal year of the city shall commence “at the date established by law for the annual election of municipal officers therein, or at such other times as may be fixed by ordinance.” We are not informed as to when the fiscal year of 1911 of the City of Chicago began. By section 1, article VIII, chapter 24 (J. & A. jf 1383), it is provided that the city council shall “on or before the third Tuesday in September in each year, * * * by an ordinance * * * levy the amount so ascertained upon all the property subject to taxation. * * * A certified copy of such ordinance shall be filed with the county clerk. ’ ’ People v. Bowman, 253 Ill. 234, supports the proposition that an ordinance of a city levying a tax may be passed at any time after the annual appropriation bill has been adopted and prior to the time the certified copy of the tax levy ordinance is required to be filed with the county clerk. It is possible, and perhaps probable, that the tax levy ordinance of the city for the fiscal year of 1911 was passed before April 30th.

Under section 28, chapter 105 (J. & A. ft 7956), the .levy of the board of park commissioners may be made “on“or before the first day of August of each year.”

While we do not learn from the statutes precisely when the taxes are levied, a reasonable inference is that it is prior to April 30th, and in the absence of anything to the contrary we shall presume this to be the fact.

When were the taxes assessed? Under the Illinois statutes, sections 303 and 306, chapter 120, Hurd’s Eev. St. 1915-16, page 2217 (J. & A. fifí 9524, 9527), the taxes of 1911 were assessed as of April 1, 1911, and became a lien on that date (section 347, chapter 120, page 2231, J. & A. 9570), and although the assessment might not actually have been made on that date, yet in law when the assessment was made it related back to and became effective as of April 1, 1911. There is no evidence before us as to when the assessment actually was made, and in the absence of such evidence - we must hold that the date when the taxes became a lien must be considered as the date of assessment. If we are correct in this, it follows that it cannot be said that under the statute the taxes of 1911 were assessed after April 30th.

In Amory v. Melvin, 112 Mass. 83, the court adopted this construction of a similar statute and said:

“But it is immaterial when the valuation of estates is completed or when the tax is payable. The assess-' ment when completed relates back to the first of May, and the tax is in law regarded as assessed on that day.”

The construction of the lease contended for by plaintiff would obligate defendant to pay taxes not only for the entire year of 1911, but also for the last' year of the lease, 1921, which would mean payment of taxes for eleven years on a ten-year lease. We do not believe that such construction is warranted from the language of the instrument. The provisions clearly show that the intention of the parties was a demise of ten years with payment of taxes for ten years. The covenant to pay taxes is an agreement to pay them as part of the rent, and if the taxes were levied or assessed prior to the beginning of the term, any construction which would impose their payment on the defendant would be inequitable and unjust. McManus v. Fair Shoe & Clothing Co., 60 Mo. App. 216; Wilkinson v. Libbey, 1 Allen (Mass.) 375, and Cleveland v. Spencer, 73 Fed. 559. We are in accord with what was said by Lord Justice Mathew in Surtees v. Woodhouse, [1903] 1 K. B. 396:

“In my opinion, it is clear that, having regard to the prospective character of the sublease, it could not have been intended to impose upon the lessee an already existing charge, which had become chargeable on the lessor in respect of the premises before the lease was granted. * * * I do not see anything in any of the terms of the sublease-to suggest an intention that the sublessee should be made liable in respect of expenses already incurred, and which had become a charge on the premises and on the owner in respect thereof before the comrriencement of the term.”

Plaintiff has failed to prove that the taxes which he seeks to recover were levied or assessed subsequent to April 30, 1911, and under the construction we have given to the lease we hold that he is not entitled to recover the taxes levjed or assessed prior to that date.

For the reasons above indicated the judgment is reversed and judgment of nil capiat will be entered in this court.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Thomas Tagney for use of Florence Briscoe, Appellee, v. James A. Tabor, Appellant.
    Gen. No. 22,760.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 262

      —what does not constitute constriictive eviction. Misconduct of one tenant in a building cannot be considered a constructive eviction of another tenant therein.
    2. Judgment, § 77*—when refusal to vacate not abuse of discretion. Discretion of court, held not to be abused in denying a motion to vacate a judgment by confession.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Confession of judgment in favor of Thomas Tagney for use of Florence Briscoe, plaintiff, against James A. Tabor, defendant, for rent on a lease. From denial of defendant’s motion to have the judgment opened and for leave to plead, defendant appeals.
    Sass & Hood, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Samuel Hecht, Appellee, v. Harry J. Goldberg and Jacob Stein, trading as Goldberg & Stein, Appellants.
    Gen. No. 22,763.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

      —character of pleadings in fourth-class cases. Precision and exactness of statement in pleadings are not required in fourth-class cases under the Municipal Court Act.
    2. Master and servant, § 50*—when evidence sufficient to show wrongful discharge. In an action to recover for services under a contract of employment, evidence held sufficient to warrant a finding that defendants employed plaintiff agreeing to pay him a certain salary per week and to keep him until after a certain date; that they discharged him prior to .that date, and that he was unemployed for five or- six weeks after his discharge and prior to said date.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by Samuel Hecht, plaintiff, against Harry J. Goldberg and Jacob Stein, trading as Goldberg & Stein, defendants, to recover wages under a contract of employment. From a judgment for plaintiff for $105, defendants appeal.
    Walter F. Butler, for appellants; M. J. Sullivan, of counsel.
    Sattiel & Rossen, for appellee; Axel F. Lidman, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Carrie Tintel et al., Appellees, v. A. W. Gorke, Appellant.
    Gen. No. 22,771.
    (Not to be reported in full.)
    Abstract of the Decision.
    Executors and administratobs, § 633

      —when heirs and next of Mn may sue on debt. In an action to recover for goods sold and delivered, where the declaration alleged that the plaintiffs were the heirs and next of kin of the seller of such goods; that he died prior to the commencement of the action; that his estate was completely administered in a foreign State, where he died; that his administratrix, one of the plaintiffs, had paid all his debts, and the balance of his estate, including the claim sued on, had been distributed among the plaintiffs as his only heirs at law and next of kin, and that the estate was thereupon closed and such administratrix discharged, prior to the commencement of the action, held that the plaintiffs were the proper parties to bring sufih action.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by Carrie Tintel, Mary A. Kantb, Minnie B. Eisner, Anna Tintel, Emma A. Tintel and Birdie Tin-tel, plaintiffs, against A. M. Gorke, defendant, to recover as heirs of C. H. Tintel, deceased, for goods sold and delivered by the deceased to the defendant. From a judgment for plaintiffs for $244.65, on demurrer to the declaration, defendant appeals.
    Martin W. Grosse, for appellant.
    Krembr & Greenfield, for appellees; Robert Branard, Jr., of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Dever

text:
    William C. Niblack, Receiver, Appellee, v. Abraham L. Feldman et al., trading as Feldman Brothers et al., Appellants.
    Gen. No. 22,658.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Banks and banking, § 57

      —what are rights of receiver in property of insolvent hank,. The receiver of an insolvent bank is not solely the representative of either the creditors or the stockholders, but holds the property of the corporation as an officer of the court in the interest and' for the benefit of any and every person having a legal interest in an honest and efficient control and distribution of its assets.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and judgment here.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action, by William C. Niblack, as receiver of the La Salle Street Trust & ‘Savings Bank, plaintiff, against Abraham L. Feldman, Morris Feldman, Nathan Feldman, partners, trading as Feldman Brothers, and Abraham L. Feldman and Louis Feldman, individually, defendants, on a promissory note for $4,000, executed by Feldman Brothers, and payment of which was guaranteed by Abraham L. Feldman and Morris Feldman. From a judgment for plaintiff against the guarantors for $4,463.42, the latter appeal.
    William Feldman, for appellants; Pines & Newmann, of counsel.
    TTtratvt T. Gilbert and Judah, Willard, Wolf & Reichmann, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Banks and banking, § 57 —what constitutes redemption of note by receiver. In an action brought by the receiver of an insolvent bank upon a note given to the bank against the guarantors on such note, where the note had been transferred by the bank to another party as collateral security for its own note to such party and had been acquired by the receiver under order of court authorizing him “to purchase” the bank note “and secure possession” of such collateral security note, held that such acquisition of the latter note by the receiver was a redemption and not a purchase thereof, notwithstanding the language used in the order of court under which the receiver acquired it.

3. Pledges, § 4*—what is character of title of holder of note as collateral security. The holder of a note as collateral security is not vested with complete title in or ownership of such note but has only a title and ownership which is special in its nature until the happening of the uncertain event authorizing him to sell or dispose of it in accordance with the agreement under which he holds it.

4. Receivers, § 42*—what is not duty of. The law does not impose upon receivers the obligation of defeating the just, legal claims of special or lien creditors in the interest of general creditors of an insolvent.

5. Banks and banking, § 52*—when guarantor of note may present set-off. In an action by the receiver of an insolvent bank upon a note given to the bank against the guarantors on such note, where the receiver had acquired the note by redeeming it out of a general fund from a third party with whom the bank had deposited it as collateral security, held that such guarantors were entitled to present a set-off against the .bank, notwithstanding the manner in which the receiver acquired such note.

6. Bills and notes, § 177*—what is obligation of indorser in blanlc. One who indorses in blank a promissory note becomes in legal effect a surety for its payment when due.

7. Bills and notes, § 333*—when right of set-off available to guarantor. The guarantors of a promissory note are not held to a higher liability than is imposed on the principal maker of the note, and may set off, in an action on the note, a debt due such maker from the plaintiff.


text:
    William C. Niblack, Receiver, Appellee, v. Golsen-Doan Coal Company, Appellant.
    Gen. No. 22,777.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. .Graham, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and judgment here.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by William C. Niblack, as receiver of the La Salle Street Trust & Savings Bank, plaintiff, against Golsen-Doan Coal Company, defendant, to recover on a promissory note executed by the defendant. From a judgment for plaintiff for $2,256.67, on a directed verdict, defendant appeals.
    The decision in this case is governed by the decision in the case of Niblack v. Feldman, ante, p. 443.
    Pomeroy & Martin, for appellant.
    Hiram T. Gilbert and Judah, Willard, Wolf & Reichmann, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Joe Rudzinski, Appellee, v. Grover C. Elmore, Appellant.
    Gen. No. 22,780.
    (Not to be reported in full.)
    Abstract of the Decision.
    Vendor and purchaser, § 57

      —when evidence insufficient to show contract of purchase. In an action to recover money paid, the evidence held to show that' such money was paid as part of a certain sum to be paid as earnest money on a contract of purchase of certain real estate to be made subsequently between plaintiff and defendant when such sum was raised in full by plaintiff, and was not paid on a contract of sale, and that defendant refused to enter into such contract for the particular real estate concerning which he and plaintiff had negotiated.
    Appeal from the Municipal Court of "Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by Joe Rudzinski, plaintiff, against Grover C. Elmore, defendant, to recover money paid. From a judgment for plaintiff for two hundred and seventy dollars, defendant appeals.
    Enos W. Shaw and Will C. Moody, for appellant.
    Robert W. Daniels, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Samuel Kersten, Appellee, v. West Coast Roofing & Manufacturing Company, Appellant.
    Gen. No. 22,786.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 329

      —when evidence insufficient to show defects in hotter or workmanship. In an action to recover for labor and materials furnished in installing a boiler in defendant’s building, evidence held to show that the inability of the boiler to meet defendant’s requirements was not due to defects in the boiler or workmanship, as contended in defense, but to its size, and that such boiler was constructed according to specifications furnished by the defendant and that plaintiff did not guarantee such kind of boiler would meet defendant’s requirements.
    2. Sales, § 251*—what implied warranty exists as to specified kind of article. Where a contract calls for the delivery of a certain specified kind of manufactured article, there is no implied warranty of its fitness for any purpose other than it be the kind specified.
    Appeal from the Municipal Court of Chicago; the Hon. Habby P. Dolan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    Statement of the Case.
    Action by Samuel Kersten, plaintiff, against the West Coast Roofing & Manufacturing Company, a corporation, defendant, to recover for labor and materials furnished in installing a certain boiler. From a judgment for plaintiff for $867.03, defendant appeals.
    Blum & Blum:, for appellant.
    Samuels & Samuels, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Timothy O’Brien and Nellie O’Brien, Appellees, v. Michael E. Quirk, Appellant.
    Gen. No. 22,789.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 206

      —when not inconsistent with finding. In an action to recover money paid on a contract and for money loaned, where the court stated in an informal talk that the court thought “plaintiff ought to have his money back,” and the record stated: “The court finds the issues against the defendant and assesses the plaintiffs’ damages at the sum of,” etc., and the order of judgment was: “That the plaintiffs have judgment on the finding herein and that the plaintiffs have and recover of and from the defendant the damages of the plaintiffs,” held that such informal statement was not the formal finding of the court, and that the judgment and finding were consistent.
    2. Vendos and pubchaseb, § 327*—when purchaser entitled to recover payments. Where the vendor of real estate refuses to make a deed or comply with his undertaking, the purchaser is entitled to recover whatever money he may have paid.
    Appeal from the Municipal Court of Chicago; the Hon. F. J. Campbell, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by Timothy O’Brien and Nellie O’Brien, plaintiffs, against Michael E. Quirk, defendant, to recover money paid on a certain contract of sale of real estate and for money loaned. From a judgment for plaintiffs for $941, defendant appeals.
    George H. Sugrue, for appellant.
    Ryan & Lewis, for appellees.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Margaret Houlihan, Administratrix, Appellee, v. Sulzberger & Sons Company, Appellant.
    Gen. No. 21,960.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 25

      —when servant of contractor is not trespasser or licensee. In an action to recover damages for the death of plaintiff’s intestate, where it appeared that the deceased’s employer had contracted with the defendant to repair the smokestack on defendant’s building by tightening a loose band thereon, in the course of which work the deceased used a “fire ladder” placed on the outside of the building and running to the roof, and which had been used freely by defendant’s employees in and about their work and was convenient for such use in ascending to the roof, and the contract between the deceased’s employer and defendant did not provide for the construction of any permanent building or ways upon the premises or the furnishing of any material and was for relatively unimportant repair work merely, held that it was the duty of defendant to use reasonable care to furnish deceased with a safe means of access to the roof, and deceased was not a trespasser nor a mere licensee in using such ladder for the purpose of doing, the work of his employer, notwithstanding the ladder was placed on the building as a fire escape.

      Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by Margaret Houlihan, as administratrix of the estate of Frank A. Houlihan, deceased, plaintiff, against Sulzberger & Sons Company, defendant, to recover damages for the death of plaintiff’s intestate charged to have been caused by defendant’s negligence. From a judgment for plaintiff for $6,500, defendant appeals.
    Moses, Bosenthal & Kennedy, for appellant; Hamilton Moses and Henry Jackson Darby, of counsel.
    James C. McShane, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Negligence, § 187 —when evidence is sufficient to show that death of employee of contractor was due to defective condition of ladder. In an action against the owner of a building to recover for the death of a servant while working for a contractor on defendant’s building, evidence held sufficient to sustain the finding that the accident producing the injuries from which plaintiff’s intestate died was caused by the rotten condition of the ends of two rungs near the top of a ladder on the outside of defendant’s building which broke when the deceased was standing thereon while engaged in his employment.

3. Master and servant, § 191*—what are questions for jury in action against owner of building for death of employee of contractor. In an action against the owner of a building to recover damages for the death of an employee of a contractor, where deceased employee lost his life through the defective condition of a certain ladder on the building, held that the questions whether the defendant could fairly be charged with actual or constructive notice of such defective condition, and whether such condition could have been discovered by competent inspection and whether the ladder was properly constructed were for the jury.

4. Limitation of actions, § 68*—what does not constitute statement of new cause of action. Where an original declaration charged that plaintiff’s intestate while working for his employer on defendant’s building was engaged in and “about the placing and repair of a certain large smokestack,” and an amended declaration charged that the deceased was engaged in the fastening of “one end of a guy wire to an iron band that encircled and was clamped to" the smokestack, held that the evidence warranted a finding that the band referred to was a part of the smokestack, and that the amended declaration did not state a new cause of action, and that a plea of the statute of limitations would not lie against the charge of negligence in either declaration, in an action to recover damages for death from injuries incurred while in such employment.

5. Workmen’s Compensation Act—when right of recovery against third- person not barred,. Payment by an employer of compensation under the Workmen’s Compensation Act of 1911 on account of injury or death sustained by an employee due to the negligence of a third person is no bar to recovery from a third person of damages on account of such injury or death.

6. Workmen’s Compensation Act—when employer subrogated to rights of employee against third person. Under the Workmen’s Compensation Act of 1911, an employer who pays compensation on account.of an injury or death sustained by an employee by the negligence of a third person is subrogated to the employee’s rights against such person to the extent of such payment.


text:
    John Stevens, Appellee, v. R. E. Moody and Harold B. Kline (Defendants), on appeal of Harold B. Kline, Appellant.
    Gen. No. 22,651.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action "by John Stevens, plaintiff, against E. E. Moody and Harold B. Kline, defendants, to recover on two collateral promissory notes for $1,500 each, of which the defendant Moody was the maker and the defendant Kline the guarantor. From a judgment for plaintiff, defendant Kline appeals.
    The notes were payable to the Fort Dearborn National Bank of Chicago, and were indorsed in blank by the bank without recourse. Defendant Kline set up in defense that there was no consideration for the notes in that their sole purpose as made and indorsed was to substitute them for two other notes of same amounts theretofore made and indorsed by defendants but which substitution had not b.een made, and that such other notes were outstanding and lmd been protested for nonpayment.
    Abstract of the Decision.
    1. Bills and notes, § 320

      —when holder of note indorsed in blank may sue guarantor. The holder of a note indorsed in blank by the payee thereof has the legal right to bring action thereon against a guarantor, notwithstanding such holder may have no actual interest in the note.
    2. Attobney and client, § 67*—when declarations of attorney are inadmissible to bind client. In an action by the holder of a promissory note indorsed in blank by the payee thereof against a guarantor, where a witness testified that plaintiff’s attorney had told him that plaintiff was the holder of the note simply for the purpose of suit, held that objection to such testimony should have been sustained, in the absence of any evidence tending to prove the attorney’s authority to bind plaintiff by such statement, as plaintiff’s right to the possession of, interest in, and right to bring an action upon such note could not be limited by anything such attorney may have said.
    3. Bills and notes, § ZZl*-^-when defense of no consideration is unavailable against holder. In an action by the holder against the guarantor of a promissory note indorsed in blank by the payee thereof, a defense that there was no consideration or a failure of consideration for the note in that the sole purpose in making and indorsing same was that it was to be substituted for another note made and indorsed by the defendant, but which substitution had not been made, and that such other note had matured and been protested for nonpayment, held not to be available against such holder.
    Deerees, Buckingham & Baton, for appellant.
    Adams, Crews, Bobb & Wescott, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Village of Glencoe, Appellant, v. Albert O. Olson and Morton T. Culver, Appellees.
    Gen. No. 22,703.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Interpleader, § 6

      —what are essentials to hill of. It is essential to a hill of interpleader that the party seeking relief shall have incurred no independent liability to either party with reference to the subject-matter of the suit; that he should have acknowledged the title oí neither in respect to the specific property in dispute; and that he claims no interest in the subject-matter himself.

      Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    Statement of the Case.
    Bill of interpleader by the Village of Glencoe, complainant, against Albert 0. Olson and Morton T. Culver, defendants, as to certain warrants or vouchers for the payment of money out of a certain special assessment fund in complainant’s possession, in which the defendant Culver filed a cross-bill against the complainant disclaiming any interest in such warrants or vouchers and claiming a debt due otherwise from the complainant to him. From a decree for the cross complainant ordering the complainant to pay him $2,626.10, with interest, complainant appeals.
    George I. Hicks, for appellant; Fred D. Jackson, of counsel.
    Morton T. Culver, 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 Dever

delivered the opinion of the court.

2. Interpleader, § 2 —when propriety of hill of may not he raised. Where defendants to a bill of interpleader interplead without objection and go to trial on the issue, it is too late to raise the objection that the case is not a proper one for a bill of inter-pleader.

3. Interpleader, § 14*—when cross-Mil does not lie. On 'a bill of interpleader as to certain warrants for payment of money out of a certain special assessment fund in complainant’s possession, in which complainant and one of the defendants disclaimed as to such warrants, held that a cross-bill by such defendant as to other portions of such fund than relates to such warrants would not lie.


text:
    G. S. Coppola, Appellee, v. Marden, Orth & Hastings Company, Appellant.
    Gen. No. 22,714.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by Gr. S. Coppola, plaintiff, against Harden, Orth & Hastings Company, a corporation, defendant, to recover for breach of a contract of sale to plaintiff by defendant of forty barrels of fifty gallons each of olive oil. From a judgment for plaintiff for $1,537.50, defendant appeals.
    Culver, Andrews, King & Cook, for appellant.
    Donald L. Morrill and Worth Allen, for appellee.

      Abstract of the Decision.
    1. Sales, § 373

      —when evidence sufficient to show contract. In an action for breach of an alleged contract of sale of olive oil, evidence held sufficient to warrant the finding that there was a contract between plaintiff and defendant for the sale by defendant to plaintiff of a certain quantity of olive oil at a certain price per gallon upon a sixty-day credit.
    2. Damages, § 376*—what is measure of for refusal to deliver personal property on credit. Where one who has agreed to deliver personal property under the terms of a contract for the sale of such property on credit refuses to deliver such property on credit but stands ready to make delivery upon the terms of the contract for cash, the measure of damages to the. purchaser is the legal rate of interest upon the contract price of the property for the period of time for which credit was to be extended, in an action to recover damages for such breach of the contract by the seller.
    3. Damages, § 68*—what is duty as to minimising. It is the duty of a party to a contract upon a breach thereof by the other party thereto to use every reasonable effort to minimize the damages accruing to him as the result of such breach.
    4. Damages, § 17*—what is effect of embarrassed financial com dition of party injured. Money, like the staples of commerce, is, in legal contemplation, always in the market and procurable at the lawful rate of interest, and no party’s condition, in respect to the measure of damages, should be worse for having failed in his engagement to a person whose affairs are embarrassed than if the same result had occurred with one in prosperous or affluent circumstances.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    George Meyer, trading as George Meyer & Company, Appellee, v. Western Cold Storage Company, Appellant.
    Gen. No. 22,719.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Wabehousembk", § 27

      —when evidence sufficient to show that injury to poultry occurred during storage. In an action against a warehouseman for alleged negligence in the handling and storage of poultry, evidence held to show that the poultry in question was in good condition when delivered to defendant for storage in defendant’s warehouse and that the defective condition in which it was found on redelivery to the plaintiff, whatever its cause, occurred during the time it was in defendant’s possession.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gbmmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by George Meyer, trading as George Meyer & Company, plaintiff, against Western Cold Storage Company, a corporation, defendant, to recover damages for alleged negligence of defendant in the care and handling of certain poultry stored by plaintiff with defendant in defendant’s warehouse. From a judgment for plaintiff for $735.09, defendant appeals.
    Culver, Andrews, King & Cook, for appellant.
    Bradley, Harper & Eheim, for appellee; Samuel A. Harper, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Warehousemen, § 28 —when negligence in handling and care of poultry is question of fact. In an action to recover damages for alleged negligence in the handling and care of poultry stored in defendant’s warehouse, where the poultry was in good condition when delivered to the defendant and in bad condition when redelivered to plaintiff, held that the question of defendant’s negligence was a question of fact.

3. Warehousemen, § 27*—-what constitutes prima facie case of negligence. Where personal property and merchandise generally was shown to have been in good condition when delivered to a bailee for storage and in bad condition when redelivered to the bailor, held that a prima facie case of negligence on the part of the bailee was made out, in an action to recover damages because of such condition on redelivery, notwithstanding such property and merchandise consisted of perishable goods.


text:
    Village of La Grange, Appellee, v. Indiana Harbor Belt Railroad Company, Appellant.
    Gen. No. 22,761.
    1. Railroads, § 173

      —when ordinance requiring construction of railroad tracks within specified period construed to allow construction of other tracks. Under a village ordinance authorizing and permitting a railroad to construct and operate one or more main and all necessary side tracks within certain specified limits of the village, and requiring the construction of a certain portion of said tracks within two years after the passage of the ordinance, but without any specified limitation as to the construction of other tracks, held that such ordinance did not limit the right of the railroad to construct other tracks within any reasonable time after the passage of the ordinance.
    2. Railroads, § 173*—what is not reasonable time for construction of tracks under ordinance. Nineteen years is not a reasonable time within which to construct other tracks under an ordinance requiring a railroad to construct certain tracks within two years after the passage of the ordinance and permitting the construction of such other tracks within a reasonable time after the passage of such ordinance.

      3. Railroads, § 173

      —how ordinance permitting construction of railroad trades construed. A municipal ordinance authorizing and permitting, the construction of railroad tracks within the municipal limits should be construed strictly against the grantee of such ordinance.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.

    Glennon, Cary, Walker & Howe, for appellant; F. Harold Schmitt, of counsel.
    Frederic L. Goff, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

Complainant, Village of LaGrange, filed a bill in the Circuit Court praying for an injunction against the defendant, Indiana Harbor Belt Railroad Company, to restrain it from the construction of a certain railroad track across streets in the Village of La Grange. The defendant railroad company filed a cross-bill in the suit, in which it sought to restrain the village from interfering with the construction by the defendant of said railroad track. A demurrer was filed to the bill of complaint by the defendant, and likewise the complainant filed a demurrer to the cross-bill filed by the defendant. The trial court overruled the defendant’s demurrer to the bill and ordered that an injunction issue in accordance with the prayer thereof, and it sustained the demurrer of the complainant to the cross-bill of the defendant, and the cross-bill was dismissed.The defendant appeals from the order referred to, and in its brief states that “but a single question is presented in connection with the entire matter, i. e., whether or not the appellant, as the successor and assign of the Chicago, Hammond and Western Bailroad Company, by virtue of the provisions of the ordinance of the Village of La Grange, passed October 5, 1896, and attached as Exhibit A to appellee’s bill, has the right at the present time to construct within the limits prescribed by said ordinance an additional track across certain streets and alleys in the Village of La Grange. "

On October 5, 1896, the Village o.f La Grange enacted an ordinance, section 1 of which is as follows:

“That permission and authority are hereby given and granted to the Chicago, Hammond & Western Bailroad Company, its successors and assigns, to construct, maintain and operate a railroad, with one or more main tracks, with all necessary and convenient sidetracks, turnouts, switches and appurtenances on such lands in the Village of La Grange aforesaid, as it now has the right or may hereafter acquire the right to lay its tracks upon, across and along the following route:

“Commencing at a point on the south line of said village, between Bluff avenue and East avenue, and running thence in a general northerly direction to a point on the north line of Cossitt avenue, at which point the easterly line of the right of way of said railroad company shall not be less than sixty (60) feet east of the west line of block sixteen (16) of Ira Brown’s addition to said Village of Lá Grange, and continuing thence northerly to the north line of said village, with full permission and authority to cross all intersecting streets and alleys.

* * * * * * *

“Provided, however, that the said railroad shall not be constructed west of the east line of Tilden avenue, and the east line of Tilden avenue produced to the north line of said village.”

Section 10 of the ordinance contains the following provision:

“Said Chicago, Hammond & Western Bailroad Company shall lay at least one main track through said Village of La Grange and complete the construction of the subway, aforesaid, within two years from the passage of this ordinance, otherwise the same shall be null and void.”

The defendant is the successor and assignee of the original grantee named in the above ordinance, and it is not disputed that as such it is entitled to all of the rights and privileges given in the ordinance to its predecessor.

• From an examination of both the bill of complaint and the cross-bill it appears that the defendant, under the. authority of the ordinance above quoted, had constructed two main railroad tracks along its right of way and across certain streets in the Village of La Grange within the limits prescribed by the ordinance; that the defendant is a belt railway line; that its principal business is the transportation of freight received from “one of the railroad companies whose tracks it intersects, to be carried to and delivered for further transportation to another of the railroad companies whose tracks are intersected by it”: that the service rendered by the defendant is commonly known as a switching service; that the only time limitation contained in said ordinance is that referred to in section 10 thereof, above quoted, wherein it was provided that at least one main track through the Village of La Grange should be laid within two years from the passage of the ordinance; that the defendant’s predecessor had complied with the provisions of section 10 of the ordinance and that it did, within two years from the date of its passage, construct two main tracks upon its right of way and across certain streets in the Village of La Grange, together with all necessary side tracks, turnouts, etc.

It is alleged in the cross-bill that at the time the grantee named in the ordinance had constructed the two tracks referred to it had also provided for the construction of additional tracks which it was authorized to construct under the terms of the ordinance and “which might thereafter become necessary or convenient to it, its successors and assigns, in the operation of said railroad”; that it had built a subway at a point where its tracks crossed those of the Chicago, Burlington & Quincy Railroad of suEcient width to permit the construction and maintenance of two additional tracks.

It is also alleged in the cross-bill that it is now necessary for the defendant, in order to properly perform its duty to the public, to construct another main track on its right of way in the Village of La Grange, and that unless such additional track is constructed, irreparable damage will result to it as well as to the public at large; that the complainant has refused to give its consent and that it threatens to obstruct and interfere with the construction of this additional track by defendant.

In the bill of complaint it is alleged, in substance, in addition to the foregoing that the defendant has no legal right to construct its main track in question; that notwithstanding this fact it threatens to do so, and that it should be permanently enjoined from so doing.

It is conceded by counsel for the parties that but one question is presented for the consideration of the court, that is, whether sections 1 and 10 of the ordinance referred to should be so construed as to permit or prevent a construction by defendant of an additional main track across the streets in the Village of La Grange, as specified in the ordinance. No time limit for the work for the laying of the tracks permitted under section 1 of the ordinance is fixed in that section. Section 10, however, provides that “said Chicago, Hammond & Western Railroad Company shall lay at least one main track through said Village of La Grange and complete the construction of the subway, aforesaid, within two years from the passage of this ordinance, otherwise the same shall be null and void.” It is obvious from a mere reading of the language of this ordinance that it was not intended to limit the right of the grantee named in the ordinance to lay tracks across the streets referred to, to the two-year term fixed in section 10. That section clearly was intended to provide for a performance by the grantee of at least a part of the things which it was generally permitted to do under the terms of section 1; and we are not impressed with the argument that the words “within two years” should be so construed as to limit the right of such grantee “to construct, .maintain and operate a railroad with one or more main tracks,” as authorized in section 1 of the ordinance. When these two sections are construed together it is not at all difficult to arrive at the intention of the parties as éxpressed in the language itself. In the first section of the ordinance the grantee is given the right to lay down one or more main tracks, with all necessary side tracks, switches, etc., and it is obvious that section 10 was intended as a time limitation within which the grantee was required to construct at least one of such main tracks.

A more difficult question is presented, however, when we come to consider the contention of the complainant that the ordinance must be construed so that the grants, rights, or privileges flowing to the grantee named in the ordinance, or its successor, must be exercised within a reasonable time after the adoption and approval of the ordinance. It is conceded in argument by both parties that ordinances such as the one in question are to be construed strictly as against the grantees and in favor of the public.

In Russell v. Sebastian, 233 U. S. 195, it was held that:

“Public grants are to be construed strictly in favor of the public. * * * It has often been stated as one of the reasons for the rule that statutes and ordinances embodying such grants are usually drawn by interested parties, and that it serves to frustrate efforts, through the skillful use of words, to accomplish purposes which are not apparent upon the face of the enactment.”

The bill and cross-bill in the suit were filed about nineteen years after the passage of the ordinance in question. Within two years after the ordinance was adopted the grantee had constructed certain tracks across the streets within the limits referred to in the ordinance, and, by its counsel, it urges that now, after this long lapse of time, it has the legal right under the ordinance to construct an additional track within such limits.

Our attention has not been called to any case decided by the courts of review of this State which passes upon the exact question under consideration. We do not believe that it can fairly be said that the work of construction done by the grantee within two years, as provided by section 10 of the ordinance, can be said to be an election by the defendant as to what powers or privileges it intended and expected to exercise under the ordinance grants, and we are inclined to so construe this ordinance as to hold that the defendant is given the right thereunder to construct such tracks, etc., within any reasonable time after the adoption of the ordinance.

In Chicago Terminal Transfer R. Co. v. City of Chicago, 220 Ill. 310, the company was authorized by ordinance to lay one or more tracks across streets of the City of Chicago, and it was provided in the ordinance that in the event that the tracks provided for were not constructed within three years the privilege was to be null and void. While the ordinance under consideration in that case differs in an important respect from the one to be construed in the case at bar, the language of the Appellate Court (121 Ill. App.), appearing on page 210, is instructive:

“It does not seem reasonable, and it certainly is not desirable, that because an ordinance at some time, when a given section of a city is in a certain condition, gives to the railroad company the right to cross streets therein with ‘one or more railroad tracks,’ and one track is thereupon laid, therefore that railroad should have indefinitely in the future, when conditions in the neighborhood have perhaps adapted themselves to the single track, the power to multiply several times the space taken by the crossing, and thereby the dangers incident thereto.”

In that case the ordinance under consideration fixed a definite three-year term for the performance of the privileges granted under the ordinance, and the railroad company, after it had laid down certain tracks in the street, sought within the three years to construct additional tracks in the same street; and, on page 316, the court said:

“The appellant company had power, in its discretion, to elect, within the three-years’ limitation of said section 4, whether it would lay down, maintain and operate one or more tracks across the said streets, but such an election, when made, would be final and would exhaust the power or privilege, and no right would exist thereafter, under these ordinances, to lay additional tracks across the said streets.”

The essential difference in this connection between the case just quoted from and the case at bar is that in the former the ordinance fixed a definite limit for the performance of the privileges granted, and, as we have construed the ordinance here under consideration, the grantee was given the right and was required, if it wished to keep the ordinance in force, to construct at least one main track in compliance, with section 10 of the ordinance.

The case of Snell v. City of Chicago, 133 Ill. 413, relied upon by complainant, is similar in principle to the case of Chicago Terminal Transfer R. Co. v. City of Chicago, supra.

There remains for our consideration, then, only the question of whether the defendant’s proposal to construct an additional main track under the ordinance was made within a reasonable time after the ordinance was adopted. It is our opinion that under no reasonable theory can it be held that the defendant was given the privilege to construct the additional track which it now proposes to lay down, at any time that it might see fit to do so. Counsel for defendant contends, in effect, that the rights and privileges granted under the ordinance were perpetual. Regarding this ordinance as a contract fixing the rights of the parties to it, and keeping in mind the subject-matter of the contract and the character of the parties thereto, it must, we think, be concluded that the failure on the part of defendant to exercise the privileges conferred upon the grantee named in the ordinance for the period of nineteen years constitutes a waiver of any rights or privileges that it could otherwise have obtained or exercised under the ordinance. The privilege accorded the defendant under the ordinance was to lay down tracks across public streets in a settled community in the State of Illinois. The interest of the public in that community would not be conserved by permitting the defendants to exercise the privileges granted in the ordinance at this late day. The building of additional tracks across a public street in the Village of La Grange, for the transportation of freight thereon, nineteen years ago, or within a reasonable time thereafter, might not have resulted in material injury or nuisance to the public. On the other hand, the construction of such tracks ¿for such purposes might at this time be an unbearable public nuisance.

In Savannah & W. R. Co. v. Woodruff, 86 Ga. 195, the court said:

“It seems plain.to us that the sidetracks, etc., which did not become necessary for the convenience of the freight and passengers until twenty or thirty years thereafter, could not have been in legislative contemplation when the act was passed. The much safer and more rational construction is that the powers conferred by the act were exhausted by their exercise and by the consequent connection of roads.”

And so in the case at bar; we think it may reasonably be held that the parties to this suit did not contemplate or intend that the privileges granted in the ■ ordinance here under consideration were to be exercised at so late a date following the passag-e of the ordinance.

Counsel for the defendant have called our attention to well-considered cases touching the questions under consideration here, at least one of which cases, Workman v. Southern Pac. R. Co., 129 Cal. 536, seems to support the contention of counsel. We are, however, disinclined to accept that case as an authority for the determination of the questions arising here.

The decree of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Justice Holdom

text:
    William T. Monroe, Defendant in Error, v. Clare A. Orr et al. Gustave A. Becker, Plaintiff in Error.
    Gen. No. 22,616.
    1. Descent and distribution, § 83

      —when inventory filed by heir of surety on bond for release of property is admissible. In an action against the heir of a surety on a bond given to release property levied on under attachment to recover the penalty of the bond, the inventory filed by such heir as administrator of the estate of the surety setting forth the value of the latter’s real estate of which he died seized, held to be admissible against such heir as evidence of such value and prima facie proof thereof, and also of the fact that the surety died seized of such real estate.
    2. Descent and distribution, § 83*—when proof of value of property of deceased is immaterial in action against heir. In an action against the heir of a surety on a bond given to release property levied on in attachment, held that the value or amount of such property was immaterial, as the bond superseded the levy and operated to restore to the defendant in attachment the property.
    3. Appeal and error, § 1256*—when party cannot complain of instruction. A party cannot be heard to complain of an instruction which, though faulty, minimized his liability and did not injure him.
    4. Descent and distribution, § 83*—when burden of proving homestead or dower interest is on heir of surety on 'bond. In an action against the heir of a surety on an attachment bond given to release real property, held that the burden of proving a homestead or dower interest existed in the decedent’s real estate was on such heir as an affirmative defense.
    5. Attachment, § 360*—who are bound by recitals in bond for release of property. In an action against the surety on a bond given to release property taken in attachment to recover the penalty of the bond, held that the recitals in the bond of the recovery, date and amount of the judgment in the attachment suit would be binding upon the parties' and those claiming or defending under them, and would be sufficient proof of such facts.
    6. Descent and distribution—when instruction on damages in 'action against heir on bond is proper. In an action against the heir of a surety on a bond given to release property taken in attachment, an instruction, given after retirement of the jury, directing that if they should find for the plaintiff they should find the amount of the debt to be the amount of the bond and assess damages at the amount of the judgment recited in the bond, with interest, held to be proper.
    7. Descent and distribution, § 84

      —when judgment in personam for amount of debt proper on plea of riens per descent. In an action against the heir of a surety on an attachment bond given to release property to recover the penalty of the bond, where the defendant filed a plea of riens per descent which the proof showed to have been false, held that a- judgment in personam for the amount of the debt would be proper under Rev. St. ch. 59, sec. 18 (J. & A. H 5879).
    8. Descent and distribution, § 82*—re-enactment of common-law rule of effect of plea riens per descent. Rev. St. ch. 59, sec. 13 (J. & A. 5879) is a re-enactment of the common-law doctrine as to the effect of the plea of riens• per descent.

    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    William E. Cloyes and .Fred B. Merrills, for plaintiff in error.
    Rosenthal, Kurz 8: Houlihan, 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 Holdom

delivered the opinion of the court.

This is an action of debt upon a bond in the penalty of $12,000, given to release property levied upon under a writ of attachment at the suit of plaintiff and against the defendant Clare A. Orr. A judgment of $3,500 was recovered in the action in which the bond was given. It not having been paid and the surety, Charles Becker, having died, this suit was commenced against the principal and the heirs of Charles Becker, the surety, of whom Gustave A. Becker is one. From a recovery against him, Gustave A. Becker prosecutes this writ of error and seeks a reversal of the judgment against him. Our review of the record will be confined to such matters as affect the rights of plaintiff in error.

The declaration on which the cause proceeded to judgment consisted of one count, which sought to charge plaintiff in error, Gustave A. Becker, as an heir of Charles Becker, the surety from whom he had inherited land within the State of Illinois, with a debt of his ancestor. To the declaration numerous pleas were interposed, most of which do not materially affect any right of plaintiff in error, either in law or fact. The ninth plea of riens per descent and the replication thereto put in issue the crucial and determining questions involved. The plea reads:

“And for a further plea defendants say onerari non because they have not nor did either of them have at the time of the beginning of this suit any lands, tenements or hereditaments or rents or profits out of the same by descent from said Charles Becker, in fee simple, and this they are ready to verify if they, as heirs of said Charles Becker, deceased, ought to be charged with said debt or any part thereof by virtue of said writing obligatory.”

To this plaintiff replied that defendants “did have certain lands, tenements or hereditaments or rents or profits out of same by descent from said Charles Becker, as alleged in plaintiff’s declaration,” concluding to the country.

Before discussing the decisive questions before us, we will dispose of some technical objections raised by plaintiff in error.

There was no error in refusing to direct a. verdict.

The inventory made by plaintiff in error as administrator of the estate of Charles Becker, in which he set forth the values of the real estate of which his ancestor died seized and intestate, was properly admitted, as against plaintiff in error, as evidence of such value. It was sufficient prima facie proof as against him. It might be regarded as an admission of value made by plaintiff in error if it were necessary to make snch proof. This was also sufficient proof that Charles Becker died so seized. There is no evidence in contradiction of the facts so proven.

The value or amount of property attached in the attachment suit was foreign to the inquiry, as the bond in suit superseded the levy and operated to restore to the defendant in the attachment suit the property attached.

The instruction as to the measure of damages recoverable from plaintiff in error was faulty, but as it minimized his liability and therefore did not injure him, it is error about which he cannot be heard to complain.

There was no proof that the widow had any estate of homestead or dower in the real estate of her deceased husband. If she had- any, it devolved upon plaintiff in error to make such proof as an affirmative defense. However, if we are to credit Becker v. Orr, 243 Ill. 77, the widow never had such claims, they being barred by an antenuptial contract. Her effort to assert such rights was in the suit supra held abortive.

The proof of the amount due on the judgment in which the bond in suit was given was sufficient. The recitations in the bond of recovery of judgment, the date of such recovery, and the amount thereof, were binding upon the parties to the bond and those claiming or defending in their right.

The action of the court in giving the jury, after they had retired to consider of their verdict, an additional instruction to the effect that if they found for the plaintiff they should find the amount of the debt $12,-000 and assess the damages at the amount of the judgment recited in the bond, with interest thereon at five per cent, per annum from its date, was in accord with precedent. The measure of recovery was as in said instruction stated.

This is a common-law action, and under the pleadings and proofs is in personam. The evidence establishes that the plea of riens per descent, was false; if, in other circumstances, the action would have been in “rem, it became, by reason of such false plea, in personam. If plaintiff in error had desired to escape this condition and to have confined the recovery' against him to the value of the land which descended to him from his ancestor, he should, by his pleading, have acknowledged the action and disclosed the lands, etc., which had devolved upon and descended to him from his ancestor.

Section 13 of chapter 59, Eev. St. (J. &'A. 5879), is a re-enactment of the common-law doctrine as to the effect of the plea of riens per descent, following in this regard the Act of the British Parliament known as the 3rd and 4th of William and Mary, ch. 14. Section 13, supra, provides that:

“When any action or suit is brought against any heir or devisee he may plead riens per descent, at the time of the commencement of the action or suit * * *; but if judgment be given against such heir or devisee, by confessing of the action without confessing the assets descending or devised, or upon demurrer, or nihil dicit, or default, said judgment shall be given for the plaintiff, without any writ to inquire of the lands, tenements or hereditaments, or rents and profits out of the same, so descended or devised.”

In Crocher v. Smith, 10 Ill. App. 376, the court in construing this statute, said:

“The remedies against heirs and devisees furnished by the statute are cumulative in their.character, and afford not only a means for the collection of many debts and demands against deceased persons, for the collection of which no provision ex-._ced prior thereto, but also additional means for the collection of such debts as were already, at common law, a charge upon the heir. The purpose of the statute was not to change the common-law remedy * * *."

The bond in suit bound not only the obligors but, by its express terms, their heirs, executors and administrators, jointly and severally. , As said in Gere v. Clarke, 6 Hill (N. Y.) 350: “At the common law, an action might be maintained against the heir when he was named in and bound by the obligation of the ancestor.”

The rule as to the effect of a plea of riens per descent is correctly stated in 10 Encyc. Pl. & Pr. 35, thus:

“Where the heir pleads riens per descent, or any other plea, which is false within his own knowledge, and it is found against him, the judgment is general to recover the debt, and not special to be levied of the lands descended.”

It was said in Bacon’s Abr. 626:

“But, if an action of debt be brought against an heir on the obligation of his ancestor, in which he is bound, and he pleads riens per descent, which is found against him, the judgment shall be general to recover the debt, which he must pay out of his own pocket for his false plea.”

Again, in Jefferson v. Morton, 2 Saunders 6, it is said:

“If he (the heir) plead a fact which he knows to be false, and it be found against him; as where he says that he has nothing by descent, and the jury 'find that he has something, however small it may be, and insufficient to discharge the debt, the plaintiff is entitled to a general judgment for the debt, damages, and costs, and to sue out the like execution against him as on a judgment for his own debt; and therefore the plaintiff may have a capias ad satisf adendum, fieri facias, or an elegit for a moiety of all the lands which the heir is seized of whether by descent or otherwise.” (Citing cases.)

Roosevelt v. Fulton’s Heirs, 7 Cow. (N. Y.) 71, is to a like effect.

In Ryan v. Jones, 15 Ill. 3, cited by plaintiff in error, in discussing the effect of the statute last quoted regarding the plea of riens per descent, where, as in this case, the plea denied that any lands descended from an ancestor, the court said:

“In these cases, the judgment is general against the heirs or devisees, as for their own debt, without reference to assets. But if the heirs or devisees acknowledge the action, and show the assets descended or devised to them, the judgment will be special to the extent of those assets only.”

That lands descended to plaintiff in error on the intestacy of his ancestor is proven by his own testimony, and as the judgment is rightfully in personam, it is immaterial whether the “Arsenal Island” land was located in Illinois or elsewhere.

The replication to the plea of riens per descent was according to the course of the common law and not the statute, and, with the issue thus joined, it was not necessary to inquire as to the value of the land descended, the penalty for the false plea being a judgment in personam for the amount of damages assessable for the ancestor’s debt. We hold that that part of section 13, ch.. 59 (J. & A. j[ 5879), supra, which reads: “But if judgment be'given against such heir or devisee, by confessing of the action without confessing the assets descending or devised, or upon demurrer, or nihil dicit, or default, said judgment shall be given for the plaintiff, without any writ to inquire of the lands, tenements or hereditaments, or rents and profits out of the same, so descended or devised, ’ ’ warranted the in personam judgment found in this record.

Nothing in People v. Brooks, 123 Ill. 246, militates against this conclusion, but in one aspect of the case supports it.

There being no reversible error in this record, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    William T. Monroe, Appellee, v. Clare A. Orr et al. Bertha Orr, Appellant.
    Gen. No. 22,742.
    (Not to be reported in full.)
    Abstract of the Decision.
    Descent and distbibution, § 83

      —when proof of value of land descending to heir is immaterial. Under a plea and issue of riens per descent shown to be false, proof of the value of the lands descending to the defendant, held to be unnecessary, in an action against an heir upon a debt of the decedent.
    Appeal from the Circuit Court of Cook county; the Hon. Chaeles M. Walkeb, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    Statement of the Case.
    Action by William T. Monroe, plaintiff, against Clare A. Orr and others, defendants, to recover against the defendants as heirs of a surety on a bond to recover the penalty of the bond. From a judgment for plaintiff, defendant Bertha Orr appeals.
    This case is governed by the decision in the case of Monroe v. Orr, ante, p. 467.
    William: E. Cloves and Fred B. Merrills, for appellant.
    Rosenthal, Kurz & Houlihan, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    John Ladle, Jr., by John Ladle, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 22,704.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pleading, § 170

      —what is effect of sustaining demurrer to declaration filed ty some defendants. It does not necessarily follow from the sustaining of a demit. . filed hy certain defendants to a declaration that such declaration does not state a good cause of action as to the other defendants.

      Appeal from the Superior Court of Cook county; the Hon. Os cab E. Heabd, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of fact.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    Statement of the Case.
    Action by John Ladle, Jr., by John Ladle, his next friend, plaintiff, against City of Chicago, a municipal corporation, A. Benson and Emma Benson, his wife, defendants, to recover damages for personal injuries sustained by plaintiff alleged to have been due to a fall off a certain cinder walk constructed by defendant city at a considerable elevation above the vacant lot adjacent thereto, and owing to the defective condition of a fence also constructed by defendant city along such walk for protection from such lot. From a judgment for plaintiff- for $10,000 against the defendant city, such defendant appeals.
    Samuel A. Ettelson and Charles B. Francis, for appellant City of Chicago; B. H. Farrell and Henry T. Chace, Jr., of counsel.
    Sabath, Stafford - & Sabath, for appellee; Charles B. Stafford, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Dismissal, nonsuit and discontinuance, § 17 —what constitutes discontinuance. Failure to amend a declaration after' leave, upon sustaining a demurrer to such declaration, operates as a discontinuance of the suit as to the defendant or defendants filing the demurrer.

3. Municipal cobpobations, § 1107*—when refusal to direct verdict for city in action for negligent injuries is erroneous. In an action against a city to recover damages for personal injuries alleged to have been sustained by plaintiff while walking along a certain cinder walk, and in the exercise of ordinary care for his own safety, owing to the negligence of the defendant in the care of a fence constructed by it along the walk to protect pedestrians from an adjacent vacant lot considerably below the level of the walk, and the defective condition of such fence, by reason whereof the plaintiff fell off the walk into the lot and was injured, where the proof showed that the plaintiff, a very young lad, was, in fact while sitting on the edge of the walk above the lot his feet hanging over, pushed by a little girl with whom he was disputing so that he fell into the lot and thereby sustained the injuries complained of, instead of in the manner alleged in the declaration, 'held that refusal to instruct a verdict for the defendant was reversible error.

4. Municipal cobpobations, § 968*—when injuries to person falling through defective guard fence not proximate result of negligence of city. In an action to recover damages against a city for personal injuries alleged to have been caused by the city’s negligent care of a fence constructed by it along a certain sidewalk to protect pedestrians from a vacant lot adjacent considerably below the level of the walk, where the proof showed plaintiff, while sitting on the edge of the walk above the lot with his feet hanging over, was pushed by another party so that he fell into the lot and thereby sustained the injuries complained of, held that it could not be said such injuries were either the natural or probable result of the negligence of the city.


text:
    Western Cold Storage Company, Appellant, v. Estate of Joseph Kaufman, Deceased. Rosa Kaufman, Executrix, Appellee.
    Gen. No. 22,720.
    1. Contracts, § 129

      —when unenforceable. There can be no enforceable contract, either express or implied, which by its terms violates a statute or a city ordinance.
    2. Contracts, § 129*—when no recovery may be had by warehouseman for storage charges. No recovery can be had on a contract for storage charges upon decayed or unwholesome vegetables or fruit condemned as such under a municipal ordinance prohibiting the keeping or storing of such vegetables or fruit, and subjecting the violator of such ordinance to a penalty, for any period such vegetables or fruit were stored after being so condemned, as such contract is void.
    Appeal from the Circuit Court of Cook county; the Hon. Victor P. Arnold, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Culver, Andrews, King •& Cook, for appellant.
    Henry B. Spurlock, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is a claim for storage and has been tried twice, once in the Probate Court without a jury, and on appeal in the Circuit Court with a jury. The findings of the two learned judges who passed upon the merits of the claim and the verdict of the jury in the Circuit Court were against claimant.

The claim is for the storage of rotten potatoes, condemned as such by the city authorities. The potatoes were originally stored by E. Gehm & Son, who, it is claimed, on the 29th of December, 1913, assigned the same to Joseph Kaufman & Company. There is some dispute as to whether Kaufman & Company accepted of such assignment and whether they owned the potatoes. There are some actions on their part which would indicate that they did accept the assignment, but in the conclusion to which we have come we do not think the merits of the cause rest upon this contention.

These potatoes were inspected and condemned by the Chicago Health Department January 6, 1914, as diseased, rotten, and unfit for human food, and it follows that they must have been in that condition on December 29th preceding. The storage upon these potatoes was paid by G-ehm & Son to January 25, 1914. The claim is for storage to April 10, 1914, thereafter.

Under these circumstances, we do not think claimant is entitled to be recompensed for the storage of the potatoes after their condemnation by the Municipal authorities as unfit for human food. It is provided in section 1375 of the Municipal Code of Chicago, which was offered in evidence, inter alia, that:

“No person or corporation shall bring or cause to be brought into the city any decayed or unwholesome vegetable, vegetables or fruit intended to be consumed or sold or offered for sale for human food; nor shall any person or corporation keep or store in the city any decayed or unwholesome vegetable, vegetables or fruit.”

The violation of this ordinance subjects the violator to a penalty. This is a health ordinance, and every day that claimant kept the condemned potatoes in storage after their condemnation he violated this ordinance. There can be no enforceable contract, either express or implied, which by its. terms violates a statute or city ordinance. In Nash v. Monheimer, 20 Ill. 215, the court said:

“It is a rule of the common law that all contracts in violation of its principles, or opposed to legislative enactments, or that are opposed to public policy, are void. The object of all laws is to repress vice and to promote the general welfare of the State or society; and an individual shall not be assisted by the law, in enforcing a demand originating in a breach or violation, on his part, of its principles or enactments.” Armstrong v. Taylor, 11 Wheat. (U. S.) 258.

The contract claimed, for storage of potatoes condemned by the health authorities of the City of Chicago, was void, and it follows that the claimant had no right of recovery.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Wisconsin Lime & Cement Company, Appellee, v. Thomas A. Reed et al., Appellants. Appeal of Francis W. Jones and Brema M. Jones.
    Gen. No. 22,727.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    Statement of the Case.
    Suit by Wisconsin Lime & Cement Company, a corporation, complainant, against Thomas A. Eeed and others, defendants, to establish a mechanic’s lien upon the realty of Francis W. Jones and Brema M. Jones, two of the defendants. From a decree granting a lien for $241.04, with interest, defendants Francis W. Jones and Brema M. Jones appeal.
    James I. Ennis and Charles W. Stieeel, for appellants; John B. Heinemann, of counsel.
    Edmund W. Froehlich, for appellee.

      Abstract of the Decision.
    Building and construction contracts, § 37

      —when contractor may apply money received from owner in satisfaction - of claims for materials for premises of another person. In a suit to establish. a mechanic’s lien against a contractor and the owners of certain premises for materials furnished by complainant, part of which were used on said premises and part .on other premises by the contractor, where one of the owners gave to the contractor a check payable to the complainant for the exact amount then due subcontractors on said other premises, and which was less than was then due on the former premises to the contractor, without such owner exacting a waiver of complainant’s lien, of which he had at least implied knowledge, and such payment was applied by the contractor and complainant to said other premises, held that the money belonged to the contractor and he had the right to apply it in payment, notwithstanding complainant subsequently gave notice of lien as to said other premises for the purpose of assisting the contractor to collect the money due him from the owner thereof, with the express statement that complainant did not thereby waive the lien as to defendants’ premises.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    George Hosie, Appellant, v. La Salle, a corporation, Appellee.
    Gen. No. 22,731.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 115

      —when verdict in personal injury action not inadequate. In a personal injury action, a verdict of five hundred dollars damages for an injury to the head, held not against the manifest weight of the evidence and inadequate, there being evidence from which, if given credit by the jury, they might rightfully conclude certain heart troubles shown were constitutional and not attributable to such injuries. .
    2. Appeal and error, § 1407*—when judgment for damages not disturbed as inadequate. A judgment will not be disturbed upon review for mere inadequacy of damages awarded unless it is apparent the verdict was the result of passion or prejudice in the jury or of error of law by the court.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Rehearing denied April 9, 1917.
    Statement of the Case.
    Action by George Hosie, plaintiff, against La Salle, a corporation, defendant, to recover damages for personal injuries. From a judgment for plaintiff for five hundred dollars, plaintiff appeals.
    B. F. Langworthy and Morse Ives, for appellant.
    Lardon & Holt, for appellee; Robert N. Holt, of counsel.- ,

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    George W. Murray, Appellee, v. Robert Burgess et al., Appellants.
    Gen. No. 22,735.
    (Not to be reported in full.)
    Abstract of the Becision.
    1. Contracts, § 12

      —when not unilateral. Where, in consequence of a disputed registration of the pedigree of a certain stallion purchased by plaintiff from defendants, the parties entered into a contract of adjustment, which provided that should certain progeny of the stallion specified in the contract he refused registration the defendants would purchase same from the plaintiff at a specified price; that the defendants would also surrender to the plaintiff his note given in payment for a certain other stallion, for which such contract should- stand as a hill of sale; that plaintiff would surrender to defendants the stallion, the registration of whose pedigree was in dispute, and reciting that defendants had paid to plaintiff a certain sum in full settlement of all damages not enumerated arising from the sale to plaintiff of such stallion, and providing further that the plaintiff would not make or file any complaint as to such registration with a certain society, and the payment for damages specified was made, the stallion with the defective pedigree returned, and plaintiff’s note returned, held that such contract was bilateral and not unilateral.

      Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by George W. Murray, plaintiff, against Robert Burgess and others, defendants, to recover damages for breach of a contract of sale of certain colts. From a judgment for plaintiff for $2,650, defendants appeal.
    Barnes, Magoon & Black, for appellants; Frederick A. Bangs, of counsel.
    Kraus, Holden & Lawless, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Gaming, § 2 —what is not gambling contract. A contract of adjustment relative to a controversy regarding the disputed registration of a certain stallion, which provides that should any of the progeny of such specified stallion be refused registration the sellers would purchase the same from the buyer at a specified price; that a note given in payment for another stallion should be returned, for which the contract should stand as a bill of sale; that the stallion with the defective pedigree should be returned, and reciting that the sellers had paid to the buyer a certain sum in full settlement of all damages not enumerated arising from the sale of such stallion, is not a wagering contract, although it was also agreed that the buyer would not make or file any complaint with a certain society as to such registration.

3. Instructions, § 151*—when refusal proper. Where a jury is sufficiently instructed on the law of a case, it is not erroneous to refuse other instructions, even though they may be correct in statement of principles of law applicable to the facts.

4. Appeal and error, § 1241*—when error in instructions may not be complained of. A party cannot complain on appeal of an error in his opponent’s instructions which exists also in his own.


text:
    Jake Falkin, Appellee, v. Samuel Kunin, Appellant.
    Gen. No. 22,749.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 23

      —u>hat does not constitute lease for new term. A lessor’s promise to the lessee to extend the lease for a subsequent term of years after the expiration of the term specified in the lease does not constitute a lease for such subsequent term nor entitle the lessee to hold over after the term specified in his lease has expired.
    2. Forcible entry and detainer, g 45*—who is proper party to maintain action against lessee of old lease. The lessee of a new lease is the proper party to maintain an action in forcible detainer against the lessee of an old lease who holds over after the expiration of the term specified in his lease.
    3. Forcible entry and detainer, § 29*—when notice as prerequisite to action of forcible detainer is unnecessary. Where a landlord has rightfully terminated a tenancy hy notice, it would not be necessary to give further notice to commence an action of forcible detainer.

      Appeal from the Municipal Court of Chicago; the Hon. Arnold Head, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by Jake Falkin, plaintiff, against Samuel Kunin, defendant, in forcible detainer. From a judgment for plaintiff upon an instructed verdict, defendant appeals.
    George E. Sankstone, for appellant; George F. Ort, of counsel.
    John F. Haas, for appellee; Morris Kompel, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Landlord and tenant, § 437 —when tenant no election as to holding over. Where a tenant holds over for a year or years after his term expires without any new agreement, the landlord may at his election treat such tenant as a trespasser or as a tenant for another year on the same terms as in the original lease, but the tenant has no such election.

5. Forcible entry and detainer, § 31*—when demand for possession unnecessary. No demand for possession is necessary before bringing an action of forcible detainer against a tenant holding over after expiration of the term specified in his lease.


text:
    Mary Smeckpeper, Appellant, v. Chicago Railways Company and Ervin C. Hagerman, Appellees.
    Gen. No. 22,759.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed as to Chicago Railways Company and reversed and remanded for a new trial as to Hagerman.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by Mary Smeckpeper, plaintiff, against Chicago Railways Company, a corporation, and Ervin C. Hagerman, defendants, to recover damages for personal injuries sustained by being struck by an automobile owned by defendant Hagerman driven by his servant. From a judgment for defendants on an instructed verdict, plaintiff appeals.
    Charles C. Spencer and A. M. Griffin, for appellant.

      Abstract of the Decision.
    I. Automobiles and gabages, § 3

      —when verdict properly directed for defendant in action for personal injuries. In an action to recover damages for injuries sustained by being struck by an automobile alleged to be owned by the defendant, where the defendant pleaded specially that it did not own such automobile, held that the plaintiff’s failure to prove such ownership warranted a directed verdict for the defendant.
    2. Trial, § 195*—when direction of verdict is improper. On motion for a directed verdict against the plaintiff, the court looks to the evidence most favorable to the plaintiff’s claim, and if there is any evidence tending to support plaintiff’s claim the case is one for the jury and not for the court.
    Frank L. Kriete, for appellee Chicago Railways Company; W. W. Gurley, J. R. Guilliams and Philip Rosenthal, of counsel.
    H. L. Howard, for appellee Hagerman.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    William Krug & Son Company, Appellee, v. Charles Johnson et al., Appellants.
    Gen. No. 22,906.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 910

      —when changes in transcript may not he made. The Appellate Court will not tolerate interference with or changes in the transcript of a record made without permission of the court first had and obtained.
    2. Appeal and error, § 1772*—when judgment reversed for alteration of record. Changes made by the appellee in the transcript of the record without permission of the court first had and obtained, held to warrant reversal of the judgment and retrial.
    Appeal from the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 26, 1917.
    Statement of the Case.
    Action by William Krug & Son Company, a corporation, plaintiff, against Charles Johnson and others, defendants. From a judgment for plaintiff, defendants appeal.
    Wyeth & Smith, for appellants.
    L. A. Sherwih, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.