text:
    Charles S. Rieman, Plaintiff in Error, v. Edward W. Morrison, Defendant in Error.
    Gen. No. 18,767.
    1. Estoppel, § 7

      —when plaintiff cannot deny nature of cause of action. Though replications formally traverse the allegations in several pleas that the several supposed causes of action are one and the same, yet when plaintiff’s affidavit of claim states that “said cause is a suit upon contract for the payment of money” and all of the counts, except the common counts and the count of quantum meruit, expressly declare upon such contract, the cause of action will be regarded as founded thereon and plaintiff will not be heard to assert to the contrary.
    2. Pleading, § 124

      —what qualities replication should contain. A replication to a plea lacking the quality of certainty and failing to put in issue material and issuable matters set up in the plea is bad.
    3. Contracts, § 362

      —when plea met by improper replication will bar action. Where in an action on a contract for compensation; in aiding in the recovery of stolen property a replication to one of several pleas is uncertain, evasive and unresponsive in denying what the plea does not aver and in not putting in issue material and issuable matters, if the untraversed allegations of the plea are a complete answer to the declaration then the action is barred and the sufficiency of other replications will not be considered.
    4. Contracts, § 357

      —when construction of is aided by pleadings. When untraversed allegations of the plea are a complete answer to the declaration, the contract sued on will be construed in the light of the untraversed averments of the plea.

      5. Contracts, § 148

      —token against public policy. Where in an action on a contract for compensation in aiding in the return of stolen property the untraversed allegations in a plea disclose that plaintiff represented to defendant that he knew the property was stolen, and knew the whereabouts and names of those who had it and that they were wrongfully withholding it; that plaintiff concealed the names and whereabouts of the holders; that he led defendant to believe the property was stolen from him and that plaintiff could secure its return; that part of the consideration was that plaintiff possessed secret beneficial information relating to the larceny and was to receive compensation for its use, and that plaintiff was entitled to claim such compensation for the information alone if any of the property was recovered through it, in the light of the statutes relating to the recovery and return of stolen property and of lost property, J. & A. ¶¶ 3892, 5509, the contract is illegal and against .public policy.
    6. Pleading. § 209

      —when demurrer not carried bade. A demurrer to a replication will not be carried back to the plea where no motion is made to carry it back.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Rehearing denied December 16, 1913.
    Fyffe, Adcock & Ryner and Daniel W. Scanlan, for plaintiff in error.
    James B. Ward, for defendant in error.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

This was an action in assumpsit brought by plaintiff in error against defendant in error. The declaration contained the common counts, a count of quantum meruit and special counts declaring upon a contract in writing which, as set out in haec verba in some of them, reads as follows:

“This agreement, made and entered into this 12th day of June, 1909, by and between Edward W. Morrison and O. S. Rieman, both of Chicago, Illinois, Witnesseth:

That whereas said Morrison believes from information furnished him by said Rieman that certain money or moneys, real or personal property, rightfully belonging to him under the law, have been wrongfully withheld from him by others, and whereas said Morrison believes said Rieman is in position to secure the return to him of said money or moneys, property, real or personal, wrongfully withheld from said Morrison by others, now, therefore,

In consideration of the premises and of the services rendered and to be rendered by said Rieman to said Morrison in his efforts to recover the money, or moneys, real or personal property, said Morrison hereby agrees to and with said Rieman that said Rieman shall have and retain as his compensation for his efforts (or for information furnished by him on which any recovery may be made as aforesaid by said Morrison) and for his services in recovering or assist^ ing to recover money or moneys or real or personal property for said Morrison as aforesaid, one-half (%) of the cash so recovered through the efforts, services or information furnished by said Rieman, also cash to the amount of one-half (y2) of the value of whatever property, real or personal, may be recovered for said Morrison as aforesaid; said valuation to be determined by three appraisers, one to be chosen by each of the parties hereto and the third by the two so selected, whose findings shall be final as a basis for discharging the provisions of this contract.

Said Morrison hereby gives and grants to said Rieman full authority to represent him in securing the return of the money or moneys, real or personal property, and to receive same in said Morrison’s name and behalf, and authorizes said Rieman to secure legal services to assist, if necessary, in the recoveries to be attempted as aforesaid, or to invoke the- aid of the authorities, if necessary, to that end. Said Morrison further authorizes said Rieman to employ attorneys and fully represent said Morrison in any litigation that may be necessary to make the recoveries as aforesaid, and to represent him in all other matters in the same connection.

In Witness Whereof the parties hereto have hereunto set their hands and seals the day and year first above written.

(Signed) Edward W. Morrison,

C. S. Rieman.

To the replications to the special pleas there were filed several special demurrers, and one in the nature of a general demurrer, referred to as “demurrer 14,” which was sustained. Plaintiff electing to stand by his replications, judgment nil capiat was entered, the court finding that the contract sued on was void. Exceptions were taken to the sustaining of said demurrer and to the finding.

While the replications formally traverse the allegation in several pleas that the several supposed causes of action are one and the same, yet plaintiff’s affidavit of claim states that “said cause is a suit upon contract for the payment of money,” dated June 12, 1909, and all of the counts, except the common counts and the count of quantum meruit, expressly declare upon such contract. In the face of this solemn admission of record, the cause of action cannot be regarded otherwise than one founded upon such contract, and plaintiff cannot he heard to assert the contrary.

The eighth special plea avers, among other things, that the plaintiff represented to defendant that he “knew of the whereabouts of divers moneys and personal property and effects, the subjects of larceny, the property of, and rightfully belonging to the defendant, and that the said moneys and property belonging to the defendant aforesaid, had been unlawfully and feloniously stolen and carried away from the dwelling house of the defendant under circumstances amounting to the commission of the crime of larceny thereof, and that said moneys and property were wrongfully withheld from the defendant by divers persons who the plaintiff then and there claimed were known to liim, and whose names and the whereabouts of said accused persons the plaintiff then and there unlawfully concealed from the defendant and from the magistrates then and there in the County of Cook and State of Illinois, contrary to the statute in such case made and provided; and further represented to the defendant that by reason of his knowledge, he, the plaintiff, was in a position to secure the return to the defendant of his said moneys and property so wrongfully withheld from him; and the defendant avers that the plaintiff not then and there standing in the relation of husband or wife, parent or child, brother or. sister to the offenders or either of them, and with the intention of promoting and controlling litigation between the defendant and divers persons respecting the moneys and property aforesaid, and with the intention of obtaining from the defendant as a compensation for information to be furnished by the plaintiff and used and acted upon, on which recovery may be made of the moneys and personal property of and to the defendant, or in assisting to recover said moneys and property to the defendant, thereby then and there obtained the supposed writing without any good and lawful consideration therefor, contrary to the statutes in such case made and provided, and for the purposes and upon the assurances aforesaid. Wherefore the defendant says that by reason of the premises, and the statutes in such case made and provided, the supposed writing was and is contrary to the common law and the statutes of this State and against the public policy of this State, and is null and void, and this the defendant is ready to verify, Wherefore, etc.”

The replications to this plea not only lack the quality of certainty which is said to be more requisite in a replication than in a declaration (1 Chitty on Pleading, 647), but they fail to put in issue material and issuable matters set up in said plea.

The only replication which purports to answer the several averments is uncertain, evasive and unresponsive in several'particulars. It denies what the plea does not aver—the unlawful concealment of the property, but not the unlawful concealment of the names and whereabouts of the accused persons. It denies that plaintiff represented that he was in a position to return the stolen property but not the representations that he knew its whereabouts, who withheld it and that it was wrongfully withheld. It denies the intentions or motives ascribed to plaintiff in obtaining the writing, but not the fact that he did obtain it “upon the assurances aforesaid, ’ ’ which manifestly relate to said representations.

If the untraversed allegations, which stand admitted and confessed by the plaintiff on this record, constitute a complete answer to the declaration, then no consideration need be given to the sufficiency of the other replications to which the demurrer was also sustained; for “When a defendant succeeds on one plea which is a complete answer to a declaration, he is entitled to judgment in his favor in bar of the action.” People v. Bug River Drainage Dist., 189 Ill. 55; Ward v. Stout, 32 Ill. 399.

The first question presented, therefore, is whether the untraversed allegations present a complete answer to the declaration, and in considering it the contract must be regarded as the sole cause of action, and construed in the light of the untraversed averments in the plea. As said by Lord Campbell in Sprye v. Porter, 7 Ellis & Blackburn (Q. B.) 57; “There can be no doubt that the defendant is at liberty to allege that the written agreement declared upon was merely color-able, and to disclose, as a defence, the real nature of the transaction.”

Viewing the transaction, therefore, as disclosed by the untraversed averments in the plea, we find: (1) that as an inducement to defendant’s entering into the contract, plaintiff represented to him that he knew that the property was stolen from him, that he knew the whereabouts and names of those who had it, and that they were wrongfully withholding it, if not criminally withholding it, for the contract contemplated the possibilty of ‘invoking the aid of the authorities,’ if necessary; (2) that he then and there concealed from the defendant their names and whereabouts; (3) that from the information furnished defendant was led to believe that the property was stolen from him and that plaintiff was in position to secure its return; (4) that part of the consideration was the fact that plaintiff possessed secret information, relating to the larceny, unknown to the defendant, which might lead to recovery of the stolen property, and that he was to receive compensation for its use; (5) that he was entitled to claim such compensation for the information alone if any of such property was recovered through it.

We cannot escape the conclusion that the parties so withholding the property were known by plaintiff to be amenable to criminal prosecution, and that knowing their names and whereabouts, plaintiff was bartering for the return of the stolen property for his personal benefit, at least, without divulging the identity of those criminally implicated unless compelled to do so in order to realize the compensation agreed upon.

Can such a contract be upheld? The real test of its validity is its tendency. “If the performance of the obligations imposed by the contract has an evil tendency or furnishes a temptation to use improper means, the contract is illegal and contra bonos mores.” Critchfield v. Bermudez Paving Co., 174 Ill. 466.

That such a contract has an evil tendency admits of no discussion. That , public policy and good morals imposed upon plaintiff the obligation to impart the information he possessed as to a larceny and the identity of the guilty parties is clear. No one can hesitate to say that such a man voluntarily aids criminals to escape their just deserts, and, morally speaking, is almost if not quite as guilty as the principal offenders. Story’s Conflict of Laws, sec. 253. Presented in the most favorable light plaintiff appears in the position of withholding such information unless compensated for it. From his affidavit of claim it appears that the value of the stolen property recovered was at least $165,000. His claim is for one-half thereof. That defendant might voluntarily reward one for information leading to the return of his property, or contract for proper services connected with it, will not be seriously questioned. But to enforce a contract in favor of one seeking and requiring compensation for such information, while concealing and perhaps aiding criminals, would encourage either secret bartering with thieves or their confederates for return of the stolen property, or arrangements facilitating its marketing, or the compounding of felonies, or the suppression of information that would lead to the punishment of the guilty, or all of these.

The provisions of our Criminal Code (Chapter 38, Revised Statutes, J. & A. ¶¶ 3430 et seq.) clearly indicate that such a contract is against public policy. Our statutes prescribe punishment not only for the thief but the guilty receivers of stolen property and accessories after the fact. They make him guilty as a receiver of stolen property who, for his own gain, aids in concealing stolen goods knowing them to have been so obtained. (Section 239, ch. 38, Hurd’s R. S., J. & A. ¶ 3892.) They make him guilty as an accessory after the fact who, not standing in the relation of husband or wife, parent or child, brother or sister to the offender, conceals, maintains or assists any principal felon or an accessory before the fact, knowing him to be such (section 276, J. & A. ¶ 3969.) So stringent is the law in its manifest policy to prevent any person from receiving a benefit from stolen property, and thereby to discourage larceny, that it requires all property obtained by larceny shall he restored to the owner (section 243, J. & A. ff 3892), and that police regulation shall be exercised over the business of pawnbrokers, into whose possession such property is- likely to come, and, to protect the owner’s title thereto, gives him the right to maintain an action against any person in possession thereof (section 243). Our statutes impose upon even the finders of lost property the duty to inform the owner thereof and to make restitution of the same without compensation (except when voluntarily given), and to take action calculated to restore the property to unknown owners (section 27, ch. 50. J. & A. ¶ 5509).

While it may be said that there is nothing in the contract or admitted averments of the plea clearly indicating that plaintiff stood in a criminal relation to the subject-matter of the contract, yet, the admitted facts place him in an unenviable light. They at least raise a suspicion that the information he sought to barter was not innocently acquired. They are clearly consistent with his being a medium through whom criminals sought to realize a profit from their crimes^ Whatever his true position, both public policy and good morals required him to impart such information without first seeking to be rewarded for it. Public interest demanded the arrest and prosecution of those who he must have known were violators of the law.

While most of the authorities cited upon this subject relate to the receiving of compensation by officers or those in a fiduciary relation for that which it was their duty to do without compensation, yet the principle is none the less applicable to the case at bar. The contract in question was not merely one for services. It contemplated that the compensation bargained for might be for the information alone provided it led to the recovery of any of the property, and it is a fair-implication that the information would not have been available but for the agreement to compensate plaintiff for it. The tendency of the contract to encourage suppression of such information alone is enough to vitiate it. It is not necessary to its invalidity that it appear that the party seeking to enforce it was in complicity with the guilty parties. If the nature of it is such that it tends to aid those in such relation so as to secure them immunity from arrest and punishment, or to promote their criminal enterprise, it is illegal and unenforcible. It is the plain duty of any honest citizen voluntarily to divulge such information, either to the authorities or to the injured party. But to acquire it and then seek to capitalize it for personal profit is not only repugnant to good morals but tends to protect guilty parties and encourage crime. A contract resting upon such a consideration, or with such pernicious tendencies, will not be enforced.

It is contended that the demurrer should have been carried back to said plea. It is enough to say that we do not think the plea was obnoxious to a general demurrer. Besides no motion was made to carry it back. People v. Central Union Tel. Co., 192 Ill. 307.

We are of the opinion that the demurrer was properly sustained and that the court properly found the contract is void.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Maude L. Robinson, Appellee, v. Elsie Waddell et al., on appeal of Jacob Glos, Appellants.
    Gen. No. 18,855.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Rehearing denied December 16, 1913.
    Statement of the Case.
    Bill in equity by Maude L. Robinson against Elsie Waddell, Jacob Glos and others to foreclose a trust deed to secure the payment of a promissory note. From a decree of foreclosure, Jacob Grlos appeals.
    Abstract of the Decision.
    1. Limitation of actions, § 94

      —when indorsement of part payment on note is new promise. An indorsement of payment on a promissory note not in the handwriting of the debtor hut in that of the then holder, is not, standing alone, such evidence of part payment as will support the implication of a new promise and toll the statute of limitations (J. & A. ¶ 7211); hut it will be considered in connection with corroborative evidence tending to show actual payment at the time of the indorsement.
    2. Limitation of actions, § 94

      —when indorsement of part payment with other evidence shows new promise. An indorsement of part payment on a promissory note by the then holder, made shortly after the maturity of the note and nine years before the statute of limitations (J. & A. ¶ 7211) would run, in connection with such holder’s evidence that at the time of the indorsement he as owner of the note received from its maker, who was indebted to him for nothing else, the sum indorsed or a certificate from which he obtained that amount, is presumptive evidence of payment on the note.
    John R. O’Connor, for appellants.
    William Gibson and Edward J. Phillips, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Clark

text:
    E. P. Stacy & Sons, Appellee, v. Oregon Short Line Railroad Company, Appellant.
    Gen. No. 18,000.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Ebeeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 2, 1913.

      Certiorari denied by Supreme Court (making opinion final.)

      Abstract of the Decision.
    1. Carriers, § 139

      —when evidence sufficient to sustain verdict for negligence in shipment. In an action for negligence of the transportation of peaches, evidence held sufficient to show that plaintiff was the legal holder of the bills of lading and a verdict for plaintiff held not to be against the manifest weight of the evidence.
    2. Municipal court of Chicago, § 28

      —when objection to statement of claim not preserved for review. In an action against a carrier for negligence in the shipment of peaches, objection that plaintiff did not set out in its statement of claim that it was the lawful holder and owner of the bills of lading cannot be raised for the first time on appeal.
    Statement of the Case.
    Action by E. P. Stacy & Sons, a corporation, against Oregon Short Line Railroad Company to recover damages for negligence in the transshipment of a number of carloads of peaches from Brigham City, Utah to various points in other States, the defendant being the initial carrier. From a judgment in favor of plaintiff for $10,080.75, defendant appeals.
    Davis & Rankin, for appellant; Edmund P. Kelly, of counsel.
    Charles A. Butler, for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    George John Spoeri, Appellee, v. Modern Brotherhood of America, Appellant.
    Gen. No. 18,775.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 752

      —when statements in application for reinstatement are representations and not warranties. A member's statements as to his health in an application for reinstatement, which states “I * * * do declare and warrant on my honor, that I am of sound condition, good health and temperate habits, etc.,” and which further states “It is further expressly agreed and understood that my said reinstatement shall be null and void if the above warranties and representations or any of them shall be untrue,” held to he representations and not warranties, and an instruction to the jury to that effect held justified.
    2. Insurance, § 877

      —proof necessary to avail of false representations in application. To avail of false representations in an application for reinstatement, a benefit association has the burden of proving that the insured knew the statements to he false.
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Pitch, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Rehearing denied December 16, 1913.
    Statement of the Case.
    Action by George John Spoeri against Modern Brotherhood of America, a corporation, to recover upon a benefit certificate issued by defendant to George H. Spoeri, in favor of plaintiff as beneficiary. From a judgment in favor of plaintiff for $1,081.39, defendant appeals.
    Church, Shepard & Day, for appellant; William T. Church, of counsel.
    Morton L. Roberts and Samuel B. King, for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Tillie Eckersberg, Appellee, v. Paul Dunklau, Appellant.
    Gen. No. 18,799.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Assault and battery, § 14

      —when evidence sufficient to sustain verdict for assault. In trespass to recover damages for an alleged assault, a verdict for plaintiff on conflicting evidence held sustained by the evidence.
    2. Appeal and error, § 1561

      —when refusal of requested instructions harmless. Refusal of requested instructions not error when so much of the instruction as was proper was covered by other instructions given.
    Appeal from the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in the Branch Appellate Court
    at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Statement of the Case.
    Action by Tillie Eckersberg against Paul Dunklau for damages for an assault made upon plaintiff by defendant. From a judgment in favor of plaintiff for five hundred dollars, defendant appeals.
    Arnold Tripp, for appellant.
    Chester Firebaugh and Henry W. Huttmann, for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Filippo Ganguzza, Plaintiff in Error, v. Marshall E. Sampsell, Receiver, Defendant in Error.
    Gen. No. 18,806.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1017

      —when bill of exceptions must contain all the evidence. Error in giving an instruction claimed not to have been supported by the evidence will not be considered where the hill of exceptions does not give all the evidence, or a complete synopsis thereof in narrative form.
    2. Instructions, § 151

      —when embodied in instruction given. Plaintiff’s instruction as to effect of the number of witnesses on either side may he refused where it is fully covered by defendant’s instruction.
    3. Trial, § 128

      —when testimony is not misread to jury. A charge that counsel misstated to the jury the testimony of a witness in a street railroad accident case by adding the words “at Ohio street” to an answer is not sustained, where counsel insisted he was reading from his own notes, there was no showing he was reading from a stenographic report of the evidence, and as a fair inference the street was referred to in the question and the jury were instructed not to decide the case upon statements of counsel outside of the evidence.

      Error to the Superior Court of Cook County; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Rehearing denied December 16, 1913.
    Statement of the Case.
    Action by Filippo Ganguzza against Marshall E. Sampsell, sole surviving receiver of the Chicago Union Traction Company, to recover damages for personal injuries sustained from the sudden starting of a street car. From a judgment for defendant, plaintiff brings error.
    Harry W. Standidge, for plaintiff in error.
    Joseph D. Ryan and William H. Symmes, for defendant in error; John R. Guilliams and Frank L. Kriete, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court


text:
    Edwin S. Popper and Emil L. Popper, Appellees, v. Frederick W. Spelz, Appellant.
    Gen. No. 18,817.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Guaranty, § 3

      —when letters “O. K.” are not. The letters “O. K.” written by an officer on an order given by the corporation do not of themselves constitute a contract of guaranty, and will be understood generally as meaning that the order had the approval of the officer whose name appears.

      Appeal from the County Court of Cook county; the Hon. Virgil W. Mills, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion filed December 2, 1913.
    Rehearing denied December 16, 1913.
    Statement of the Case.
    Action by Edwin S. Popper and Emil L. Popper, partners, trading as Leo Popper & Sons, against Frederick W. Spelz upon an alleged guaranty of payment of an order made by a corporation which the corporation had given the plaintiffs, the defendant being an officer of the corporation. From a judgment for plaintiffs for $221.58, defendant appeals.
    Edwin L. Waugh, for appellant.
    William J. Stapleton, for appellees.

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

      See Illinois Notes Digest, Vols. Xl to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.

2. Guaranty, § 3 —when officer of corporation not liable. An officer of a corporation refused to sign a form guarantying payment of the corporation’s order hut marked the order with the letters “O. K.,” and his clerk without authority wrote the seller in his name, the seller that the “O. K..” would have to suffice as a guaranty. The alleged guarantor testified the clerk had no authority to write such letter, that it was not written in accordance with the directions given and that he marked the order as an approval. Held, a guaranty was not established and a verdict should have been directed.

3. Guaranty, § 12 —scope of liability. The liability of a guarantor is limited to the express terms of his undertaking and cannot be extended by implication.


text:
    Edward J. Welch, Appellee, v. Helen M. Newbold, Appellant.
    Gen. No. 18,818.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Rehearing denied December 16, 1913.
    Statement of the Case.
    Action by Edward J. Welch against Helen M. Newbold upon an account stated made up of items of disbursements by plaintiff as attorney and business agent for defendant and including charges for professional services based upon a monthly compensation fixed by a written contract. From a judgment for plaintiff for $6,135.41, defendant appeals.
    Joseph B. Fleming, for appellant.
    Henry R. Rathbone, for appellee.

      Abstract of tie Decision.
    1. Municipal Coubt of Chicago, § 29

      —when refusal to require more specific statement of claim is not reviewed. The discretion vested in a trial judge in not requiring a more specific statement of claim was not abused where interrogatories and answers, as permitted under the practice of the Municipal Court of Chicago, were filed by the defendant.
    2. Evidence, § 164

      —when letter is not self-serving. Where an attorney writes to his client a letter in the nature of a demand for payment of his fees and disbursements and the client replies promising payment, his letter is not a self-serving declaration and both letters are admissible in evidence.
    3. Limitation of actions, § 117

      —when evidence is sufficient to show promise. Where in an action upon an account stated the plaintiff testifies he presented the account and was promised payment in part at a certain time and the balance later and is corroborated by another witness, which testimony is denied by the defendant, there is sufficient proof of the admission of the debt and a promise to pay so that the statute of limitations does not apply.
    4. Instructions, § 28

      —when oral instruction proper. Written instructions may be refused in the Municipal Court of Chicago, where the court determines to charge the jury orally.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Frank L. Tuttle, Appellee, v. Helen M. Newbold, Appellant.
    Gen. No. 18,825.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Statement of the Case.
    Action by Frank L. Tuttle against Helen M. New-bold to recover on a claim for services and disbursements alleged to have been performed and made by one Welch. Plaintiff sues as assignee of said claim. From a judgment in favor of plaintiff for $1,409.79, defendant appeals.
    Abstract of the Decision.
    1. Account, action on, § 1*—when verdict sustained by the evidence. In an action to recover on an account for services and disbursements assigned to plaintiff, a verdict for plaintiff held not manifestly against the weight of the evidence.
    2. Evidence, § 164*—when letter is not self-serving. Where an attorney writes to his client letters in the nature of demands for payment of his fees and disbursements, and the client replies promising payment, the attorney’s letters are not inadmissible, in an action to recover for his services, as self-serving declarations and the client’s letters are admissible as admissions. Following Welch v. Newbold, Gen. No. 18,818, ante. p. 36.
    Joseph B. Fleming, for appellant.
    Henry R. Rathbone, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.


text:
    Peter Larsen, Appellee, v. Ward Corby Company, Appellant.
    Gen. No. 18,826.
    1. Evidence, § 105

      —when efforts to suppress testimony admissible. All efforts to suppress material testimony made by a party or his authorized agent is admissible to show an implied admission that he has no right to recover if the case was tried on the evidence In the case as it exists, and that it is not sufficient to entitle him to recover unless he is aided by suppressing evidence or the fabrication of more evidence.
    2. Appeal and error, § 1777

      —when exclusion of evidence of subornation of witness reversible error. In an action for personal injuries resulting from a collision, refusal of court to permit a witness for the defendant, who was in the employ of the defendant at the time of the collision, to answer a question with reference to a conversation had between himself and the plaintiff and an attorney for the plaintiff, held reversible error, where on behalf of the defendant it was stated that the purpose of the question was to show that plaintiff and his attorney made a proposition to the witness “to stay away from the trial, offering to make it right if he would not appear and testify on behalf of the defendant.”
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed December 2, 1913.
    Herbert S. Duncombe and Louis J. Behan, for appellant.
    Hiram Blaisdell and Frank D. Burgess, for appellee; Harry F. Brewer, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court.

The appellee, as plaintiff, brought suit against the appellant, as defendant, for damages for personal injuries alleged to have been sustained through the negligence of the defendant, resulting in a collision between a bicycle upon which plaintiff was riding and a wagon of the defendant.

We have reached the conclusion that the judgment must be reversed and the cause remanded. Inasmuch as there may be a new trial we refrain from discussing the evidence in the case.

A man who at the time of the trial was not employed by the defendant, but who was in the employ of the defendant and the driver of the team at the time of the collision, was a witness for the defendant. During his examination he was asked with reference to a conversation had between himself and the plaintiff and an attorney for the plaintiff. The court refused to allow the question to be answered. On behalf of the defendant it was stated that the purpose of the question was to show that the plaintiff and his attorney at that time made a proposition to the witness “to stay away from the trial, offering to make it right if he would not appear and testify on behalf of the defendant company.” On behalf of the plaintiff it is urged that the offer was not specific enough, and, second, that even if there was error in the refusal to admit the testimony it was harmless error.

The rule as stated in Chicago City Ry. Co. v. McMahon, 103 Ill. 485, is that all efforts to suppress material testimony made by a party or his authorized agent, are proper to be shown “because it is in the nature of and implies an admission that he has no right to recover if the case was tried on the evidence in the case as it exists—that it is not sufficient to recover unless aided by suppressing evidence, or the fabrication of more evidence.” The doctrine of this case was approved in United States Brewing Co. v. Ruddy, 203 Ill. 306, and it has been followed in various cases in the Appellate Courts of the State.

We are not persuaded that it was the duty of the trial court to direct a verdict for the defendant.

For the error pointed out the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    In re Estate of Oscar Schroeder, Deceased. On Appeal of Catherine L. Fox et al., Appellants, v. Henry Ehlers et al., Executors, Appellees.
    Gen. No. 18,858.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed December 2, 1913.

      Abstract of the Decision.
    1. Appeal and error, § 682

      —limitation for perfecting an appeal where a previous order was vacated and re-entered with amendments. Where an order of the Probate Court is entered vacating a previous, order and re-entering the same with amendments, the time for perfecting an appeal to the Circuit Court begins to run from the date of the second order.
    2. Appeal and error, § 1105

      —when appeal from order should not be dismissed for abuse of discretion in entering the order. Such appeal should not be dismissed upon the allegation that the court abused its discretion in entering the second order.
    Statement of the Case.
    Appeal to the Circuit Court in the matter of the estate of Oscar Schroeder, deceased, in which Catherine L. Fox and Sophia Lord are appellants and Henry Ehlers and others as executors are appellees to review an order of the Probate Court approving the final account of the executors and ordering their discharge upon the filing of receipts of distributees. From an order of the Circuit Court dismissing the appeal for want of jurisdiction to review the order, Catherine L. Fox and Sophia Lord, appellants below, appeal.
    David Stewart and Behher & Weld, for appellants; E. K. Smith, of counsel.
    Charles P. Abbey, for appellees.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Bessie Apthorp, Appellee, v. Paul O. Domke, Appellant.
    Gen. No. 18,859.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 138

      —when plaintiff need not prove ownership of instrument causing the injury. In an action for personal injuries resulting from the negligent driving of a horse and wagon, burden is not upon plaintiff to prove defendant’s ownership of the horse and wagon where the only plea filed by defendant was the general issue.
    2. Appeal and error, § 1561

      —when refusal of requested instructions not error. Refusal of requested instructions which were covered by other instructions given, held not error.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 2, 1913.
    Statement of the Case.
    Action by Bessie Apthorp against Paul O. Domke to recover damages for personal injuries sustained by plaintiff alleged to have been caused by the negligence of defendant’s servant in driving a horse and wagon so as to strike down and run over plaintiff at a street intersection. Prom a judgment in favor of plaintiff for four hundred and twenty-seven dollars, defendant appeals.
    William Daniel Johnson, for appellant.
    No appearance for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court


author: Mr. Presiding Justice McSurely

text:
    Henry Carraher, next friend of Kathryn Carraher, Plaintiff in Error, v. Chicago Telephone Company, Defendant in Error.
    Gen. No. 18,532.
    Master and servant, § 703

      —when evidence insufficient to show negligence of telephone company in maintaining safe switchboard for operator. In an action for injuries sustained by a telephone operator, alleged to have been caused by the negligence of the telephone company in permitting a powerful current of electricity to pass through the wires and in maintaining wires and attachments not insulated, plaintiff’s evidence held insufficient to prove the allegations of negligence.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Wixdes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 4, 1913,

      nunc pro tunc as of December 2, 1913.
    Theodore G. Case, for plaintiff in error; Munson T. Case, of counsel.
    Holt, Wheeler & Sidley, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Kathryn Carraher, hereinafter called plaintiff, by next friend brought suit against the Chicago Telephone Company, hereinafter called defendant, to recover damages for personal injuries alleged to have been received by her while working as a switchboard operator for the defendant. At the conclusion of the introduction of testimony on behalf of the plaintiff, upon motion of the defendant, the court instructed the jury to find the defendant not guilty. The jury so found and judgment was entered on the verdict. Plaintiff contends that the court should not have given this peremptory instruction and urges that the judgment should be reversed.

In her original declaration plaintiff alleges the duty of the defendant to allow “only a small current of electricity, sufficient to carry telephonic messages” to pass through its wires, and that it was negligent in permitting ‘1 a larger and stronger current of electricity to suddenly be transmitted through its lines.” Subsequently two additional counts were filed, in the first of which it was alleged that the defendant negligently maintained its wires and attachments, not insulated, and that they were allowed to cross and come in contact with other wires charged with powerful currents of electricity, and that this condition so continued and remained for several days, and that on February 11, 1902, a powerful and destructive current of electricity passed from said other wires and attachments into the telephone wires, attachments and switchboard of the defendant, whereby they became charged with a large and destructive current of electricity, dangerous and destructive to life and health. No attempt was made to prove the averments of the second additional count; hence it is unnecessary to advert further to it.

The evidence as to the occurrence itself is that of a fellow-switchboard operator, who, while working at her own board, heard the plaintiff say that she had gotten a shock, and saw the plaintiff with the telephone cord, hereinafter described, in her hand, and that she “was dazed” and was assisted into another room. There was evidence that shortly afterwards she appeared nervous, which condition seemed to advance until about a year after that time, when her friends and relatives were led to believe from her conduct and condition that she was unsound mentally. The evidence also showed that she was suffering with some form of dementia at the time of the trial, which was nearly nine years after the date of the occurrence.

We have arrived at the conclusion that the ruling of the trial court was proper for the reason that plaintiff produced no legal evidence tending to prove the allegations of either the original declaration or the first additional count. As we have noted above, the original declaration averred the duty of defendant to pass through its wires a small current of electricity, sufficient only to carry telephonic messages, the breach alleged being the passing through its lines of a larger and stronger current of electricity than this.

It appears from the evidence that at the time of the occurrence in question the so-called “talking current” was about twenty-four volts. As the words indicate, this is the current of electricity used for the transmission of messages. The so-called “ringing current” has a voltage of seventy-five or eighty when one bell is rung, and less voltage when a number are rung at the same time. This obviously refers to the current used in ringing the telephone bell for the purpose of attracting the attention of a subscriber. There is nothing whatever in the record evidencing any duty upon the defendant to pass through its lines only a “talking current,” and from the very nature of the case no such evidence could be produced. It is impossible to conceive of a usable telephone system without some device for calling subscribers to the instrument, and that this “ringing current” necessitates a larger voltage is conceded. Even if the plaintiff received an electrical shock as is claimed, this standing alone could not support the charge of negligence now under consideration, especially in view of the evidence of plaintiff’s witness that the resisting powers of the particular individual concerned is the important factor determining the amount of shock received, and that the plaintiff might have been in exactly the same condition of injury as she appeared to be in after the occurrence, as the result of receiving a current of even as low as ten volts.

Neither is there any evidence that the wires and attachments belonging to defendant were not insulated or that they were allowed to cross and come in contact with other wires and attachments from which passed a powerful and destructive current of electricity into the wires, attachments and switchboard of the defendant, as alleged in the first additional count.

There was evidence tending to show some defect in the device called the “cord” and “plug” used in operating the switchboard. It would unduly extend this opinion to attempt any technical detailed description of this device. Any one who has seen even a small telephone switchboard will recognize the device as the black rubber plug, about the thickness of a lead pencil, which is inserted by the operator into a small hole or opening in the face of the switchboard when a telephone connection is desired. This rubber plug is attached to the end of a cord which runs down through a hole in a horizontal shelf, where a counterweight and pulley tend to draw the plug down when not in use, leaving it sticking up from the face of the shelf. This cord contains a wire or wires through which, when used, a current of electricity passes. The fellow-operator of the plaintiff testified that for two or three days before the occurrence in question one of the plugs had a white paper cap sticking on it, which was understood as notice that the particular plug or cord was out of order; that a repair man worked with tools for a time on this cord and then told the plaintiff that it was in repair and that she could use it; that shortly thereafter the witness heard plaintiff say, “Oh,I got a shock,” and that witness turned and saw that plaintiff had this particular cord in her hand.

To conclude that this evidence either directly or inferentially tends to prove the allegations of the additional count is to indulge merely in speculation. To reach such a conclusion we should be compelled to presume that the cord was not repaired by the repair man, although the evidence tends to show the contrary; also that the alleged defect was absence of. insulation; and upon this we must presume that there was a contact with other wires and attachments charged with powerful and destructive currents of electricity, and further that the result was the transmission of such a current to the wire in the cord held by plaintiff. Such indulgence in presumptions upon presumptions the law will not permit.

It is also important to note that plaintiff’s expert mechanical witness testified that even if there existed any defect in the cord or plug causing a shock to the operator, it would be only a shock from the normal ‘‘ringing current” and that she might receive this shock with no defect in the apparatus if she should improperly handle it. In this connection we again recall Dr. Kiernan’s statement that the comparative difference in voltage between the talking current and ringing current had no causal relation to the alleged injuries.

We deem it unnecessary to consider other points presented and discussed by both counsel, including what is urged in support of the claim that this is a res ipsa loquitur case. We have given consideration to these points, and are not led thereby to any different conclusion from that which we have indicated.

Plaintiff by her declaration alleged specific and particular acts of negligence, and upon the trial was bound to produce legal evidence tending to support at least one of such charges. In this, as we view the matter, she has failed, and the action of the trial court in instructing the jury as was done was proper, and therefore, for the reasons indicated, the judgment will be affirmed.

Affirmed.


text:
    Caroline E. Knipping, Appellee, v. Chicago Telephone Company, Appellant.
    Gen. No. 18,452.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 204

      —when plaintiff’s evidence tends to support declaration. In an action against a telephone company to recover damages for a shock sustained by plaintiff while answering a telephone call, plaintiff’s evidence held sufficient to warrant court in denying a motion to direct a verdict for defendant.
    2. Negligence, § 185

      —what evidence sufficient to prove personal injuries. Evidence of a condition of good health prior to an accident and illness and poor health immediately succeeding it, is sufficient evidence from which the jury might legitimately conclude that the latter condition was caused by the accident.
    3. Trial, § 187

      —rule regarding direction .of verdict. Correct rule applicable to a motion to direct a verdict is that admitting the evidence in favor of the plaintiff to be true, does it, together with all legitimate conclusions which may be drawn therefrom, fairly tend to establish plaintiff’s cause of action as laid in the declaration? If it does, then the court commits no error in refusing the motion and in permitting the facts to be passed upon by the jury.

      Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed December 4, 1913,

      nunc pro tunc as of December 2, 1913.
    Rehearing denied December 24, 1913.
    Statement of the Case.
    Action by Caroline E. Knipping against the Chicago Telephone Company to recover damages for personal injuries sustained by plaintiff alleged to have been caused by a shock received by plaintiff while answering a telephone call. From a judgment in favor of plaintiff for two thousand dollars defendant appeals.
    Holt, Wheeler, Cutting & Sidley, for appellant.
    Theodore G. Case, for appellee; Munson T. Case, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

4. Trial, § 186 —questions considered on motion to direct a verdict. On motion' to direct a verdict, it is not for the court to consider whether the evidence is weak or strong, or whether or not discredit has been cast upon it by cross-examination. All such matters are for the jury to weigh and pass upon.

5. Appeal and error, § 606 —what necessary to preserve ruling on motion to direct a verdict. Ruling of court denying a motion to direct a verdict for defendant is preserved by exception taken to the ruling, without the necessity of any further motion, not even the motion for a new trial.

6. Appeal and error, § 607 —when special findings of jury not reviewahle. Special findings of jury are conclusive when not asked to be set aside on motion for a new trial.


text:
    W. W. Wilcox Company, Defendant in Error, v. J. E. Ingram, Plaintiff in Error.
    Gen. No. 18,557.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 4, 1913,

      nunc pro tunc as of December 2, 1913.
    Rehearing denied December 16, 1913.
    Statement of the Case.
    Action by W. W. Wilcox Company, a corporation, against J. E. Ingram on a claim for goods sold and delivered, work and materials furnished, money received by defendant for use of plaintiff, interest on divers sums of money and money due on account stated. From a judgment in favor of plaintiff for $368.19, defendant brings error.

      Abstract of the Decision.
    Municipal court of Chicago, § 26*—when stenographic report improperly filed nunc pro tunc. Where a stenographic report is presented to and signed by the trial judge within apt time, an order of court entered nearly eight months thereafter permitting it to be filed nunc pro tunc as of the day it was presented to and signed by the trial judge is void and of no effect, and the stenographic report may on motion be stricken from the record.
    Simon T. Sutton and H. J. Rosenberg, for plaintiff in error; James D. Power, of counsel.
    E. C. Ferguson, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Fitch

text:
    Louis A. Mangold and William F. Coughenor, trading as Louis A. Mangold & Co., Plaintiffs in Error, v. H. E. King, Defendant in Error.
    Gen. No. 18,650.
    1. Attachment, § 246—when verdict may he directed for defendant upon the attachment issue. In attachment proceeding evidence that defendant withdrew his bank balance and tried to collect other moneys from those who held it subsequent to the dismissal of a prior attachment suit, is not sufficient evidence of itself, to give rise to any legitimate inference of fraud, concealment, etc., and direction of a verdict for defendant held proper.
    2. Municipal court of Chicago, § 30

      —when refusal of requested instructions not error. Refusal of requested instructions which so far as they were material and correct were covered by the oral charge of the court, held not error.
    3. Municipal court of Chicago, § 26

      —when document is sufficient as a statement of facts or stenographic report. A document purporting to be a correct statement by the judge of “matters pertaining to proceedings at the trial” which “do not otherwise so fully appear of record,” including a transcript of all the evidence, the rulings of the court upon the admissibility of evidence the instructions of the court, the objections made and a statement of the court’s rulings upon these matters and upon the motion for a new trial and in entering judgment, held sufficient compliance with Municipal Court Act, § 23, J. & A. j[ 3336, requiring a statement of facts or a stenographic report.
    4. Municipal court of Chicago, § 26

      —when certificate of trial judge to statement of facts conclusive. A judge’s certificate to a document purporting to be a statement of facts showing on its face that it was presented to the judge who tried the case for signing and filing at the proper time, and that it was in fact signed by him as of the date it was presented, cannot be contradicted by another certificate made by another judge that it was presented to him for signing and filing on the same day.
    5. Municipal court of Chicago, § 26

      —when presumed that certificate of statement of facts was signed in apt time. Where nothing affirmatively appears to the contrary it will be presumed that the trial court signed the certificate to the statement of facts in apt time.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 4, 1913.
    Rehearing denied December 16, 1913.
    Lewis Edward Dickinson, for plaintiffs in error.
    Alden, Latham & Young, for defendant in error; Charles Martin, of counsel.

      See illinois Notes Digest, Vols. XI to XV, same topic and section number.

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

   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error is brought to review the proceedings and judgment of the Municipal Court in a fourth class case, wherein the plaintiffs, Louis A. Mangold & Co., sued the defendant, H. E. King, in attachment, to recover commissions alleged to have been earned by the plaintiffs in and about the sale of the leasehold and fixtures of a hotel in Chicago owned by defendant. The case was tried before a jury. At the close of the plaintiffs’ evidence, the court peremptorily instructed the jury to find for the defendant on the attachment issue, which was done. After defendant had then put in his evidence, a verdict was returned in his favor on the assumpsit issue.

A motion was heretofore made to strike the statement of facts, or stenographic report, from the record, and this motion was reserved to the hearing. The record shows that the judgment was entered on May 18, 1912. On June 13, 1912, an order was entered extending the time in which to file a statement of facts to July 17, 1912. On July 17, 1912, there was filed in the office of the clerk of the Municipal Court a document called (by the clerk) a “statement of facts.” This document begins with a statement that “By authority of the statutes * * * I, Jacob H. Hopkins, one of the judges of said court,” by whom the case was tried, “do cause to be prepared, signed by me and filed herein, at the instance of plaintiffs, a statement pursuant to such statutes, containing and setting forth, to-wit: the matters and things in the manner and form following, pertaining to proceedings at the trial thereof, and such other proceedings in the case as plaintiffs have desired to be included. ’ ’ Then follows a brief recital of the contents of the. affidavit for attachment, the attachment bond, the answer of the garnishee and the affidavit of merits. Following these recitals is what seems to be a stenographic report of the evidence heard at the trial, with the objections made to the evidence as it was introduced, and a digest of the contents of the exhibits offered in evidence; all of which concludes with the statement that “the above and foregoing was and is all of the evidence, offered, introduced and considered upon the trial of said cause.” Then follow the instructions given by the court, a statement that each of said instructions was objected to by plaintiffs’ counsel and that he requested other instructions to be given, which are set out at length, and that the court refused to give the instructions so requested. Then follows a statement that the jury returned a verdict for the defendant on April 22,1912; that the plaintiffs entered a motion for a new trial; that said motion was heard and denied on May 18, 1912; and that judgment for costs was thereupon entered against the plaintiffs. Then follows a copy of the writ of error from this court, after which is the following conclusion:

“Whereupon plaintiffs upon to wit, July 17th, A. D. 1912, tendered in open court the above and foregoing statement, which was examined by the court and approved as hereinafter set forth.
Forasmuch as the matters and things hereinabove recited and contained do not otherwise so fully appear of record, the above and foregoing correct statement is signed and ordered filed pursuant to the statutes of said state in such cases made and provided, this 9/21/12 as of July 17th A. D. 1912.
Jacob H. Hopkins, (Seal.)
Judge of the Municipal Court of said City ti'f Chicago.
Presented for signing and filing, July 17th, A. D. 1912.
Freeman K. Blake,
Judge of the Municipal Court of said City of Chicago and- Acting Chief Justice.”

On the next page of the document appears an affidavit by the plaintiffs ’ attorney, subscribed and sworn to July 16, 1912, to the effect that he made diligent inquiry as to the whereabouts of Judge Hopkins, and was informed and believes that said judge left Chicago on his vacation June 24, 1912, to go to Portland, Oregon, and has not been heard from since; that the affiant is unable to present “said statement of facts, etc.,” to Judge Hopkins because of the absence of said judge from the State of Illinois and, therefore, presents the same to acting Chief Justice Blake. A notice of such application accompanies the affidavit. At the bottom of this additional page, Judge Blake certified that “the above and foregoing statement, affidavit and notice were duly presented in open court for signing and filing this July 17, A. D. 1912.”

It is urged that the document above described is neither “a correct statement of the facts appearing upon the trial and of all questions of law involved in such case, and the decisions of the court upon such questions of law,” nor “a correct stenographic report of the proceedings at the trial,” within the meaning of the sixth paragraph of section 23 of the Municipal Court Act. (J. & A. ¶ 3336.) There is much force in the contention. But we do not think the document should be stricken from the record merely because it cannot he technically classified. Taking all its statements together, it purports to be a correct statement by the judge of “matters pertaining to proceedings at the trial” which “do not otherwise so fully appear of record,” including a transcript of all the evidence, the rulings of the court upon the admissability of evidence, the instructions of the court, the other instructions requested, the objections made and a statement of the court’s rulings upon these matters and upon the motion for a new trial and in entering judgment. Section 23 of the Municipal Court Act (J. & A. ¶3336), permits the party who prepares either a statement of facts or a stenographic report for the judge’s signature, to omit therefrom, with the approval of the judge, all such proceedings, “other than the evidence and rulings of the court with respect thereto and the charge of the court, as the judge may deem unnecessary for the presentation to the Supreme Court or the Appellate Court of the merits of the case.” The document here presented contains “the evidence and rulings of the court with respect thereto, and the charge of the court;” and we must therefore presume that if anything was omitted, it was omitted with the approval of the trial judge and because he deemed the omissions, if any, were “unnecessary for the presentation” to this court “of the merits of the case.” The document is therefore, whatever it may he called, within the spirit of the statute, even if it is not strictly within the letter of the law.

It is also urged that the document in question shows upon its face that it was not presented to Judge Hopkins within, the time allowed by the court, but that it was presented to Judge Blake during the temporary absence of Judge Hopkins from the State of Illinois. In Jaggle v. Nagle (No. 18610 of this court, opinion filed November 20, 1913), 183 Ill. App. 237, we held that section 23 of the Municipal Court Act requires the “application” mentioned in that section (to sign and place on file either a correct statement of the facts or a correct stenographic report) to be made to the judge “by whom the judgment was entered,” whose duty it is, under that sectioh, to grant such an application. It was also suggested in the opinion filed in that case (but without deciding the point) that if it appeared that the judge by whom the judgment was entered was unable, “by reason of death, sickness or other disability,” to sign and place on file such a statement of facts or stenographic report, then possibly section 81 of the Practice Act (J. & A. ¶ 8618), taken in connection with section 19 of the Municipal Court Act (J. & A. ¶ 3331), might be applicable. If it be assumed that by reason of the temporary absence from the State of Judge Hopkins an application might have been made on the theory suggested, to some other judge of the Municipal Court, and that such other judge, if in his opinion he was able to do so, might have had the authority to sign and place on file the statement tendered, that was not done in this case. Judge Blake did not assume to “sign” it, in the sense of certifying to its correctness. He merely marked it “presented for signing and filing,” etc. It does not appear, by the certificate of Judge Blake or any other judge that Judge Hopkins was, in fact, under any disability at that time. True, the plaintiffs’ attorney made an affidavit that he had been unable to find Judge Hopkins and was informed and believed that he had temporarily left the State; but Judge Blake does not certify that such was the case, nor that he acted upon the information contained in the affidavit. Judge Hopkins himself certifies that the document was “tendered” on July 17, “in open court.” Judge Hopkins does not say in Ms certificate that it was so “tendered” to him, nor does Judge Blake say in Ms certificate, to whom it was “presented.” If the certificate of Judge Hopkins stood alone, it would apparently show that the statement of facts was presented to him for signing and filing at the proper time, and was, in fact, signed later by Mm as of the date it was so presented. If this was the fact, then the additional statement by Judge Blake that it was “presented for signing and filing” on the same day, apparently to him, makes no difference whatever. In any event, the certificate of the judge by whom the judgment was entered, who is the only judge authorized by the Municipal Court Act to make such a certificate, cannot be contradicted by another certificate made by a judge who did not try the case nor enter the judgment. David v. Bradley, 79 Ill. 316; Parker v. Village of LaGrange, 167 Ill. 623. All the cases in this State, so far as we are advised, in which a similar document has been stricken from the record of the Appellate Court because it was not signed and filed within the time limited, are cases in which it affirmatively appeared, or was conceded, that the document was never, in fact, presented to the judge for his signature within the time fixed. Where such fact is not conceded and does not affirmatively appear, it will be presumed, from the fact that the trial judge signed the document, that he would not have signed it unless it had been presented to him in apt time. Underwood v. Hossack, 40 Ill. 98; Village of Hyde Park v. Dunham, 85 Ill. 569, 571; Olds v. North Chicago St. R. Co., 165 Ill. 472, 474. This presumption cannot, in our opinion, be overcome by the certificate of another judge. The motion to strike will, therefore, be denied.

Upon the merits of the case, the errors assigned may be summarized as follows: (1) the court erred in directing a verdict upon the attachment issue; (2) the verdict is contrary to the evidence; (3) the court erred in refusing to give the instructions offered by plaintiffs.

The record filed in this court does not contain a copy of the affidavit for attachment. The “statement” certifies that it contains “the usual attachment allegations.” Waiving any question as to this method of presenting an alleged error, we find no evidence in the record fairly tending to prove any ground for attachment. It is true that there is some evidence to the effect that the defendant withdrew his bank balance of about fifty dollars and tried to collect other money from those who held it subsequent to the dismissal of a prior attachment suit; but such evidence of itself, does not' give rise to any legitimate inference of fraud, or concealment, or an attempt to hinder, delay or defraud creditors. (We infer from the argument of counsel that these grounds are intended by the terms “usual attachment allegations”.) The court properly directed a verdict upon the attachment issue.

There was a sharp conflict in the evidence between the plaintiffs’ witnesses and those of the defendant as to whether the price at which the property was sold was fixed at a gross sum, including commissions, or was fixed at a net price, without commissions. Upon that issue of fact, we think the jury were fully and fairly instructed, and we cannot say from the record before us that the verdict was manifestly contrary to the preponderance of the evidence. As to the instructions offered and refused by the court, we find, upon examination, that so far as they were pertinent, material or correct, they were covered by the oral charge of the court.

Finding no substantial error in the record, the judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Justice Gridley

text:
    Otto Geiersbach, Defendant in Error, v. John A. Fippinger et al., Plaintiffs in Error.
    Gen. No. 18,235.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mandamus, § 82

      —when proper to compel collection of special assessment. A writ of mandamus may be resorted to, to compel a village to proceed to enforce the collection of a special assessment if it has failed to discharge its duty in that respect.
    2. Mandamus, § 143

      —sufficiency of petition. Allegations of petition for mandamus held to sufficiently show, at least as against a general demurrer, such a state of facts as to entitle petitioner to a writ commanding a village to take necessary steps to put into collection a special assesment.
    Error to the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed December 4, 1913.
    Statement of the Case.
    Petition by writ of mandamus by Otto Geiersbach against John A. Fippinger and others, as members of the board of trustees and the board of local improvements of the village of Bellwood, to compel the respondents to take steps to put into collection a special assessment and to issue proper vouchers for paving work done by petitioner. From a judgment awarding the writ, respondents bring error.
    George E. Brannan, for plaintiffs in error.
    John A. Brown and Charles W. Hadley, for defendant in error.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

3. Mandamus, § 173 —form, of judgment. Judgment that a writ of mandamus “do issue herein,” etc., held not defective for not specifying what respondents are to do where the prayer of the petition is clear and specific.

4. Mandamus, § 172 —what relief warranted by petition. Allegations of a petition for mandamus to compel a village to put into collection a special assessment for paving work done, held not to warrant court in directing respondents to issue vouchers to petitioner.

5. Municipal corporations, § 377 —when village estopped to assert informality of contract for improvement. Village authorities accepting work done by contractor in laying sidewalks in accordance with an ordinance, and under the superintendence of agents for the village, are estopped from setting up the irregular manner in which the contract was entered into as a defense to a petition for mandamus to compel the village to put into collection a special assessment.


text:
    The People of the State of Illinois for use of State Board of Health, Defendant in Error, v. Frank Klimek, Plaintiff in Error.
    Gen. No. 18,477.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaush, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 4, 1913.
    Statement of the Case.
    Action by the People of the State of Illinois for the use of the State Board of Health against Frank Klimek to recover the sum of two hundred dollars as a penalty for a second offense of practicing medicine without a license. From a judgment against defendant for two hundred dollars, defendant brings error.
    Brady & Levy, for plaintiff in error; Josiah Burhham, of counsel.

      Abstract of the Decision.
    1. Penalties, § 5

      —when suit for penalty is a civil proceeding. Where an offense is created by statute and a penalty is fixed for its commission which is to be recovered in an action of debt and not by prosecution, the action is civil and the rules of criminal pleading and procedure do not apply to it.
    2. Physicians and surgeons, § 8

      —nature of proceeding to recover statutory penalty for practicing without a license. A proceeding under the Act of 1899, relating to the practice of medicine, J. & A. ¶ 7390, to recover a penalty for the offense of practicing medicine without a license, is not a criminal proceeding requiring the offense to he proved beyond a reasonable doubt.
    3. Physicians and surgeons, § 8

      —burden of proof. In action to recover a penalty for offense of practicing medicine without a license, the burden is upon defendant to prove that he had such a license.
    4. Appeal and error, § 479

      —when objections to instructions not available. Objections to instructions not specifically called to the attention of the trial court, not preserved for review.
    Charles Alling, Jr., for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Oscar D. Olson, Executor, Plaintiff in Error, v. Pennsylvania Company, Defendant in Error.
    Gen. No. 18,517.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    .Affirmed.
    Opinion filed December 4, 1913.
    Statement of the Case.
    Action by Oscar D. Olson, executor of the will of George B. Gibson, deceased, against Pennsylvania Company, a corporation, to recover a certain sum deceased had on deposit in the “Employees’ Saving Fund of the Pennsylvania Lines west of Pittsburg.” The defense was that said sum was not a part of the estate of the deceased and that it was paid to the mother of the deceased, who was rightfully entitled thereto. From a judgment in favor of defendant, plaintiff brings error.
    Abstract of the Decision.
    1. Municipal court of Chicago, § 26

      —presumption in the absence of a correct statement of facts. In the absence of a correct statement of the facts appearing upon the trial, it must he presumed that there was sufficient evidence to warrant the finding and judgment.
    2. Municipal court of Chicago, § 26

      —when statement of facts insufficient. A statement of facts reciting that the cause was heard on a stipulation of facts is insufficient where such stipulation is not appended to or in anyway made a part of the statement of facts.
    3. Appeal and error, § 761

      —when stipulation of facts is not a part of the record. A stipulation of facts appearing in the transcript of the record as having been filed in the cause is not a part of the record so that it may be considered on review.
    David G. Einstein, for plaintiff in error.
    Loesch, Scofield & Loesch, for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    N. Mazzarella, Plaintiff in Error, v. Olives Kamberos, Defendant in Error.
    Gen. No. 18,534.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 4, 1913.

      Abstract of the Decision.
    1. Municipal court of Chicago, § 26

      —presumption in the absence of statement of facts, etc. In the absence of a statement of facts, stenographic report or bill of exceptions, presumed that there was sufficient evidence to warrant the finding and judgment.
    2. Municipal court of Chicago, § 26

      —what transcript of record must disclose. Error of court in denying plaintiff’s motions to strike defendant’s statement of set-off from the files cannot be considered where the transcript of the record does not disclose that such motion and ruling were made.
    3. Set-off and recoupment, § 38

      —burden of proof. Burden of proof is upon defendant to establish the existence and validity of his claim of set-off by a preponderance of the evidence.
    Statement of the Case.
    Action by N. Mazzarella against Olives Kamberos to recover fifty dollars claimed to be due to plaintiff for goods sold and delivered to defendant. Defendant filed a statement of set-off or counterclaim for seventy dollars whitfii he claimed to be due to him from plaintiff in a transaction unconnected with plaintiff’s cause of action. Prom a judgment in favor of defendant for twenty dollars, entered on a finding against plaintiff on defendant’s claim of set-off, plaintiff brings error.
    Cairoli Giglioiti, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Presiding Justice Baker

text:
    Helen Iles, Plaintiff in Error, v. Inter Ocean Newspaper Company, Defendant in Error.
    Gen. No. 18,310.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Libel and slander, § 140

      —requisites of pleadings in justification. In an action for libel, a plea or notice justifying the words as true must aver the truth of the very charge.
    2. c. Libel and slander, § 123

      —matters provable under the issues. In an action for libel where defendant pleads only the general issue and gives notice of special matters, testimony offered by defendant as to the acts, conduct and language of plaintiff not mentioned in the notice of special matters is not admissible.
    3. Libel and slander, § 143

      —when evidence of character of plaintiff admissible. In an action for libel, evidence of general bad reputation of plaintiff is admissible under the general issue in mitigation of damages, but it is a general rule that the character of a party cannot be impeached by proof of special acts.
    4. Libel and slander, § 174

      —when admission of evidence of conduct of plaintiff is error. Permitting a witness for defendant to testify to disgraceful acts and conduct on the part of plaintiff occurring more than two years after the publication of the alleged libel, held error.

      Error to the Superior Court of Cook county; the Hon. Paul McWilliams, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed December 22, 1913.
    Statement of the Case.
    Action by Helen lies against the Inter Ocean Newspaper Company to recover damages for an alleged libel concerning plaintiff published in the newspaper of the defendant. From a judgment of not guilty, plaintiff brings error.
    Charles C. Spencer, for plaintiff in error.
    James J. Barbour, for defendant in error.

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

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

5. Libel and slander, § 123 —when matters occurring after the publication inadmissible. Evidence of facts occurring more than two years after the publication of the alleged libel does not tend to show the truth of the publication nor is it admissible in mitigation of damages.

6. Libel and slander, § 146 —when proof of the truth of the publication insufficient. In an action for libel, where the principal charge in the publication was that plaintiff was a boy disguised as a girl, proof that plaintiff was masculine in her behavior and guilty of acts indicating an undue afiection for women, held not to amount to proof of the truth of the publication.

1. Libel and slander, § 160 —questions for court. The purport of the publication is a question of law for the court.

8. Witnesses, § 210 —form of questions on cross-examination. It is the province of counsel on cross-examination to ask questions, not to state facts. A question so framed that the answer “No sir” would deny only a part of a question is improper.

9. Witnesses, § 210 —what questions on cross-examinations are improper. In an action for libel, question asked of plaintiff on cross-examination concerning whether plaintiff’s mother had been married eight times, held improper.


text:
    John F. Devine, Administrator, Appellant, v. Northwestern Elevated Railroad Company, Appellee.
    Gen. No. 18,328.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.
    Statement of the Case.
    Action by John F. Devine, administrator of Josephine Welter, deceased, against Northwestern Elevated Bailroad Company, a corporation, to recover damages for the death of deceased alleged to have been caused by being struck by one of defendant’s cars at a street crossing. From a judgment in favor of defendant, plaintiff brings error.
    Abstract of the Decision.
    1. Trial, § 268

      —right to special findings. In any case in which the jury renders a general verdict they must, on the request of a party, be required to find specially upon any material question or questions of fact.
    2. Negligence, § 247

      —right to special finding with reference to question of due care of plaintiff. In an action for damages for negligently causing death, defendant is entitled both to an instruction to find for defendant if deceased was guilty of negligence contributing to the accident and also to a special finding whether deceased was in the exercise of proper care and caution at the time of the accident.
    3. Negligence, § 250

      —when failure of instruction to define care required of plaintiff, not reversible error. Failure of instructions on question of due care of plaintiff to define “due and proper care and caution” and “ordinary care,” held not reversible error where it is doubtful whether any attempted definition of the words used would have made their meaning clearer.
    4. Negligence, § 250

      —when omission in instruction not reversible error. Omission of an instruction to state that the failure by the deceased to exercise due and proper care which would prevent a recovery for plaintiff is limited to cases where such failure caused or contributed to the injury and death of deceased, held not reversible error.
    5. Negligence, § 247

      —when error in excluding questions ashed on cross-examination not reversible error. Error in sustaining objections to questions asked on cross-examination concerning defendant’s negligence, held not reversible error in view of a special finding of jury that deceased was not in the exercise of due care at the time of the accident.
    O’Donnell, Dillon & Toolen, for appellant.
    Addison L. Gardner for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Anna Hoffman, Defendant in Error, v. Wellington T. Stewart et al., trading as Col. W. A. Thompson Co., Inc., Plaintiffs in Error.
    Gen. No. 18,332.
    1. Partnership, § 269

      —persons liable as partners on contracts made prior to formation of partnership. Persons advancing money under an agreement to join with another in a theatrical business previously conducted by the latter, the parties having in contemplation the organization of a corporation which was never in fact organized, held liable as partners on a prior contract for the services of one of the players.
    2. Partnership, § 269

      —rule as to liability of incoming partner on prior contracts. Though, as a rule, a person who enters into a partnership with another does not become liable to the creditors of his partner for anything done before he became a partner, there are exceptions to the rule. One is that where a contract made by a person or firm remains executory until a partnership is created or a new partner is admitted into the firm, and such contract, while it remains executory, is adopted by the incoming partner, who acquires all the benefit as if he had been a partner in the original transaction, a promise may he implied to assume the liability of the partner or firm on such contract.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.
    Statement by the Court. The plaintiff, Anna Hoffman, recovered in the Municipal Court a judgment against Thompson, Stewart and Marhoefer for one hundred and three dollars for services as prima donna at the Angelus Theatre rendered from September 2 to October 1, 1911, at forty-five dollars a week, less a credit of eighty-seven dollars, to reverse which Stewart and Marhoefer prosecute this writ of error.
    July 18, 1911, plaintiff and defendant Thompson entered into a contract in writing, wherein it was agreed that plaintiff should render services to Thompson as prima donna for a period of not less than ten months, commencing September 2, 1911; that Thompson should pay her therefor forty-five dollars per week and that the contract would he terminated by giving two weeks’ notice. Thompson did business under the name of the Thompson Opera Company and had a lease of the theatre, contracts with players for the season beginning September 2, advertising matter, programs for the first performance, etc. About August 25 he decided to change the name of his theatrical business from the Thompson Opera Company to the Col. W. A. Thompson Company, incorporated, and caused an application for a license to form a corporation under that name to be prepared and forwarded to the Secretary of State. He found, as the day fixed for the opening approached, that he could not open unless he secured a considerable sum of money, and said to Stewart that he wanted to get some one to join him in the venture. Through Stewart he met Marhoefer, and the three entered into a written contract dated September 1, which recited that Thompson had a lease of the Angelus Theatre and was the owner of the Thompson Opera Company, and provided that Thompson should be president and general manager of the company at a salary of fifty dollars per week, and Stewart treasurer at a salary of twenty dollars per week; that the funds received from the business should be deposited in a bank and drawn out on checks signed by Thompson and countersigned by Stewart; that it was understood that Thompson had invested “in this proposition” sixteen hundred dollars, Stewart fifteen hundred dollars, and Thompson and Stewart represented to Marhoefer that on the “investment” by him of fifteen hundred dollars that said sum, together with the sums invested by them, would pay the debts “incurred in this enterprise” up to the date of said agreement; that it was further agreed that the fifteen hundred dollars “hereby invested” by Marhoefer should be a first lien on the property of the Thompson Opera Company and the leasehold of said theatre; that Thompson should receive three thousand dollars of the capital stock of the Thompson Opera Company, Stewart fifteen hundred dollars and Marhoefer fifteen hundred dollars, and that the remaining four thousand dollars of the capital stock of said company should be treasury stock. Stewart and Marhoefer each paid fifteen hundred dollars, which was deposited in a bank to the credit of the Col. W. A. Thompson Co., incorporated, and drawn out on checks signed in the name of that company by W. A. Thompson, President, and countersigned W. T. Stewart, Treasurer. September 12th, Stewart and Marhoefer advanced seventeen hundred and fifty dollars more and the following writing was executed:
    “Chicago, Sept. 12, 191—.
    For and in consideration of Seventeen hundred fifty Dollars advanced by E. H. Marhoefer & Dr. W. Stewart, in addition to what was previously advanced that the said Marhoefer and the said Stewart are to receive ($2,000) two Thousand Dollars each of the capital stock of the Thompson Opera Co. and Col. Wm. Thompson to receive Two Thousand Dollars in said Co. balance of stock to remain in treasury, said Col. Thompson to be paid a salary of one hundred dollars per week after the said Marhoefer and the said Stewart have been repaid all moneys advanced.
    W. A. Thompson,
    Edward H. Marhoefer,
    W. T. Stewart.”
    Fred C. Harbour and P. H. Bishop, for plaintiffs in error.
    G. M. Peters, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, same tonic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

From the evidence the trial court might properly find that the transactions between Thompson of the one part and Stewart and Marhoefer of the other part was not the lending of money hy the latter to the former, but was the purchase by each of an interest in the theatrical business conducted by Thompson under the name of the Thompson Opera Company, and that the parties had in contemplation the organization of a corporation, of which a specified amount of the capital stock should be issued to each of said parties and the remainder should be treasury stock. No corporation was ever organized and the parties to the contract from the time it was made must be held to have been partners. ' ¡

It is true that a person who enters into partnership with another does not thereby become liable to the creditors of his partner for anything done before he became a partner, yet there are exceptions to the rule. One is that where a contract made by a person or firm remains executory until a partnership is created or a new partner is admitted into the firm, and such contract, while it remains executory, is adopted by the incoming partner, who acquires all the benefit as if he had been a partner in the original transaction, a promise may be implied to assume the liability of the partner or firm on such contract. Frazer v. Howe, 106 Ill. 583; Lucas v. Coulter, 104 Ind. 81; Watt v. Kirby, 15 Ill. 200; Hellsby v. Mears, 5 B. & C. 504, 11 E. C. L. 539; Ex parte Peele, 6 Ves. Jr., 602-604.

In this case Stewart and Marhoefer knew that Thompson had made contracts with plaintiff and other players and knew that she and they were playing at the Angelus Theatre for the benefit of themselves and Thompson, and we think that the court might properly find that they became liable with Thompson to pay her for her services.

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

Affirmed.


text:
    Joseph Haber, Appellee, v. W. A. Jones Foundry & Machine Company, Appellant.
    Gen. No. 18,350.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 688

      —when verdict for injuries to servant sustained by the evidence. In an action by a servant for injuries resulting from the defective condition of the coupling appliances of an iron pulley lathe, a verdict for plaintiff held not so clearly against the weight of the evidence that trial court erred in denying defendant’s motion for a new trial.
    2. Master and servant, § 399

      —when servant assumes risk after promise to repair. Servant does not assume the risk because he was injured more than four hours after defendant promised to repair a defective machine. Whether plaintiff continued in employment longer than a reasonable time is a question of fact for the jury.
    Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Bale, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.
    Statement of the Case.
    Action by Joseph Haber against W. A. Jones Foundry & Machine Company to recover damages for the partial loss of plaintiff’s thumb caused by being caught in an unprotected speed gear of an iron pulley lathe which plaintiff was operating for defendant at the time of the injury. From a judgment in favor of plaintiff for one thousand dollars, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett, J. Sidney Condit and Rupert Donovan, of counsel.
    Gallagher & Messner, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.