text:
    In re Estate of Joseph Gorlewicz, Deceased. On Appeal of Mary Gorlewicz, Appellant, v. Henry A. Fowler, Administrator, Appellee.
    Gen. No. 21,318.
    (Not to be reported in full.)
    Appeal' from the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Proceeding by Henry A. Fowler, administrator of the estate of Joseph Gorlewicz, deceased, against Mary Gorlewicz.
    The Probate Court entered a rule on defendant, Mary Gorlewicz, to show cause why she had not complied with an order of that court directing her to turn over to the administrator of the estate of Joseph Gorlewicz certain personal property and a saloon license, or $2,000 received on a sale of the same. On the hearing’ a rule was entered directing her to pay over to the administrator $2,000. From such order she appealed to the Circuit Court. On the hearing in that court the following order was entered following certain findings:
    “Therefore, it is considered by the court that the appellant, Mary Gorlewicz, take nothing by her aforesaid action, and that the administrator of the estate of Joseph Gorlewicz go hence without day and do have and recover of and from the appellant, Mary Gorlewicz, the sum of two thousand dollars, together with his costs and charges in this behalf expended and have execution therefor.”
    The evidence showed that Joseph Gorlewicz died May 4, 1911, and had at the time of his death a dram-shop license which expired October 31, 1911. The appellant carried on the dramshop after his death, and October 27, 1911, made application for a dramshop license for six months beginning November 1st, and one was issued to her by the City of Chicago. February 13, 1912, she sold the license so issued to her for $2,000.
    Abstract of the Decision.
    Executors and administrators, § 62

      —when evidence insufficient to show that property constitutes asset of estate. In a proceeding to compel one to turn over to the administrator of an estate certain personal property and a saloon license, or the price received by sale of the license, as property of the estate, evidence examined and held insufficient to show that the license in question was not the property of defendant.
    P. E. O’Neil, for appellant.
    No appearance for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Frank H. Jones, Trustee, Appellant, v. Louis W. Parker et al., Appellees.
    Gen. No. 21,328.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action for deceit by Frank H. Jones, trustee in bankruptcy of the estate of Benezette Williams, and Charles MacRitchie, copartners as Williams & Mac-

      Ritchie, plaintiff, against Louis W. Parker and Livingston Dickason, surviving partners of the firm of Dorwin & Company (composed of defendants and W. E. Dorwin), defendants.
    From a judgment of nil capiat, entered on a directed verdict, plaintiff appeals.
    The following facts appear: A certain railroad company was engaged in constructing a railroad over the Atchafalaya River in Louisiana. On each side of the river was a swamp through which an embankment three or four miles long had to be constructed to elevate the tracks. This embankment on the west side of the river extended from the high ground at engineer’s station 829 to the west bank of the river, engineer’s station 1054. The embankment on the east side extended from station 1059 at the east bank of the river east to station 1707, where it reached the high ground. October 9, 1907, Dorwin & Company, entered into a contract in writing with the railroad company with reference to the construction of the embankments. It provided that Dorwin & Company, should, at the price of thirty cents per cubic yard, complete the work on the west side of the river in one hundred and twenty days, and contained the following provision as to the work on the east side of the river:
    “It is also understood and agreed that the company may, at its option, extend this contract at the same prices and on the same terms and conditions, except as to time, to cover the filling in of the temporary trestles from the Atchafalaya River (station 1059) to the east edge of the Atchafalaya swamp (station 1707). The right is reserved to the company, however, to seek bids for said work, and in event the said bids so received shall be more favorable than the prices in this contract, then and in that case the contractor herein shall have the preference on the work between station 1059 and station 1707 at the prices and terms thus obtained.”
    Trestles had been constructed west of the river before October 9, 1907, but no bridge over the river had been built and little or no trestle work had been built east of the river. It was originally intended to build the entire embankment by filling from trestles. The contract of October 9th provided for the filling in of the temporary trestles between stations 829 and 1054, and it appears from the provisions of the contract in relation to the work on the east side of the river, above quoted, that it contemplated the construction of the embankment on that side of the river by filling in from trestles from the river to the east edge of the swamp.
    The declaration alleged that in four particulars Dorwin & Company misled Williams and MacBitchie: First, that Dorwin & Company represented that their contract with the railroad company covered the work on both sides of the river, whatever engineering method might be employed; second, that Dorwin & Company represented that the rate of progress in the construction contract had been waived; third, that Dorwin & Company represented that the plant in operation on the work was of sufficient capacity to meet the requirements of the contract; and, fourth, that Dorwin and Company represented that the equipment in use by them was in good condition and repair and suitable for the purposes intended. When the formal contract between Williams and MacBitchie and Dorwin & Company was signed by Williams, he was fully advised that the railroad company would insist on the rate of progress called for by the contract.
    There was no evidence that any representations were made by Dorwin & Company as to the sufficiency of the equipment or of the plant. It appeared from the evidence that Williams and his firm were fully informed as to the sufficiency of the equipment and the plant when they entered into the contract with Dorwin & Company.
    The point relied on by plaintiff is the alleged misrepresentations by Dorwin & Company to Williams and MacRitchie as to the contract with the railroad company. The railroad company was about to construct a railroad across the Atchafalaya River and the adjoining swamp on either side. It had constructed a trestle across the swamp on the west side of the river and entered into a definite contract involving a large outlay of money for an early completion of the work west of the river. Dorwin & Company had a contract with the railroad company which gave them control of the east side work at a definite price if there was no lower bidder; if there was, they would be compelled to meet that bid to secure the work. They were willing to take that risk and fix a price with Williams and MacRitchie, whatever the price with the railroad company might be, and Williams testified that they offered him the entire work at twenty-five cents a yard. Later, by reason of a suggestion by Williams, the railroad company’s engineers were led to consider a plan for doing the east side work by dredging. This was the only plan Williams would consider for the east side work; and he testified that he was assured by Dorwin and by Parker that if the dredging plan was accepted, Dorwin & Company would still control the east side work.
    The contention of plaintiff appeared to be that Dorwin & Company’s contract with the railroad company did not include the east side work; that they represented to Williams and MacRitchie that it did, and that this was a material misrepresentation as to a material particular, whereby Williams and MacRitchie were misled and induced to alter their position to their disadvantage.
    The offices of the railroad company were in New York, and Coleman was the consulting engineer and Cushing his superior, and they had their offices in New Orleans. They could only recommend but could not make a contract without the authority of the offioials in New York. This was known to Williams. In February, 1908, Williams and Dorwin went to the river to see the construction of the embankment in progress on the west side of the river, and then went to Chicago by way of New Orleans. After long consultation with Williams, Dorwin submitted to Coleman a proposition for the work on the east side of the river based on the dredging plan at forty-two cents a yard. Coleman said that he would recommend the change to dredging and the acceptance of the proposition. Williams knew that the proposition to do the work on the east side by dredging had not been accepted by the railroad company. His son Carl wrote him February 28th that Dorwin had not got anything out of Cushing except that he was favorable, that the matter had to go to Harriman for decision. Williams testified that Dorwin told him March 3rd, that “they” had decided to do the work by dredging, but “they” were not ready to enter on it, had not got the authority to do it: and further testified as follows:
    “Q. Did he say the price had been agreed upon? A. No, sir, he did not. He said it had not been agreed upon.
    “Q. Did he say the time for the work had been agreed upon? A. No; that was an element that was left open.
    “Q. Both the dredging and the price was left open? A. The time for dredging it.
    “Q. And the price? A. And the price.
    “Q. So that you understood from his conversation that it remained to make a contract with the railroad company the east side work, did you? A. Yes, sir.
    “Q. And you understood that on March 3rd? A. Yes.
    “Q. And you understood that throughout the negotiations? A. Yes, sir.
    “Q. That the railroad company and Dorwin & Company never at any time had any contract complete in terms covering the work east of the river? A. Yes, I understood it that way.”

      March 14, 1908, Williams made to Dorwin & Company, a written proposition for the work on the west side of the river,' by which he agreed to complete the work Dorwin & Company had begun on that side of the work, and that he would have a formal contract prepared as soon as he ascertained whether the work was to be done by Williams and MacRitchie or by Williams himself and others. This proposition was accepted by Dorwin & Company. On the same day Williams submitted a proposition for the work on the east side of the river in which is the following statement :
    “Referring to your proposition which you submitted to Morgan’s Louisiana & Texas Railroad & Steamship Company for making the embankment for said railroad between stations 1059 and 1656 on the Baton Rouge Branch in the swamp east of the Atchafalaya River, I submit to you the following proposition: In case your proposition is accepted by said railroad company, I will do the work for you for 33 cents per cubic yard measured in embankment; payments to be made to me as and when received by you from the said railroad company. I will have a formal contract covering the foregoing and containing provisions similar to those contained in your contract with the railroad company entered into either by the firm of Williams & MacRitchie or by myself and others as soon as I can determine whether said contract will be undertaken by said firm or by myself and others.”
    The formal contract for the work on the west side of the river was signed June 2nd and bears date April 1st and contains the following provision:
    “The parties of the second part” (Williams and MacRitchie) “hereby agree to complete the work required by said contract beginning on this date, in accordance with said specifications Exhibit ‘A’ except as to the time within which said contract shall be completed, and with respect thereto said parties of the second part agree to complete the balance of the work required by said contract at the same rate required by said specifications, to-wit: about 2400 cubic yards on each working day hereafter. ’ ’
    The specifications Exhibit “A” are for the work'on the west side of the river only. They provide that the “work shall be begun within 30 days after notification by the engineer, and shall be completed, between points covered by the contract, within 120 working days thereafter; that the quantities are approximately as follows: Station 829, Atchafalaya River, 287,434 cubic yards. The formal contract for the work east of the river which Williams refused to sign, contains the following:
    “Whereas the said parties of the first part (Dorwin & Co.) have submitted to said railroad company a proposition for making the embankment for said railroad between stations 1059 and 1655 with a dredge, thus avoiding the necessity for the construction of temporary trestles at a price of 42 cents per cubic yard measured in embankments, which said proposition said railroad company now has under consideration; and whereas the parties of the second part (Williams and MacRitchie) desire to do the work of filling in the temporary trestles or constructing the embankment, as the case may be; Now, Therefore, it is hereby agreed by and between the said parties as follows: In case the proposition of the parties of the first part for constructing the embankment is accepted by said railroad company, the parties of the second part shall do the work,” etc.
    Williams testified that Dorwin may have shown bim the specifications in January; that “at any rate if he did not show me the specifications he gave me a full synopsis of them as to the rates of progress, etc., so that before March 14th, I understood that the work on these specifications and the rate of progress was to be 2400 yards a day.”
    Williams further testified as follows:
    “Q. On March 14, when you signed the two proposals which were in evidence, did you believe that the railroad company had accepted the proposition of Dorwin & Company to do the work east of the river by dredging? A. Not for forty-two cents, no, sir; I understood that they had not accepted that.
    Abstract of the Decision.
    1. Fraud, § 19

      —when representation of intention not fraud in law. The rule that a false representation as to a matter of intention not amounting to a matter of fact is not fraud in law, even though the transaction is influenced thereby, applies to the representation of an intention by a third party as well as to a representation of defendant’s intention.

      “Q. You understood they had not accepted the proposition? A. Had not accepted it.
    “Q. Did you not believe at any time during the entire history of these negotiations that the railroad company had accepted Dorwin & Company’s proposal to do the work east of the river by dredging? A. I never did.
    “Q. You never believed it? A. I never did.
    “Q. You never believed it? A. I never understood it that they had.” •
    Williams testified that Dorwin told him February 29th that the railroad company had decided to do the work east of the river by the dredging principle. “He did not say the price had been agreed on. If I remember, he did not mention whom it had been accepted by.”
    The declaration alleged that Williams and MacRitchie would not have undertaken the work on the west side of the river for twenty-five cents per cubic yard had they not believed the alleged representations of the defendants that they had a valid and binding contract for the entire work on the west and east sides of the river, comprising approximately 900,000 cubic yards.
    G. E. M. Pratt and John S. Miller, for appellant.
    George G. King, for appellees.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

2. Fraud, § 5 —when knowledge of falsity of representation essential. In an action for deceit, the evidence must show that the representation alleged to be false was in fact false; if false, that it was known to be false by the person making it.

3. Fraud, § 115 —when evidence insufficient to show actionable misrepresentation. In an action of deceit against the surviving partners of a firm, evidence examined and held insufficient to show actionable misrepresentation by the firm relied on by plaintiffs, which was the inducing cause of the loss sustained.


text:
    Mary Bernd, Appellee, v. City of Chicago, Appellant.
    Gen. No. 21,344.
    (Not to be reported in full.)
    Appeal from the Superior Court-of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed with finding of fact.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action by Mary Bernd, plaintiff, against the City of Chicago, defendant, for personal injuries. From a judgment of $1,875, for plaintiff, defendant appeals.
    The evidence showed that plaintiff and her son were walking north on Sheffield avenue, plaintiff on the left or west side of her son, when she suddenly fell. The only witnesses who had any personal knowledge of the accident were plaintiff and her son, then about sixteen years old. She was asked where she walked, and answered: “I can’t tell, was it really on the sidewalk or next to the sidewalk—it was on the sidewalk I fell because it was like the sidewalk, just as straight as the sidewalk, as even.” She further testified in answer to the question of her own counsel: “Q. Which part of the sidewalk were you walking on? A. On the outside, the outer edge.” She further testified that her foot caught against something and she fell; that she did not know what her foot caught against. Her son testified that he was walking on the east side of his mother; that there were some people west of her; that he was on the sidewalk and so far as he knew his mother was on the sidewalk; that he noticed that there was a pipe or brick or something protruding from the ground; that he went back two days later and saw a mushroom pipe west of the sidewalk; that plaintiff fell in front of number 2249 Sheffield avenue; that there was snow here and there and a little ice on the street here and there. He further testified that number 2249 was a double house. The evidence showed no defect in the sidewalk, and that west of and near the sidewalk was an iron pipe, a mushroom-shaped pipe or cover, intended for use as a shut-off box for water pipes leading to the adjoining house.
    The first count of the declaration alleged that plaintiff fell as she was walking on the sidewalk because of its dangerous condition. The second, that plaintiff was passing upon said sidewalk and fell because of the dangerous condition of the sidewalk and space, used by pedestrians. The third, that the defendant had negligently used and permitted a certain public street, viz., Sheffield avenue, to be out of repair with dangerous pieces of iron pipe extending six inches above the ground, and that as plaintiff was passing along and upon said sidewalk and space she fell because of such dangerous condition of the sidewalk and street and the space between. The fourth count alleged that defendant had negligently kept a certain sidewalk and space in a dangerous condition with pipes extending to a dangerous height and with a dangerous depression, and while plaintiff was passing along and upon said sidewalk, street and space, she struck against said pipe and obstruction and into said depression and fell, etc.
    Abstract of the Decision.
    Municipal corporations, § 1098*—when evidence insufficient to show injuries caused pedestrian by negligence of city. In an action against a city to recover for personal injuries alleged to have been caused by a defect in the sidewalk, negligently permitted to be there by defendant city, evidence examined and held insufficient to show that the plaintiff’s injuries were caused by defendant’s negligence.
    John W. Beckwith, N. L. Piotrowski and David R. Levy, for appellant.
    Oscar C. Miller, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.


text:
    In re Estate of Charles Spohr, Deceased. On Appeal of Julia E. Spohr, Appellant, v. Adolph L. Kraus, Executor, Appellee.
    Gen. No. 21,373.
    1. Husband and wife, § 223

      —when recital in decree not part of contract. The recital in a decree for separate maintenance that the wife is thereby barred of dower does not constitute such recital a part of a contract entered into between the husband and wife before the entry of such decree for the conveyance of certain'property to the wife.
    2. Husband and wife, § 255

      —what extent of jurisdiction to decree separate maintenance. A court of chancery has no power to decree separate maintenance independently of the authority conferred by statute.

      3. Dower, § 62

      —when decree for separate maintenance cannot tar right. A court of chancery granting a decree for separate maintenance has no power to incorporate therein a provision barring the wife’s right of dower.
    Appeal from the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed January 3, 1916.
    William A. Conover, for appellant.
    George A. Miller, for appellee; Oscar Hebel, of counsel.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

The question presented by this record is whether the appellant, Julia E. Spohr, is entitled to a widow’s award as the widow of her deceased husband, Challes Spohr. The parties were married in 1857, and Charles Spohr was a resident of Cook county at the time of his death in 1912. He died testate but made no provision for his widow in his will. He left personal estate amounting to $3,000 and also real estate.

The Probate Court dismissed appellant’s petition for the allowance and appraisement of a widow’s award. On appeal by her to the Circuit Court that court g’ave judgment that “appellant take nothing by her aforesaid action and that the Estate go hence without day” and for costs. The facts which the Circuit Court held barred the widow from claiming a widow’s award are that she in 1888 in the Superior Court filed a bill for separate maintenance; that after the filing of the bill her husband conveyed to her a life estate in property 128-30 Siegel street; that June 27, 1888, the parties entered into a written contract reciting the making of said conveyance, and that by a decree to be entered in said cause for separate maintenance it is provided that Julia E. Spohr is to be forever barred of all “right, title, claim or interest, whether' of homestead, dower or otherwise, in and to all the other property of Charles Spohr”; that June 29,1888, a decree was entered in said separate maintenance suit; this decree recites the conveyance to Mrs. Spohr of the Siegel street property and further recites that the same is accepted by Mrs. Spohr “in lieu of all her dower and right of dower, homestead rights, or other claims in or to all other property whereof the defendant is now or may hereafter be seized,” and decrees inter alia “that the complainant is not entitled to and she is hereby forever barred of all right, title, interest or dower or right of' homestead or claim of any nature in the other property whereof the said defendant is now seized and in any property whereof the defendant may hereafter become seized; and the said defendant shall hold, possess and enjoy such other property with the full power to incumber and dispose thereof to all intents and purposes as if he were sole and unmarried.” Mrs. Spohr lived on the property so conveyed to her until 1905, when the City of Chicago took, possession thereof for school purposes. Her life estate in the property was sold in 1897 on an execution issued on a judgment against her, and the purchaser in 1904 conveyed the same to Catherine Spohr, the daughter of Julia E. Spohr. The city condemned the property and paid the compensation awarded, $6,750, to the county treasurer, for the benefit of the parties interested in the premises, and the Superior Court, by a decree, required the county treasurer to pay said money to the State Bank of Chicago to be invested in interest bearing securities and to pay the income to Catherine Spohr during the lifetime of Mrs. Spohr, upon whose death the principal was to be divided among the four heirs. No minor child of the deceased was living with Mrs. Spohr at the time of her husband’s death.

It will be noticed that there was no contract between the parties providing that the conveyance of the life estate in the Siegel street property accepted by Mrs. Spohr was in lieu of dower, homestead rights or other claims in the property of which her husband was or •might thereafter be seized; but the decree recites that there was such an agreement and declares that she was “hereby”—that is in and by the decree—forever “barred of all right, title, interest or dower or right of homestead or claim of any nature” in her husband’s property. This recital in the decree did not make the provision so recited a part of the contract.

The only question presented by, this appeal is whether the decree for separate maintenance is a bar to the claim of Mrs. Spohr to a widow’s award in the estate of her deceased husband. If the Superior Court had power to make that part of the decree above quoted, Mrs. Spohr is barred, but if not, her right to an award is unaffected by it. A Court of Chancery has no power to grant divorces or to decree separate maintenance independent of the statutes on that subject. In England the ecclesiastical courts had exclusive jurisdiction! to grant divorces a mensa et thoro and Parliament alone had the power to dissolve the marriage contract absolutely. We must have recourse to the statutes, then, for the power exercised by the Superior Court, if it exists. The provision in relation to separate maintenance is section 1 of the act in relation to married women of 1877, Hurd’s Statutes, Ed. 1913, p. 1364 (J. & A. 6159), which provides: “That married women, who, without their fault, now live or hereafter may live, separate and apart from their husbands, may have their remedy in equity in their own names, respectively, against their said husbands in the Circuit Court of the county where the husband resides, for a reasonable support and maintenance, while they so live or have so lived separate and apart. ’ ’ It will be seen, first, that a separation, a living apart from her husband, is not necessarily a complete and final separation of the parties; the allowance is to the wife while they live separate and apart and a reconciliation is contemplated. And, second, that the allowance directed to be paid is not a final disposition of the property of the husband between himself and wife, but is, on the contrary, a temporary provision for her support elsewhere than in her husband’s home until they are reconciled. The statute does not in terms authorize the court to make any decree affecting the right to a widow’s award. The parties did not in this case, as in Kroell v. Kroell, 219 Ill. 105, jointly contract that each released all interest in the property of the other, renouncing all claims in law or equity of curtesy, dower, homestead, survivorship or otherwise, and the contract cannot therefore be said to release or bar the widow’s award. It would be wholly inconsistent with the provisions and policy of the statute to authorize a decree which would determine the rights of a wife in the estate of her husband by giving a share of it in lieu of her dower, distributive share, and widow’s award. We find no precedent or authority for any such decree. Grain v. Cavana, 36 Barb. (N. Y.) 410; Crain v. Cavana, 62 Barb. (N. Y.) 109; Hakamp v. Hageman, 36 Md. 511.

We hold that by the contract in question appellant did not release her right to her widow’s award, and that a decree for separate maintenance does not bar her of her right to her widow’s award; and that the Probate Court was in error in dismissing her petition for the allowance and appraisement of a widow’s award, and the Circuit Court was in error in rendering a judgment of nil capiat against her.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remoulded.


text:
    E. F. Keebler, trading as E. F. Keebler & Company, Appellant, v. John F. Devine, Administrator, Appellee.
    Gen. No. 21,384.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action by E. F. Keebler, trading as E. F. Keebler & Company, plaintiff, against John F. Devine, administrator, etc., of the estate of Lucy F. Alexander, deceased, defendant, to recover commissions alleged to be due for negotiations in regard to the lease and sale of certain property. The action was originally instituted against Lucy F. Alexander, who died pending the action. To reverse a judgment of nil capiat, plaintiff appeals.
    The evidence shows that plaintiff was a real estate broker in Chicago, and Mrs. Alexander resided in Kentucky. Before 1907 plaintiff had negotiated leases for David Mayer of Chicago and been paid commissions therefor by him, and J. Alexander Waller had acted as agent for Mrs. Alexander in relation to the demised premises, but had no authority from her to lease the same. May 31, 1907, plaintiff wrote Mrs. Alexander a letter which related to the leasing of the real estate in question. Gilbert F. Keebler, the son and an employee of plaintiff, testified that plaintiff wrote to Mrs. Alexander at the suggestion of Waller, but Waller denied that he made any such suggestion. In the letter of June 3rd, Mrs. Alexander stated the terms on which she was willing to lease the real estate for thirty or ninety-nine years. One of the conditions stated was that the tenant ‘ should give a bond to guarantee the lease.” The rentals named by Mrs. Alexander in her letter of June 3rd were, for a thirty-year lease from $20,000 to $28,000 per year and $15,000 cash for the buildings then on the premises; and for a ninety-nine year lease, $20,000 to $25,000 per year and $15,000 cash for the buildings. A few days later (Gilbert F. Keebler went to the residence of Mrs. Alexander in Kentucky, showed her a copy of her letter of June 3rd and told her that he had a proposition to submit to her for the lease of the property. Keebler was sent to Mrs. Alexander by David Mayer, who paid the expenses of his trip there, but this fact Keebler concealed from Mrs. Alexander and did not disclose the name of the person or corporation who proposed to lease the property, but told her that the individual back of the proposition did not want the name known, and for that reason the Western Trust & Savings Bank would guaranty that his proposition was bona fide. She asked him what his commission would be, and he told her. He remained at her residence a week and communicated with David Mayer by long distance telephone every day. A week after his return to Chicago, Dr. Alexander, the son of Mrs. Alexander, came to Chicago, and Gilbert Keebler and David Mayer met him at Mr. Loesch’s office on July 12th. There was some conflict in the testimony as to what was said at this meeting, but there was evidence to the effect that the Co-operative Mercantile Company, a corporation with a capital of $5,000, was mentioned as the proposed lessee; that Alexander said the proposed lessee was not satisfactory, that they would have to give further security; that the Alexanders wanted $100,000 security put up or the Western Trust & Savings Bank in the lease, or its equivalent; that Mayer said: “I hold my commissions sacred to me, but I cannot ask my client to agree to any such terms,” and that Alexander then said: “Mr. Mayer, if that is the case, the deal is off.”

      Abstract of the Decision.
    1. Brokers, § 98

      —when evidence sufficient to show acting for both parties. In an action against the lessor to recover commissions for negotiating the lease, evidence examined and held to show that plaintiff was acting as agent of the lessee in the transaction.
    2. Brokers, § 62

      —when commissions not recoverable where broker acts for both parties. A broker who attempts to act for both parties without disclosing the fact to his principals is precluded from recovering commissions for his services.
    3. Brokers, § 62

      —when commissions not recoverable where broker acts for both parties. In an action against the lessor of property to recover commissions for negotiating the lease, where the evidence shows that plaintiff permitted his son and employee to receive from the lessee the expenses of a trip to the home of the lessor in another State to negotiate the lease, plaintiff cannot recover.
    Dr. Alexander wrote plaintiff July 1st, stating that they knew nothing about the corporation; that when' the younger Keebler was in Kentucky he emphasized the point that the Western Trust & Savings Bank would be a party to the lease and add greatly to its security. In the letter the terms which Mrs. Alexander demanded were stated. One was that the Western Trust & Savings Bank would be a party to the lease, or a substantial increase in the security by bond or equivalent. From July 12th no communication of any kind passed between the Keeblers or either of them and the Alexanders or either of them until after January 23, 1908, at which time the property was leased by Mrs. Alexander to David Mayer for twenty years.
    Felsenthal & Wilson, for appellant.
    H. J. Toner, for appellee.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

4. Brokers, § 90 —when evidence insufficient to shoio procuring cause of lease. In an action by a real estate broker against a lessor to recover commissions, evidence examined and held to support a finding that plaintiff was not the procuring cause of the lease.


text:
    Marshall Stedman, Appellee, v. Chicago Musical College, Appellant.
    Gen. No. 21,414.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action by Marshall Stedman, plaintiff, against Chicago Musical College, a corporation, defendant. From a judgment for plaintiff for $5,831.50, defendant appeals.
    Error charged by defendant was the action of the trial court in permitting plaintiff to file an amended declaration and an amended affidavit of claim after defendant had filed a plea of the general issue and after the same were filed striking out defendant’s plea, ordering that the default of defendant be entered and entering judgment against it for $5,831.50. The order giving-plaintiff leave to file an amended declaration and an amended affidavit of claim was entered November 2, 1914. The amended declaration and amended affidavit of claim were filed the same day. The order provided that defendant’s “plea now on file shall stand to said amended declaration, to which latter plaintiff objects and excepts.” November 25th defendant’s plea was stricken out, its default taken and judgment entered against defendant. The bill of exceptions showed that defendant by its counsel objected to plaintiff’s motion for leave to amend, but its objection was overruled and defendant excepted; that defendant also excepted to the judgment and prayed an appeal, which was allowed on defendant filing a bond, etc. The record showed no motion of defendant for leave to file an affidavit of merits.
    Abstract of the Decision.
    1. Pleading, § 248

      —when allowance of amendment in power of court. The court may permit plaintiff, over defendant’s objection, to file an amended declaration and amended affidavit of claim after defendant has filed a plea of the general issue.
    2. Judgment, § 106

      -—when entry of default proper. Where plaintiff, by leave of court, files an amended declaration and amended affidavit of merits and defendant’s plea is stricken and no amended affidavit of merits is filed, judgment by default is properly entered for plaintiff.
    J. E. Ingram, for appellant; Herman Frank and G. W. Killelea, of counsel.
    John A. McKeown, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    The People of the State of Illinois for use of the State Board of Health, Defendant in Error, v. John Brod, Sr., Plaintiff in Error.
    Gen. No. 21,478.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 13, 1916.
    Statement of the Case.
    Action of debt by the People of the State of Illinois for the use of the State Board of Health against John Brod, Sr., to recover the penalty for practicing medicine without a license from the State Board of Health, imposed by section 9 of the Act entitled “An Act to Regulate the Practice of Medicine in the State of Illinois and to Repeal an Act therein named,” in force July 1, 1899 (Laws 1899, p. 273, J. & A. 7377.) To reverse a judgment for plaintiff, defendant prosecutes this writ of error. ' The statement of claim alleges a former conviction for the same offense, and because thereof claims the penalty of two hundred dollars.
    The appeal was taken in the first instance to the Supreme Court and that court, holding that no constitutional question was involved, transferred the case to the Appellate Court.
    Defendant contends that if the act is valid, it does not apply to him because he was practicing medicine when the act took effect;
    Edwin H. Cassels and Kenneth B. Hawkins, for plaintiff in error.
    Thomas S. Hogan, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Courts, § 150 —when ruling on appeal to Supreme Court law of the case in transferred, cause. Where on an appeal to the Supreme Court in the first instance in an action to recover a statutory penalty, that court holds that no constitutional question is involved and transfers the cause to the Appellate Court, such decision disposes of the question of the constitutionality of the act under which the proceeding is brought.

2. Physicians and surgeons, § 5 —when licensing act applicable to practicing physicians. Laws 1899, p. 273 (J. & A. If 7377), regulating the practice of medicine, is applicable to physicians practicing when the act took effect.

3. Penalties, § 16 —when judgment imposing imprisonment until payment of penalty valid. A judgment in an action to recover for the violation of a penal law may provide, for defendant’s imprisonment until the payment of the judgment and costs.


author: Mr. Justice Holdom

text:
    Charles F. Thurn, trading as John L. Thurn & Company, Appellee, v. Bertha C. Schwartz, Administratrix et al., Defendants. On Appeal of Marie Bade and Bertha C. Schwartz, Administratrix, Appellants.
    Gen. No. 21,274.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook County; the Hon. Richard E. Burke, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Rehearing denied January 17, 1916.
    Statement of the Case.
    Action by Charles F. Thurn, trading as John L. Thnrn & Company, plaintiff, against Marie Bade and Bertha C. Schwartz, administratrix of the estate of Gustav Bade, deceased, defendants.
    On July 23, 1910, a judgment for $573.21 was confessed and entered against Marie Bade and Gustav Bade in favor of plaintiff in the Superior Court. Gustav Bade, after entry of judgment, died, and on March 20, 1914, Marie Bade, his codefendant, and Bertha C. Schwartz as administratrix of the estate of Gustav Bade, deceased, moved the Superior Court to vacate the judgment and for leave to plead. This action was allowed. A trial was had before court and jury, which resulted in a verdict finding the issues for the plaintiff. A motion for a new trial being denied, it was ordered that the judgment theretofore rendered July 13, 1910, stand in full force and effect and that plaintiff have execution upon said judgment and for costs. From such judgment, defendants appeal.
    Abstract of the Decision.
    Judgment, § 80

      —when motion to vacate confessed judgment denied for laches. A delay of four years in moving to vacate a confessed judgment is such laches as to warrant a denial of the motion.
    Jones, Keener & Posvic, for appellants; DeWitt C. Jones, of counsel. "
    William Schwemm, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Richard A. Hale, Appellant, v. Clara Hale, Appellee.
    Gen. No. 21,284.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill for divorce by Bichard A. Hale, complainant, against Clara Hale, defendant. From a decree dismissing his bill for want of equity, complainant appeals.
    Complainant charged defendant with having committed adultery with one Clinton Vail on the 15th day of September, 1911, and on the 24th day of March, 1913, and the place of the adulterous intercourse was alleged to be the City of Chicago, and he also charged generally, but not specifically, other adulterous acts with Vail.
    The answer of the defendant denied categorically the two acts of adultery specifically charged and also denied that she committed adultery at any other time or times with Vail. It is likewise charged in the bill and admitted in the answer that one child was born as the fruit of the union between the parties, a daughter, Frances Hale, who was between six and seven years of age at the time of the filing of the bill. A replication was filed to the answer and the cause was tried before the court on the pleadings thus formed.
    Complainant’s proof to sustain his charges of adultery were based upon the alleged confession of his wife made on the 16th day of September, 1911, and as to the adultery charged to have been committed on March 24, 1913, on the testimony of two detectives. The alleged confession defendant denied in toto. The evidence showed that the "parties continued to live in the marital relation from that time until the middle of May, 1912; that complainant did not finally leave his wife until August 7, 1912, and letters written by him to her during that time were couched in 'affectionate terms, without any reference to defendant’s having fallen from marital rectitude.
    Abstract of the Decision.
    1. Divorce, § 50

      —when burden of proof on complainant. In a suit for divorce on the ground of adultery, the burden is on the complainant of proving by a preponderance of the evidence at least one charge of adultery made in the bill.
    In avoidance of these matters, complainant put in evidence a letter dated August 7, 1912, written to him by the parents of defendant, which letter was prepared by a lawyer for complainant and which reads as follows:
    “I regret that circumstances make it necessary or proper, in your opinion, for you to leave our house and leave Clara with us; but, knowing as I do that you and she have not lived together as husband and wife since you made the painful discovery, and knowing, as I have hitherto informed you, from what she has told me, that you have statutory grounds for divorce, I cannot urge or expect you to stay any longer with us, if your judgment and feelings prompt you not to do so. I beg of you, however, that if you seek a divorce you will spare her feelings and ours as much as you possibly can.”
    Complainant also introduced a letter in evidence written by defendant to complainant’s mother in October, 1911.
    George C. Otto and Delbert A. Clithero, for appellant.
    John C. Everett, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Appeal and error, § 1414 —when findings of fact on bill for divorce not disturbed. On appeal in a bill for divorce, the trial court’s findings of fact will not be disturbed unless palpably and clearly contrary to the weight of the evidence.

3. Evidence, § 23 —when inferences not, drawn from witness’ lacle of memory. The fact that a witness failed to remember matters as to which it would seem incredible that she had no recollection does not warrant the drawing of inferences from her testimony not deducible from the facts contained therein.

4. Divorce, § 16 —when evidence sufficient to show condonation. On a bill for divorce on the ground of adultery, based on an alleged confession made on September 16, 1911, evidence that the parties continued to occupy the marital relation until the middle of May, 1912, and that complainant did not finally leave his wife until August 7, 1912, and that his letters to her during that time were in affectionate terms and contained no reference to the subject of her confession, held sufficient to show condonation.

5. Divorce, § 46 -—when evidence insufficient to show confession of adultery. On a bill for divorce on the ground of adultery, evidence examined and held insufficient to show a confession of adultery.

6. Divorce, § 46 —when evidence insufficient to shoio adultery. On a bill for divorce on the ground of adultery, evidence of private detectives employed by complainant to shadow defendant, which shows that they followed her and the co-respondent for several weeks and saw them together at times, but only in public places and surrounded by many people, is insufficient to show adultery.


text:
    Armour & Company, Appellant, v. Industrial Board of Illinois, W. V. Conley, Secretary, and J. B. Vaughan, Peter J. Angsten and Robert Eadie, Members, Appellees.
    Gen. No. 21,310.
    1. Workmen’s Compensation Act, § 1*—when warehouse extraehazardous enterprise. A warehouse used by an employer for the storing and vending of its commodities which contains an electric elevator and is located in a city which regulates by ordinance the use and operation of elevators, is an extra-hazardous enterprise within the meaning of Laws 1913, seo. 3.
    2. Workmen’s Compensation Act, § 1—when liberally construed. The Workmen’s Compensation Act of 1913, though in derogation of common law is beneficent and therefore, to be liberally construed to carry out its objects.
    3. Workmen’s Compensation Act, § 1

      —when provision abrogating common-laio defenses valid. The provision of the Workmen’s Compensation Act of 1913 abrogating the three common-law defenses is valid.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    A. R. Urion and W. C. Kirk, for appellant.
    Acton & Acton, for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This appeal brings before us for review the action of the Circuit Court in quashing a writ of certiorari sued out by appellant against appellees and dismissing its petition.

This litigation arises under the Workmen’s Compensation Act.

The proceeding before the Industrial Board discloses that one Grover C. Bichardson was employed by appellant as a general laborer in a warehouse building of appellant in the City of Danville in this State, the warehouse being used for the storing and vending of the commodities of appellant. In that building was an electric elevator,- about which Bichardson worked and at times operated. On October 27, 1913, while Bichardson was operating the elevator, he was caught between the elevator platform and the second floor of the building, and killed.

An appropriate proceeding was commenced before the Industrial Board to recover from appellant compensation for the accidental death of Richardson in pursuance of the provisions of the Workmen’s Compensation Act. This proceeding resulted in the Indus-, trial Board awarding the sum of $2,912, payable at the rate of $7 per week for 416 successive weeks. In making the award the Board made a finding to the effect that because of the operation of the elevator and the ordinance of the City of Danville imposing regulations with reference to the guarding and using or placing of machinery and appliances for the protection of appellant’s employees and the public, appellant was brought under the provisions of the Workmen’s Compensation Law as a “hazardous employer of labor,” and further found that appellant had not expressly rejected the statute.

The facts were stipulated. Among these facts are the following:

That deceased was killed in the course of his employment; that at that time deceased was paid as wages $14 per week; that Armour & Company were operating in Danville what is known as a distributing house, where meats are stored and distributed; that this building, in which Eichardson was killed, consisted of a basement and three stories above ground; that in this building in connection with the business of appellant it operated and used a freight elevator; that such elevator was operated by electric power, controlled by ropes from any story of the building; that at and before the time of the accident there was in force in the City of Danville an ordinance regulating and safeguarding elevators in buildings of the height of the one in which deceased was killed.

The stipulation also admitted that appellant had not given any notice either of its election to come under the provisions of the act or rejection of its provisions. The Board found that because of the Dan-ville ordinance regulating freight and passenger elevators and the further .fact that appellant had not given notice rejecting the Workmen’s Compensation Act, it came under, its provisions by operation of law, as a hazardous employer of labor, and the Board in its opinion says:

“The Board is of the opinion that the facts set up in the stipulation as above stated bring the respondent under the provisions of the act as a hazardous employer of labor. There can be no question but what the business of the respondent can be denominated as an enterprise, and that there was an ordinance of the City of Danville imposing regulations with reference to the guarding and using or placing of machinery and appliances for the protection of employees and the public. This being true, the respondent here is a hazardous employer of labor; and in order to escape liability for compensation to employees under the provisions of the Workmen’s Compensation Act, must give the notice required for the rejection of the provisions of the act as a hazardous employer of -labor; and not having given it, there can be no question but what they were and are now operating under the provisions of the act.”

We are in accord with the Board’s opinion as thus expressed.

Appellant, in its petition for a writ of certiorari to the Circuit Court, avers that it sued out a writ of certiorari to the Supreme Court to review the award of the Industrial Board, and that on October 9, 1914, the Supreme Court dismissed the petition for want of jurisdiction, holding that that portion of the Workmen’s Compensation Law which sought to give the Supreme Court original jurisdiction in certiorari to review the decision of the Industrial Board was invalid as being in conflict with section 2, article VI, of the Constitution of Illinois, and holding that the Circuit Courts had jurisdiction to issue common-law writs of certiorari to said Industrial Board. This decision is authority for the Circuit Court’s granting the certiorari prayed for in the petition.

The solution of the questions involved rests in the construction of those parts of the Workmen’s Compensation Act applicable to the questions raised upon the petition for certiorari. Item 8 of section 3 of the Act of 1913 reads:

“In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protection and safeguarding* of the employees or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extra-hazardous.”

Section 4 of the Act of 1910 (J. & A. ft 5389), regulates, among other things, the operation of elevators and requires certain safety appliances to be used in their operation, etc.

Section 2 of the Act of 1913 provides that every employer should be conclusively presumed to have filed notice of election as provided in section 1, paragraph a, and to have elected to provide and pay compensation according to the provisions of this act, unless and until notice in writing of his election to the contrary is filed with the Industrial Board, etc.

Paragraph b, of section 3, enumerates enterprises or businesses which are extra-hazardous within the meaning of the act. Among the enterprises or businesses enumerated by Item 4 of paragraph b, of section 3 as extra-hazardous is the operation of “any warehouse.”

Section 631 of the general ordinance of the City of Danville, in force at and prior to the time of the death of deceased, is an ordinance regulating the use and operation of elevators in the City of Danville.

We do not agree with appellant’s contention that the reference to the “operation of any warehouse” in the act must be construed to refer only to public warehouses. Warehouses of the character of appellant’s come within the act. It is a warehouse, used as such, for the purposes of appellant’s business, and we think this holding is sustained by the decisions of the courts of this country and of England.

The warehouse of appellant in which Richardson met his death comes within section 8 above referred to, for we find that the warehouse is an enterprise regulated by”both statutory and municipal ordinances. This vested the Industrial Board with jurisdiction, and therefore the judgment of the Circuit Court in its disposition of the writ of certiorari was without error.

Appellant, confessedly not having filed notice that it had elected not to be bound by the act, is within its terms and amenable to its provisions. Appellant argues, however, that the statute in controversy being in derogation of the common law, should be strictly construed. This is a well-recognized canon of construction, but it has its exceptions. When a legislative act is beneficent in its provisions and intended to provide a way of escape from the rigors of the common law, then such an act should receive in construction by the courts a sufficiently broad and liberal interpretation to cause it to' so operate as to attain the beneficent object for which it was enacted, unless such an interpretation would violate some constitutional right.

The Legislature, by the Workmen’s Compensation Act, adopted a new policy governing the relations between master and servant for the very purpose of enabling the servant to escape the barriers erected by the common law which prevent recovery of compensation in certain cases. The statute, supra, was passed to thereafter render abortive such defenses.

That the statute is in derogation of the common law is patent. That was the intention of the Legislature, and it offends no constitutional right, because there is no such thing as a vested right in the common law. Whatever of the common law is in force in this State exists in virtue of statutory provisions. By this statute the common-law doctrine of contributory negligence, assumed risk and fellow-servant is abolished. These three common-law defenses are by the statute made unavailable. Appellant insists that depriving it of these defenses is an infringement of its right and contrary to law; but in Deibeikis v. Link-Belt Co., 261 Ill. 454, 5 N. C. C. A. 401, and Mondou v. Neto York, N. H. & H. R. Co., 223 U. S. 1, 1 N. C. C. A. 875, the right of the Legislature to deprive the employer of all common-law defenses is sanctioned and upheld. Unless the employer refuses to accept the terms of the act, he is, in the language of the statute, “conclusively presumed to have filed notice of election and to have elected to provide and pay compensation according to its provisions.” This is the position of the appellant, and thereby his liability is fixed.

We therefore find that the Industrial Board had jurisdiction of the case of Richardson and that the Circuit Court did not err in quashing the writ of certiorari and in dismissing appellant’s petition, and its judgment is therefore affirmed.

Affirmed.


text:
    Owen Murphy, Appellee, v. Gunning System, Appellant.
    Gen. No. 21,325.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in this court at the June term, 1915.
    Reversed and remanded.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action on the case for personal injury by Owen Murphy, plaintiff, against Cunning System, defendant. Plaintiff recovered against the defendant in the Superior Court a judgment on the verdict of a jury for $3,000, and defendant appeals.
    Abstract of the Decision.
    1. Appeal and error, § 1725

      —when refusal to eliminate count error. In an action by an employee against an employer to recover for injuries received by falling from a framework, where on a former appeal the Appellate Court decided that plaintiff could not maintain an action for a defect in the footboard on which he was working, it is error to refuse to eliminate a count in the declaration charging as the sole act of negligence against defendant that it failed to maintain the footboard in a reasonably safe condition.
    2. Appeal and error, § 1815

      -—when instructions misleading. Instructions which permit the jury to predicate their verdict on a count of the complaint based on a theory of negligence which had been eliminated from the case on a former appeal are misleading.
    This appeal is prosecuted from the second trial of the cause. On the first trial a verdict was instructed against plaintiff and the Appellate Court reversed the judgment entered on that verdict for the reason that in its opinion the facts found in the record should have been submitted to the jury for determination. The pleadings are the same as at the first trial. The syllabus on the former appeal appears in 184 Ill. App. 455.
    David K. Tone, for appellant.,
    Gorman, Pollock, Sullivan & Livingston, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Isabella Curran, Appellant, v. L. K. Cushing, Appellee.
    Gen. No. 21,338.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 140

      —when tenant not estopped to deny premises are uninhabitable. A tenant who has not gone into possession of premises rented for residence purposes is not estopped to deny that they were in a habitable condition at the time the term commenced because the lease contained a covenant on his part that he received possession of the demised premises in good order and condition, such covenant being untrue.
    2. Landlord and tenant, § 176

      —when covenant for quiet possession and enjoyment implied. The law implies a covenant for quiet possession and enjoyment of leased premises.
    3. Landlord and tenant, § 275

      —when tenant not in possession not liable for rent. The failure of the landlord to put leased premises in a habitable condition at the commencement of the term excuses a tenant who has not gone into possession from all the covenants of the lease including the covenant to pay rent.
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action by Isabella Curran, plaintiff, against L. K. Cushing, defendant, upon a lease for an apartment. Under a power of attorney contained in the lease, judgment was entered for plaintiff for one month’s rent and attorney’s fees. On motion made by defendant and a pertinent showing of facts, he was let in to plead. From a judgment of nil capiat, plaintiff appeals.
    Edward J. Kelly, for appellant.
    Charles E. Selleck, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Clara Davenport, Appellee, v. Calumet & South Chicago Railway Company, Appellant.
    Gen. No. 21,348.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 131

      —when negligence must Be proved By preponderance of evidence. The plaintiff, in an action on the case against a street railway company for damages for personal injuries alleged to be due to negligence in starting a car which had stopped, must sustain his case by a preponderance of the evidence.
    2. Street railroads, § 131

      —when negligence in starting car not proved By preponderance of evidence. The plaintiff, in an action against a street railway company for damages for personal injuries alleged to have been sustained as the result of negligence in starting the car after it had stopped and while plaintiff was trying to get off, fails to sustain his case by a preponderance of evidence where the testimony of plaintiff and another that the car stopped and started with a jerk while plaintiff was attempting to get off was directly contradicted by six witnesses for defendant who testified that plaintiff alighted while the car was in motion.

      Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed with finding of fact.
    Opinion filed January 3, 1916.
    Rehearing denied January 17, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action on the case by Clara Davenport, plaintiff, against the Calumet & South Chicago Railway Company, a corporation, defendant, for damagés for personal injuries sustained while attempting to alight from a moving street car. From a verdict for plaintiff for $10,000, defendant appeals.
    John E. Kehoe and Charles LeRoy Brown, for appellant; John R. Guilliams, of counsel.
    Peden, Kahn & Murphy, for appellee; R. C. Merrick, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Appeal and error, § 49 —when Appellate Court may make findings of fact. When the Appellate Court, upon review, determines that the evidence fails to sustain the verdict, it may reverse the judgment with a finding of fact.


text:
    William Schindler, Appellant, v. Link Belt Machinery Company, Appellee.
    Gen. No. 21,366.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Rehearing denied January 17, 1916.
    Statement of the Case.
    Action on the case by William Schindler, plaintiff, against the Link Belt Machinery Company, defendant, for damages for an assault and battery alleged to have been committed upon plaintiff by defendant’s foreman. From a judgment for defendant, plaintiff appeals.
    Charles H. Mitchell and H. A. Earnhardt, for appellant.
    A. C. Wild, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

Master and servant, § 846 —when act of servant not within scope of employment. The commission of an assault by a servant, who was engaged in guarding employees of the master on their way home during a strike, upon a person unconnected with and uninterested in the strike during a purely personal altercation, was an act without the scope of the employment of the servant so as not to make the master liable.


text:
    In re Estate of James Foster, Deceased. On Appeal of Walter Foster et al., Executors, Appellants, v. W. H. Hopkins, Appellee.
    Gen. No. 21,376.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action by W. H: Hopkins, plaintiff, against the estate of James Foster in the Probate Court upon four bonds given in the Municipal Court to perfect writs of error from the Appellate Court to the Municipal Court. From an allowance of the claim in the Probate Court, appeal was taken to the Circuit Court. From the judgment of the Circuit Court for plaintiff, the executors of the estate appeal.
    Louis Greenberg and Fred De Young, for appellants.
    Clinton A. Stafford and Harry A. Barnhardt, for appellee.

      Abstract of the Decision.
    1. Action, § 43

      —When several bonds signed by testator as surety may be embodied in same claim against estate. The obligee in several bonds given in the same court to perfect writs of error from the Appellate Court to such court, which are respectively signed by the same persons as principal and surety, may include all such bonds in one action in the Probate Court against the estate of the deceased surety.
    2. Appeal and error, § 878

      —necessity of evidence appearing in abstract. The Appellate Court is not bound to consider the testimony of a witness which is not abstracted.
    3. Witnesses, § 141

      —when executor not incompetent to testify in action against estate. An executor is competent to testify in an action against the estate upon bonds signed by testator as surety regarding facts occurring subsequently to the death of the testator.
    4. Principal and surety, § 46

      —when surety estopped to deny judgments recited in bonds. A surety upon bonds given to perfect writs of error is estopped to deny the judgments recited in the bonds.
    5. Trial, § 204

      —when verdict directed for failure to establish defense. The trial court may direct a verdict for the plaintiff where, as the result of the proper exclusion of evidence, the defendant has not established his defense.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    George C. Nimmons, Appellee, v. Lyon & Healy, Appellant.
    Gen. No. 21,387.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1416

      :—when master’s finding entitled to same weight as that of jury. The findings of fact by a master in chancery must be given the same weight by the Appellate Court as would the verdict of a jury in a suit at law.
    2. Mechanics’ liens, § 21

      —when architect entitled to mechanic’s lien. An architect who draws plans and' specifications for a building to be erected upon a designated spot performs services for the purpose of building it so as to be entitled to a mechanic’s lien, even though he does not superintend the construction of the building, and even though a building of the same identical character is not erected.

      Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by George C. Nimmons, complainant, against Lyon & Healy, a corporation, defendant, to enforce a mechanic’s lien for architect’s fees claimed to be due from defendant for preparing, making and drawing certain plans or preliminary sketches for a factory building. From a judgment of the chancellor confirming the report of the master, to whom the cause had been referred, and granting a lien to complainant for the amount recommended by the master, defendant appeals.
    William B. Jarvis, for appellant.
    G. Fred Bush and Walter S. Holden, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Estoppel, § 63*—when presentation of hill for amount less than contract price not. estoppel to recover contract price. An architect who agrees to draw plans and specifications for a building for a certain price may not be denied a lien for the contract price, upon performance of the contract, because he presented a bill for a lesser amount, where such bill was intended as a compromise and was not accepted.


text:
    Samuel Cohen, Administrator, Appellee, v. City of Chicago, Appellant.
    Gen. No. 21,418.
    1. Appeal and error, § 219

      —when defendant cannot complain of peremptory instruction in favor of codefendant. A defendant cannot complain of a peremptory instruction in favor of a codefendant where he did not object to the instruction when given.
    2. Instructions, § 20

      —when instruction that fury should take law from court proper. An instruction that the jury shall take the law from the court and not from counsel is proper in order to counteract the effect of misinformation concerning the law indulged in by counsel in argument.
    3. Instructions, § 88

      —when instruction as to preponderance of evidence improper. Where defendant puts in no evidence, an instruction as to the preponderance of the evidence is improper, as the jury in such case consider the case on the evidence of plaintiff.
    4. Instructions, § 85

      —when instruction on evidence improper. Where the defendant puts in no evidence, an instruction that “if the evidence is equally balanced, they must find for, defendant” is properly refused.
    5. Municipal corporations, § 1100

      —when instruction on proximate cause erroneous. In an action against a city and a railroad company to recover for the death of plaintiff’s intestate, where it was alleged that a horse which deceased was driving at the time of the accident was frightened by the blowing of defendant railroad company’s locomotive whistle and bolted, causing the wheel of the wmgon in which deceased was riding to fall into a large hole or rut in defendant city’s public street, throwing plaintiff out and causing his death, an instruction offered by defendant city that the jury should find such defendant not guilty if it appeared that the accident was proximately caused by the blowing of the whistle is properly refused, being bad as ignoring the other element of proximate cause, the defective condition of the street.
    6. Trial, § 207

      —what is effect of direction of verdict to find one defendant guilty. In an action against a city and a railroad company to recover for the death of plaintiff’s intestate alleged to have been caused by defendants’ negligence, a peremptory instruction to find one defendant not guilty leaves only the question of the negligence of the codefendant, and a verdict finding such codefendant guilty fixes its liability independently of the negligence of the other defendant.
    7. Municipal corporations, § 1098

      —when evidence sufficient .to sustain verdict for injuries due to defective street. In an action against a city and a railroad company to recover for the death of plaintiff’s intestate, where it is alleged that the horse which deceased was driving at the time 'of the accident was frightened by the blowing of defendant railroad company’s locomotive whistle and bolted, causing the wheel of the wagon in which deceased was riding to fall into a large hole or rut in defendant city’s public street, throwing plaintiff out and causing his death, evidence held sufficient to justify a verdict for plaintiff.
    8. Appeal and error, § 1523

      —when case not reversed for errors in instructions. Where the evidence in an action clearly justifies a verdict for plaintiff, or where defendant offers no countervailing evidence, such verdict will not be reversed for errors in instructions unless it is clear that the jury were misled by. such instructions in a matter material to the issue.
    9. Torts, § 32

      —when verdict against one tort feasor justified without regard to negligence of other. In an action where the declaration charges two defendants with separate acts of negligence contributing to cause the injury sought to be recovered for, a verdict against one defendant is justified without regard to the negligence of the other.
    10. Appeal and error, § 438

      —when objection as to variance too late. In an action where the declaration charges two defendants with separate acts of negligence contributing to cause the injury sought to be recovered for, and where a peremptory instruction in favor of one defendant is given, plaintiff going to trial against the codefendant without amending, the objection of variance made for the first time, on appeal comes too late, since if the objection had been seasonably made, plaintiff could have amended by striking the negligence averred against the other defendant, and retaining only the averment of negligence against the defendant found guilty.
    11. Evidence, § 154

      —when failure to offer evidence admission of facts. Where a defendant offers no evidence to meet the case fnade by plaintiff’s evidence, and allows the case to go to the jury on the facts so established, such defendant thereby admits the truth of such facts.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Rehearing denied January 17, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    John W. Beckwith and N. L. Piotrowski, for appellant; David R. Levy, of counsel.
    Elmer & Cohen, for appellee.

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

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case for negligently causing the death of plaintiff’s intestate, one James P. Hilton, brought against defendant and also the Chicago Junction Bailway Company. The cause proceeded to trial under the first and third counts of the declaration, each of which charged two causes of negligence as contributing to the accidental death of Hilton, the negligence charged against the defendant railway company being that it violated a city ordinance by-blowing the whistle of an engine which frightened the team Hilton was driving, causing them to bolt. The negligence charged against the defendant city was its permitting a large hole or rut to remain in Emerald avenue, in which the wheel of the wagon Hilton was driving dropped, throwing Hilton from the wagon, which ran over him and killed him.

At the close of plaintiff’s evidence the court instructed a verdict in favor of the railway- company, and the cause was then, without any countervailing proof being offered by defendant, submitted to the jury, which rendered a verdict against the defendant city for $4,500, upon which a judgment was rendered, and the city brings the record here for' our review.

To the court’s instruction to the jury to find a verdict for the railway company, counsel for the city interposed no objection.

Defendant complains of the court’s ruling on the instructions to the jury. We.have examined with care all of the instructions given and refused, and we are satisfied that the jury were sufficiently instructed upon the law of the case as it was submitted to them.

The court gave an instruction of its own motion, against which defendant raises strenuous objection, We are unable to discover any infirmity in this instruction, in fact we rather approve of it. In its essence it instructed the jury that they should take the law from the court.and not consider anything as law except as given to them in the written instructions, and decide the case accordingly. Lawyers in their arguments oftentimes tell the jury what they regard the law to be, and at times they misinform them. In such a condition, it is the exercise of wisdom on the part of the court to give an instruction like the one complained of, to counteract the effect of any misinformation concerning the law in which counsel may have indulged in argument.

Because the defendant put in no evidence, the jury were only to consider the case as made by the evidence of plaintiff. There was no occasion for the court to instruct the jury regarding the preponderance of the evidence, and certainly not to give the instruction refused, which told the jury that “if the evidence was equally balanced, they must find for the defendant.” The jury were instructed that their verdict must rest upon a preponderance of the evidence and that if they found the defendant city guilty of the negligence charged against it in the declaration, their finding must be based upon a preponderance of the evidence. But as all the evidence before them was that of the plaintiff, the use of the word “preponderance” in this condition of the record was unnecessary.

Two acts of negligence were charged in the declaration—the blowing of the whistle and the defect in the street-—and defendant’s proffered instruction that if the accident was approximately caused by the whistle on the engine frightening the horses, they should find the defendant not guilty, was bad, as ignoring the other element of proximate cause, viz., the defective condition of the street. The negligence of the defendant railway company was out of the case by the finding of the jury in its favor.

The only question for the jury was whether the defendant city was guilty of the negligence charged against it in either of the two counts of the declaration. If the jury found the city guilty of the negligence charged in either of the two remaining counts of the declaration, their liability was fixed. Even were there errors in the instruction, this court would not reverse because of such errors, where the evidence so clearly justified a verdict for the plaintiff as in the case at bar, nor in a case where there is no countervailing proof, unless it was clear that the instruction challenged misled the jury in a matter material to the issue. Young v. McConnell, 110 Ill. 83.

After the railway company was out of the case no amendment was made to the declaration, and defendant contends that this is reversible error. If the defendant city was guilty of the negligence averred against it in the declaration, the jury were justified in their verdict, without regard to the liability of the other defendant. The most defendant can claim, in this condition of the record, is that there was a variance between the charge in the declaration that the railway company was guilty, with the other defendant, the city, of concurring negligence, and that the verdict was only against the latter. Defendant made no objection in the trial court on the ground of variance, neither did it there claim that the dismissal of the defendant railway company operated as an amendment to the declaration to that extent. The objection comes too late here. If the objection had been made in the trial court, plaintiff could have readily amended his declaration by striking out the negligence averred against the defendant railway company and by retaining only the averment of negligence against the defendant city. Frank Parmelee Go. v. Wheelock, 224 Ill. 194.

The city declined to meet with evidence the case made by plaintiff and allowed the case to go to the. jury on the facts as established by plaintiff’s evidence, thereby admitting the truth of such undisputed evidence.

The trial was fair, there are no material errors in procedure affecting the city’s rights, and the judgment of the Circuit Court is affirmed.

Affirmed.