author: Mr. Justice Niehaus

text:
    City of Spring Valley, Appellee, v. Chicago, Ottawa & Peoria Railway Company, Appellant.
    Gen. No. 6,031.
    1. Franchises, § 6

      —when ordinance grants use of street for interurban railroad. In a suit to restrain an interurban electric railway from operating its trains over a street, an ordinance held to clearly grant a right of way thereon for the use to which it was being put.
    2. Municipal corporations, § 83*—how ordinances construed. Ordinances must be construed as a whole, liberally, and so as to ascertain and give effect to the legislative intent.
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 14, 1916.
    Cairo A. Trimble, for appellant.
    C. 'N. Hollerioh, for appellee; J. L. Spaulding, of counsel.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case, appellee, City of Spring Valley, a municipal corporation, filed a bill in equity, in the Circuit Court of Bureau county, against appellant, the Chicago, Ottawa & Peoria Railway Company, alleging that the appellant is wrongfully in possession of and controlling and maintaining a piece of railroad track, one hundred and seventy rods in length, located upon and along a street called Peru street, in the City of Spring Valley, between the eastern limits of the city and a point called Gunther’s Curve, together with a number of poles, cross-arms, cables and wires, used in connection with the running of electric motor cars, engines and trains, and in the operation of its electric road along the piece of track in question; and further alleging that the appellant is running a large number of passenger, freight, baggage and express cars and engines, and express, freight and passenger trains, over its line of railway, between the City of Princeton and the Cities of Morris and Ottawa, LaSalle and Peru, to, through and from the City of Spring Valley, and over and along the piece of railroad track in question; and that such use of Peru street, where said piece of track is situated, is without license, authority, franchise, grant or right; and that it is therefore a continuous trespass and a nuisance, and a permanent and a legal obstruction in the street in question; and praying for an injunction to restrain the appellant from running or operating its cars, trains, engines or motors over the piece of railroad track on the street in question, and from using said street for the purpose of operating a railroad thereon; and also praying for a mandatory writ of injunction requiring the appellant to remove from said street every part of said railroad track, cross-arms, poles, cables and wires; and all alleged obstruction of said street making up a part of said track and equipment thereto.

The cause was referred to the master in chancery, who heard the evidence and reported that the app ellant had no legal right to use and maintain the tracks and electrical equipment upon the disputed strip, nor to operate its railroad thereon; and the court entered a decree, approving the master’s report, and directing that the appellant be restrained from the use of the tracks and equipment on said street, for the purpose of operating a railroad, of any kind, after nine months from the time of the filing of the decree; and that the appellant be required, within the nine months, to remove the tracks and electrical equipment from the street. The appellant prosecutes an appeal from this decree.

It appears from the evidence that the original grant of a right of way to operate electric cars through the City of Spring Valley, and over the strip of track in dispute, on Peru street, was made to the Illinois Valley Traction Company, which was organized as an Illinois corporation under the General Incorporation Act, for the purpose of building and operating a system of street railways and country interurban railways in the counties of Bureau and LaSalle; and this grant of a right of way was made by the City of Spring Valley, upon the petition of the traction company, filed in February, 1902, asking a franchise to build an electric street railway through the city. It was expressly stated in the petition that the traction company had incorporated for the purpose of building, and intended to build, a continuous electric interurban line from Ottawa, and from LaSalle to Ladd, through to Princeton; and that it expected to have its entire line completed some time in the year 1903; and that it was the purpose of the company to commence the construction of its line from LaSalle to Ladd at once.

It is true, as claimed by appellee, that the ordinance, which was passed pursuant to the petition referred to, granted the right of way through the City of Spring-Valley, and over the disputed strip on Peru street, for street railway purposes; but it is manifest that the council, in granting the petition and passing the ordinance, understood perfectly that the street railway purpose for which the traction company intended to utilize the right of way was the running of interurban electric cars through the city, as it was in effect stated in the petition. And the traction company, upon the assumption that it had obtained the right to run its interurban cars through the city, by such grant, built the tracks in question on Peru street and through the city, and used them for such purpose, without objection by the City of Spring Valley, from the time it commenced the operation of its railway in 1903 to about July 1, 1904, when the traction company transferred its rights, property and privileges, as an interurban electric railway, to the Illinois Valley Bailway Company.

The record shows that the Illinois Valley Bailway Company was incorporated about the time of this transfer, under the Railroad Act of Illinois, for the purpose of operating a commercial and interurban railroad from Joliet through the intervening Cities of Norris, Marseilles, Ottawa, La Salle, Peru and Spring Valley to Ladd and Princeton. By the transfer mentioned, this railway company legally acquired all the lines of railroad in La Salle and Bureau counties, in-eluding the piece of railroad track in question, from the Illinois Valley Traction Company, together with all the rights of way and franchises of the traction company in the City of Spring Valley. And the lilinois Traction Company thereupon continued in the operation of the interurban electric railroad through the City of Spring Valley, and over the disputed strip, on Peru street, from the date of the transfer until about April 15, 1908, when the Illinois Valley Bailway Company, by proper conveyance, assigned its rights of way, track privileges and franchises to the appellant ; and the appellant then continued in the operation of the same interurban electric railway through the City of Spring Valley up to the present time; and the piece of track in dispute now forms a small link in the continuity of the appellant’s line of railway, operating between the Cities of Joliet, Ottawa, LaSalle and Peru, and Princeton and Ladd.

It is claimed by appellee that inasmuch as the grant of right of way through the City of Spring Valley-stated in the ordinance was for street car purposes, those purposes cannot be considered as including the use of the right of way by interurban electric cars, even though the city authorities granting the right of way privileges may have actually intended to include them; and even though the city, by repeated acts, through ordinance and by resolutions, may have recognized and sanctioned such use of the right of way in question.

While there may be some force in this contention, we are of opinion that whatever doubt might have existed about the use of this right of way through the City of Spring Valley and over(the strip in dispute, for an interurban or commercial railway, such doubt was removed by the ordinance which was passed by the City of Spring Valley on April 24, 1906, in which the Illinois Valley Railway Company was granted the additional franchises and rights of way, and expressly granted the right “to operate railway cars and coaches for the transportation of passengers, baggage, United States mail, express matter and freight,” through the City of Spring Valley.

This ordinance grants the right to construct additional railway tracks and equipment, and to operate the railroad along certain streets, which are named, “commencing at a point on the public highway, leading from the City of Peru in LaSalle county, Illinois, to the City of Spring Valley, where the railroad track of the Illinois Valley Railway Company, now constructed and in operation, turns southerly towards what we call Webster Park.” Following the special grant, the ordinance contains the following expression of the purposes for which it was passed, namely: “It is the intention hereof to afford the said Illinois Valley Railway Company a right of way into the City of Spring Valley from the east and through the same to the western boundary lines thereof.”

It will be noticed that the ordinance refers to the strip of track in dispute, which was the easterly entrance of the railway company into the city, as the highway where the railroad tracks of the Illinois Valley Railway Company are now constructed and in operation. Thus, in connection with the expressed intention in the ordinance, it takes cognizance of the fact that the Illinois Valley Railway Company was then operating its railway upon the track in question, as a part of its right of way, and using this entrance into the city is so clearly expressed, that there is no room Railway Company a complete right of way through the city is so clearly expressed, that there is no room left for a doubt. The only query that could be raised Avould be, where it was intended by the ordinance that this right of way should be exercised.

Inasmuch as there was no right of way into or through the city, except over the disputed strip, and as this was the only entrance which the railway company had into the city, and the only connection with the right of way expressly granted in the ordinance, the conclusion is irresistible that the disputed strip Avas included in the rights of way intended to be granted by the ordinance; especially, when it is considered that the right of way of the railway company into and through the city would not be complete nor usable Avithout this strip.

Ordinances should be so construed as to ascertain the legislative intent, and in construing ordinances they must be looked at as a whole. (Gage v. City of Chicago, 196 Ill. 512; Gage v. Village of Wilmette, 230 Ill. 428; McChesney v. City of Chicago, 173 Ill. 75; City of Chicago v. Wilshire, 243 Ill. 123.) Ordinances, no less than statutes, should be liberally construed in order that their true intent and meaning may be carried out. (People v. Dill, 1 Ill. 257; Harrison v. People, 195 Ill. 466.)

That the disputed strip was contemplated by the city to be included in the grant of the right of way through the City of Spring Valley in the ordinance of April 24,1906, is further evidenced by the fact that the city afterwards, on April 6, 1910, adopted an ordinance granting to appellant the right to build, construct and maintain a side track from the disputed strip, which is designated as a part of the main line of its railroad, to St. Bede College land, which side track, proposed by the ordinance, was to be operated by appellant for the purpose of hauling coal, freight and other materials from the main line to St. Bede College.

We are of opinion, that it was the purpose of the ordinance of April 24, 1906, to grant and legalize the right of way of the Illinois Valley Railway Company, to operate an interurban and commercial railway through the City of Spring Valley and over the disputed strip, as a part of such right of way, and that by the terms of the ordinance, the Illinois Valley Railway Company did obtain such right, and that the right thus granted and obtained was legally conveyed and transferred to the appellant; that the appellant, at the time of the filing of the bill of complaint, was in the legal possession of said right, and that, therefore, there is no equity in appellee’s bill of complaint, and the same should have been dismissed. And for the reasons stated, the decree should be reversed and the cause remanded with directions to dismiss the bill for want of equity.

Decree reversed and cause remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Niehaus Per Curiam.

license: Public Domain

text:
    Jennie Martin, Appellee, v. Fraternal Reserve Life Association, Appellant.
    Gen. No. 6,094.
    1. Insurance, § 868

      —when averment as to suicide of deceased insufficient. In an action on a mutual benefit policy of insurance, a plea averring that the deceased died by his own hand or act, while sane, is not sufficient as an averment that he committed suicide.
    2. Insurance, § 868*—when averment of suicide insufficient as defense. A plea in an action on a mutual benefit insurance policy, averring that the deceased died by his own hand or act, held insufficient to set up the defense provided by a by-law stating that no recovery could be had if the insured “die by his own hand or act,” whether sane or insane, inasmuch as the deceased might have died while in a state of transitory mental disorder, such as a trance; epilepsy, hysteria or delirium, which does not constitute insanity.
    3. Insane persons, § 1*—what does not constitute insanity. The definition of insanity does not include certain states of transitory mental disorder, such as trances, epilepsy, hysteria and delirium.
    4. Insurance, § 747*—when insured "bound by change in by-laws. A beneficiary’s right of recovery under a mutual benefit insurance policy, issued subject to changes in by-laws and constitution of the insurer, is governed by such by-laws in force at the time of the deceased’s death.
    5. Insurance, § 744*—when application part of contract of fraternal insurance. The application for membership in a fraternal insurance society must be considered part of the contract of insurance.
    6. Insurance, § 859*—when by-law limiting time for commencement of'suit valid. A by-law of a fraternal insurance society providing that no suit may be brought in a policy unless begun within six months of the death of the insured, held valid and binding.
    On Rehearing.
    Insurance, $ 868*—when plea of suicide sustained. In an action on a mutual benefit life insurance policy, having indorsed thereon a condition to the effect that if the insured should die “by suicide (except it be shown conclusively that he was and had been insane
    from disease or injury),” the policy should be null and void, a plea that the insured committed suicide or died by his own hand or act while sane was sustained, inasmuch as such plea was more favorable to the plaintiff than the condition required.

      Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 14, 1916.
    Rehearing denied and additional opinion filed May 24, 1916.
    Robert H. Lovett and George C. Wenger, for appellant.
    Searle & Marshall, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from a judgment rendered in the Circuit Court of Rock Island county for $2,281.65, in a suit by the appellee, Jennie Martin, against the appellant, the Fraternal Reserve Life Association, to recover, as beneficiary of a benefit certificate issued to her husband, William B. Martin, by the “Miner of Honor Benefit Order,” a fraternal society, whose original name was changed to that of Fraternal Reserve Life Association. Certain defenses to a recovery on the benefit certificate were embodied in special pleas filed by the appellant, to which the court sustained demurrers. These pleas are the amended second, third and fourth special pleas, and the fifth and sixth special pleas, and the seventh, eighth and ninth additional special pleas, which were filed by leave of court.

All the pleas allege that William B. Martin, in his application for membership in the Fraternal Reserve Association in question, expressly agreed to conform in all respects to the constitution, laws, rules and usages of the Order, then in force or which might thereafter be adopted. The second amended plea sets out section 2 of article 12 of the alleged by-laws of the Order, which, it is averred, was in force at the date of the issuance of the certificate of insurance, and remained in full force and effect all the time, and to the date of the filing of the pleas. This section of the by-laws provides that if a member of the Order dies in consequence of a duel, or by the hands of justice, or in consequence of the practice of any pernicious act that tends to shorten life, or by suicide, whether he or she be sane or insane, the certificate of mem-' bership in such case shall be null and void; and the plea then further avers that said William B. Martin did die by his own hand or act while sane; and that therefore the certificate of insurance became, by this act of said deceased, null and void.

The amended third plea sets out the same section and article of the by-laws which is set out in the amended second plea, and avers that said William B. Martin did die by his own hand or act; and that having thus died by his own hand or act, said insurance certificate, by virtue of the by-law in question, became null and void.

Special plea No. 5 avers that the order in question, on February 25, 1904, adopted as one of its by-laws, section 51, which is to the effect that the benefit certificate issued to a benefit member by the association, and his written acceptance thereof, his application for membership and the laws of the association, shall be taken together as constituting the contract made by and between each member and the association; and that such contract shall be forever subject to the condition that the same may at any future time be modified by legally enacted amendments to the constitution and by-laws of the association. It also avers that one of the by-laws of the association, in force on and since the 25th day of February, 1904, and to the time of the filing of the plea, is section 53, which provides that if a benefit member of the association die by his own hand or act, whether sane or insane, nothing in the terms or conditions of his benefit certificate shall be held or understood to entitle his beneficiaries to any part or share in any money fund or property of the association; and then avers that the said William B. Martin did die by his own hand or act, while sane; and that therefore by virtue of the by-law in question, the insurance certificate, or certificate of membership upon which plaintiff’s action is founded, became and is wholly null and void.

The sixth special plea sets out substantially the same matters as the fifth special plea, in reference to the by-laws of the association, including the one in reference to self-destruction, and then avers that said William B. Martin did die by his own hand or act; and that therefore, because he died by his own hand and act, the insurance certificate, or certificate of membership on which plaintiff’s action is founded, became null and void.

Additional special plea No. 8 alleges practically the same facts as special plea No. 5, and sets out the same sections of the by-laws alleged to have been regularly adopted, and in force at the time of the death of the holder of the certificate, including section 53, in reference to self-destruction; and then avers that said William B. Martin died by his own hand and act while sane; and that, therefore, the insurance certificate, or certificate of membership upon which plaintiff’s action is founded, became and is wholly void.

Additional plea No. 9 sets out section 2 of article 12, of the by-laws of the “Miner of Honor Benefit Order,” averred to be in force at the time of the issuing of the certificate in question, and at the time of the death of the certificate holder, to the effect that if the miner dies by suicide, whether he or she be sane or insane, the certificate of membership shall become null and void; and then further avers that the said William B. Martin did die by committing suicide, while sane; and that therefore the insurance certificate, or certificate of membership upon which plaintiff’s action is founded, became and is void.

Special plea No. 7 sets out certain conditions, alleged to be a part of the contract of insurance and attached to the benefit certificate, which contains the clause that if the holder of the certificate shall die by suicide (except it be shown conclusively that he was and had been insane from disease or injury) that then the certificate shall be null and void in every respect, and of no effect whatever, and all moneys which may have been paid, and all rights and benefits which may have accrued by the certificate, shall be forfeited absolutely and forever, and be of no avail; and then avers that said William B. Martin did die by committing suicide, while sane; and that therefore the insurance certificate, or certificate of membership upon which plaintiff’s action is founded, became and was wholly void and of no effect.

Amended special plea No. 4 sets out that part of the application for membership by which the applicant agreed to conform in all respects to the constitution, by-laws, rules and usages of the Order then in force, or which might thereafter be adopted by the order; and sets out a certain by-law averred to have been regularly adopted and in force at the time of the death of the deceased, which is known as section 1 of article 12, and is to the effect that no action shall be maintained, nor recovery had, for any claim arising upon any certificate of membership, after the lapse of six months from the date of the death of a member, unless suit is brought upon such claim within six months from such death; and failure to sue within snch time shall be a bar to any recovery upon any such claim; and avers that the plaintiff did not bring this suit until long after the lapse of the six months’ period provided for in the by-laws in question; that is to say, six months after the death of said William B. Martin, which occurred on November 3, 1911; and that therefore a recovery on the certificate in question is barred.

We are of opinion that the court properly sustained the demurrer to amended special plea Ño. 2, and amended special plea No. 3, also to special plea No. 6; but that the other special pleas alleged facts which constitute a legal defense to a recovery upon the certificate in question.

Amended special plea No. 2 is defective in this,— that the averment that Martin died by his own hand or act, while sane, does not necessarily imply that he died by suicide, which is the real basis claimed for avoiding a recovery on the policy under the section of the by-law set forth in the plea. Suicide is the act of taking one’s own life voluntarily and intentionally; or the deliberate and intentional destruction of his own life, by a person of sound mind. A person might die by his own hand or act, while sane, and yet the act causing death be unintentional or accidental.

Amended special plea No. 3 is defective for the same reason. The allegation in that plea is merely that he died by his own hand or act, without any averment that such act was intentional or deliberate, or done for the ■ purpose of destroying his life, which would be necessary to bring it within the definition of suicide.

Special plea No. 6 is defective for the same reason. The plea is based upon section 54 of the by-laws, which provides that if a member die by his own hand or act, whether sane or insane, that the beneficiary shall not be entitled to recover; and the averment is merely that William B. Martin did die by his own hand or act, without any allegation that he was sane or insane at the time. If he "died by his own act, while in a state of transitory mental disorder, such as a trance, or epilepsy, or hysteria, or delirium, he could not be considered either as sane or insane; and hence his act of self-destruction, while in a delirium or in a trance, . could not be considered as within the provisions of the by-law mentioned.

The definition of insanity does not include certain' states of transitory mental disorder, such as trances, epilepsy, hysteria and delirium; and it is usually clear that a person in such a condition of mental disorder could not legally be regarded as sane, because sanity necessarily implies a mental condition which is normal.

The averment in special plea No. 5, however, that said William B. Martin died by his own hand or act, while sane, is directly within the scope of the provision of section 53 of the by-laws of the association against self-destruction, and would operate as an avoidance of the certificate; and the same may be said of the averments in additional plea No. 8 and" additional plea No. 9, which are based upon different sections of the bylaws of the Order in question. These pleas, therefore, constituted a proper defense to a recovery upon the certificate. If the by-laws were properly adopted and in force at the time of the decease of the certificate holder, he was bound by them as constituting a part of his contract.

Appellee insists that the application for membership made by the certificate holder is not a part of the contract of insurance. It is the well-settled law of the State, however, concerning fraternal insurance societies, that the application for membership must be considered a part of the contract of insurance; and that where a member agrees, in his application, to abide by and be bound by subsequently adopted bylaws, he is bound by them, unless the by-laws are unreasonable. (Smith v. Mutual Reserve Fund Life Ass’n, 140 Ill. App. 409; Scow v. Royal League, 223 Ill. 32; Grand Lodge A. O. U. W. of Illinois v. Oetzel, 139 Ill. App. 4; Moerschbaecher v. Royal League, 188 Ill. 9.)

“In construing the contract by the holder of the certificate, or, rather, that made between the member and the corporation,—the application, the examination by the physician, the constitution and by-laws and the certificate issued are all to be construed together as the contract between the parties.” Fullenwider v. Royal League, 180 Ill. 625.

.It is practically conceded that the conditions set out in special plea No. 7 are a part of the insurance contract, and the facts alleged in the plea constitute a bar to recovery.

Amended special plea No. 4, which sets out the bylaw of the association, averred to be properly adopted and in force at the time of the death of the certificate holder, is a good plea in bar of the action. The limitation fixed by the by-law is that the suit for recovery on the certificate shall.be commenced within six months from the de’ath of the certificate holder, and is legal and binding. Similar limitations fixed by contract have been fully sustained by courts of review. Metropolitan Accident Ass’n v. Clifton, 63 Ill. App. 153; Heffron v. Rochester German Ins. Co., 119 Ill. App. 571; Humboldt Ins. Co. v. Johnson, 1 Ill. App. 312; Ronan v. Michigan Mutual Life Ins. Co., 96 Ill. App. 355; Merchants’ Life Ass’n v. Treat, 98 Ill. App. 60; Richter v. Michigan Mut. Life Ins. Co., 66 Ill. App. 606; Stephens v. Phœnix Assurance Co., 85 Ill. App. 671; Riddlesbarger v. Hartford Fire Ins. Co., 7 Wall. (U. S.) 390; French v. Lafayette Ins. Co., 5 McLean (U. S.) 463; Williams v. Vermont Mutual Fire Ins. Co., 20 Vt. 230; Wilson v. Aetna Ins. Co., 27 Vt. 101; Peoria Marine & Fire Ins. Co. v. Whitehill, 25 Ill. 388; Smith v. Herd, 110 Ky. 56; Kiisell v. Mutual Reserve Life Ins. Co., 131 Iowa 54.

For the reasons stated, the demurrers to special pleas numbers 4, 5 and 7 and to additional pleas numbers 8 and 9 should have been overruled. The judgment, therefore, should be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

Upon Petition for Rehearing the Following Additional Opinion Was Filed.

Per Curiam.

In her petition for rehearing appellee calls attention to the condition on the back of the certificate sued on and referred to in the policy, to the effect that if the member shall die “by suicide (except it be shown conclusively that he was and had been insane from disease or injury),” the certificate shall be null and void, and urges that this permits a recovery if the member died by suicide while insane, and that the alleged by-law conflicts therewith, and that the certificate should prevail over the by-law. An examination of each plea approved in the foregoing opinion will show that it alleges that Martin committed suicide, or died by his own hand and act, while sane, except one plea which does not relate to that subject but sets up a limitation in bar. The pleas which we sustain are therefore more favorable to appellee than the condition on the back of the certificate. By the condition the proof must show conclusively that the member who took his own life was insane from disease or injury to permit a recovery, while under the pleas if the evidence is evenly balanced as to whether the member who took his own life was then sane, the beneficiary would recover.

Rehearing denied.


text:
    Charles E. Smith, Appellant, v. Frank C. Bellrose, Appellee.
    Gen. No. 6,123.
    1. Pleading, § 462

      —when failure to join issues in writing waived. Failure to join issues in writing is waived by voluntarily proceeding to trial.
    2. Set-off and recoupment, § 2 *—what is nature of plea of set-off. A plea of set-off does not deny the cause of action as alleged but admits it and seeks to avoid it because of new matter set up.
    3. Pleading, § 117*—when matter in declaration not denied deemed admitted. When a matter material to the issues is alleged in the declaration and is not denied by a plea, it is admitted and will be presumed to be a fact.
    4. Landlord and tenant, § 321*—when evidence as to lack of title in landlord inadmissible. In an action for rent, the tenant cannot introduce evidence to show that his landlord has no title to the demised premises.
    5. Landlord and tenant, § 311*—what damages may be set off in action for rent. In an action for rent, damages to the tenant resulting from an unlawful eviction by the landlord may be set off.
    6. Landlord and tenant, § 262*—what does not constitute 'an eviction. A statement by a landlord’s agent to a tenant that he must vacate the premises if he does not pay the rent agreed is not an eviction.
    7. Landlord and tenant, § 262*—what constitutes an eviction. While it is not necessary that there should be an actual, physical expulsion from the premises occupied by a tenant to constitute an eviction, yet it is necessary that the landlord do some act which disturbs the tenant’s possession, or which amounts to a clear indication of an intention on the part of the landlord to deprive the tenant of the enjoyment of the.premises as demised to him.
    8. Instructions, § 118*—when improper as not in conformity with evidence. An instruction which failed to charge the jury that they should confine themselves to the evidence in forming their belief as to matters in issue, held erroneous.
    9. Instructions, § 115*—when giving instruction as to allegastions unsupported by evidence is improper. The giving of an instruction concerning allegations of which there is no evidence to support is erroneous.

      10. Instructions, § 63

      —when improper as assuming facts. An instruction assuming facts disproved by the evidence is erroneous.
    11. Landlord and tenant, § 325a*—when instruction on right of tenant to remove sand erroneous. In an action to recover royalties on sand removed by the defendant from the plaintiff’s premises, through which a railroad’s right of way ran, where though the lease did not actually describe such right of way, it clearly appeared-that it was a part of the demised premises, an instruction that the plaintiff could not recover for sand removed from such right of way unless it was described in the lease, held erroneous.
    12. Landlord and tenant—when tenant liable for removal of sand. The owner of land may recover of a tenant for sand mined by him, in accordance with a lease, on a railroad’s right of way running over such land.
    13. Landlord and tenant, § 318*—when evidence inadmissible under plea of set-off. In an action by a landowner for royalties for sand removed by a tenant, under a plea of set-off averring an unlawful eviction, and damages consisting of money expended in stripping off the surface material preparatory to the removal of the sand, evidence of what would be a fair charge for such stripping, held inadmissible.
    Appeal from the Circuit Court of La Salle county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 14, 1916.
    Rehearing denied May 24, 1916.
    L. W. Brewer and Butters & Clark, for appellant.
    H. M. Kelly and Browne & Wiley, 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, samo topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an action of assumpsit brought by the appellant, Charles E. Smith, in the Circuit Court of La Salle county, against the appellee, Frank C. Bellrose, for the recovery of money claimed to be due as rent for certain premises demised to appellee. There was a trial by jury which resulted in a verdict for appellant, assessing his damages at $1. Appellant thereupon made a motion for a new trial and in arrest of judgment, which motions were overruled by the court, and judgment rendered on the verdict, from which judgment the appellant has taken this appeal.

The appellant alleges in the first count of his declaration that he leased to appellee a tract of land, which is therein described, lying north of the Illinois & Michigan Canal, and a part of the east half of the north half of the southwest quarter of section 18, in township 33, La Salle county, for a term commencing February 1, 1904, to July 30,1908, such leasing being in accordance with the terms and conditions of a certain lease theretofore executed between the appellant and one Harry W. Bellrose, and the last mentioned lease is set out in the count in liceo verba, and grants to the lessee the right to mine, remove and dispose of sand, and sand rock, situated on the premises, and provides for the payment by the lessee, as rent, a royalty of five cents per ton for each ton of sand, or sand rock, mined and removed from the premises; that the appellee in person and by his agents and employees entered into the possession of the demised premises, in accordance with and by virtue of the terms and provisions of said lease, and thereunder mined and removed from said premises during the term of said lease large quantities of sand, towit: 40,000 tons; that the appellant has in all things performed and kept the terms and provisions of said lease on his part, but that appellee failed to comply with the terms thereof, and failed to pay the royalty provided as rent in the lease for the sand taken and mined, and removed by him from said premises, namely, at the rate of five cents per ton, although requested so to do, to the damage of the plaintiff in the sum of $2,000.

The declaration also contains a second, third, fourth, fifth and sixth count; it also contains a seventh count which is the .consolidated common counts. To this declaration the. appellee filed five pleas, namely: a plea of nonassumpsit; a plea of the Statute of Limitations; a plea of the Statute of Frauds, alleging that the agreement as set out in the declaration was not to be performed within a year; and another plea of the Statute of Frauds alleging that the contract was for the sale of an interest in lands, which was for a longer term than a year; also a plea of set-off or counterclaim, alleging that the appellant owes the appellee the sum of $2,000 for goods, chattels and effects before then sold and delivered by the appellee to the-appellant; and a like sum for work and services before that time done and bestowed, and materials for the same work furnished by the appellee to the appellant, at his request; and in a like sum for moneys before that time paid and expended by the appellee for the use of the appellant at his request; and in a like sum for moneys found to be due from the appellant to the appellee on an account stated, which said sums of money so due from the appellant to the appellee exceeded the damages sustained by the appellant, by reason of the nonperformance by the appellee of the several supposed promises in the declaration mentioned, and out of which said sums of money the appellee is ready and willing and hereby offers to set off and allow to the appellant the full amount of said damages.

The appellant joined issue on the plea of nonassumpsit, which formed the general issue in the case, and demurred to the second, third and fourth special pleas, and filed a replication to the plea of set-off. Then appellee, by leave of court, withdrew the general issue so far as it pertained to the first count, and the court sustained a demurrer to the second, third and fourth special pleas. Appellee afterwards obtained leave to file two additional special pleas of the Statute of Frauds and the Statute of Limitations, and appellant obtained leave to file several replications to the special pleas on file. But the parties proceeded to trial without issue having been joined on the special pleas and replications thereto.

Various questions are raised on appeal as to the competency and relevancy of the evidence adduced on the trial, and as to the propriety of giving certain instructions to the jury, and as to the extent of the liability of the appellee under the pleading arid evidence.

The failure to join issue upon the special pleas and replications filed is not of importance, inasmuch as the parties voluntarily proceeded to trial without formal written issues joined in that regard. (French v. Scobey, 108 Ill. App. 606; Chicago & A. Ry. Co. v. Jennings, 114 Ill. App. 622; Piot v. Davis, 241 Ill. 434.)

The withdrawal of the general issue, so far as the same pertained to the first count, left as the only defense to that count the matters set up in the plea of set-off, and this plea does not deny the appellant’s cause of action, as alleged in the first count, for rent due from appellee as tenant, but admits an indebtedness from the appellee to the appellant on that account, and because of the matters set up in the plea seeks to avoid it. (Raymond v. Kerker, 81 Ill. 381.)

When a matter material to the issues is alleged in the declaration and is not denied by a plea, such matter is admitted and it will be presumed to be a fact. (Morrill v. Baggott, 57 Ill. App. 530, affirmed in 157 Ill. 240; Dickinson v. Garland, 49 Ill. App. 578; McNeal v. Calkins, 50 Ill. App. 17; Williams v. Boyden, 33 Ill. App. 477; Lindsay v. Stout, 59 Ill. 491; Orr, Saddler & Co. v. Gilbert, 68 Ill. App. 429; Culver v. Uthe, 7 Ill. App. 468.)

Aside from the presumptions which arise from the pleadings, it is clearly established by the evidence that the appellant’s claim, as well as the appellee’s counterclaim, respectively, grew out of their relation of landlord and tenant. The proof shows that appellant claimed to own the tract of land—about 10.50 acre's, described in the first count of the declaration. It formed a rectangular strip, about 748 feet in length, lying north of the Illinois and Michigan Canal,—and that the right of way of the Chicago, Rock Island and Pacific Railway Company ran lengthwise through this tract of ground. Upon this claimed tract, on the north side of the tracks of the railway company and extending partly on the right of way of said railway, there were large bodies of sand rock and sand, which were valuable for commercial and manufacturing purposes.

It was this tract of land, including the right of way of the railway through the same, that appellee obtained the possession of under the terms of the lease in question, as tenant of appellant. The appellee commenced operations for the removal of the sand about February 11, 1904, paying for the same in monthly payments, and continued in this manner until September, 1906, a period of about two years and a half. A part of the sand which was mined during this period was taken from what constituted the right of way of the railway company, and a part from the land north of the right of way.

It is apparent that about September, 1906, the appellee reached the conclusion that appellant did not have the legal title to the sand and sand rock, which was situated on that part of the tract designated as the right of way of the railway company, and thereupon made a new arrangement with the railway company for mining and removing sand from this part of the premises. After making this new arrangement with the railway company, he denied appellant’s title to the part mentioned and refused to pay him any more rent for the same.

The evidence and pleadings clearly establish that appellant was appellee’s landlord; that the railroad right of way was on a part of the premises of which the appellee had become possessed as tenant of appellant, and that for over two years he mined sand from the same, as tenant of appellant, and paid rent for the sand taken in the same manner as for sand mined from other parts of the premises leased; that his subsequent refusal to make further payment was based upon a denial of the title of his landlord to this part of the premises leased, and that after his refusal to pay rent he nevertheless continued, without interruption, to occupy this part and to mine sand thereon, under what he claimed was a superior title in the Chicago, Rock Island & Pacific Railway Company.

That a tenant cannot dispute the title of his landlord to the premises which he has obtained the possession of as tenant while he remains in possession thereof, is a principle of law that is so well settled as to be axiomatic. (Gable v. Wetherholt, 116 Ill. 313; Fortier v. Ballance, 10 Ill. (5 Gilm.) 41; Mackin v. Haven, 187 Ill. 480; Doty v. Burdick, 83 Ill. 473; Cox v. Cunningham, 77 Ill. 545; Hardin v. Forsythe, 99 Ill. 312; Haynes v. Sherwin-Williams Co., 126 Ill. App. 414; Knefel v. Daly, 91 Ill. App. 320.) And for the reasons stated, all the evidence introduced by appellee on the trial for the purpose of showing that appellant had no title to the strip of ground in dispute was incompetent.

Appellee insists that he was ordered off of a part of the premises in question by the appellant, through appellant’s agent, William A. Smith, that is to say, that he was evicted therefrom. And that in consequence of this ordering off or eviction he was damaged to the extent of about $1,800, this being the amount which would be considered a reasonable and fair charge for the expense of stripping a section of sand rock, which he had caused to be stripped preparatory to mining and removing the sand; and that on account of his eviction he lost the benefit of this stripping and the work done and money expenses therefor. If the appellee was, in fact, evicted, and on that account suffered damages, there is no doubt about his legal right to recoup such damages as a set-off against the rent due to appellant. But the record does not disclose any eviction, and the only ordering off which appears to have been done was done by appellee himself when he called off his employees from their work of stripping on the part of the premises mentioned, and directed that his “stuff—tools and things—” be taken to the right of way, which was another part of the same premises.

Appellee claimed that this was done by him in consequence of what he states William A. Smith said to him, as agent of his brother, the appellant; but what William A. Smith told him, according to appellee’s own testimony, was this: “Well, Frank, Charlie told me to tell you not to take any more sand off from his place there, if you ain’t going to pay for it.” This language cannot reasonably be construed into an ordering off, or an eviction. It was, in effect, the same as if a landlord had said to his tenant: ‘ ‘I don’t want yon to occupy these premises if you are not going to pay the rent which you agreed to pay in your lease.” And the inference from the language used is inevitable that if he was willing to pay the rent, which was appellee’s legal obligation, appellant was willing that he should take the sand. Appellee’s refusal to take the sand he had stripped was, in effect, an admission that he was unwilling to pay for it; in which case he would have no legal right to take it under the terms of his lease.

While it is not necessary that there should be an actual, physical expulsion from the premises occupied by the tenant to constitute an eviction, yet it is necessary that the landlord do some act which disturbs the tenant’s possession, or which amounts to a clear indication of an intention on the part of the landlord to deprive the tenant of the enjoyment of the premises as demised to him to constitute an eviction. (Keating v. Springer, 146 Ill. 481; Hayner v. Smith, 63 Ill. 430.)

Some of the instructions given contain statements which were prejudicial to appellant’s right to recover. Instruction No. 22, given for appellee, contains this language: “Yet if you further believe that plaintiff, by himself, or his agent, William A. Smith, determined and declared at an end the rights of defendant to continue to mine such sand as a tenant, and ordered him from the premises, and if you further believe that pursuant to such order defendant left the premises of plaintiff and thereafter mined sand from the right of way of the Chicago, Bock Island & Pacific Bailroad Company, and that such right of way was not described in said lease, then ánd in that instance plaintiff would be without right to charge defendant for such sand as was mined and shipped by him from the right of way of the Chicago, Bock Island and Pacific Bail-road Company.”

Under the terms of this instruction it was not necessary for the jury to form their belief concerning the matters stated in the part of the instruction above quoted, from the evidence, as the law requires, and it allowed the jury, regardless of any evidence, to form a belief that appellee left appellant’s premises pursuant to an order by the appellant, when as a matter of fact there is no evidence whatever in the record to show that appellee was ordered off of the premises leased to him. The instruction also assumes that appellee left appellant’s premises, when the proof shows th,at he did not leave the premises leased to him, which in this case must be regarded as appellant’s premises, but on the contrary the proof is to the effect that he remained in possession of them after the alleged ordering off, and mined sand from the same. This instruction also bases appellant’s right to recover upon the condition that the railroad right of way was described in the lease. Inasmuch as the right of way was not actually described in the lease, although clearly a part of the demised premises, this part of the instruction practically directs & verdict against appellant’s right to recover rent for the sand mined on the railroad right of way, for which appellant claimed the right to recover rent as a part of the premises leased to appellee. It is evident, therefore, that the instruction is defective and misleading.

Instruction No. 23 is as follows: “The court instructs the jury, as a matter of law, that if you believe that the sand mined by defendant and for which plaintiff claims an amount to be due and owing from defendant, was in fact mined from the right of way of the Chicago, Rock Island & Pacific Railroad Company, and not from any premises described in the written lease offered in evidence, then, and in that instance, plaintiff cannot recover for such sand so mined from the right of way of the Chicago, Rock Island & Pacific Railroad Company.” It will be noticed that this instruction tells the jury, in effect, that the right of way of the Chicago, Rock Island & Pacific Railway Company is not a part of the premises described in the lease and that therefore appellant could not recover for sand mined on such right of way, and directs a verdict on that question. This is clearly in contravention of appellant’s legal right to recover for sand mined on that part of the right of way which was occupied by appellee as tenant of appellant.

Some of the objectionable features mentioned appear also in instruction No. 28, and in other instructions which were given for appellee. Instruction No. 26 had reference to appellee’s claim of set-off. The evidence concerning what would be a fair charge for stripping was not admissible under the averments of the plea; nor was it competent matter to be considered by the jury, in recoupment against appellant’s claim for rent, inasmuch as the recoupment was based on a claim of eviction, and the evidence does not show any eviction. The instruction was therefore erroneous.

For the reasons stated, the judgment should be reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    Henry Forbes, Appellee, v. Celeste A. Davis, Appellant.
    Gen. No. 6,159.
    (Not to tie reported in full.)
    Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Action by Henry Forbes, plaintiff, against Celeste A. Davis, defendant, to recover real estate commissions. From a judgment for plaintiff, defendant appeals.
    There was a sharp conflict in the evidence as to the terms of the contract upon which the claim for commission was based. Plaintiff claimed that defendant agreed to pay him a commission of $1 per acre for finding her a purchaser, and that she fixed the price of the farm to be sold at $130 per acre, while defendant claimed that she agreed to pay the commission named, only upon condition that the purchaser whom plaintiff should find for her would pay the price of $130 per acre, and that plaintiff was not to have a commission unless $130 per acre was paid by such purchaser for the farm.
    The evidence tended to show that the purchaser of the farm, to whom defendant finally sold it for $125 per acre, was procured through the instrumentality of plaintiff, that is to say, it was plaintiff who induced this purchaser to visit defendant and the farm with a view of buying it. One of defendant’s defenses, however, was that before she sold the farm to this party who finally did purchase it, plaintiff deceived her into believing that this purchaser was not one which plaintiff had procured for her, but that he had brought with him the person whom he expected to bring about the sale of the farm for her, and wanted her to make a contract with him in reference to the matter.
    Abstract of the Decision.
    1. Brokers, § 61

      —what is effect of deceit on right to recover commissions. Under a contract whereby a landowner agrees to pay an agent a certain sum per acre if he produces a purchaser and fixes the price per acre at which she will sell, the agent cannot recover his commission, though he introduced a person who finally became a purchaser at a price lower than that fixed by the owner, if, at the time, he deceived the owner by telling her that such person was not a prospective purchaser but one through whom he expected to bring about a sale, and thus induced her to sell for an amount less than she would have otherwise exacted.
    2. Instructions, § 114*—when ignoring defense improper. An instruction which purports to state all the facts necessary to a recovery, and ignores a matter of defense of which there is proof, is erroneous. ,
    The plaintiff denied that he made any statements to defendant to that effect, or that he told her that this purchaser “was not his man.”
    Arthur H. Shay, for appellant.
    F. A. Ortman and Lyle M. Shelly, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice “Niehaus

text:
    L. L. Eaves for use of R. O. Ahlenius, Appellant, v. Chicago, Burlington & Quincy Railroad Company et al., Appellees.
    Gen. No. 6,166.
    1. Assignments, § 11

      —when approval by debtor not necessary. A rule of the relief department of a railroad that an assignment of a claim of a member of such department cannot be legally made without the approval of the department superintendent is not a bar to an action based on an assignment.
    2. Assignments, § 11*—when acceptance of assignment of part of claim necessary. An assignment of a part of a claim or demand is not legally binding upon the payor, unless such assignment is accepted by him.
    3. Assignments, § 25*—what are rights of assignee. While under section 18 of the Practice Act (J. & A. 8555), the assignee of a claim or demand may sue in his own name to recover the amount due, his rights are otherwise no greater, thereunder, than they were at common law.
    4. Assignments, § 11*—when acceptance by debtor necessary. A member of the relief department of a railroad held not entitled to recover for the use of the assignee on an assignment, of part of his claim for injuries, which had not been accepted by the superintendent of the department.
    Appeal from the Circuit Court of Knox county; the Hon. R. J. Gbieb, Judge, presiding. Heard in this court at the October term 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    R. D. Robinson, for appellant.
    Williams, Lawrence, Welsh & Green,' for appellees; J. A. Connell, of counsel.

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

   Mr. Justice “Niehaus

delivered the opinion of the court.

It appears from the stipulation of facts, and the evidence introduced at the trial of this case, that L. L. Eaves was an employee of the Chicago, Burlington & Quincy Railroad Company, and a member of the relief department of that company, which was organized and conducted for the purpose of establishing and managing a fund to pay certain sums to employees of the railroad company, who are members, in case of disability; payment to be made in accordance with the rules and regulations of the relief department; also to pay certain amounts, in the event of the death of members, to relatives, or to other beneficiaries designated by them, with the approval of the superintendent of the department.

The railroad company mentioned has charge and control of the relief department, and of the money which constitutes the fund from which payments are to be made. One of the rules and regulations of the relief department is that benefits payable on account of the disability of a member shall be payable only to such member, or in accordance with his written order, when approved by' the superintendent or his legal representative.

Eaves was injured and disabled while in the service of the railroad company, and was therefore, as a member of the relief department, entitled to receive relief from the benefit fund referred to, first at the rate of $2 per day, from March 30 to March 31, 1909; and thereafter from June 1, 1909, to January 26, 1910, at the rate of $1 per day. On June 17, 1909, Eaves gave to the appellant R. O. Ahlenius, to whom he was indebted, an order on the relief department, which was as follows:

“June 17, 1909.

“To the Burlington Relief Association:

“Out of any money now due or hereafter becoming due me from you as relief, sick benefit, or otherwise under my contract with you, please pay to the order of R. O. Ahlenius the sum of $125.00 and charge the same to my account.

L. L. Eaves.”

.This order was mailed to the superintendent of the relief department on the same day that it was given, and received by the superintendent, who at once refused to honor the order or to approve it, and notified the appellant to that effect on the next day. It is contended by appellant that the order operates as an assignment of that part of Eaves’ claim or demand against .the relief department which was embraced in the order, namely, of $125 of the amount of sick benefits -then due or thereafter to become due and payable to Eaves.

Appellee claims that under the rules of the relief department an assignment of the claim of a member of the relief department cannot legally be made without-the approval of the department superintendent. We are of opinion that the rule in question is no legal bar to an assignment, but an assignment to become legally effective, without acceptance, must be for the whole of the claim of demand. (Savage v. Gregg, 150 Ill. 161.) The order in this case was for a portion only of the Eaves claim. It has been repeatedly held by our Supreme Court that the assignment of a part of a claim or demand is not legally binding upon the payor, unless such assignment is accepted by him.

In the case of Chapman v. Shattuck, where an attorney claimed an assignment of a part of his client’s claim on an appeal bond for his fees, the Supreme Court clearly determines the point under discussion, and uses this language: “It is insisted that Burgess had such an interest in the subject matter of the suit, as to preclude the parties from compromising it without providing for the payment of the amount due him. If this position can be sustained, it must be on the ground that he was the equitable assignee of the chose in action, on which the suit was instituted. The doctrine is now well settled, that courts of law will recognize and protect the rights of the assignee of a chose in action, whether the assignment be good at law, or in equity only. * * * A partial assignment, however, of a chose in action will not suffice to bring the case within the principle. The whole cause of action must be assigned. It was well remarked by Justice Story, in Mandeville v. Welch, 5 Wheaton, 277, that ‘a creditor shall not be permitted to split up a single cause of action into many actions, without the assent of his debtor, since it may subject him to many embarrassments and responsibilities not contemplated in his original contract. He has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments, by which it may be broken into payments.’ ” (Chapman v. Shattuck, 8 Ill. [3 Gilm.] 49.)

And in the case of Crosby v. Loop, where a landlord had conveyed a part of the premises held by a tenant, and had given an order to the grantee, on the tenant, to pay to such grantee a portion of the rent, and the tenant declined to honor the order, and refused to accept or pay the same,, the Supreme Court says: “The drawing of the order in connection with the grant of the reversion did not amount to an assignment of two-thirds of the rent to the plaintiffs. The order was the single direction of a creditor to his debtor to pay a third person a certain sum out of a particular fund. The legal interest to any portion of the fund did not pass to the plaintiffs. If the order had included the whole of the rent reserved by the lease, it might have amounted to an equitable assignment of the fund, to recover which the plaintiffs could have sued in the name of the defendant; and perhaps they would have been compelled to use all reasonable diligence to obtain payment from the tenants, before they could have recourse against the defendant. But the present is a very different case. The whole of the debt was not embraced by the order, and Robinson & Co. were not bound to discharge it in fractions to different persons. The plaintiffs could not have maintained an action against them in the name of the defendant. The principle that an entire contract cannot be apportioned, and performance enforced in fragments, would have presented an unsuperable bar to a recovery.” (Crosby v. Loop, 13 Ill. 625.)

Under section 18 of the Practice Act (J. & A. if 8555), the assignee of a claim or demand of this character may sue in his own name to recover the amount due, but the assignees’ rights are otherwise no greater than or more extended under this statute than they were at common law. (Ensign v. Illinois Cent. Ry. Co., 180 Ill. App. 382.)

We are of opinion, therefore, that inasmuch as the order in question did not include the whole of the Eaves claim or demand against the relief department of the Chicago, Burlington and Quincy Railroad Company, it was not legally binding upon the company, as an assignment, without the acceptance or approval of the department, and that the trial court did not err in finding for the defendant. The judgment should be affirmed.

Affirmed.


text:
    Commercial State Bank of Forreston, Appellee, v. Eilert Folkerts, Appellant.
    Gen. No. 6,170.
    1. Bills and notes, § 411

      —when burden on defendant to show fraud. Where duress or fraud are set up as a defense to an action on a promissory note the burden is on the defendant to prove such averments by a preponderance of the evidence.
    2. Bells and notes, § 441*—when evidence insufficient to show fraud in procuring execution of. In an action on a promissory note, the preponderance of the evidence held to negative fraud and duress in procuring the signing, thereof.
    3. Bills and notes, § 50*—When supported by consideration. Where a promissory note, given in discharge of an obligation of another than the defendant, was signed by the defendant on a day subsequent to that on which it was signed by such other party, but it was not intended by the payee to be, and was not in fact, accepted until it was signed by the defendant, held that no new consideration moving to the defendant was necessary to make him liable thereon, inasmuch as the signing by both parties and the acceptance were a part of the same transaction.
    4. Bills and notes, § 50*—when consideration sufficient to bind signer. The discharge of an existing indebtedness of another is a sufficient consideration to bind one signing a note, given in discharge thereof, whether he signs as joint principal, maker or surety.
    5. Trial, § 292*—when propositions of law assuming facts properly refused. It is not error to refuse to hold propositions of law assuming facts which do not agree with actual facts as shown by the evidence.
    6. Appeal and error, § 1567*—when incorrect rulings on propositions of law harmless error. Conclusions of law based on an assumed state of facts are abstract propositions, and incorrect rulings in abstract propositions of law are harmless error where the judgment is in accordance with the law and evidence governing the case.
    7. Appeal and error, § 1567*—when refusal to hold correct propositions of law harmless error. Refusal to hold propositions of law on matters not in issue, even though they are correct, is not reversible error.

      Appeal from the Circuit Court of Ogle county; the Hon. Richabd S. Faeband, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    William J. Emerson and James M. Huff, for appellant.
    J. C. Seyster, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from a judgment rendered against appellant, by the Circuit Court of Ogle county, for the sum of $1,477.59 upon a promissory note after a trial by the court without a jury. A judgment upon this note had been originally entered by confession under power of attorney attached to the note, but upon petition by the appellant the judgment was opened and he was allowed to plead and make his defense to a recovery upon the note. The defenses upon which appellant relied, and concerning which evidence was offered, were want of consideration, duress, and fraud and misrepresentation.

The proof shows that appellant’s son, Frank Folkerts, had been engaged in the business of buying and selling live stock, and became indebted to appellee, the Commercial State Bank of Forreston, on a note for $1,000; also for an overdraft amounting to the sum of $297.42, and that the note in question was taken by appellee in liquidation and settlement of the $1,000 note and the overdraft. The evidence is very conflicting, especially as to what occurred between the parties at the time the note was taken by appellee.

The appellant claims that George Snyder, appellee’s cashier, came to him at his home in Forreston and told bfm that his son Frank had overdrawn his account and • that he wanted appellant to make it right at the bank, but that appellant refused to do so; that the next day the cashier came again to see him about the matter of the overdraft and again insisted that appellant would have to do something about it, but that he again refused; whereupon the cashier told him that he would go to Oregon and have his son Frank arrested for making the overdraft; that the matter of the arrest of his son worried appellant during the night following and induced him to go to the bank the next morning and sign the note; that he signed the note without reading it, upon the representation of the cashier that it was merely for the $297.42 overdraft, but discovered as the cashier picked up the note that it was for a larger amount and then wanted to know why it was and also at once demanded the note back, but that the demand was refused.

On the other hand, the cashier testifies that he never made any threats to have appellant’s son arrested, and never asked appellant to make good his son’s overdraft; that the only conversation prior to the execution of the note by appellant, which he had with appellant, occurred one day at the bank several weeks prior to the signing of the note; that at that time he called appellant into the bank and asked him when Frank was coming back, and then appellant wanted to know why he asked about Frank, and he then told appellant that there was an overdraft there and he would like to have it cleaned up; that this was all there was said to appellant about the overdraft at that time and prior to the signing of the note, and that it was on the occasion mentioned that he gave appellant a slip of paper showing the amount of the overdraft.

Several weeks after this conversation appellant’s son Frank came into the bank and the matter of the overdraft was discussed with him, and he was then told that he would have to give the bank a new note, with sureties, to cover not only the amount of the overdraft but also the amount due on the $1,000 note, the surety to be given to be satisfactory to the bank; that the note in question was thereupon prepared and then signed by Frank Folkerts and that he promised to send some one, who would be satisfactory to the bank, to sign as surety, and mentioned the name of Henry Drake, and was told that Drake would be satisfactory; that Drake, however, did not come in to sign and that the next day he, the cashier, went to see Frank about the surety at his father’s house and saw Frank there; that he was hauling gravel at the time; that he inquired of him about the surety and Frank told him he would let him know after supper about the matter; that afterwards the witness went into the country and after he came back, that evening, Frank Folkerts met him at the bank comer and informed him that the appellant, his father, would sign the note the next morning, and that the next morning the appellant did come into the bank and stated that he wanted to sign the note with Frank; that the note was handed to appellant and he asked how much it was and was told by the witness that it was for $1,322.42; that upon learning the amount he asked what Frank did with all that money; whereupon the witness informed him that he did not know, but that Frank had bought an automobile, but that he didn’t know what he had done with the rest of it; that appellant then signed the note and walked out.

The cashier also testified that appellant, before signing the note, put on his glasses and looked it over; that he did not make any objection to it after he had signed it nor demand it back at that time. But that some days after the date of signing, appellant came into the bank and said he wanted his name taken off the note, and when asked why, he replied that Frank had been drinking and was acting like a crazy man and that he would not be security for him, and that thereupon the cashier told him that his name would come off of the note when he paid the note, and not before.

The cashier also testified that the appellant never claimed in any conversation with him that the note was for a larger amount than he thought it was when he signed it; that the first he knew of any such claim on the part of appellant was in January, just before the judgment was entered on the note.

The testimony of the cashier as to what took place at the time of the signing of the note is corroborated by Martin H. Eakle, the vice president of the bank; and Dr. Overfield, the president of the bank, testified that appellant came to see him a few days after he had signed the note and asked him to see that his name was taken off of the note, and when he inquired why, the appellant said: “Because Frank had been drinking too much, and he didn’t care to have his name on the note with Frank any longer”; that appellant gave no other reason for wanting his name off and didn’t claim, at that time, that the note was for a larger amount than he thought it was when he signed it.

It was incumbent on appellant to establish his defense by a preponderance of the evidence, but the record discloses a preponderance of the evidence against appellant’s contention that the note was signed by bim under the influence of threats to arrest his son Frank, and his signature was obtained by fraud or false representations. It is insisted by appellant that he received no consideration for signing the note. It is not necessary that appellant should have received a separate and distinct consideration for the obligation which he assumed by signing, merely because his signature was attached to the note on a different day from the date of signing by his son Frank, if the signing was originally intended and merely delayed. (Ives v. McHard, 2 Ill. App. 176, affirmed in 103 Ill. 97.)

If the signing of the note had been a separate transaction; if the note, before appellant’s signature was attached, had already been accepted by appellee, and after such acceptance appellant had been called upon to sign, and signed, then such signing would be a separate act distinct from the original transaction; and in that case it would have created a separate and distinct obligation and contract and would also have required a separate consideration to support it; but the evidence clearly tends to show that appellant’s signing, though separated in point of time from the signing by his son, was intended to be and was a part of the same transaction by which the note in controversy was made, taken and accepted as a payment and discharge of a pre-existing indebtedness of appellant’s son, and that the transaction was not completed until appellant had signed the note, and that the note was not acceptable to appellee, nor accepted, until the signature of appellant had been attached to it.

Under these circumstances it was not necessary that there should have been a separate consideration to support appellant’s obligation. The consideration received by appellant’s son, as maker of the note, is sufficient to legally bind appellant to the obligation assumed by him in signing it. (Harty v. Smith, 74 Ill. App. 194; McMicken v. Safford, 197 Ill. 540; Wylie v. Dickenson, 50 Ill. App. 622.)

The fact is not controverted that the note in question was accepted by appellee, in satisfaction and payment of pre-existing claims which appellee held against appellant’s son, Frank Folkerts, and this was a sufficient legal consideration. (Chapter 98, art. II, sec. 25, Hurd’s Revised Statutes, J. & A. f 7664.) And if legally a sufficient consideration for appellant’s son, as maker, under the authorities referred to, it was also legally a sufficient consideration for the obligation assumed by appellant in signing it whether his obligation be that of joint principal, maker or surety.

Complaint is also made by appellant because the court refused to hold certain propositions of law, especially propositions numbers 7 and 11. Proposition 11 is based on an assumed state of facts, and undoubtedly the court found that those assumed facts did not agree with the actual facts, as shown by the evidence. It was not error to refuse to- hold this proposition. (Chicago & W. M. Ry. Co. v. Hull, 76 Ill. App. 409.) It may also be said in this connection that a conclusion of law based upon an assumed state of facts is a mere abstract proposition, and rulings on abstract propositions, even if incorrect, are harmless error. Incorrect rulings on abstract propositions of law are harmless error where the judgment is ih accordance with the law and evidence governing the case. (Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9; First Nat. Bank of Galesburg v. Clark, 143 Ill. 83; Lanter v. Hartman, 95 Ill. App. 80; Famous Mfg. Co. v. Wilcox, 80 Ill. App. 54, affirmed in 180 Ill. 246; Fuchs & Lang Mfg. Co. v. R. J. Kittredge & Co., 146 Ill. App. 350; Stone v. Mulvaine, 119 Ill. App. 443; Moffitt-West Drug Co. v. Aldrich, 87 Ill. App. 184.)

Proposition No. 7 embodied the question as to whether appellant was or was not a principal maker of the note in controversy. This question was not an issue in the case, and a finding on it was not necessary nor material in passing on the merits of the case. Assuming, therefore, that the trial court should have held this proposition as a matter of law, no error was committed in its refusal for which the judgment should be reversed, because the decision of the case depended entirely on whether or not appellant had proven his defenses. What the Supreme Court said in the case of Stowell v. Moore, is particularly applicable to this situation: “It is also claimed the court erred in refusing to hold as law certain propositions submitted by appellant. It will not be necessary to inquire whether the different propositions submitted by appellant contained correct principles of law, as the decision of that question would not necessarily change the judgment rendered in the case. The decision of the case depended entirely upon the view the court might take of the evidence. If the evidence of the defendant was relied upon, then no recovery could be had. If, on the other hand, the evidence of the plaintiff, which was in direct conflict with that of the defendant, was received as the more credible, then the judgment would necessarily be in his favor. Under such circumstances it was immaterial what view the court might take of the abstract propositions of law submitted by appellant. As appellant was, therefore, in no manner injured by the decision of the court refusing the propositions submitted, we cannot on that ground reverse the judgment. (Stowell v. Moore, 89 Ill. 563.)

We are clearly of opinion that the judgment rendered in this case accords with the law applicable thereto, and is sustained by a preponderance of the evidence. The record does not show any reversible error, and the judgment should therefore be affirmed.

Affirmed.


text:
    Johnson Oil Refining Company, Appellant, v. Galesburg Railway, Lighting & Power Company, Appellee.
    Gen. No. 6,181.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Action by the Johnson Oil Refining Company, a corporation, plaintiff, against the Galesburg Railway, Lighting & Power Company, a corporation, defendant, to recover damages resulting from a collision of the plaintiff’s auto-truck with the defendant’s street cap. From a judgment for defendant, plaintiff appeals.
    Abstract of the Decision.
    1. Appeal and error, § 1410

      —when verdict not disturbed as against weight of evidence. The verdict of the jury on the question of negligence of the defendant and contributory negligence of the plaintiff will not be disturbed on appeal unless clearly and manifestly against the weight of the evidence.
    2. Street railroads, § 131*—when evidence sufficient to show that defendant not negligent in injuring auto-truck. In an action for damages to an auto-truck, resulting from a collision with an overtaking street car at a street intersection, evidence held not to justify interference with a finding of the jury in favor of the defendant on the question of its negligence.
    3. Stbeet bailboads, § 131*—when evidence sufficient to show contributory negligence of driver of auto-truck. In an action for damages to an auto-truck, resulting from a collision with an overtaking street car, evidence held sufficient to show contributory negligence of plaintiff.
    4. Stbeet bailboads, § 117*—when city traffic ordinances admissible in action for damages for negligent collision. In an action for damages to an automobile, resulting from a collision with an overtaking street car at a sheet intersection, city traffic ordinances applicable to the facts in issue held properly admitted in evidence.
    5. Municipal coepobations, § 88*—what power to regulate traffic by ordinance. Under J. & A. 1334 (9), a city may pass reasonable ordinances regulating traffic in its streets.
    6. Municipal cobpobations, § 85*—when ordinance requiring signals by drivers of vehicles valid. A city ordinance requiring of drivers of vehicles that “in turning while in motion or in starting to turn from a standstill, a signal shall be given by indicating with the whip or hand, the direction in which the turn is to be made,” held reasonable and valid.

      M. J. Daugherty and Marsh & Martin, for appellant.
    Hardy & Hardy, for appellee.

      See Illinois Notes Digest, Vols, XI t<# XV, and Cumulative Quarterly, same topic and section nuipfoer,

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

   Mr. Justice Niehaus

delivered the opinion of the court.

7. Municipal corporations, § 85 —when ordinance regulating traffic valid. A city ordinance providing that “traffic on the east and west streets shall have the right of way over traffic on the north and south streets,” held reasonable and valid.

8. Street railroads, § 144*—when instruction on contributory negligence of driver of auto-truck correct. In an action for damages to an auto-truck, resulting from a collision with an overtaking street car at a street intersection, an instruction that if the truck driver was guilty of contributory negligence the plaintiff could not recover, held to properly submit such question to the jury.

9. Street railroads, § 144*—when instructions on contributory negligence of driver of auto-truck correct. In an action for damages to an auto-truck, resulting from collision with a street car, an instruction that the burden was on the plaintiff to establish by a preponderance of the evidence that he was in the exercise of due care and that the defendant was guilty of negligence, held, when read in connection with other instructions, to sufficiently fix the time when the plaintiff should have been exercising due care for his own safety and not to eliminate the proposition of equal rights of parties at the crossing.


text:
    William Friedberg, Appellant, v. Clarence E. DePew, trading as “Practical Advertising Company,” and John R. Henderson, Sheriff, Appellees.
    Gen. No. 6,190.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Kendall county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Rehearing denied May 12, 1916.
    Statement of the Case.
    Bill in equity filed, by William. Friedberg, complainant, to restrain Clarence E. DePew, trading as the “Practical Advertising Company,” and John R. Henderson, as sheriff of Kendall county, Illinois, defendants, from enforcement of an execution issued upon a judgment entered by confession against the complainant. From an order sustaining a demurrer to the bill and a decree dismissing it for want of equity, the complainant appeals.
    The bill alleged that DePew entered into a contract with complainant through complainant’s agent whereby DePew, by the name of “Practical Advertising Company,” agreed to furnish to complainant certain articles of merchandise, and perform certain acts to benefit complainant’s business, the complainant being a merchant, and that DePew guarantied thereby to increase complainant’s business. A copy of the contract referred to was attached to the bill as an exhibit, but it appeared from the bill that such exhibit was presumably only a part of the entire contract and was the part signed by the complainant, but that evidently at the same time complainant signed another paper, which was not attached to the bill.
    It further alleged, in substance, that DePew procured to be entered a pretended judgment against him without .the personal knowledge of complainant, and that later, a pretended execution was issued upon said pretended judgment and placed in the hands of the sheriff for service, who served the same upon complainant and then levied it upon certain property of complainant; that the service of the execution on complainant was the first notice “actual, constructive or otherwise,” which complainant had of the existence of the judgment, no summons or other process having’ been served upon him previous to the entering of the judgment, and that the court had adjourned for the term at which judgment had been taken before the time mentioned, and that it was only from the alleged pretended execution that he learned that the judgment had been so recovered against him by DePew in an action of “assumpsit-confession.”
    The bill also stated that complainant never, to his knowledge, executed or signed any judgment note authorizing the judgment, and that in case such judgment note ever existed containing his signature, such signature was a forgery; or, if genuine, it was obtained by misrepresentation, fraud, false pretenses and circumvention; that the only paper presented to him for approval or execution at the time the contract was negotiated was represented by Depew’s agent to be a simple contract, and that if such alleged pretended judgment was taken against complainant and indicated by the alleged pretended execution, the same was and is fraudulent, and should be set aside as null and void.
    The bill then prayed that the alleged pretended execution and levy be set aside, and that the sheriff and DePew be restrained by order of court from advertising or selling the premises, or authorizing or causing the same to be done, or otherwise attempting to enforce said alleged pretended judgment, etc.
    Benjamin F. Herrington and John Fitzgerald, for appellant.

      Abstract of the Decision.
    1. Contracts, § 190

      —when separate papers considered as one instrument. Where two papers signed are a part of the same transaction, one signed by one party to the contract and the other by the other party thereto, both papers constitute one contract and are to be considered as one instrument.
    2. Judgment, § 343*—when Mil to restrain enforcement of execution on judgment by confession defective. In a suit to restrain the enforcement of an execution on a judgment alleged to have been entered by confession upon a pretended power of attorney, purporting to have been signed by the complainant, a bill alleging that the complainant did not, to his knowledge, execute such a power, or, if he did, its execution was procured by fraud, and having attached to it as an exhibit a paper alleged to evidence a contract entered into between the complainant and defendant, but which appeared to be only a part of an instrument evidencing the entire contract as entered into, held defective, inasmuch as the other part of the instrument might contain the power of attorney upon which such judgment was entered.
    3. Judgment, § 343*—when bill to restrain enforcement of execution on judgment by confession on power of attorney insufficient. In a bill to restrain the enforcement of an execution alleged to have been issued upon a pretended judgment entered upon a paper pretended to contain a power of attorney to confess judgment against the complainant, allegations that if the paper contained the complainant’s signature it was a forgery, but if the signature was genuine it was obtained by misrepresentation, fraud, false pretenses and circumvention, held to be inconsistent, and neither a positive allegation that the signature was a forgery nor that it was genuine, but was obtained by fraud and misrepresentation, and insufficient in not stating facts upon which the claim of fraud and misrepresentation was based.
    4. Judgment, § 343*—what bill to restrain enforcement of judg-. ment on ground of fraud must contain. While equity takes concurrent jurisdiction with law courts in matters of fraud, accident or mistake, the facts constituting such fraud, accident or mistake, as a defense to the enforcement of a judgment, must be set out in a bill to restrain its enforcement.

      C. C. Bierman, for appellees.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court. .

5. Judgment, § 321 —when injunction lies to restrain enforcement of execution. To entitle one to an injunction to restrain the enforcement of an execution on the ground of fraud, a'ceident or mistake, it must be evident not only that the complainant had a defense upon the merits to the action in which such judgment was entered, but that such defense has been lost to him without the loss being attributable to his own omission, negligence or default.

6. Judgment, § 309*—when injunction to restrain enforcement of judgment denied. Injunction to restrain the enforcement of an • execution on a judgment, the entry of which the complainant alleged first came to his knowledge after the close of the term at which it was entered, held properly denied, as the complainant had an adequate remedy at law inasmuch as he could, at the succeeding term, have filed a motion to vacate the judgment and for leave to plead.

7. Judgment, § 80*—-when motion to vacate in time. A motion to vacate a judgment by confession, filed at the next ensuing term after a confession of the judgment, is in apt time.

8. Execution, § 104*—what proper method of relief from improper levy of execution. The proper method of relief against an improper levy of an execution is by application to the court issuing the execution to quash the levy.

9. Injunction, § 170*—what county a hill to restrain proceedings at law to he filed in. A bill to restrain proceedings at law must be filed in the county in which such proceedings are being taken.


text:
    August Cellarius, Individual and as Administrator, Appellant, v. Amanda Junker, Appellee.
    Gen. No. 6,197.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Bill in equity filed by August Cellarius, in bis individual capacity and as administrator of the estate of William Cellarius, complainant, against Amanda Junker, defendant, to set aside a change of beneficiary made by the deceased, for the benefit of defendant, in two life insurance policies, on the ground of fraud and undue influence, and to enjoin the payment of the policies to defendant. From a decree in favor of defendant, complainant appeals.
    There was no evidence in the record to sustain the charges made in the bill, of fraud or undue influence, but there was evidence tending to show that the deceased, at the time of making the change of beneficiary, was mentally incompetent. A number of witnesses testified that the deceased, about the time he made the change, was incapacitated for the transaction of ordinary business, but the evidence was conflicting on that point.
    Albert H. Krusemark, for appellant.
    S. J. Drew, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1398 —when findings of jury approved by chancellor not disturbed. Where, in a chancery case, it is not apparent from the record that error has been committed by the chancellor in sustaining the findings of fact of a jury, to which such issues have been submitted in an advisory capacity, such findings will not be disturbed on appeal.

2. Cancellation of instbtjments, § 35*—when evidence sufficient to show mental capacity. In a suit in equity to set aside a change of beneficiaries of life insurance policies made on request of the insured, on the ground that he did not have sufficient mental capacity at the time, evidence held sufficient to sustain a finding that he had such capacity.

3. Cancellation of instruments, § 34*—when evidence as to conduct of beneficiary of policy inadmissible. In a suit in equity to set aside the substitution, as beneficiary, by the insured of one designated by him, in his request for such substitution, as his “fiancee,” where it was claimed by the complainant that such beneficiary was not the insured’s fiancee, evidence that she was playing cards, laughing and having a good time at the time the insured was in a dying condition, held properly excluded, it not being contradictory of anything that had been testified to, and having no bearing on the issues in the case.

4. Instructions, § 120*—when properly refused. An instruction is properly refused where there is no evidence on which to base it.


text:
    William Rako, Appellee, v. Elgin, Joliet & Eastern Railway Company, Appellant.
    Gen. No. 6,214.
    (Not to be reported in full.)
    Abstract of the Decision.
    Animáis, $ 43

      —when evidence sufficient to show that fence not destroyed hy defendant. Where the plaintiff, in an action for damages for death and sickness of his cows, claimed that owing to the defendant’s servants having destroyed a division fence between the plaintiff’s field, in which his cows had been confined, and his neighbor’s field, the cows got into the latter field and suffered injuries from eating green corn growing there, evidence held not to show that the fence was destroyed by the defendant’s servants.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge,' presiding. Heard in this court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Action by William Rako, plaintiff, against the Elgin, Joliet & Eastern Railway Company and G-. Holland, defendants, to recover damages for sickness and death of plaintiff’s cows. From a judgment for plaintiff against the defendant railroad company, the latter appeals.
    Knapp & Campbell and Roy R. Phillips, for appellant; J. L. Earlywine, of counsel.
    Fisher & Perce, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


author: Per Curiam.

text:
    William Fleming and Jane Fleming, Appellees, v. Elgin, Joliet & Eastern Railway Company, Appellant.
    Gen. No. 6,042.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1755

      —when judgment affirmed by operation of law. Where one of the judges of the Appellate Court, before which an appeal is heard, tried the case in the court below and the other two judges are divided in opinion upon the question whether the judgment should be affirmed or reversed, the judgment is affirmed by operation of law.
    Dibell, P. J., took no part In this decision.
    Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibbll, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 14, 1916.
    Statement of the Case.
    Action by William Fleming and Jane Fleming, plaintiffs, against the Elgin, Joliet & Eastern Railway Company, defendant, for damages to plaintiffs’ real estate caused by elevation of the defendant’s tracks. From a judgment for plaintiffs, defendant appeals.
    Knapp & Campbell and O’Donnell, Donovan & Bray, for appellant; John R. Cochran, of counsel.
    S. J. Drew, for appellees.

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

   Per Curiam.