text:
    Mary Zycinski, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 15,864.
    1. Notices—propriety of refusal of amendment. It is proper to refuse a motion to amend a notice given to a city pursuant to statute requiring notice in event of personal injuries, the application being made after the lapse of the statutory period for giving such notice.
    2. Notices—when upon city not in compliance with statute. A notice upon a city of personal injuries is not in compliance with the statute if it contains no reference to the hour of such accident.
    3. Notices—failure to give to city. Failure to give to a city a notice of personal injuries which complies with the statute is fatal; the statute which requires such notice is constitutional and the duty of the court to dismiss the plaintiff’s action is mandatory where no proper notice is shown.
    Action in ease for personal injuries. Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    Statement by the Court. Mary Zyeinski, the plaintiff in error herein, began suit in the Superior Court July 15, 1907, against the City of Chicago, defendant in error herein. She alleged that she had on March 2, 1907, sustained personal injuries through the negligencé of the City in allowing an obstruction (oyer which she stumbled and fell) to project above the surface of a sidewalk under its control.
    Her declaration as amended avers that within six months after the time of the happening of the said accident, and before the commencement of suit she caused to be served on the city attorney and city clerk “a notice of the time and place of said accident, together with her place of residence and the name of her attending physician, as required by the statute in such cases.”
    The City pleaded the general issue. The case, was called for trial before a jury, and the first evidence of- ' fered for the plaintiff was the following notice, which had been served on the city attorney and city clerk:

      “ Chicago, May 8, 1907.
    Gentlemen: You and each of you are hereby notified that on the 2d day of March, 1907, one Mary Zyeinski residing at No. 1078 North Hermitage Avenue, Chicago, Illinois, while walking west on Armitage Avenue in said City stumbled over gas or water caps protruding a great distance above the surface of the sidewalk in front of or near 139-141 Armitage Avenue, and thereby received injuries for which she seeks compensation," and that she was treated for such injuries by A. F. Malachowski, No. 1012 North Hoyne Avenue. Chicago, Illinois. ’ ’
    Counsel for defendant objected to the reception of the notice in evidence on the ground that it was insufficient under the statute in not giving the hour of the day of the accident. The objection was sustained and the plaintiff excepted.
    It was then admitted by the plaintiff that said notice was the only notice served on the City of Chicago in attempted compliance with the statute in regard to such notice, and the plaintiff moved to amend it by inserting at the apt place the words, “between the hours of six and seven o’clock p. m.” This was objected to by the defendant and the court refused to allow the notice to -be amended, ruling that the failure to state the hour at which the accident occurred rendered the notice fatally defective. To this ruling the plaintiff excepted. The defendant then moved the court to dismiss the suit at the plaintiff’s costs, and this motion, over the objection of the plaintiff, was allowed and the suit dismissed, to which dismissal the plaintiff excepted. A motion for a new trial was made by the plaintiff and overruled by the court and judgment was then rendered for the defendant against the plaintiff for costs, and again the plaintiff excepted.
    In this court by her assignments of error the plaintiff calls in question the refusal of leave to amend the notice, the dismissal of the suit, the denial of a new trial and the entry of judgment, and makes special assignments of error, explicitly stating her contentions as follows:
    4. The court erred in holding the notice served by the plaintiff on the city attorney and city clerk of the City of Chicago insufficient;
    (a) Because the said notice is in substantial compliance with the statute;
    (b) Because the amendment to the declaration having alleged that the notice was served “as required by the statute in such case made and provided,” the plea of the general issue waived any technical defect in the said notice.
    5. The construction placed by the trial court upon the said statute is unreasonable and would lead to injustice and hardship to litigants.
    6. Under the rule that general laws supersede laws inconsistent therewith, the provisions of the Act of 1905 providing that “every person” shall serve notice must be invalid as in contravention of Section 21 of Chapter 83 of the Statutes of Illinois.
    7. The Act requiring “every person” to serve notice is unconstitutional as imposing additional hardships upon minors in favor of municipalities as against other corporations in bringing suits.
    J. W. Sutton and Frank Mach, for plaintiff in error.
    Edward J. Brundage and John R. Caverly, for defendant in error; Edward C. Fitch, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The plaintiff’s suit was dismissed as set forth in the preceding statement because of non-compliance with the Act of May 13, 1905, entitled “An act concerning suits at law for personal injuries and against cities, villages and towns.” Sections 2 and 3 of the said Act read as follows:

“2. Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury, shall within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney) and also in the office of the city clerk, a statement in writing signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident, the place or location where such accident occurred, and the name and address of the attending physician (if any).
3. If the notice provided for by Section Two 2 of this Act shall not be filed as provided in said Section Two, then any such suit brought against any such city shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.”

The only notice given in this case was the one set out in the statement prefixed. It contained no reference to the time of day at which the accident occurred.

One of the assignments of error here insisted on by the plaintiff is that the court below should have allowed an amendment of the notice at the trial. To have given effect to an amendment made at that time would manifestly have defeated the purpose of that part of the statute. That purpose appears plainly from the language of the Act to be that the City shall have information to assist its investigators within six months of an accident, while the means of verification or contradiction are more likely to be at hand.

The accident in this case happened, according to the plaintiff’s statement, on March 2, 1907. The motion to amend the notice by inserting the hour of the day was made on May 10, 1909,—more than two years thereafter. It was properly denied. If the specification of the hour in a notice was essential at all, it was equally essential that it should have been specified in a notice served within six months.

The plaintiff says, however, further, that the specification of the hour in the notice was not essential, because without it the notice was in substantial compliance with the statute. To sustain this proposition counsel cite cases from other States holding that where notice of the time of an accident is required by laws similar to the statute of Illinois, precision as to the hour is not necessary. In one case cited the Supreme Court of New York held that under an Act requiring specification of the “time” it was sufficient to have proven notice that the accident happened on August 5th, although, as a matter of fact, it happened on the evening of the 4th.

But we do not think these cases are in point. The foreign statutes involved did not require a statement of the hour, but only generally of the time. Our statute, wisely or unwisely, expressly requires both the “date” and the approximate “hour.” In the case at bar nothing was said about the hour. One of the required elements in the notice was thus entirely omitted. Had an hour been stated, but not with precision, the question of “substantial compliance” would have been involved. As the matter stands, we do not think it is so involved.

But the plaintiff invokes the “rule of reason.” It asks us so to construe the statute as to prevent its working great hardship and leading to absurd results. Without entering into the question whether the literal enforcement of the statute in question produces any such injustice as it is implied by plaintiff’s argument that it does, or, on the other hand, is salutary legislation aimed at an existing evil of increasing importance, we will say that with the wisdom and indeed with the justice of the legislation in question we have nothing to do. Those questions are by the fundamental law of the State relegated to the Legislature for decision. It is undoubtedly true that the state of the law before a statute was passed, the evil to be remedied and the results of interpretation one way or the other, may be considered in construing ambiguous language, language of doubtful meaning, or language so involving a patent absurdity as to show clerical mistake; but we know of no case which would form a precedent for a court reading a statute which requires a statement of “the date' and about the hour of the accident” as though the words which we have italicized were lacking.

Finally the plaintiff argues that the statute is unconstitutional. Apart from any question of the general right of the Appellate Court to pass on the constitutionality of a statute, inasmuch as appeals involving such constitutionality must he taken to the Supreme Court, this statute has been expressly adjudged constitutional by the Supreme Court (Erford vs. City of Peoria, 229 Ill. 546), and since then, in at least two cases, strictly enforced (Walters vs. Ottawa, 240 Ill. 259, and Ouimette vs. Chicago, 242 Ill. 501); and we can hardly be expected to hold it invalid.

The Supreme Court has also by the same decisions negatived the necessity of specially pleading the lack of notice. The statute is mandatory in compelling the trial court to dismiss a suit when a sufficient notice has not been given. The quotation made by counsel from the opinion in Concordia Fire Insurance Co. vs. Bowen, 121 Ill. App. 35, has no applicability to a case like this. The proposition quoted is expressly based on our holding that under the policy involved the company waived the appraisal said to be required, if it did not demand it. The failure to secure it was therefore in any event a matter of defense.

The judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    LaFayette Weinberg et al., Defendants in Error, v. Max Weinberg et al., Plaintiffs in Error.
    Gen. No. 15,721.
    Common carriers—when proof of custom competent. In order to establish liability against a carrier it is competent to show a custom pursued by the defendant in making a notation on bills of lading when goods are received in bad order, such custom being followed by evidence which shows that no such notation was made on the bill of lading issued with respect to the merchandise nhieh forms the basis of the action.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    Frank Schoenfeld, for plaintiffs in error.
    Bowles & Bowles and Edward J. King, for defendants in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiffs in error, hereinafter called defendants, were engaged in the produce and commission business in Chicago under the firm name and style of Weinberg Brothers. The defendants in error, hereinafter called plaintiffs, under the firm name and style of Weinberg Brothers, but no relation to defendants, were engaged in the wholesale fruit and produce business at Galesburg, Illinois. The plaintiffs also had an office and warehouse at Cambridge, Minnesota. On May 23, 1908, the plaintiffs shipped from their warehouse at Cambridge a car of potatoes via C. B. & Q. R. R. Co., consigned to Weinberg Bros., Chicago, Ill. On the car arriving at Chicago the railroad company gave notice thereof to the defendants, who caused an inspection to be made of the potatoes; took possession and sold them. The plaintiffs brought suit to recover for same; a jury was waived and the cause submitted to the court. The court found for the plaintiffs and judgment was entered thereon for the sum of $375.18. The defendants sued out this writ of error to reverse said judgment. It was admitted on the trial that the defendants took and sold the said potatoes; and substantially the only question of fact presented to the court was as to the condition of the potatoes at the time the defendants took possession of the same. If the condition of the potatoes was as described by the defendants, they were worth about thirty cents per bushel. If they were in the condition claimed by the plaintiffs, they were worth about sixty cents per bushel. On this question the counsel for plaintiffs in error insist the finding was clearly and manifestly against the weight of the evidence. On a consideration of all the facts and circumstances in evidence, we are of the opinion that the preponderance of the evidence on this question was with the plaintiffs.

The objection urged to the testimony of the custom of the railroad companies, when goods were delivered in bad order, to make a notation to that effect on the bill of lading, is not well taken. The bill of lading of the car in question, in evidence, showed no such notation, and the said testimony was properly admitted in evidence as a circumstance tending to prove plaintiffs ’ contention that the car of potatoes in question was received by the defendants in good condition.

The judgment is affirmed.

Affirmed.


text:
    Henry N. Stoltenberg, Defendant in Error, v. Mrs. Lena Johnson, Plaintiff in Error.
    Gen. No. 15,723.
    Statute of Frauds—when, no defense. If the evidence establishes a primary liability upon the part of the defendant, the Statute of Frauds constitutes no defense.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    James F. Hutchison, for plaintiff in error.
    Benjamin Wolf, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Thé defendant in error, hereinafter called plaintiff, had for collection for a client two notes executed by C. E. Wallace, a son-in-law of the plaintiff in error, hereinafter called the defendant. The plaintiff and defendant were old acquaintances and friends. Mr. Wallace was very‘ill. The notes were long past due and the plaintiff was insisting on their payment. The plaintiff and defendant had some talk about the notes, and the only question in the case was what was said in those conversations. The plaintiff claimed that he extended the notes, guaranteed them to his client, and afterwards paid them at the request and on the express agreement of the defendant that she would pay him; that she made a'payment of $58 at the time of the extension of the notes, but refused to pay the balance advanced and paid by him in payment of said notes on her promise and agreement to pay him, for which he brought this suit. The cause was submitted to the court without a jury. The court found for the plaintiff and entered judgment on the finding.

We think the preponderance of the evidence with the plaintiff and that the same showed- a primary liability on the part of the defendant,. and so not within the Statute of Frauds.

The judgment is affirmed.

Affirmed.


text:
    Emil Schaffer, Defendant in Error, v. Fred Meyer, Plaintiff in Error.
    Gen. No. 15,738.

      Judgment—when default set aside. If no lack of diligence is shown and the affidavit of merits presents serious questions of law and fact and the fault is that of the court, justice will be best subserved by a trial on the merits and the action of the trial judge in refusing to set aside a default will be reversed.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 5, 1911.
    Prentiss, Putney, Meek and Solberg, for plaintiff in error; Charles E. Selleck, of counsel.
    J. Kentner Elliott, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, brought suit in the Municipal Court of Chicago against the plaintiff in error, hereinafter called defendant, for damages sustained by reason of the refusal of the defendant to extend a lease under a provision in relation thereto in said lease. On the return day of the court, May 12, 1909, the defendant entered his appearance and moved the court for a rule on the plaintiff to file a more specific statement of claim in five days, which motion was allowed. Both parties were present and the case was set for trial. The plaintiff’s counsel claim' it was set for May 26th, and the clerk so entered the order. The defendant’s counsel claim it was set for May 27th, and the clerk so entered the order. The clerk made no statement; but his record shows May 27th with, according to the affidavits, the figure six drawn over the figure seven, but when or by whom this was done is not shown. On May 17th an amended affidavit of claim was filed. On May 25th the defendant filed an affidavit, stating his defense. On May 26th the court called the case for trial, and the defendant not appearing the court heard the evidence of the plaintiff, found the issues for the plaintiff and assessed the plaintiff’s damages at the sum of $295 and entered judgment therefor. On May 27th the defendant learned of said judgment, and on May 28th made a motion to vacate and set aside same. The court heard said motion on May" 29th and denied same. Subsequently, on June 5th, a similar motion was again heard and also denied. The- defendant now seeks by this writ of error the reversal of said judgment.

The court expressly found that the defendant was not guilty of negligence in failing to appear at the trial on May 26th, and had used due diligence as to same, and that the failure of defendant to appear at said trial “was due to unavoidable misunderstanding and mistake.” The court, however, denied the motion to vacate and set aside the judgment, on the ground a meritorious defense was not shown by the defendant.

We~are of the opinion from the affidavits presented and the clerk’s record that the court set the case for trial for May 27th, and by mistake called and heard the same on the 26th instead of the 27th; that the defendant was manifestly without fault and the same comes within the rule announced in Taylor v. Coghlan, 73 Ill. App. 378. We also think that the affidavits presented as a defense serious and substantial questions of law and fact and, not intending to here pass upon the same, justice would best be promoted by giving the defendant an opportunity to make his defense.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    J. A. Meath, Defendant in Error, v. H. B. Moll et al. Plaintiffs in Error.
    Gen. No. 15,744.
    Municipal Court—when judgment not disturbed. A judgment of the Municipal Court will not be set aside as against the weight of the evidence unless clearly and manifestly so, especially where all of the evidence which was before the trial judge is not preserved on review.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    George R. Neff, for plaintiffs in error.
    Charles Hughes, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, the defendant in error here, was a licensed broker in Chicago. The defendants, the plaintiffs in error here, owned and conducted a rooming house. The plaintiff took certain persons to said defendants and showed them the house in an attempt to sell same. Among them was Mrs. Jones who afterward purchased the place without the knowledge of the plaintiff, who upon learning of the sale claimed a commission, but failing to collect same brought suit. The cause was submitted to the court without a jury. The court found the issues for the plaintiff; assessed the damages at the sum' of $145 and entered judgment therefor.

The testimony was conflicting and if the court concluded that the preponderance of the evidence was in favor of the plaintiff the finding was proper and we are not inclined to hold that the same was clearly and manifestly against the weight of the evidence.

It also appears from the record that certain documents were introduced in evidence on the trial but same were neither read into the record nor shown here as exhibits. ^ The judgment is affirmed.

Judgment affirmed.


text:
    Daniel McHenry et al., Defendants in Error, v. Alfred E. Croft, Plaintiff in Error.
    Gen. No. 15,759.
    Negotiable instruments—when taking of note constitutes payment. Unless otherwise especially agreed, the taking of a promissory note for a pre-existing debt, or a contemporaneous consideration, is treated prima

      facie as a conditional payment only; that is, as payment, only, if it is duly paid at maturity.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the October term, 1909.

    Affirmed.
    Opinion filed October 5, 1911.
    Robert D. Melick, for plaintiff in error.
    Musgrave & Lee, for defendants in error.
   Mr. Justice Smith

delivered the opinion of the court.

This case went to trial on an amended statement of claim by the plaintiffs, here the defendants in error, alleging that a balance of $700 was due from the defendant, here the plaintiff in error, being the amount unpaid on a contract entered into by said defendant with plaintiffs whereby the defendant bought of the plaintiffs 699 shares of the capital stock of the South Bend Machine Mfg. Co. for the sum of $4,194. The jury found the issues for the plaintiffs and the court entered judgment on the verdict.

The defendant was obligated by said contract to make a cash payment of $1,500. He paid some $800 and gave to plaintiffs notes for the sum of $700 made by the John A. Mead Mfg. Co., payable to the defendant and endorsed by him, which said notes plaintiffs accepted and gave a receipt therefor. These notes were not paid.

We do not understand that it is here seriously claimed by the plaintiffs that under all the circumstances of the case there was any liability of the defendant as an endorser of the said notes. The real question presented to the court and jury was whether or not the plaintiffs accepted said notes and agreed that the same would be in full payment of the amount due on said contract.

In Stone and Gravel Co. v. Gates Iron Works, 124 Ill. 623, the court quoted from Story on Promissory Notes, as follows: “In general, by our law, unless otherwise, specially agreed, the taking of a promissory note for a pre-existing debt, or a contemporaneous consideration, is treated prima facie, as a conditional payment only—that is, as payment, only, if it is duly paid at maturity.” The court also quoted other authorities holding that taking the note of a third person for a pre-existing debt is no payment unless it be expressly agreed to take the note as payment, and held the decisions in this State are essentially to the same effect, citing Walsh v. Lennon, 98 Ill. 27, and Wilhelm v. Schmidt, 84 id. 185.

If, then, the plaintiffs accepted the said notes and agreed that the same were in full payment of the said amount so due, there can be no recovery against the defendant in this case. Otherwise there is the right of recovery under the contract. This issue was submitted to the jury under instructions of the court clearly defining same, and to which no complaint is made, and we are of the opinion that the evidence sustains the verdict and the same should stand.

We think under the Municipal Court Act as applied to cases of the fourth class, the court did not err in permitting the plaintiffs to amend their statement of claim. No reversible error appearing the judgment is affirmed.

Judgment affirmed.


text:
    Minnie H. Barton, Defendant in Error, v. James E. Keelyn, Plaintiff in Error.
    Gen. No. 15,771.
    Municipal Court—when statement of facts properly stricken. A statement of facts not filed within thirty days of the judgment date or within such further time as may have been provided by order entered within such time, is properly stricken.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    Church & Sherburne, for plaintiff in error.
    Mayer, Meyer, Austrian & Platt, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

A judgment was entered in this, a fourth class case, in the Municipal Court of Chicago June 11, 1909.

Within thirty days thereafter, on July 8th, an order was entered on the stipulation of the parties that the time to file a bill of exceptions be extended to include July 24, 1909. On July 23rd another order was entered on the stipulation of the parties that the time to file a bill of exceptions be extended to include August 9, 1909. On August 9th a correct stenographic report of the proceedings at the trial was signed and filed.

On this writ of error the defendant in error moves the court to strike from the record said stenographic report because same was not filed within the first extension of time as provided by the statute. Under the authority of Lassers v. North German Steamship Co., 244 Ill. 570; Haines v. Danderine Co., 248 Ill. 259; Lakeside Fish & Oyster Co. v. Mutual Fish Co., 155 Ill. App. 681; Devine, Adm’r. v. Prudential Ins. Co., 156 Ill. App. 477, the motion is allowed.

No error appearing in the record as it remains the judgment is affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Matthew Spray, Administrator, Appellant, v. C. G. Glendinning et al., Appellees.
    1. Gifts—when ante-mortem valid. A gift of promissory notes is valid if they were duly endorsed and delivered and the purpose of the delivery was clear and the gift was in all respects complete.
    2. Gifts—who competent donees. Unincorporated societies or voluntary associations, such as religious societies, are capable of taking as beneficiaries, ‘ ‘ and it is immaterial that they are not incorporated. ’'
    3. Gifts—what not essential to valid delivery. The rule is well settled that delivery need not be made to the donee personally, but may’ be made to a third person as trustee or agent, for the use of the donee.
    4. County courts—jurisdiction as to probate matters. In a proceeding instituted under section 81 of the Administration Act the County Court has jurisdiction to determine the validity of a gift claimed by the respondents to have been made of the property sought to be recovered.
    Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the November term, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 14, 1911.
    Raymond & Newhall and Herrick & Herrick, for appellant.
    John Fuller and L. O. Williams, for appellee.
   Per Curiam.

This is a proceeding by citation, under section 81 of the Act relating to the administration of estates, commenced in the county court of DeWitt county, from the judgment of which court an appeal was prosecuted to the circuit court, and from the judgment rendered by the circuit court this further appeal is taken.

The proceeding is based upon the petition of appellant, stating that he is the administrator of the estate of George Spray, deceased, and charging in substance that appellees have in their possession or under their control, individually or collectively, certain specified negotiable promissory notes belonging to the estate of appellant’s intestate, which they wrongfully refuse to deliver over or surrender to appellant. The petition further charges, that the said notes were taken from the deceased by appellee, C. G. Glendinning, without lawful right, and that no lawful consideration was paid therefor; that said deceased was of unsound mind and wholly incompetent to transact any business and that possession of the notes was secured from him through fraud, undue influence and coercion; and that appellees, Glendinning, Moore and Wampler, claim to hold said notes as agents for and on behalf of the Young Men’s Christian Association, of which Glen-dinning is president, Moore is treasurer and Wampler is secretary.

The notes specified are twelve in number, and range in amount from $300 to $4,981.82, aggregating, with accrued interest, the sum of $18,340; and at the time of their delivery to appellee Glendinning, and in connection therewith, as part of that transaction, they were each endorsed on the back thereof by the deceased, as follows: “Pay to the order of C. G. Glendinning, Prest. George Spray.”

There is no evidence in the record tending to prove that the deceased was of unsound mind at the time of the transaction in which the notes in question were endorsed and delivered to Glendinning, nor is there any evidence tending to prove any fraud, undue influence or coercion of any character. These features of the case are wholly eliminated, for lack of any evidence to support the charges.

The deceased was about seventy-seven years of age. His wife was dead and he had no family. He had some relatives, but of what degree of kinship they were, the evidence does not disclose. He had acquired a fortune to the amount of about $80,000, and had it fully in mind and well in hand. He had resided in the city of Clinton for a long time. Sometime before he died he became interested in the Young Men’s Christian Association, and especially in the erection of a Young Men’s Christian Association Building in the city of Clinton, his home city. A Young Men’s Christian Association was organized there but had no building. The question of erecting a building had recently been under consideration and action was being taken to that end. He had gone to Decatur and Dixon to see such buildings that had been erected in those cities. When pledges were being secured for the Clinton building, he urged others to subscribe, and himself entered into a subscription agreement whereby he pledged the sum of $15,000, and agreed to furnish $3,000 more if needed to complete the building. This pledge agreement was signed by deceased on the 18th day of March, 1908. He began to fail in health soon after he had signed this agreement, but was able to sit up and walk about the house. His mind was clear and he was as competent and able to transact business as he ever was in his life, up to two or three days before his death. About eight or nine days before he died he was informed that the doctor said he could not possibly get well and that if he had any business to attend to he had better do it. He sent for Mr. Lemon, his attorney, and on the first or second consultation with his attorney spoke about making a will and disposing of his property, and especially about making it sure for the Young Men’s Christian Association Building—“always seemed to feel anxious about that.” His attorney suggested to him “that if he wanted to make that sure, he should transfer the notes to the association, or to some of them, and he said, well, he would do that. ’ ’ He at once sent to the bank for his box containing the notes, and when it arrived he sat up on the side of the bed and named the amount of the notes he wanted and the name of the maker, and his attorney would find the note in the box, take it out, write the endorsement on the back of it, hand it to him to sign, and he would sign it; and so on until they were all endorsed. When they were all endorsed and figured up, they were delivered to Glendinning, the endorsee, at the request of the deceased and in his presence. Mr. Lemon said: “You want me to turn these notes over to Dr. Grlendinning, so the work may go on without stopping1?” “And he said, Yes.” Mr. Lemon then handed the notes to Grlendinning in his presence and Grlendinning took them and wrapped them up, and put them by themselves and on the next day, or “right soon,” turned them all over to Milton Moore, the treasurer of the association. This occurred on May 16th, one week before the death of the deceased.

There is no room for question or doubt as to the endorsement, the delivery and the purpose. The gift was completely consummated, and the transaction fully meets all that is requisite to a good and valid gift. Hagemann v. Hagemann, 90 Ill. App. 251; Jennings v. Neville, 180 Ill. 270; Martin v. Martin, 170 Ill. 18.

Counsel for appellant contend that Glendinning was the agent of deceased, and if there was a delivery to him it would not be effective, because “one cannot enter into an enforceable obligation with himself.” The evidence not only fails to support this contention but it fully disproves it. The deceased acted for himself with the advice and assistance of his attorney, and Grlendinning acted for himself as trustee for the Association, of which he was president, and as agent for that Association. Further in this connection, this gift is in no way dependent upon any of the terms or provisions of the subscription pledge contract signed by the deceased, except that the money realized from the notes given shall be expended for no other purpose than the erection of the contemplated building, and even that is made clear from the evidence without reference to that contract.

Counsel for appellant insist that the gift must fail for want of a donee or beneficiary capable to take. They say that the Young Men’s Christian Association at Clinton had not been incorporated at the time this gift was made, and therefore was incompetent to take the gift, or to be recognized as a beneficiary of the gift.

This position is not well taken. The Young Men’s Christian Association had been an acting and operating religious organization in the city of Clinton for a long time. The evidence does not show when it first began its work there, but it does clearly show that before and at the time of the making and accepting of the gift in question, it had been and was an organized, acting and active religious society, equipped with proper officers and committees for carrying on its work in the city of Clinton and vicinity.

Unincorporated societies or voluntary associations, such as religious societies, are capable of taking as beneficiaries, “and it is immaterial that they are not incorporated.” 20 Cyc. 909-914-915; Ferraria v. Vasconcelles, 31 Ill. 25; Alden et al. v. St. Peters Parish, 158 Ill. 631; Tomlin v. Blunt, 31 Ill. App. 234.

Counsel further contend that the gift was never consummated because the Young Men’s Christian Association, the beneficiary of the gift, was not present at the time of the transaction and therefore there could have been no delivery to it. It was present by its president, who acted in that transaction as its trustee and agent. ‘ ‘ The rule is well settled that delivery need not he made to the donee personally, but may be made to a third person as trustee or agent, for the use of the donee.” 20 Cyc. 1198; Jennings v. Neville, 180 Ill. 270.

Counsel for appellee raises the question, by suggestion, that the county court had no jurisdiction of the subject-matter of this proceeding. This position is not well taken. The authority cited by counsel is not applicable to the facts of this case. The following cases clearly recognize and establish jurisdiction in the county court over this class of cases: Martin v. Martin, 170 Ill. 18; Coffey v. Coffey, 179 Ill. 283; Jennings v. Neville, 180 Ill. 270; Day v. Bullen, 226 Ill. 72; Wade v. Pritchard, 69 Ill. 279; Hagemann v. Hagemann, 90 Ill. App. 251.

We find no material error in this record. The judgment and decree of the circuit court is affirmed.

Affirmed.


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    Anna M. Conner, Appellant, v. Charles F. Conner, Appellee.
    1. Res judicata—effect of former opinion. The opinion of the Appellate Court filed on one appeal of a cause is as to such cause thereafter binding not only upon the trial court but upon the Appellate Court itself.
    2. Fraternal benefit societies—token earlier beneficiary recognized. While as a general proposition the beneficiary has no vested interest in a fraternal benefit certificate an equitable interest in the beneheiary will be recognized and enforced in a court of equity.
    Bill of interpleader. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded with directions.
    Opinion filed October 14, 1911.

      S. F. Schecter and Acton & Acton, for appellant.
    O. M. Jones and Arthur E. Hall, for appellee.
   Per Curiam.

This case presents a contest between appellant and appellee as adverse claimants of a fund of $2,000, brought into court in pursuance of a decree of the circuit court of Vermilion county upon a bill of interpleader by the Modern Woodmen of America against Anna M. Conner, and Charles F. Conner, the respective parties to this appeal.

The Modern Woodmen of America is a fraternal benefit society, organized under the laws of Illinois with respect to such societies, and the fund in question is the proceeds of a benefit certificate issued by said society to one James B. Conner, who was the husband of the claimant, Anna M. Conner, and a brother of the claimant, Charles F. Conner. This case in its present form was before this court on a former occasion and is reported in 145 Ill. App. at page 608, to which we refer for a more detailed statement of the case and as to the questions there decided.

The opinion and judgment of this court on the former appeal were not only binding upon the circuit court to which the cause was remanded for further proceedings not inconsistent with the views therein expressed, but bind this court upon this appeal. Leeds v. Townsend, 124 Ill. App. 582; Christensen et al. v. The People, 114 Ill. App. 40; Leroy Payne Co. v. Vam Evra, 94 Ill. App. 356; Murphy v. Murphy, 93 Ill. App. 671; Davis v. Munie, 140 Ill. App. 171; Wilson v. Carlinville National Bank, 87 Ill. App. 364. In the case last cited the court savs: “Under the provisions of the Appellate Court Act the previous opinion filed in this cause is of binding authority herein, and however much disposed we might be to reconsider the reasons of the court for its decision expressed in that opinion, we have no right to do so. Such a practice would produce judicial chaos.”

It is true that upon the re-docketing of this case in the circuit court, in pursuance of the remanding order, the case was again referred to the master and considerable testimony taken, but this additional evidence does not eliminate from the case any legal question or equitable principle involved in the former appeal, nor does it introduce into the case any such not so involved. After a careful examination and consideration of all the evidence as it now appears in the record, and independently of the binding authority of the former opinion, we are satisfied with the views in the former opinion expressed.

Appellee bases his claim of right to take the whole of the fund in question, upon the general principle that the beneficiary named in a certificate of the character of the one in question here, has no vested interest, and that the member may change the beneficiary at any time,— that the beneficiary named always takes the certificate subject to the right in the member to make such change. In a strict sense, in a legal as contradistinguished from, an equitable sense this is true, but as held in our former opinion that there in an equitable principle applicable, under which in a particular class of cases of this general class, a court of equity will recognize an equitable interest in one who has been named as a beneficiary in such certificate, and will enforce that interest against a subsequently named beneficiary, when the fund becomes payable. We regard the case at bar as typical of that particular class, and the parties and the funds are all in a court of equity.

The opinion of this court on the former appeal disposes of every question involved in this case, except certain questions of fact fully covered by the evidence taken before the master on the two references. The case has been in court for a long time, more than six years. It is apparent that the decree of the circuit court should be reversed, and we feel it our duty to direct a decree.

We find that the said James B. Conner was not induced to change the beneficiary named in his said certificate from appellant, his wife, to appellee, his brother, by either fraud or undue influence as averred in appellant’s amended answer and that appellant, Anna M. Conner is not entitled, to have the whole amount of the said fund of $2,000, but we find that she has an equitable interest therein to the amount of $375, with interest at the rate of 5 per cent per annum for the period of six years and six months, being the total sum of $496.87; that appellee, Charles F. Conner, is not entitled to have the whole amount of said fund of $2,000, but that he is entitled to have the remainder of said fund after the payment therefrom of the sum of $496.87, to the said Anna M. Conner.

The decree of the circuit court is reversed and the cause remanded with directions to that court to enter a decree in accordance with the foregoing opinion and the findings therein made.

Reversed and remanded with directions.


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    City of Sullivan, Defendant in Error, v. Louisa A. Gustin, Plaintiff in Error.
    1. Roads and bridges—width of roads established by prescription. The law does not fix any width for a road acquired by the public by prescription. In such case the public can hold only so much as it has retained in actual use for the requisite period.
    2. Roads and bridges—what proof essential in prosecution for violation of ordinance. In such a case the proof must show that the place where the obstruction occurred was within the corporate limits of the city whose ordinance was alleged to have been violated.
    Action in debt. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed October 14, 1911.
    R. M. Peadro, for plaintiff in error.
    John E. Jennings, for defendant in error.
   Per Curiam.

This was an action in debt to recover a penalty prescribed by an ordinance of the city of Sullivan for an alleged obstruction of a “public street or lane of said city of Sullivan.” The suit was commenced before a justice of the peace, by complaint and warrant. Prom the judgment rendered by the justice an appeal was prosecuted to the circuit court where a trial de novo by a jury resulted in a verdict and judgment against plaintiff in error for $5 and costs.

The evidence discloses that the obstruction complained of consisted of the maintaining of a fence which enclosed some lots owned by plaintiff in error. Defendant in error claimed that the fence encroached to the extent of three or four feet upon a public road leading from the country into the city. There is no evidence tending to prove that the alleged road was a regularly laid out or platted public highway or street. In fact such is not claimed by defendant in error to have been the case. The claim is that there was a public road at that place by prescription. There is evidence tending to establish this claim, but not as to the width, or the exact boundary lines of the road or traveled way in general use by the public.

The law does not fix any width for a road acquired by the public by prescription. In such case the public can hold only so much as it has retained in actual use for the requisite period. The undisputed evidence proves that after plaintiff in error had erected her fence, there still remained open for travel a roadway from thirty to fifty feet in width, and there is no evidence tending to prove that the fence is upon or encloses any part of the land over which the public travel actually passed.

Furthermore, this suit was a prosecution to recover a penalty for the violation of a city ordinance, and there is no proof in this record that the place where the road is alleged to have been obstructed was within the corporate limits of the city of Sullivan. It is true that the deed offered in evidence recites that the lots which the fence enclosed were in block 25 of Cam-field’s railroad addition to the city of Sullivan, and some of the witnesses refer to the place as being in Camfield’s addition, but the court can no more take judicial knowledge of whether Camfield’s railroad addition or Camfield’s addition to the city of Sullivan are within the corporate limits of that city than it can as to the boundary lines of such city.

The judgment of the circuit court is reversed.

Reversed.


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    Terre Haute Vitrified Brick Company et al., Appellees, v. The Montgomery County Loan & Trust Company et al., Appellants.
    1. Local improvements—propriety of issuance of vouchers. By virtue of sections 87, 88, 90 and 91 of the Local Improvements Act vouchers should only be issued against the first instalment provided for and then only when payments on the contract fall due and the first instalment has not been collected. A voucher therefore cannot be a lien upon any instalment succeeding the first unless it has been exchanged for a bond.

      2. Local improvements—what not payment to contractor. A delivery by the city and the acceptance by a contractor of a voucher which is ineffective for any purpose other than as an admission of liability, is not a payment and does not form the basis of an accord and satisfaction.
    3. Local improvements—how city cannot liquidate damages suffered through contractor. If a contractor has done defective work or has failed to complete his contract, or both, the city cannot (a bond having been given by such contractor) as against lienors arbitrarily withhold a portion of tho contract price but must resort to the bond so held by it.
    4. Appeals and errors—who cannot complain of alleged error. A party not prejudiced cannot complain of an error alleged to have been committed.
    Appeal from the Circuit Court of Montgomery county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Frank M. Ramey, Amos Miller and Lane & Cooper, for appellants.
    Hill & Bullington, E. A. Cress, Jesse M. Freels and R. H. Flannigan, for appellees.
   Per Curiam.

This is an appeal by the Montgomery County Loan & Trust Company (hereinafter designated as the Trust Company), Charles D. Frye, the City of Hillsboro, and Board of Local Improvements of the City of Hillsboro, from a decree of the circuit court of Montgomery county. The original bill was filed on March 24,1908, by Howell & Dorsey, The Terre Haute Vitrified Brick Company, Clinton Paving Brick Company, Builders Supply & Coal' Company, and Lewis McNutt, against the above named appellants, Guy C. Lane, collector of special assessments of the city of Hillsboro, and others, for the purpose of enforcing a lien against the money, bonds, vouchers or warrants due or to become due to appellant Frye, a contractor with the city of Hillsboro, for the improvement of certain streets in said city. The bill avers the passage by the city council of an ordinance, on July 18, 1906, and the execution of a written contract between the city and Frye for the improvement as specified in said ordinance; that out of a bond issue of $55,000, authorized to meet the expense of such improvement, the sum of $40,000 had been issued and delivered by the officers of the city, to said Frye. The bill further alleges that the complainants, after the execution of said contract, furnished said Frye material a'nd labor which was to be and was used in the said improvement; that the amounts due to the respective complainants for the same were due and unpaid; that prior to the acceptance of the work done by the contractor, and prior to the payment to him for such work, the complainants caused to be served upon each of the defendants written notices of their respective claims due from said contractor, in accordance with the statute ; that the said city after service of the said notices, accepted said work and issued to said Frye a voucher for the balance then due to him upon said contract; that said Frye assigned the same to the Trust Company; that by reason thereof the complainants were entitled to a lien on the money, bonds, or warrants due to the said Frye or to his assignees, whether due or to become due, issued or to be issued, regardless of in whose hands any voucher or other instrument might be, as assignee or otherwise; that on March 1,1907, and prior to the time the materials furnished by the complainants had been sold and delivered to him, and prior to the completion of the work, the said Frye assigned said contract to the said Trust Company; that the said Trust Company, at the time of said assignment, knew that Frye was purchasing said material from the complainants, and knowingly permitted him to do so. On June 2, 1908, the Newman Akron Cement Company filed an intervening petition, alleging that it had furnished cement to Frye of the value of $716.56, setting up the same facts, and praying the same relief as in the original bill. On November 2, 1908, the Little & Hays Investment Company (hereinafter designated as the Investment Company), filed an intervening petition, alleging the passage of said ordinance; the making and confirmation of the assessment; the division of said assessment into ten installments, in accordance with said ordinance and the statute in such case provided, the amount of the first installment being $4,295.26 and each succeeding installment $4,200; the issuance of bonds therefor and the making of the contract by said city with said Frye as alleged in the original bill; that by the contract between said city and Frye, it was provided that from time to time, as the work progressed, upon certificate of the city engineer as to the amount of material furnished and labor performed said Board of Local Improvements would make payments, either in money, vouchers or bonds, in the manner provided by law, to apply on said contract price; provided, however, that the city should at all times retain a sufficient amount upon each of said payments, not to exceed ten per cent of the amount certified, to properly secure the faithful performance of the contract, until such time as said improvement should be fully completed and accepted by said Board of Local Improvements, and further, that an estimate should be made at least once in each month, of all material upon the ground and work performed, and that said Board of Local Improvements would issue vouchers or bonds or pay money upon said estimate. -

The said petition further alleged that said Frye entered upon the performance of the said work under said contract, and from time to time, as the work on the improvement progressed, the city, upon certificate of the city engineer, made payments to said contractor or his assignee pursuant to the terms of said contract, in bonds, issued against the second and succeeding installments of said assessment, said bonds bearing date November 1, 1906, in the denomination of $500 each, with interest at five per cent per annum, evidenced by attached coupons, payable to bearer at the office of the city treasurer, out of the respective installments against which they were drawn, and payable only from the said installments when collected. That long prior to the commencement of the suit at bar the petitioner became the owner and holder, by purchase for a valuable consideration, of certain of said bonds and interest coupons described as Series “A,” numbered 1 to 7 second installment, maturing August 2, 1908. That at the time said city issued and delivered said bonds to the said contractor or his assigns, neither the complainants in the original bill, nor the Newman Akron Cement Company, had served on the officials of the city a written notice of their respective claims; that defendant Lane was by the city council of the city of Hillsboro, appointed and had qualified as special collector of said special assessment; that the clerk of the county court of Montgomery county had certified the assessment roll and judgment to the said Lane as such collector, together with his warrant for the collection thereof; that said collector had collected the amount of the second installment, together with accrued interest on all of the deferred installments and various amounts on the third and succeeding installments, which amount was sufficient to pay the said seven bonds of Series “A” then past due, and the interest due on all of the bonds, but that the city had refused to pay the same. That petitioner was entitled to have the same paid out of the moneys so collected free of any lien of complainants or the Cement Company.

The petition, to which the complainants and defendants to the original bill, the Cement Company and the city treasurer, are made parties defendant, prays that an account may be taken of the amount collected from said assessment and the respective installments thereof, and that the court ascertain the amount due said intervening petitioner on said bonds and coupons, and decree payment of the same. The Trust Company by its answer denied that there had been no lawful issue and delivery of bonds, vouchers and warrants to Frye, and alleged that the same were all delivered prior to the service of any notice upon the officials of the city. The answer of the city and the board of local improvements to the intervening petition of the Investment Company, admitted substantially all of the averments thereof, but denied that a request was made for payment of the bonds before the petition was filed, and averred that the only reason they were not paid when due was the fact that suit had been brought by the lienors.

On November 28, 1908, the Trust Company filed its cross-bill, alleging that upon the certificate of the city engineer, the city issued to Frye vouchers for the sum of $34,994.03, and city warrants for $8,100 and on December 9, 1907, issued an additional voucher to Frye for $8,619.85, in payment for work done, which vouchers Frye assigned to the complainants; that the notices were not served for nearly thirty days after the issue, delivery and assignment of the voucher of December 9, 1907; that the board of Local Improvements issued and delivered to Frye, in lieu of said vouchers, bonds amounting to $33,500; that the holders of said bonds were before the court, and that the said bonds and vouchers were legal and binding on the city and liens upon the property specially assessed and should be discharged by the city without discrimination. Such cross-bill, as well as the answer of the Trust Company, admitted the validity of the bonds held by the Investment Company and its assignees.

The answer of the Investment Company to the cross-bill admitted that said city then had in its possession about $9,000 collected from the assessments levied for said improvement, but denied that any part of the same should be applied on the payment of the voucher held by said cross-complainant, and averred that all of the money so collected and thereafter to be collected from said special assessment, should be applied to the payment of said bonds and interest coupons, and that no part thereof could lawfully be applied to the payment of the said voucher; denied that said voucher was a lien upon the property specially assessed or upon the moneys collected or to be collected from said assessment, and further denied that cross-complainant was entitled to have said voucher paid from the said assessment or any installment thereof, averring that even if the said voucher for the sum of $8,619.85, then held by the cross-complainant, was lawfully issued, the same did not amount to a payment by said city to Frye, or his order, on account of material furnished or work done on said local improvement, but was merely evidence that such work had been done and material furnished, and was to be exchanged for bonds thereafter to be issued; that the cross-complainant was not entitled to have the proceeds of said special assessment marshalled, as between' said cross-complainant and the holders of said bonds, and paid to them pro rata in case the court should find that said lienors were entitled to a prior lien on said fund, or that said voucher was of the same legal force and dignity as the said bonds and coupons, or that the money collected or to be collected from the several installments of the said special assessment was a common fund for the payment of said voucher and bonds, but that such fund was legally applicable to the payment of the said bonds and coupons to the exclusion of said voucher.

The cause thereafter came on for hearing before the court upon exceptions to the report of the special master. The chancellor entered a decree finding that the complainants in the original bill and the intervening petitioner, Newman Akron Cement Company, were each entitled to a lien upon the money, bonds or warrants due or to become due from said city upon said contract with said Frye, or his assignee, to the amount of their aggregate claims, not exceeding the balance of the contract price; that so much of the money, bonds or warrants represented by and against which the so-called voucher issued to Frye on December 9,1907, and by him assigned to the Trust Company, as was necessary to pay said lienors in full, should be subject to the payment thereof; and that said lienors and each of them, to the amount of their respective liens, were entitled to a lien against any money, bonds or warrants issued or to be issued, not therein specifically excepted, prior to any claim represented by said so-called voucher, and ordering that the city should, within thirty days, pay to the master in chancery the sum of $1,845, which had been deducted by said city as a time forfeit and for defective work, and that the same be distributed by said master among said lienors pro rata; that said city, within sixty days, issue local improvement bonds in anticipation of the collection of that part of the second and succeeding installments against which no bonds had been issued, and place the same in the hands of the master, who, after giving notice, should sell the same at public auction and divide the proceeds among the lienors, at par value, according to their respective liens; that if the amount realized from such sale was insufficient to satisfy said liens, said city should pay in money or issue warrants therefor in favor of the master for the balance of the assessment against the city and assessed against it as public benefit for said local improvement, and not theretofore by said city paid out, and place so much of said money or warrants as was not in excess of the amount due under said contract, in the hands of the master, to be by him distributed to the respective lienors as above stated; and that in the event that said liens were not thus satisfied in full, said city should cause a supplemental assessment to be spread upon the property originally assessed, and issue bonds therefor, in a sufficient amount to pay any such deficiency, not exceeding the balance due on the contract price, and in an amount sufficient to fully satisfy any such deficiency; and that the same disposition thereof be made as of the bonds issued or to be issued under the original assessment; that the Investment Company or its assigns be held to be the lawful holders of the bonds delivered to it prior to the serving of notice of claims for a lien" by said lienors, of the par value of $33,500; that said Trust Company be declared to be the holder of the two bonds of the par value of $1,000 delivered to it by the city prior to service of notice of claims for a lien by the respective lienors herein, and that said Investment Company and said Trust Company each be declared to be the respective holders of said amounts of said bonds free of the lien of said lienors.

The evidence shows the passage and approval of the ordinance and the making of the contract by the city and Frye, as alleged in the bill; that Frye entered upon the performance of said contract, and from time to time as the work progressed, upon estimates and certificates of the city engineer of the amount of material furnished and labor performed, vouchers were issued and delivered to Frye or his assignee, the Trust Companv, which were afterward taken up by the city and bonds issued and delivered to Frye or his said assignee in lieu thereof, and payments made to Frye in bonds upon estimates and certificates of the city engineer upon the dates and for the total sum of $8,619.85; that at the time the bonds were issued and delivered, Frye executed and delivered to the city his receipts in full payment of the contract to the amount represented by the face value of the bonds and accrued interest. The evidence further shows that the Trust Company advanced money to Frye as the work progressed, to secure which Frye gave to one Barringer, its cashier, a power of attorney dated October 27, 1906, whereby he assigned to Barringer all moneys, bonds, vouchers and warrants due or to become due on said contract, and authorized Barringer to receive and receipt for the same to said city; that by virtue of said power of attorney, all moneys, vouchers, bonds and warrants issued by the city in payment for work done on the contract were delivered to Barringer for the Trust Company, and the receipt of Frye taken for the same, and that the amounts so received were credited on the indebtedness of Frye to the bank. The bonds so issued and received by the bank, to the amount of $33,500, were sold and delivered by it to the intervener, the Investment Company, and the proceeds credited to Frye’s account with the bank, several months before notices of liens were served by the lienors on the city officials of the city.

The assessment was confirmed by the county court of Montgomery county, August 18, 1906, and a warrant for the collection of the same was issued by the county clerk to Lane, collector of special assessments, whose testimony shows that all of the first and second installments were paid by the property owners; that the amount collected from each of the second and succeeding installments, including the amount paid over by him to the city treasurer, was as follows: Second, $4,380.41; third, $4,493.43; on the fourth, fifth, sixth, seventh, eighth, ninth and tenth installments, $844.06 each. The amount thus collected from the several installments was more than sufficient to pay the bonds held by the intervening petitioner, the Investment Company, maturing August 2, 1908, payable out of the second installment, and the interest coupons held by said company against the second and subsequent installments. Upon the final settlement between Frye and the Board of Local Improvements upon December 9, 1907, it was agreed that the sum of $42,294.03, had been paid to Frye and that a balance of $10,464.85 was still due. From such balance the Board retained $865, to correct

defective work, and $980 as a time forfeit, and the voucher for the balance of $8,619.85 was issued and assigned to the Trust Company as aforesaid. It does not appear that the Board of Local Improvements ever certified to the county court whether or not the improvements conformed substantially to the requirements of the original ordinance, pursuant to section 84 of the Local Improvement Act. Rev. Stat. (1909) 476.

It is first urged that the court erred in dismissing the cross bill of the Montgomery County Loan & Trust Co. Whether or not such error is well assigned depends upon the question of priority between the Loan Company and the Investment Company. The evidence fully establishes the validity of the bonds held by the Investment Co. and its assigns. We are of opinion that the finding of the court that said bonds are free of any lien, was fully right under the law and evidence. It is apparent from sections 42, 87, 88, 90 and 91, that vouchers shall be issued only against the first installment provided for in the Local Improvements Act, and then only when payments on the contract fall due and the first installment has not been collected. National Bank v. City of Elgin, 136 Ill. App. 453. The so-called voucher of December 9,1907, is not drawn against any installment of the special assessment, and by its terms is to be paid in bonds to be thereafter issued. This conclusively shows that it was not intended that it should be paid from the first installment, because the bonds can only be issued against the second and succeeding installments, the first installments being payable in cash. While bonds when issued and delivered to the contractor, or his order, constitute a payment on the contract by the express provisions of the act, it is manifest the voucher in question, being neither a bond nor a voucher drawn against and payable out of the first installment of the assessment, cannot be treated as a payment. It follows that such voucher constituted no claim or lien upon any part of the second or succeeding installments of the assessment, and that in order to become so it was essential that it be exchanged for bonds as provided by its terms. The contention of appellants that the delivery and acceptance of such voucher constituted an accord and satisfaction, is untenable, inasmuch as there was no substantial dispute or disagreement as to the amount due to Frye. The effect of the same at most amounted to but an acknowledgement of an existing condition of liability or stated account to be thereafter liquidated by the delivery of bonds as therein provided. The delivery of the voucher cannot be said to have been a payment of either property or negotiable paper or securities whereby if received as full satisfaction of the demand, it should be treated as a payment in cash, as is held in Ralston v. Wood, 15 Ill. 159, it being well-settled that such an instrument as is here involved would not operate as a payment against lienors. Spaulding v. Brown, 171 Ill. 487; Nat. City Bank v. City, 136 Ill. 487. The so-called voucher is clearly neither property, negotiable paper nor securities.

It is also insisted that the provision of the decree that the city should issue and deliver to the master in chancery, bonds against the second and succeeding installments, to be by him sold at public sale to the highest bidder, and the proceeds divided among the lienors, is erroneous, for the reason that the statute provides that bonds shall not be sold for less than par value, and that inasmuch as the contractor had agreed to and was compelled to take them at par, the lienors must stand in his shoes and also accept them at that price. Such provision of the decree can in no way prejudice the rights of the city,—the only one that can complain of the error, if any was committed. Any loss by reason of the sale of the bonds for less than par would manifestly fall upon the lienors, and they have it in their power to protect themselves by bidding at the public sale. The lienors, however, are not complaining, and the city cannot.

The decree further provides that the amounts retained from the contract price for defective work and as damages for failure to complete the work within the stipulated time, should be paid by the city to the master to be distributed among the lienors. It appears that the sum of. $7,000 of the cost of the improvement was assessed against the city as public benefit, and that the same had been levied generally. We see no injustice in directing the amounts so deducted and retained, to be paid by the city, in cash or bonds, at its election. yVe are of opinion that as against the lienors, neither the Board of Local Improvements nor the city had the legal right to arbitrarily deduct said amounts from the contract price, and thus prejudice the rights of the parties interested. Upon the failure of the contractor to complete the work within the time mentioned in the contract, it was the duty of the Board of Public Improvements, under section 84 of the Local Improvements Act, to re-let the unfinished portion of the work. In case any loss was occasioned thereby it was the duty of the city to seek reimbursement by resorting to the bond of indemnity, which the proof shows had been given by the contractor, as provided by said section, to insure the prompt and faithful performance by him of the contract, instead of depleting the fund to the prejudice of the lienors. The presumption may properly be indulged that had the city proceeded according to the statute, it would have benefited all concerned. The action of the city in so adjusting the claim for damages resulting from the violation of the contract by the contractors, was therefore illegal, and it was but equitable to require it to account to the lienors for the amount of such deduction.

The foregoing views will dispose of the leading questions involved. A number of errors are assigned but not argued, and are therefore waived. We have considered those argued and deem them to be without merit.

The decree of the circuit court is affirmed.

Affirmed.


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    William M. Hinton, Appellee, v. Mary H. Tyler, Appellant, Perley E. Wiggins, Co-Appellant. Two Cases Consolidated.
    1. Variance—when will not reverse. A variance which is not material will not reverse.
    2. Tender—when not essential. An actual tender is not essential to equitable relief if the party offers to do equity in his bill.
    3. Decree—when findings of fact not essential. If the answer admit the allegations the decree need not find the facts.
    Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Rearick & Meeks, for appellant, Perley E. Wiggins.
    Ray & Dobbins and Clark & Hutton, for appellee.
   Per Curiam.

It appears from the records that there were originally two cases pending in the circuit court of Vermilion county, with respect to the same transaction and the same subject-matter; and that they have become consolidated or so merged that one opinion and judgment 'will properly dispose of the whole controversy. The details with respect to the consolidation or merger of the two cases are of no consequence here.

Minerva H. Hinton, wife of appellee, was originally a co-complainant, but she having died atid her interest having thereby terminated, she was dismissed out of the bill. Henry M. Tyler, husband of appellant, Mary H. Tyler, was originally a party defendant, and his death having been suggested, the bill was dismissed as to him. The parties to the litigation as it now stands are: William M. Hinton, the appellee, and Mary H. Tyler and Perley E. Wiggins, the appellants.

The bill sets up at length and in detail the purchase of certain real estate, viz: The north half of the southeast quarter of section thirty-five, township seventeen north, range fourteen west of the second principal meridian, in Vermilion county, Illinois, by appellant Wiggins, from appellee, Hinton, and at length and in detail charges falsehood, fraud and deceit on the part of Wiggins with respect to the payment of the purchase price of the land. With respect to appellant, Mary H. Tyler, the bill charges that Wiggins contracted a sale of the land to her, after he had obtained a deed from appellee; that she had only paid a small part of the purchase price to Wiggins and then owed him a large part thereof, not represented by any note. The bill concludes with a general averment that by means of said fraudulent transactions, Hinton, appellee, was cheated and defrauded of a large part of the purchase price of said land and ought to have a vendor’s lien, and prays that Wiggins may be decreed to pay said sum within a short day, and in case of his failure to do so, that Tyler be decreed to pay the same from the balance of the purchase price due from her to Wiggins, etc., and for general relief.

To the bill appellant, Wiggins, filed answer in which he denies all the charges of fraud made in the hill, and appellant, Mary H. Tyler, filed an answer in which she sets out that she is an innocent purchaser without notice. See further reference to her answer, infra. Upon general replications being filed the cause was referred to a special master, who took and considered the evidence and presented his report to the court. The special master’s report, so far as it is involved in this appeal is as follows:

“I would further report the following finding:
“1. _ That prior to the 26th day of May, 1906, William Hinton was the owner of the north half (%) of the southeast quarter (%) of section thirty-five (35), township seventeen (17) north, range fourteen (14) west of the 2d P. M. in Vermilion county, Illinois, and occupied the same as a homestead, and on that day entered into a contract to sell the same to Perley E. Wiggins, one of the defendants herein.
“2. That said contract provided that as part payment for the land, Hinton would take a note made by F. W. Sickel, payable to P. E. Wiggins, for $3,383.7Í, with accrued interest, endorsed by P. E. Wiggins. That in reducing the contract to writing, the words ‘without recourse on me,’ were put into said contract without the knowledge of said Hinton.
‘ ‘ 3. That Hinton is a man of meagre education and failing faculties, unused to trading, and at the time said trade was closed, was, by the representations of Wiggins, persuaded to take said note endorsed without recourse, as part payment for his farm.
“4. That the note was a renewal note given to Wiggins by Sickel in payment of another note, and interest long past due, which Sickel was unable to pay, and that at no time since the making of the first note by Sickel has he been able to pay either of said notes, and that Wiggins was well aware of this fact when he traded said note to Hinton.
“5. That sometime previous to the trade between Wiggins and Hinton, Wiggins had endorsed the note without recourse, and attempted to have it traded to another party, one of the witnesses whose deposition was taken at Homer, and at the time of trading it to Hinton the same endorsement was on the note.
“6. That Wiggins and Sickel have had dealings covering a period of fifteen years prior to the time of the trade between Wiggins and Hinton, and Wiggins well knew the inability of Sickel to pay the note in controversy when it would come due.
“7. That the complainant, William Hinton was induced to enter into and execute said contract of sale, and accept the note in controversy indorsed without recourse as part payment for his farm, by the representations of Wiggins that Sickel was a man of property, and able and willing to pay said note when it became due: that such representations were false; that Wiggins knew them to be false, and that they were made for the purpose of deceiving Hinton; that Hinton relied on such representations, and was deceived and injured thereby.
“8. That the complainant is entitled to recover the sum of the note and interest retained by Wiggins from the purchase price of said farm, viz: $3,503.06, with interest at the rate of five per cent, per annum from the date of closing the trade to the date of the decree herein.
“I am of the opinion that the equities are with the complainant and that the representations and actions of the defendant Wiggins in connection with the trade contained all the elements of fraud, and that the prayer of the bill herein ought to be granted.
“I therefore recommend that á decree be entered in accordance with the prayer of the bill, and the foregoing findings. ’ ’

Objections and exceptions were filed by appellants to the master’s report. The objections were argued before the master and by him overruled. The exceptions were argued before the court and overruled, and the court entered a decree in accordance with the prayer of the bill. The decree as abstracted by counsel for appellant is as follows:

“Decree filed November 9, 1910, shows dismissal of suit as to Henry M. Tyler, that cause was heard upon exceptions by defendants, Perley E. Wiggins and Mary H. Tyler to Master’s Eeport, and finds that the court had jurisdiction of the parties and of the subject matters, and that the equities are with the complainant, and that he is entitled to the relief prayed, and that defendant Wiggins was guilty of fraud, as found by the Special Master in his findings.
“It was therefore ordered that the exceptions of each of said defendants be overruled, and the findings of the Master are approved and confirmed, and that defendant Perley E. Wiggins pay to complainant William M. Hinton within ninety days from the rendition of this decree, $3,503.06, with interest at 5 per cent per annum, from May 26, 1906, and that complainant have a lien upon the interest of Mary H. Tyler in the land traded by complainant to said Wiggins, and by said Wiggins to Henry M. Tyler and Mary H. Tyler, being the north half of the southeast quarter of section 35, in township 17 north, range 14 west, in Vermilion county, Illinois, and that execution issue against the defendant Perley E. Wiggins, and if said moneys are not paid by or collected from said Wiggins, that then said Mary H. Tyler pay the same within four months from the rendition of the decree, or that her interest in said lands and premises be sold to satisfy the amount due under the terms of this decree. ”

On behalf of appellant, Wiggins, counsel say: “The contentions of this appellant are, briefly, that the competent evidence is insufficient to sustain the decree, and that the allegations of the bill and the evidence and the decree do not correspond, and that the findings of the master and the decree of the court are based upon any sufficient pleadings and proofs. ’ ’

The testimony of certain of the witnesses on behalf of appellee was taken by deposition upon notice. Counsel for appellants were present and cross-examined these witnesses, and afterwards moved the court to suppress the depositions. The court denied the motion, and counsel insist that in this the court erred, and that these depositions should now be excluded from consideration by this court. No reasons are pointed out, and none appear in the record to support a motion to suppress these depositions.

We have read and considered the evidence with due care, and are of opinion that it fully supports and warrants each and all the findings of fact reported by the master.

It is contended that there is a variance between the averments in the bill and the proofs with respect to some of the terms of the contract between appellee and appellant, Wiggins, for the sale of the land. In some respects that appears to be true, but they are wholly immaterial variances and do not pertain to the vital and controlling question of the specific fraud and deceit upon which the bill is based and the relief is prayed. The gravamen 'of the charge in the bill is fraud and deceit in inducing appellee to accept a worthless note in part payment for his land, and in deceiving him in the character of the endorsement placed upon the note. These averments are proved as charged, and the inducement or surrounding circumstances are proven with sufficient fullness to clearly identify the time, place and transaction set out in the bill.

Counsel further insist that there was no offer on the part of appellee, to return the note. No offer to return the note was necessary before the commencement of the suit. There is a sufficient offer or tender in the bill in the averment that appellee “was ready and willing and therein offered to surrender the note.” An actual tender is not essential to equitable relief where the party offers to do equity in his bill.

The foregoing, we think, fairly disposes of the whole case as to appellant, Wiggins, and as to both appellants, except with respect to one contention on behalf of appellant, Mary H. Tyler.

Counsel say there is no finding of fact in the master’s report upon which a decree can be based against her, that her name is not even mentioned in the master’s findings of facts. That appears to be true, but there was no material question of fact in dispute between appellee and her. All that appellee avers in his bill with respect to appellant, Mary H. Tyler, is the following:

“That said Mary H. Tyler, together with her husband, Henry M. Tyler, purchased the said lands in October, 1906, of the defendant Wiggins, and that the said Mary H. Tyler, together with her husband, owned said land, so far as they have any rights thereunder, by purchase frorn Wiggins, and that the said Mary H. Tyler, together with her husband, .Henry M. Tyler, are still owing to said Wiggins $12,000 of the purchase price of said lands, the said Mary H. Tyler claiming to have purchased one-half of the said lands, and owing one-half of the said $12,000 and the said Henry M. Tyler claiming to have purchased the other half of the said lands and owing one-half of said $12,000.”

In her answer on page 33 and 34 of the record, appellant Mary H. Tyler, says:

“And further answering, this defendant says that on the 29th day of October, A. D. 1906, before the commencement of this suit, the defendant, Perley E. Wiggins, was the owner in fee simple by deed duly recorded in the office of the recorder of deeds of said Vermilion County, of the real estate described in the bill of complaint, and was then and there in the possession thereof, by his tenants; and that this defendant, together with one Henry M. Tyler, the husband of said defendant, then and there, on the day and year last aforesaid entered into a written contract with said defendant Perley E. Wiggins, in and by which they purchased from said defendant, said real estate, for an agreed consideration of thirteen thousand dollars ($13,000.00), and then and there paid to said Wiggins the sum of one thousand dollars, and then and there agreed to pay, on, to-wit: February 28th, A. D. 1907, a balance of twelve thousand dollars ($12,000.00); and that in and by said contract, this defendant acquired the right in equity to have the undivided one-half of said real estate in fee simple.”

Where a fact is admitted in the pleadings there is no call for proof of it by evidence. Her answer admits all that is charged in the bill. It is neither charged nor claimed that she did not acquire equitable title to the land. The claim is, that under all the facts in this case she ought to be required as against Wiggins, to pay a part of what she owes him for the land to be applied on what he owes his vendor, for it. This takes nothing from her but only places the money still due on the land, where under the particular facts of this ease it in equity and good conscience should go.

We find no material error in this record. The decree of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Philbrick

text:
    Harold Cornwell, Appellee, v. Bloomington Business Men’s Association et al., Appellants.
    1. Depositions—statute as to taking upon oral interrogatories construed. A co-plaintiff or co-defendant cannot elect to have depositions taken upon oral interrogatories where notice has been given to take them upon writen interrogatories; only the opposite party is entitled to make this election.
    2. Negligence—when joint liability established. Held, under the evidence, that the joint liability of the defendants who had given a public display of fireworks upon the fourth of July, was sufficiently established.
    3. Negligence—“accident” defined. An accident, as defined by legal authorities, for which no liability exists is one which is the result of an unknown cause or is the result of an unusual and unexpected event happening in such an unusual manner from a known cause that it could not be reasonably expected or foreseen and that it was not the result of any negligence.
    4. Negligence—what does not absolve from liability. The fact that a public display of fireworks was conducted upon a public square of a city upon a national holiday, does not. absolve those who conduct such display from liability for damages where injury results from negligence.
    5. Instructions—predicated upon evidence. Instructions must be predicated upon some evidence in the cause.
    Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Rehearing denied October 24, 1911.
    Livingston & Bach and John C. Pollock, for appellants.
    De Mange, Gillespie & De Mange, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by Harold Cornwell, by his next friend, against the Bloomington Business Men’s Association, Paul P. Beich Company, and St. Louis Fireworks Company, by reason of an injury received by plaintiff while attending a display of fireworks on the evening of a Fourth of July celebration held upon the ground known as the Court House Square in the city of Bloomington, Illinois. The trial below resulted in a judgment against all of the defendants for $1,000, and it is to reverse that judgment that this appeal is prosecuted by defendants.

The facts as disclosed by the record show that a number of business men of the city of Bloomington were organized and known as the Bloomington Business Men’s Association, that this Association determined to have a celebration and display of fireworks in the city of Bloomington on the Fourth of July, 1908. For the purpose of carrying out this display of fireworks, the Bloomington Business Men’s Association purchased from the Paul F. Beich Company the fireworks necessary for the celebration; the Paul F. Beich Company was engaged in the confectionery business in the city of Bloomington and the fireworks for the celebration were furnished to it by the St. Louis Fireworks Company; representatives of all three of the defendants were present, participated in, and assisted in the arrangement, management, and display of these fireworks.

Permission was obtained by the Paul F. Beich Company from the sheriff of McLean county to have the display upon the Court House Square; a stand or rack was erected for the purpose and ropes were stretched from the northwest, corner of the Court House to various points upon the square, and an attempt was made to keep the populace and crowd back of these ropes for the purpose of safety; various policemen of the city of Bloomington and deputy sheriffs were present for the purpose of keeping the crowd back of these ropes, but the crowd forced itself over the ropes and the ropes were soon tramped down and held upon the ground.

The plaintiff came as a spectator to see the display; when he arrived the spectators had crowded into the enclosure over the ropes and he was not aware of the ropes having been placed. He came through the crowd and took a seat upon the lawn, some twelve or fifteen feet from the point where the fireworks were being ignited. While he was seated upon the lawn, a sky rocket which had been placed upon the rack for firing, after having been ignited, fell from the rack to the ground; the explosion of the rocket caused it to be forced along upon the ground, the crowd attempted to avoid its course, but before the plaintiff could arise it struck him in the leg, breaking his leg and causing a very painful injury.

Defendants insist upon a reversal of the judgment, urging that the display being a popular Fourth of July celebration and one being participated in by everybody present, that all who came as spectators assumed all risk of an injury; that the celebration being in commemoration of a national holiday and one generally endorsed and participated in by the general public, the defendants would not be liable unless the injury was wilful; that there is no joint liability in this case, that the verdict is not warranted by the evidence and that the court committed various errors in its rulings upon the trial. It is also contended that the court erred in not suppressing the deposition of W. D. Slagle taken at the instance of the St. Louis Fireworks Company, one of the defendants. Notice was served to take this deposition upon written interrogatories which were filed. The co-defendants served notice upon all parties that they elected to have the deposition taken upon oral interrogatories but notwithstanding this notice of election to have the deposition so taken, a dedimus was issued and the deposition taken upon the written interrogatories. Whether these defendants joined and filed written interrogatories is not disclosed, except that the court might go to the record to ascertain-that fact. The Paul F. Beich Company and the Bloomington Business Men’s Association insist that under the section of the statute which provides that where notice is served to take a deposition upon written interrogatories the opposite party may elect to have it taken upon oral interrogatories, that the deposition was improperly taken and should have been suppressed.

These defendants do not come within the definition of opposite parties under this' statute; the reasonable construction of the statute is that by opposite party is meant a party upon the opposite side of the action, and not a co-defendant or co-plaintiff; if these defendants desired to have a deposition taken upon oral interrogatories they could have served notice and had same taken as their own deposition; the Circuit Court did not err in refusing to quash the deposition for this reason.

The celebration was originated by the Bloomington Business Men’s Association, it was through the Paul F. Beich Company that the fireworks were secured and the St. Louis Fireworks Company assisted in the discharge of the fireworks. Each of these parties was present and took part in the display, management, or control of the celebration by parties who did and were authorized to represent them in that capacity. The representatives of the Paul F. Beich Company placed the rocket which caused the injury upon the rack, the rocket was not securely fastened or placed in position and by reason thereof fell to the ground; while it was in such insecure position upon the rack it was ignited by the agent and representative of the St. Louis Fireworks Company; and the Bloomington Business Men’s Association were the parties who originated and carried on this celebration. The question as to whether or not each or all of the defendants contributed in any manner or were jointly engaged in the carrying on of the celebration were questions of fact to be determined by the jury, and by their verdict they have determined this question adversely to the contention of the defendants, and unless their verdict is clearly against the manifest weight of the evidence it should not be disturbed by this court, and we are of the opinion that the verdict is fully warranted by the evidence.

The evidence produced is sufficient to justify the verdict of joint liability. While denying their joint liability defendants offer no evidence whatever tending to show how the various parties, representatives or agents of these defendants, came to be or were in the discharge of this work during this celebration, and neither do they offer any evidence to show that the accident was caused in any manner different from that disclosed by plaintiff’s evidence. The record further discloses that defendants knew and had every reason to believe that they would be responsible for any accident or injury that might occur. They took the precaution to discharge a man who was expected to oficíate at this celebration because he was intoxicated and secured another man to act in his place.

Upon the contention of contributory negligence, the celebration was one planned and carried into execution by defendants; the general public was invited to witness it; plaintiff came as one of the spectators; the fact that he came and sat upon the ground in close proximity to the place where the fireworks were ignited was not of itself contributory negligence, neither can it be said as a matter of law that because he crossed over the rope that this was contributory negligence. The question of contributory negligence was one of fact for the jury to determine from all the evidence.

The sky rocket 'that caused the injury was placed on a hook or nail in a rack constructed by the Blooming-ton Business Men’s Association for the purpose of the exhibition; it was placed there by one Slagle, an employe of the Paul F. Beich Company, and was lighted by one White, a representative of the St. Louis Fireworks Company; after being ignited it fell from its place on the rack to the ground.

It cannot be seriously contended that if there was negligence in the construction of the rack, or in placing the sky rocket in an insecure place on the rack, that the defendants would not be liable for an injury by reason thereof.

This was a public display of fireworks conducted by defendants upon a public squire in a populous city and the mere fact that it was a celebration of a national holiday cannot absolve the parties conducting it from liability where negligence in the management, control or execution of the exhibition is the cause of any injury. The jury was fully warranted in finding the injury was caused by negligence of defendants.

It is insisted that the injury was caused by a mere accident, without any fault or neglect on the part of the defendants and that by reason thereof defendants are not liable, and that the court erred in refusing to give an instruction based upon this contention. An accident, as defined by legal authorities, for which no liability exists is one which is the result of an unknown cause or is the result of an unusual and unexpected event happening in such an unusual manner from a known cause that it could not he reasonably expected or foreseen and that it was not the result of any negligence. While a party is entitled to have an instruction upon its theory of the case, the instruction must be either based upon some evidence or by reason of lack of .evidence in the case, and where the evidence discloses such a condition as to leave no basis upon the evidence for the theory to exist, then refusal of such instruction is not error; there is nothing in this record upon which to base the instruction offered.

It is also insisted that the court erred in refusing to give peremptory instruction upon motion of 'each and all of the defendants herein as requested. To have given this instruction would have required the court to have considered and weighed the effect of the evidence, and where this is necessary it is error to give a peremptory instruction. A careful examination of the criticism made of the instructions by defendants discloses that the jury was fairly and properly instructed, that there is no reversible error in any of the instructions given, and the defendants have not been prejudiced by reason of the giving of the instruction complained of.

The verdict is fully warranted by the evidence, and the judgment below is affirmed.

Affirmed.