text:
    Central Trust Company of Illinois, Trustee, Appellant, v. Richard C. Crawford, Lawton C. Bonney and Charles A. Ford, Appellees.
    Gen. No. 22,319.
    1. Corporations, § 127

      —when evidence sustains finding that stock subscriptions were paid in full. On. a bill by the trustee in bankruptcy of a corporation to recover an unpaid balance of stock subscriptions, a finding of a master in chancery that the capital stock of the bankrupt corporation had been paid in full, held sustained by the evidence.
    2. Corporations, §' 11*—when commissioners'1 report that stock subscriptions were paid in cash a violation of Corporation Act. Where subscriptions to the stock of a corporation are paid part in cash and part in property, a report of the commissioners on the organization of such corporation that the stock is paid in cash is a violation of the Corporation Act, sec. 4 (J. & A. ¶ 2421), providing that in such case the property shall be appraised by the commissioners, who shall report its fair cash value.
    3. Corporations, § 101’

      —what does not create liability for stock subscriptions. A failure to observe the requirements of the Corporation Act, sec. 4 (J. & A. ¶ 2421), requiring that property transferred in payment for stock subscriptions be appraised and its fair cash value reported by the commissioners, does not ipso facto create a liability for a stock subscription.
    4. Corporations, § 124*—who may make effective payment for stock subscription. When a stock subscription has been paid by any one, the obligation of the subscriber is fulfilled, and such subscriber cannot then be charged with liability on such subscription either by the corporation or a creditor.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1916. Petition for certiorari dismissed.
    Affirmed.
    Opinion filed October 30, 1916.
    Rehearing denied November 13, 1916.
    Sabath, Stafford & Sabath, for appellant; Charles B. Stafford, of counsel.
    Lyman M. Paine, for appellees.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By bill filed by the trustee of the Crawford, Barrett Company, a corporation, bankrupt, complainant sought to recover from the defendants the balance of subscription to the capital stock said to have been unpaid. The bill alleges that the corporation was organized under the laws of Illinois with a capital stock of $50,000. The report of the commissioners shows that the defendant Crawford subscribed for $49,000 and the defendants Bonney and Ford for $500 each. The bill alleges that the stock subscription of the defendants had never been paid. Answer 'was filed alleging that the full amount had been paid. The cause was referred to a master, who after hearing evidence reported that the defendant Crawford had paid for the entire capital stock. The court approved of the report and ordered the hill dismissed. Complainant has appealed to this court.

There is little controversy as to the master’s finding of fact. Of the capital stock Crawford paid $25,-000 in cash, and also turned over to the company merchandise of the conceded value of $25,000. The master found that this paid the capital stock in full, and we are pointed to no evidence which would not justify such a finding. The master further reported as to the merchandise that “no question has been raised as to its value or of bad faith in the transaction.”

The controversy centers around the fact that in the report made by the commissioners upon the organization of the company it was stated that the capital stock of $50,000 had been paid in cash. This was in violation of paragraph 4 of the statute on corporations, chapter 32 (J. & A. ¶ 2421), which provides that “if any proportion of the capital has been paid in property, the same shall be appraised by said commissioners and they shall report the fair cash value thereof.” The fact as to violation being conceded, does it follow that in the absence of fraud as to the value of the merchandise and where no one has been prejudiced, a stockholder can be made to respond to a judgment for an unpaid balance on his subscription? We think not. By paragraph 21 of the Corporation Act (J. & A. ¶ 2438) it is provided that “if any certified report or statement made, or public notice given, by the officers of any corporation shall be false in any material representation, all the officers who shall have signed the same, knowing it to be false, shall be jointly and severally liable for all damages arising therefrom. ’ ’ The concluding words of this paragraph would indicate that before officers signing a false statement could be held liable for damages it must be shown that such damages arose because of the false statement. However, this is not a suit for damages, and even if this were so, it does not appear that any one has been damaged because of the improper report; and, conceding the value of the merchandise, we fail to see how any one could be damaged. We find no tiling in the statute and are referred to no decisions supporting the contention that failure to observe the statute ipso facto creates a liability for a stock subscription.

The point that Bonney and Ford have not paid anything is of no merit, in view of the fact that the entire capital stock, including their subscriptions, was paid by Crawford. There therefore remains no amount unpaid on their stock. As was said in First National Bank of Peoria v. Peoria Watch Co., 191 Ill. 128 (133): “When stock has been paid for by any person the obligation of the subscriber is fulfilled, and neither the corporation nor any creditor can charge him with an amount remaining unpaid, for the simple reason that there is nothing unpaid.”

The decree is right and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Charles Zenisek, Appellee, v. Chicago Consolidated Bottling Company, Appellant.
    Gen. No. 22,330.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1165

      —what questions presented for review. On appeal from a judgment for plaintiff in an action to recover for injury to his automobile as a result of a collision with defendant’s motor truck, alleged to have been due to defendant’s negligence, the only question presented for review, where defendant does not discuss the findings of the jury or the question of negligence, is that of the amount of the verdict.
    2. Automobiles and garages, § 3*—when amount of verdict sustained by evidence. In an action to recover for injury to plaintiff’s automobile in a collision with defendant’s motor truck, alleged to have been due to defendant’s negligence, evidence held to sustain a verdict of $425 for plaintiff.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by Charles Zenisek, plaintiff, against the Chicago Consolidated Bottling Company, defendant, in the County Court of Cook county, to recover damages for injury to plaintiff’s automobile in a collision with defendant’s motor truck, alleged to have been due to defendant’s negligence. From a judgment for plaintiff for $425, defendant appeals.
    Daniel L. Madden and Thomas F. Burke, for appellant.
    Charles V. Barrett, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Minnie Mangler, Appellant, v. Maryland Casualty Company, Appellee.
    Gen. No. 22,339.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas Taylor, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Petition for certiorari dismissed.
    Statement of the Case.
    Action by Minnie Mangier,' plaintiff, against the Maryland Casualty Company, defendant, in the Circuit Court of Cook county, to recover on a policy of accident insurance. From an order dismissing the action, plaintiff appeals.
    While an action brought by plaintiff on an accident policy issued to her husband was pending, she accepted $650 in settlement, and signed a release and stipulation that the action be dismissed without cost to either party, reciting that all matters in dispute had been settled. A motion was made to dismiss in accordance with the stipulation, which was allowed after the court had heard evidence in regard to plaintiff’s claim that the release was procured by fraud. It app eared that defendant contested its liability, claiming that deceased did not die from accident. Plaintiff visited the office of defendant’s attorney to secure a settlement, where the amount received was offered in settlement of this action and of another claim. She was accompanied by an attorney, not of counsel in the action. The release and stipulation were submitted to and approved by the attorney who accompanied plaintiff, who testified that plaintiff read them and that he explained them, remarking, “You have to sign them to get the money,” and that after a short hesitation plaintiff signed.

      Abstract of the Decision.
    1. Stipulations—when validity of stipulation question for court. The rule that, where a release is offered in defense it is the province of the jury and not of the court to determine whether there has been fraud in obtaining the release, does not apply to a case where, with the release, a stipulation was made to dismiss a pending action without cost to either party, in which case, on a motion to dismiss in accordance with the stipulation, the determination by the court of the question whether the person signing the stipulation knew and understood what she was signing is not erroneous.
    2. Stipulations—when evidence sustains finding that stipulation not obtained by fraud. On a motion to dismiss in accordance with a stipulation, where plaintiff alleged that the stipulation was obtained by fraud, evidence examined and a finding by the court that the stipulation was not obtained by fraud, held sustained by the evidence.
    3. Fraud, § 49

      —when court of law can not determine. A court of law cannot determine the question whether a release is procured by fraudulent representations of facts outside the instrument, such questions being cognizable only in chancery.
    4. Accord and satisfaction, § 4*—when acceptance of sum less than claimed amounts to satisfaction. Where liability on an unliquidated claim is contested, payments to secure the withdrawal of a suit do not come within the rule that a settlement for a less sum than a fixed amount due is without consideration and void.
    5. Stipulations, § 19*—when dismissal in accordance with stipulation proper. On a motion to dismiss in accordance with a stipulation, where plaintiff claimed that the stipulation was obtained by fraud, but where the evidence failed to sustain the claim, an order allowing the motion and dismissing the action held proper.
    George J. Kuebler and Albert H. Fry, for appellant.
    Cleland, Lee & Phelps, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Mary Geraldine Neville, Appellee, v. City of Chicago, Appellant.
    Gen. No. 22,358.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Feximore Cooper, Judge, presiding. Heard in this court at the March term, 1916.
    ‘Affirmed upon remittitur; otherwise reversed and remanded.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by .Mary Geraldine Neville, plaintiff, against the City of Chicago, defendant, in the Superior Court of Cook county, to recover for personal injuries sustained by reason of a defective plank sidewalk in defendant city, causing plaintiff to fall and a sliver of wood to penetrate and tear her sexual organ. From a judgment for plaintiff of $7,500, defendant appeals. This case has been tried five times, and has been heard twice in this court (154 Ill. App. 537; 191 Ill. App. 372). The verdict of the jury resulting in the judgment appealed from was for $15,000, which by remittitur was reduced to $7,500. The facts are fully stated in the opinion in 154 Ill. App. 557, with the exception of an opinion by the late Dr. John B. Murphy, negativing any causal connection between the accident and a later diseased condition of plaintiff’s ovaries, necessitating the performance of an operation known as ovariotomy.
    Samuel A. Ettelson and Charles B. Francis, for appellant; Henry T. Chace, Jr., of counsel.
    T. F. Laramie and A. W. Fulton, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal corporations, § 1098 —when evidence shows negligence in care of sidewalk. In an action to recover for personal injuries sustained by reason of a defective plank sidewalk in defendant city, causing plaintiff to fall and a wooden sliver from the sidewalk to penetrate and tear her sexual organ, evidence examined and a verdict finding defendant guilty of negligence held sustained by the evidence.

2. Damages, § 188*—when evidence fails to show causal connection between injury and, element of damage. In an action to recover for personal injuries sustained by reason of a defective plank sidewalk in defendant city, causing plaintiff to fall and a wooden sliver to penetrate and tear her sexual organ, where plaintiff claimed the injuries sustained caused a diseased condition of her ovaries and necessitated the performance of an operation known as ovariotomy, evidence examined and held not to show a causal connection between the injury sustained and the diseased conditions necessitating the operation.

3. Damages, § 114*—when excessive for injury to female sexual organ. In an action to recover for personal injuries sustained by reason of a defective plank sidewalk in defendant city, causing plaintiff to fall and a sliver of wood to penetrate and tear her sexual organ, causing considerable bleeding, where the evidence failed to show a causal connection between the injuries and a diseased condition of the ovaries, necessitating an operation, a verdict for plaintiff for $15,000, remitted in the trial court to $7,500, held excessive as remitted, and a further remittitur of $6,500 ordered.


text:
    Louisa Weber, Appellee, v. City of Chicago, Appellant.
    Gen. No. 22,359.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 1084

      —what is gist of action for injuries caused by defective sidewalk. The gist of an action against a municipal corporation for personal injuries sustained by reason of a defective sidewalk is the negligence of the municipality in permitting the sidewalk to be and remain in bad and unsafe repair and condition.
    2. Municipal corporations, § 1098*—what evidence sustains allegation that sidewalk was defective. In an action against a city for personal injuries sustained by reason of a defective plank sidewalk, the allegation of negligence in the declaration is sustained by evidence that it was in fact in bad or unsafe repair and condition, either by reason of a plank being broken, or because the planks were loose and not fastened to the stringers.

      Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by Louisa Weber, plaintiff, against the City of Chicago, defendant, in the Superior Court of Cook county, to recover for personal injuries sustained by reason of a defective sidewalk in defendant city. From a judgment of $2,000 for plaintiff, defendant appeals.
    Samuel A. Ettelson and Charles B. Francis, for appellant; Henry T. Chace, Jr., of counsel.
    Peden, Kahn & Murphy, for appellee; R. C. Merrick, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Municipal corporations, § 1084 —Where no variance between allegation of defective sidewalk and. proof. In an action against a' city to recover for personal injuries sustained by reason of a defective sidewalk, where the declaration alleged that “defendant permitted said sidewalk * * * to be and remain in bad and unsafe condition and repair, and divers boards * * * to be and remain loose, broken,” etc., held no fatal variance where the evidence shows that the defect which caused the accident sought to be recovered for was a missing plank.

4. Damages, § 128 —when not excessive for permanent injury to ankle. In an action against a city to recover for personal injuries sustained by reason of a missing plank in a board sidewalk in defendant city,- causing plaintiff, a middle-aged woman weighing 220 pounds, to fall and injure her ankle, where there was evidence that plaintiff was crippled for six months as a result of the accident and suffered much pain even up to the time of the trial, twelve years after the accident, and where there was medical testimony that the injury is permanent, a verdict of $2,000 for plaintiff, held not excessive.


text:
    Augusta Liljegren, Appellee, v. Kropp Forge Company, Appellant.
    Gen. No. 22,371.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed October 30, 1916.
    Rehearing denied November 13, 1916.
    Statement of the Case.
    Action by Augusta Liljegren, plaintiff, against the Kropp Forge Company, defendant, in the Superior Court of Cook county, to recover compensation under the Occupational Diseases Act (J. & A. ¶ 5433 et seq.), for the death of plaintiff’s husband while employed by defendant as a heater in its blacksmith and forge room. Prom a judgment for plaintiff for $3,000, defendant appeals. '
    It appeared that after being employed in the forge room for four or five days deceased became unconscious and died in half an hour. Plaintiff claimed that death was due to heat exhaustion. Deceased’s duties were to feed coke into one of the furnaces and to insert and take out steel billets. The evidence tended to show that the temperature of the room was from 85 to 90 degrees at the time deceased became unconscious. The evidence as to whether devices could have been adopted to reduce the heat was conflicting. There was evidence that just before deceased’s death a flow from his mouth had the odor of whisky, and that a partly filled-flask of whisky was found in his pocket. The evidence also tended to show that at that time deceased had been drinking, and that a temperature of from 85 to 90 degrees would only -slightly affect the health of a normal man. The verdict of the coroner’s jury was that death was due to “organic heart disease, combined with insolation,” but the doctor testified that “the cause of death was apoplexy, which is a hardening of the arteries and the rupture of a blood vessel in the cranium.”
    H. L. Howard, for appellant.
    Charles C. Spencer, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Workmen’s Compensation Act, § 11 —when death not caused by accident within meaning of act. Tlie death of a workman who, after four or five days’ employment as a heater in a blacksmith and forge room, becomes unconscious and dies within half an hour is not caused by an accident within the meaning of the title of the Workmen’s Compensation Act of 1913 (Cal. Ill. St. Supp. 1916, ¶ 5475 et seq.), providing for “compensation for accidental injuries or death suffered in the course of employment.”

2. Master and servant, § 701*—when evidence insufficient to show death resulted from violation of statute. In a proceeding brought under the Occupational Diseases Act (J. & A. ¶ 5433 et seq.), to recover compensation for the death of a workman who, after four or five days’ employment as a heater in a blacksmith and forge room, became unconscious and died within half an hour, evidence held insufficient to show that deceased came to his death through any omission or act of the employer in violation of the act.

3. Master and servant, § 701*—what proof necessary as to cause of death. In order to recover compensation for the death of a workman under the Occupational Diseases Act (J. & A. ¶ 5433 et seq.), requiring employers to employ certain devices and methods to prevent such diseases, it must be proved that the cause of the death was the failure of the employer to comply with the act.

4. Master and servant, § 50b*—when evidence sufficient to show cause of death. In a proceeding under the Occupational Diseases Act (J. & A. ¶ 5433 et seq.), to recover compensation for the death of a workman who, after four or five days’ employment in a blacksmith and forge room, became unconscious and died in half an hour, evidence examined and held to show that the cause of deceased’s death was apoplexy.


text:
    Interstate Finance Corporation, Appellee, v. Commercial Jewelry Company, Appellant.
    Gen. No. 22,374.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 195

      —when witness may testify from tabulations made up from vouchers. Where a witness is testifying in regard to an account composed of about six hundred items, each of which was originally represented by a voucher, from which the item was entered in books of account, it is not error to permit the witness to use in his testimony a computation and tabulation made up from such vouchers and not from the books, and for use at the trial, where the amount due plaintiff is merely a matter of computation and where all the vouchers and books are in evidence.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Rehearing denied November 13, 1916.
    Statement of the Case.
    Action by Interstate Finance Corporation, a corporation, plaintiff, against Commercial Jewelry Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on a contract wherein defendant . guarantied the payment of certain accounts assigned to plaintiff. From a judgment for plaintiff for $2,143.82, defendant appeals.
    Albert O. Olson, for appellant; James J. Leahy, of counsel.
    Elbert C. Ferguson, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Estoppel, § 55 —when assignee of contract estopped to deny liability thereunder. In an action on a contract the following facts appeared: The contract was originally between plaintiff and a Philadelphia partnership. Later the partnership removed to Chicago, where an Illinois corporation was formed, which was the defendant in the action, whose corporate name was the same as that used by the partnership, and which took over all property, book accounts and bills receivable of the partnership and continued to do business with plaintiff under the contract and to receive its advantages, without notifying plaintiff of any change in the concern or its methods of doing business. Held, that under such circumstances defendant was bound by the contract and could not repudiate it.

3. Municipal Court of Chicago, § 13*—when permission to amend statement of claim not abuse of discretion. The allowance of an amendment of a statement of claim, held not an abuse of judicial discretion -where no harm appeared to have resulted therefrom.

4. Continuance, § 45*—when motion for properly overruled. It is not error to overrule a motion for continuance where the affidavit filed in support of the motion discloses no facts which could properly induce the court to grant the continuance.

5. Guaranty—when evidence shows accounts uncollectible. In an action to recover on a contract whereby defendant assigned certain contracts to plaintiff, guarantying that if payments on such accounts became “in default” defendant would pay any unpaid balance due thereon, the contract defining the meaning of the expression “in default” as meaning, inter alia, if the accounts were uncollectible, evidence held sufficient to show that the accounts in question were uncollectible within the meaning of the contract.

6. Municipal Court of Chicago, § 29*—when objections to instructions not considered on appeal. General objections to instructions in an action in the Municipal Court of Chicago will not be considered on appeal where it appears that a rule of that court requires such objections to be specific.


author: Mr. Presiding Justice MgSurely

text:
    Alice McGurk, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,377.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. T.uthill, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by Alice McGurk, plaintiff, against the Chicago City Railway Company, defendant, in the Circuit Court of Cook county, to recover for personal injuries sustained as a result of being struck by the rear portion or overhang of a street car. From a judgment for plaintiff for $2,000, defendant appeals.
    It appeared that plaintiff was struck by a northbound car rounding the curve from Jackson Park avenue while turning westward into 56th street in Chicago.
    Jackson Park avenue runs north and south but does not extend beyond 56th street, which -runs east and west. At the junction of these streets the car tracks turn westward into 56th street, and the regular stopping place of northbound street cars is in 56th street after rounding the curve. The car was a large car of the pay-as-vou-enter type. There was testimony that the normal overhang of the cars was two feet one and three-fourth inches outside the rail, but on the curve at the maximum this would be three feet six inches more. Plaintiff was standing just south of the crosswalk on the south side of 56th street and three or four feet from the track. She signaled the motorman to stop and then walked southward, expecting the car to stop before striking the curb, but it continued slowly around to the regular stopping place. As the overhang in the rear began to swing out plaintiff did not avoid it and was struck. There was uncontradicted testimony that the motorman when he came near called and signaled her to stand back from the car. A passenger on the platform testified in detail as to the motions of the motorman indicating to plaintiff that she should stand away from the car, at the same time telling her to “stand back.” Plaintiff apparently moved back about two feet, but could not be seen from the front platform after the front end of the car had passed her. Plaintiff testified, that she did not notice the warning.
    Abstract of the Decision.
    Street railroads, § 131

      —When evidence insufficient to show negligence of defendant. In an action to recover for personal injuries sustained by being struck by the rear portion or overhang of a “pay-as-you-enter” street car as it rounded a street corner, evidence examined and held insufficient to prove that defendant was negligent as alleged in the declaration.
    Busby, Weber & Miller, Franklin B. Hussey and Arthur J. Donovan, for appellant; John B. G-uilliams, of counsel.
    Richard J. Finn, for appellee.

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

   Mr. Presiding Justice MgSurely

delivered the opinion of the court.


text:
    Charles Hack, Appellee, v. Chicago & Interurban Traction Company, Appellant.
    Gen. No. 22,380.
    (Not to he reported in full.)
    Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by Charles Hack, plaintiff, against the Chicago & Interurban Traction Company, defendant, in the City Court of Chicago Heights, to recover for injuries sustained by a collision at a street car crossing between the automobile plaintiff was driving and defendant’s street car. From a judgment for plaintiff of $2,000, defendant appeals.
    The accident took place at the comer of 12th street and Halsted street. Plaintiff was fifty-seven years of age, and had been accustomed to driving in that neighborhood for four years. He knew of the track in Halsted street and that cars ran frequently in both directions, and that a car might be coming along there at any time. He had been driving this same automobile for four years. At the time, he was moving along 12th street at a speed of about seven miles an hour, and his car was in good condition and equipped with brakes. He said he could have stopped within fourteen feet. There was a single track in Halsted street, the east rail of which was about five feet west of the center line of the street. A wagon road ran along the east side of the track. There were no buildings south of 12th street and east of Halsted except at the extreme northeast corner of the block. This accident happened near the northwest corner. The testimony showed that from a point on 12th street at least three hundred and fifty feet east of Halsted there was a clear, practically unobstructed view across the vacant block. It was also established without contradiction that the east rail of the car track was five feet west of the center line of the street and approximately thirty-eight feet from the east line of Halsted street. Plaintiff testified that from the time he was one hundred feet from the" track he did not look to see whether a car was coming or not.
    Abstract of the Decision.
    1. Street railroads, § 95

      —what is duty of one about to cross car track. The driver of an automobile approaching the intersection of a street and a street car track which he intends to cross is bound, where the view is unobstructed, to make a reasonable use of his series to guard his own safety, and to look for approaching cars at su..a a distance as will enable him to ascertain whether one is in sight, and a failure to do so is negligence.
    2. Street railroads, § 95*—when duty to look for approaching car. In an action where the defense is that plaintiff was guilty of contributory negligence in attempting to cross a street car track with his automobile without ascertaining in sufficient season whether cars were approaching, the question of contributory negligence is to be determined by the situation when plaintiff was at such a distance before going on the track that he could control his machine and avoid the danger, rather than by probabilities.
    3. Street railroads, § 131*—when evidence shows contributory negligence. In an action to recover for injuries sustained in a collision at a street car crossing betwen a car and plaintiff’s automobile, which he was driving, where contributory negligence was relied on in defense, evidence examined and held that plaintiff was guilty of contributory negligence.
    Busby, Weber & Miller and Arthur J. Donovan, for appellant.
    Howe, Fordham & Kreamer and John C. Everett, for appellee; John C. Everett, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    William C. Parker, Appellant, v. John R. W. Sargent et al., Appellees.
    Gen. No. 22,386.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Bill in chancery by William C. Parker, complainant, against John R. W. Sargent, Maud L. Sargent, Frederick H. Sargent, Alice W. Sargent, William P. Sargent, Homer E. Sargent, Helen W. Sargent, Ida Joslyn, Joseph L. Duplissis, John D. Wild, as trustee, Simon W. Straus, as trustee, Buckingham Chandler, as trustee, and Chicago Title & Trust Company, defendants, in the Circuit Court of Cook county, for specific performance of an alleged contract to convey real estate. From a decree sustaining a demurrer to a second amended bill and dismissing the bill for want of equity, complainant appeals.
    The bill alleged that the contract sued on was partly in writing and partly oral. Defendants pleaded the Statute of Frauds. The bill was not filed until two and a half years after the date of the contract, during which time defendants had conveyed the property to innocent parties, who had erected a building thereon and secured a large loan, secured by deed of trust on the property.
    Henry E. Murphy, for appellant; Arthur H. Chetlain and James E. Brown, of counsel.
    Charles L. Bartlett, Sherman C. Spitzer and Robert Humphrey, for appellees.

      Abstract of the Decision.
    1. Frauds, Statute of, § 82

      —when statute a defense at law and in equity. No suit either at law or in equity can be maintained on an oral agreement for the purchase and sale of any interest in real estate where the Statute of Frauds is pleaded as a defense.
    2. Vendor and purchaser, § 26*—when written agreement for sale of land insufficient to satisfy Statute of Frauds. In order to satisfy the Statute of Frauds, an agreement for the sale or purchase of an interest in real estate must be entirely in writing, and it is not sufficient that the greater part of the contract is in writing.
    3. Vendor and purchaser, § 4*—what not a binding agreement to convey. An agreement that defendant should use his “best endeavors to convey the property herein described” to complainant is not an agreement to convey the property to any one, and no one is bound thereunder to purchase the property or pay a consideration.
    4. Specific performance, § 11*—when contract not enforceable. In order to enforce the specific performance of a contract in equity, it must be mutual, and if for any reason one of the parties cannot compel a specific performance, neither party can do so.
    5. Specific performance, § 64*—what complainant must do to enforce contract. A purchaser has no right to apply to a court of equity to compel a conveyance in pursuance Of a contract unless he has himself offered to perform all the conditions imposed on him, so that he must either pay or tender the consideration.
    6. Specific performance, § 59*—when suit barred by laches. In a bill in chancery to enforce the specific performance of a contract for the sale of real estate, which bill was not filed until two and a half years after the date of the agreement, held that complainant was barred by gross laches where it appeared that in the meantime defendant had conveyed to innocent parties, that a building had been constructed thereon, and a large loan made, secured by deed of trust of the property.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    R. G. Herndon et al., Complainants, v. The Herndon Corporation et al., Defendants. On Appeal of Gertrude Vanderbilt, Appellant, v. Hans Bartsch, Appellee.
    Gen. No. 22,391.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Hbabd, Judge, presiding. Heard in this court at the March term, 1916.
    Appeal dismissed.
    Opinion filed October 30, 1916.
    Rehearing denied and supplemental opinion filed November 13, 1916.
    Statement of the Case.
    Bill in chancery by B. G. Herndon and Glenn Hall, complainants, against the Herndon Corporation, Lonis Dreyfnss, V. Knnst, otherwise known as Valli Valli, Hans Bartsch and H. Mahieu Company, Inc., defendants, on the appeal of Gertrude Vanderbilt, appellant, against Hans Bartsch, appellee, in the Circuit Court of Cook county. From an order vacating and setting aside a previous order authorizing a receiver to solicit bids for the sale of certain property thought to be assets of the corporation, and finding that the property was not such an asset, appellant appeals.
    Appellant was not a party to the proceedings but had filed a claim with the receiver alleging that she was a creditor of the corporation. On petition for rehearing it appeared by a supplemental record that appellant had obtained leave to file an intervening petition, which had been done, and that certain defendants had filed a cross-bill, making appellant a defendant.
    Adolph Marks and Elijah N. Zoline, for appellant; Elijah N. Zoline, of counsel.
    E. S. Hartman, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 338

      —who may review judgment. In order to maintain a writ of error to review a judgment or decree, the plaintiff in error must be either a party to the record, or sustain some mutual or successive relationship to the subject-matter of the litigation or the parties, out of which arises the right, duty or privilege to have the judgment reviewed, or he must have some direct or collateral interest injuriously affected by the judgment upon which to rest a right to a review.
    2. Appeal and error, § 348*—what record must show to entitle one to appeal. Where an appellant is not a party to the record, her right to appeal from the judgment or decree must affirmatively appear from the assignment of errors.
    On Rehearing.
    1. Appeal and error, § 340*—when intervening petitioner may appeal. ‘One who has obtained leave to file and has filed an intervening petition in proceedings in which a receiver has been appointed, and who has been made defendant in a cross-bill by certain defendants to the original proceeding, has the right to appeal from any appeal-able order.
    2. Appeal and error, § 315*—when order vacating order of sale not appealable. In chancery proceedings against a corporation wherein a receiver has been appointed, an order vacating and setting aside a previous order authorizing the receiver to solicit bids for the sale of certain property supposed to be an asset of the corporation, finding that such property is not subject to such sale at that stage of the proceedings and expressly reserving the determination of the questions involved for further hearing, is not a final order from which an appeal can be maintained.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    H. H. Evans et al., v. Illinois Surety Company, Appellee. In re appeal of P. J. Lucey, Attorney General, Appellant.
    Gen. No. 22,559.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Appeal and error, § 270

      —what orders not appealable. An order permitting the attorney general to become a party to a hill for the dissolution of an insurance company, brought under the Act of 1874, sec. 2 (J. & A. ¶ 6682), relating to such dissolutions, is not an appealable order under the Practice Act, sec. 123 (J. & A. ¶ 8661), relating to appeals from interlocutory orders and decrees, the appeals permitted under this section being strictly statutory, and orders as to parties, and the like, being reviewable only on final decree.

      Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Bill in chancery by H. H. Evans et al., complainants, against the Illinois Surety Company, defendant, for the dissolution of an insurance company under the Act of 1874, sec. 2 (J. & A. ¶ 6682), relating to such dissolutions. From an interlocutory order appointing a receiver, Patrick J. Lucey, attorney general, app.eals.
    P. J. Lucey and Ryan, Condon & Livingston, for appellant.
    H. C. Davis, Shepard, McCormick, Thomason, Kirkland & Patterson, for appellee.
    A. J. Hopkins, for H. H. Evans et al.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Corporations—when notice to intervener in dissolution proceedings of application for appointment of receiver unnecessary. In a bill to dissolve an insurance company under the Act of 1874, sec. 2 (J. & A. ¶ 6682), relating to such dissolutions, where by order of the court the attorney general appears and files an intervening petition and answer to the bill, an order appointing a receiver will not be reversed merely because no notice of the application for such appointment was given to the intervener where both the petition and answer of the intervener admit the necessity of such appointment, merely questioning the propriety of the particular appointment made, and where it does not appear that the intervener was a necessary party.

3. Corporations, § 643*—when appointment of receiver not subject for review. The personnel of a receiver is not a proper subject for review, under the Practice Act, sec. 123 (J. & A. ¶ 8661), from the interlocutory order appointing such receiver, an objection to the particular receiver appointed being an argument for the removal of the present receiver and for the substitution of another, which is a matter within the discretion of the chancellor and not within the purview of the Appellate Court.


author: Mr. Justice Holdom

text:
    John H. Howard et al., Appellees, v. William Foster Burns, Appellant.
    Gen. No. 21,424.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Bill in chancery by John H. Howard et al., complainants, against William Foster Burns, defendant, in the Circuit Court of Cook county, to foreclose a trust deed. From a decree in favor of complainants, defendant appeals.
    The following facts appeared in substance: Parties named Shaw made notes secured by trust deed on the premises in question, the notes being of the amounts of $3,000 each as to two, and $24,000 as to one, maturing January’26, 1912, January 26, 1913 and January 26, 1914, respectively. Subsequently the Shaws conveyed to one Youngquist, who conveyed to one Jacobson and wife, who in turn conveyed to one Morris, all the conveyances being subject to the mortgage indebtedness. Defendant Bums obtained judgment against Morris, and on a sheriff’s sale, under the judgment, acquired Morris’ interest in the premises, Bums also redeeming from a master’s sale under a mortgage given by the Shaws which was junior to that sought to be foreclosed. Bums had no other source of claim or title. When the first $3,000 note became over due, James L. Shaw, one of the makers, paid it, together with accrued interest, to the trustee under the trust deed, in order to avoid foreclosure. One Howard, who filed the bill in his own name, but in fact in behalf of himself and" Shaw, furnished part of the amount paid to the trastee, under the agreement, as between himself and Shaw, that he should either receive back his money, or obtain the mortgaged property subject to the balance of the mortgage debt. The payment by Shaw to the trustee was upon the agreement that, as to himself and Howard, Shaw should be subrogated to the rights of the holder of the indebtedness, but subordinately to the lien of the principal and interest of the unpaid notes. Subsequently the unpaid notes were assigned to one Stonehill, who was a party to the proceedings. Burns filed an intervening petition asking to be made defendant, which was allowed and he answered thereto, and he, with Shaw and Stone-hill, subsequently filed cross-bills setting up their several interests and claims, to which answers were filed and replications joined. The canse was referred to a master to find and report the facts and conclusions of law, and a decree was entered in accordance with his report, which was substantially as above stated. The decree found in addition to the above, that Shaw was subrogated to the rights of the holder of the first principal note, and that his payments were made without fraud to protect his liability as maker and to preserve his right of subrogation; that his rights were subordinate to those of Stonehill on the other $3,000 note and the $24,000 note, and the costs and expenses of the proceeding; that Howard had an interest in the first $3,000 note for the amount advanced, subject to the rights of Stonehill.
    On the filing of the original bill a receiver of the rents, issues and profits of the mortgaged premises was appointed, the trust deed mortgaging such rents, etc., as security for the indebtedness. Solicitors’ fees of $500 were allowed to Howard and $600 to Shaw, they being represented by separate solicitors, and a balance of $2,419.40 in the hands of the receiver and clerk of court arising from the rents, etc., was decreed to Stonehill, to be credited on the amount found due him.
    Thomas Taylor, Jr., for appellant; Herbert A. Lundahl, of counsel.
    S. P. Shope and Thomas L. Stitt, for appellees.
    William B. Jarvis, for appellee Carl A. Stonehill.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Mortgages, § 503 —when evidence sufficient to support decree of foreclosure. On a bill to foreclose a trust deed, a finding of the master that complainants were entitled to relief and a decree of the chancellor granting such relief, held supported by the evidence.

2. Mortgages, § 514*—when decree of foreclosure should include appointment of receiver. Where a trust deed mortgages the rents, issues and profits of the mortgaged premises as security for the debt, it is the duty of the chancellor, on a bill for foreclosure, to appoint a receiver to collect such rents, etc., since they become, under such circumstances, as much a part of the security as the land and its improvements.

3. Mortgages, § 738*—how equity of redemption affected by appointment of receiver. Where a trust deed mortgages the rents, issues and profits of the mortgaged premises during the period of redemption as security for the mortgage debt, the rights of the owner of the equity of redemption are subject to all the provisions of the trust deed, including the conveyance of the rents, etc., so that the appointment of a receiver operates to deprive such owner of the possession of the premises and the right to collect income, as well as to exercise other acts of ownership, until the mortgage debt is extinguished or the property redeemed.

4. Mortgages, § 198*—when purchaser of equity cannot enforce personal liability of mortgagor. Where property is conveyed subject to a mortgage, the personal liability of the mortgagor on the mortgage notes cannot be enforced by purchasers subsequent to the mortgage.

5. Mortgages, § 163*—when mortgagor purchasing notes is subrogated to holder. A mortgagor, not the owner of the equity of redemption, who, by virtue of his primary liability as maker of the mortgage notes, pays one of them to the holder thereof, has, as to subsequent purchasers and lien holders, a right to look to the property for reimbursement, and is subrogated to all the rights of the holder of the notes paid.

6. Mortgages, § 133*—when purchase of note does not destroy lien. On a bill to foreclose a trust deed securing several notes maturing at different times, one of which was overdue, where it appeared that the maker of the notes arranged with one not a party to the transaction to advance part of the money necessary to pay the overdue note, an agreement between the maker and such person that such person should share in the security and be reimbursed either by money realized from a sale of the mortgaged premises or by acquiring the property at the sale, held not illegal or subject to attack by third persons whose interests were not infringed by the transaction.

7. Mortgages, § 241 —when trustee’s agreement to keep alive paid note not illegal. On a bill to foreclose a trust deed securing several notes, maturing at different times, one of which is overdue, where it appeared that the maker of the notes paid the amount due on the overdue note to the trustee, an agreement between the maker and the trustee that the paid note should not be marked paid, but retained and kept alive for the benefit of the maker, subject to the rights of the holder of the unpaid notes, held not illegal.

8. Mortgages, § 187*—when mortgagor subrogated to rights of creditor. Where a mortgagor sells the mortgaged parcel subject to the mortgage, the land in equity becomes a primary fund for the payment of the debt, and the vendor occupies the position of surety, and on payment of the mortgage debt is subrogated to the rights of the creditor.

9. Mortgages, § 660*—when solicitors’ fees apportionable. Although it is unusual to apportion solicitors’ fees in an equity proceeding, yet where the parties to whom the fees are allowed are represented by different solicitors, as, for example, where such fees are allowed to the complainant in the original bill and to the complainant in a cross-bill, a separate allowance to each is warranted.

10. Appeal and error, § 384*—when lack of necessity of cross-bill cannot be urged. The fact that the filing of a cross-bill is unnecessary cannot be availed of on appeal where it was not objected to before the chancellor.

11. Costs, § 52*—when solicitors’' fees are properly costs. Solicitors’ fees allowed in a chancery proceeding are properly costs in the cause.


text:
    P. W. Walsh, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 22,110.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1301

      —when finding of trial court on conflicting evidence presumed to he correct. In an action tried without a jury, where the evidence is conflicting and where a contrary finding, if made, might he sustained by the evidence, the Appellate Court, on review, will indulge in favor of the finding made, the presumption obtaining from the fact that the trial court sees and hears the witnesses and observes their manner of testifying, and is therefore better able to determine the weight and credibility of their testimony, advantages which the Appellate Court does not possess.

      Error to the Municipal Court of Chicago; the Hon. D. H. Wams•ley, Judge, presiding. Heard in this court at the March term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by P. W. Walsh, plaintiff, against the City of Chicago, defendant, in the Municipal Court of Chicago, to recover on a contract for the disposal of garbage by means of water transportation. From a judgment for plaintiff for $1,200, defendant brings error.
    This case has previously been before this court, being reported in Walsh v. City of Chicago, 185 Ill. App. 521. The contract sued on was ended by efflux of time, and the amount of the judgment was admitted to be due to plaintiff thereon, but defendant sought to recoup on the ground of the unseaworthy boats furnished by plaintiff, one of which sank in the Chicago Biver, defendant alleging loss thereby of garbage boxes, as well as the expense of removing the obstruction.
    Samuel A. Ettelson, for plaintiff in error; Leon Hornstein and Harry L. Brin, of counsel.
    Henry J. Toner, for defendant in error; Oscar H. Olsen, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Set-off and recoupment, § 41*—when verdict disallowing claim in recoupment sustained by evidence. In an action to recover on a contract between an individual and a municipality for the disposition of garbage by means of water transportation, where it was admitted that a certain sum was due plaintiff on the contract, but where defendant sought to recoup on the ground of an unseaworthy boat, whose sinking occasioned loss to defendant, a finding for plaintiff held not palpably against the weight of the evidence.

3. Navigable waters, § 4*'—what are. The Chicago River is a navigable stream under the control of the Federal government.

4. Set-off and recoupment, § 18*—when municipality may not recoup expense of removing obstruction in navigable stream. In an action to recover on a contract between an individual and a municipality for the disposition of garbage by means of water transportation, where it is admitted that a certain sum is due plaintiff on the contract, defendant cannot recoup on the ground that the sinking of an unseaworthy boat caused an obstruction whose removal caused defendant expense, where it appears that the sinking took place in a navigable river, since defendant could not have been compelled to remove the obstruction, and cannot enforce a claim against plaintiff for expense incurred in voluntarily performing a duty not cast upon it by law.


text:
    The Tribune Company, Defendant in Error, v. K. T. McCarthy and M. E. Byrne, copartners, trading as McCarthy & Byrne, Plaintiffs in Error.
    Gen. No. 22,248.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 384

      —when evidence sufficient to show nonexistence of meritorious defense. In an action to recover for advertising, where the only question at issue was the amount due, and defendants claimed that certain payments made them had not been credited, a letter from defendants to plaintiff written after the maturity of the indebtedness sued on, in which defendants expressed appreciation of plaintiff’s forbearance, and promised payment as soon as the market would permit them to dispose of some of their real estate holdings, held to show that the defense was interposed from financial reasons, and not from any meritorious claim for unallowed credits.

      Error to the Municipal Court of Chicago; the Hon. Samuel H. Tbude, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by the Tribune Company, a corporation, plaintiff, against K. T. McCarthy and M. E. Byrne, copartners, trading as McCarthy & Byrne, defendants, in the Municipal Court of Chicago, to recover for advertising. To reverse a judgment for plaintiff for $886.45, defendants prosecute this writ of error.
    Adams, Crews, Bobb & Wescott, for plaintiffs in error.
    Irwin R. Hazen and LeRoy V. Penwell, for defendant in error.

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

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

   Mr. Justice Holdom

delivered the opinion oi the court.

2. Trial, § 204 —when verdict for plaintiff should be directed. Where a defense is affirmative and defendants fail to maintain it, the court should instruct the jury to find for plaintiff.

3. Costs, § 73 —when cost of additional abstract properly charged against appellant. Where the imperfections in an abstract filed by an appellant render it necessary for appellee to file an additional abstract, the expense of such additional abstract will be taxed as costs.


text:
    Thomas N. Hunt, Defendant in Error, v. William M. Keating, Plaintiff in Error.
    Gen. No. 22,268.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by Thomas N. Hunt, plaintiff, against William M. Keating, defendant, in the Municipal Court of Chicago, to recover damages sustained hy defendant’s alleged fraud and deceit, whereby plaintiff was induced to purchase defendant’s laundry business. To reverse a judgment for plaintiff for $1,000, defendant prosecutes this writ of error.
    Coleman S. Everett, for plaintiff in error.
    Joel C. Carlson, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 13a —how defect of variance in statement of claim must be taken advantage of. Where there is a variance or a dual statement of cause of action in a statement of claim in the Municipal Court of Chicago, such defects can be taken advantage of only by a motion to strike, accompanied by a statement of the reasons therefor made to the trial judge, and a mere motion to strike, without giving reasons, is not sufficient.

2. Municipal Court of Chicago, § 13a*—When defects in statement of claim are cured by verdict. Defects in a statement of claim in the Municipal Court of Chicago which could have been cured by amendment are cured by verdict if not seasonably and properly objected to.

3. Appeal and error, § 1459*-—when errors in rulings on evidence not cause for reversal. Errors in rulings on evidence in a case tried by jury will not cause a reversal where such errors are not material to the issue and do not affect the ultimate merits of the case.

4. Sales, § 350*—When evidence sufficient to sustain verdict for plaintiff. In an action to recover damages sustained by reason of defendant’s alleged fraud and deceit in the sale of a laundry business, evidence held sufficient to sustain a verdict for plaintiff.

5. Witnesses, § 253*—what is province of jury as to credibility, of. It is the province of the jury to say from all the evidence which of the witnesses in their judgment are worthy of belief, and to find a verdict accordingly.

6. Fraud, § 18*—what constitutes fraudulent representation. Where plaintiff and defendant negotiated in regard to a purchase of a laundry business, and plaintiff expressed an intention to- call in a laundryman to look the property over, a statement by defendant that it was not necessary and that if things were not as represented defendant would take the laundry off plaintiff’s hands or find plaintiff a customer for it, on which plaintiff relied, is a fraudulent representation, on the assumed verity of which plaintiff had a right to rely, and which excused him from making the intended investigation.

7. Witnesses, § 253*—when testimony of party may be disbelieved. Where the veracity of a party to an action is impeached by the testimony of other witnesses, the jury have the right to disbelieve his testimony where it is in conflict with that of the opposing party and his witnesses.

8. Sales, § 350*—when evidence sufficient to show fraud by seller. In an action to recover for damages sustained by reason of defendant’s alleged fraud and deceit in the sale of a laundry business, evidence held to sustain a finding that the representations constituting the fraud and deceit were proven, that the defendant knew they were false when made, and that they were made with the purpose of deceiving and defrauding the plaintiff.

9. Costs, § 73*—when expense of filing additional abstract may be taxed against appellant. Where the abstract of an appellant unfairly and designedly omits evidence sustaining the contentions of appellee, so that a fair consideration of the case requires appellee to file an additional abstract, the expense of such additional abstract will be taxed as costs.


text:
    James F. Hall, Appellee, v. Mamie E. Hall, Appellant.
    Gen. No. 22,282.
    1. Divorce, § 70

      —when proceedings wilV not be reviewed on merits. Proceedings on a bill for divorce will not be reviewed on the merits where the case has not been tried as required by law.
    2. Divorce—when reference to master unwarranted. Under the present statutes the reference to a master of a contested bill for divorce is unwarranted and without precedent, although prior to the revision of the statutes in 1874 it was the practice to make such references.
    3. Divorce—when. hearing by court mandatory. The provision of the Divorce Act, sec. 8 (J. & A. ¶ 4223), that in default cases, where the bill is taken for confessed, the court shall proceed to hear the cause by examination of witnesses in open court, is mandatory, and default cases cannot be otherwise heard.
    4. Divorce, § 53a*—when party entitled to jury trial. While a divorce case does not, as do cases at law, stand for trial by jury unless a jury trial is waived, yet either party, on request, is entitled to a jury trial.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 1916. Petition for certiorari dismissed.
    Reversed and remanded with directions.
    Opinion filed October 30, 1916.

      R. C. Merrick, O. T. Crissey and F. L. Barnett, for appellant.
    George W, Ellis, Riohard E. Westbrooks and James G. Cotter, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is a cause matrimonial, in which the husband charges the wife with adultery and asks a divorce for that cause, and the wife countercharges with a cross-bill for separate maintenance. Each party denies the incriminating charges made by the other. From a decree granting a divorce to complainant for the adultery of his wife and denying appellant, the wife, any relief on her cross-bill for separate maintenance, dismissing the same for want of equity, the wife prosecutes this appeal.

The issues joined consisted of the bill and the answer of defendant thereto. On the cross-bill of the wife for separate maintenance the issues rested in the cross-bill, answer thereto and replication to the answer. In this state of the issue the cause was referred generally to a master, who took the proofs of the parties and found in favor of appellant on her cross-bill for separate maintenance and against complainant on his original bill for divorce.

In the condition of the record our review upon the merits would be improper. This case has not been tried as the statutes and the law of this State require. The reference of the cause to a master was unwarranted and without precedent. Before the revision of the statutes in 1874 the chancellor might proceed in a default case to hear the case in open court; but it was the practice to refer such causes to a master. This practice gave rise to much scandal in divorce cases and gave to Chicago the reputation of being a mecca for disgruntled and dissatisfied married people, where divorce was speedily accomplished. To abolish such scandals the present statute was enacted, which provides that in default cases, where the bill is taken as confessed, “the court shall proceed to hear the cause by examination of witnesses in open court.” This act is mandatory and default divorce causes cannot be heard except in open court. While there is no express provision in the statute inhibiting reference of a contested divorce cause to a master to take proofs and report his conclusions of law and fact thereon, still we are firmly of the opinion that the spirit of the law is contrary to the permitting of any such practice. We know of no instance other than the one at bar since the Act of 1874 (J. & A. ¶ 4215 et seq.), in which a divorce case, contested or uncontested, has been referred to a master for hearing. Counsel cite no such case and an independent search has failed to disclose any.

While a’divorce case does not, as do cases at law, stand for trial by jury unless a jury trial is waived by the joint agreement of the parties, yet either party, upon request, is entitled to a jury trial. Neither party has yet requested a trial by jury; still a jury may be called upon the demand of either. We think this case is typical of the evil of a hearing before a master. The master, who saw the witnesses and was therefore the better able to judge of their fairness and the veracity or falseness of their evidence and of the weight which it was entitled to be given, found directly contrary to the chancellor, who simply had the evidence reported by the master before him and did not see or hear any of the witnesses. An examination of the testimony reveals the fact that the evidence was in sharp conflict on the material issues, and we think that personal touch with the witnesses must necessarily have been controlling in determining their credibility and the weight to be accorded their testimony. This facility the chancellor lacked, but the master possessed. If we were passing upon the weight of the testimony, which we are not, we should be more inclined, after reading it and bearingdn mind the superior advantages which the master had over the chancellor, to concur in the conclusions to which the master arrived and to give effect to his recommendations, disregarding those of the chancellor.

The decree appealed from is reversed and the cause is remanded with directions to the Circuit Court to hear and determine the issues joined on the bill and cross-bill in open court.

Reversed cmd remanded with directions.


text:
    Edward L. Thornton, Defendant in Error, v. Harry Helmick, Plaintiff in Error.
    Gen. No. 22,285.
    1. Vendor and purchaser, § 67

      —what special assessments payable by grantee. Where parties agreed to exchange real estate “subject to taxes and special assessments levied and payable after the year 1911,” the word “payable,” as applied to special assessments, is to be construed as meaning that the purchaser should pay any amounts not due but payable as special assessments after the year 1911, so that although the assessments in question were a lien prior to 1911, the instalments were not “payable,” within the meaning of the contract, until after 1911, thus devolving their payment on' the purchaser.
    2. Vendor and purchaser, § 352*—when evidence of levy of special assessments insufficient. In an action on an agreement to exchange real estate to recover the amount of certain special assessments, evidence held insufficient to prove that such assessments were ever levied.
    3. Vendor and purchaser, 323*—when recovery for assessments paid erroneous. In an action to recover the amount of certain special assessments, where the evidence was insufficient to prove that such assessments were ever levied, a judgment for plaintiff held erroneous.
    4. Municipal Court of Chicago, § 31

      —when judgment of nil capiat entered in Appellate Court. Where in an action in the Municipal Court of Chicago the record shows that plaintiff was not entitled to judgment for any sum under his statement of claim and the evidence, the judgment will he reversed and judgment of nil capiat and for costs entered in the Appellate Court.
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed October 30, 1916.
    A. W. Martin and Edward H. S. Martin, for plaintiff in error.
    Adams, Crews, Bobb &. Wescott, for defendant in error.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

The writ of error in this case seeks a reversal of a judgment for one hundred dollars in favor of plaintiff and against defendant on the finding of the issues by the court under a submission in which trial by jury was waived.

The action arises under an agreement between the parties for an exchange of real estate and involves the construction of the words “subject to taxes and special assessments levied and payable after the year A. D. 1911.” The trades were closed, the deeds were passed and the contract was canceled as having been performed by all the parties to it.

The contract is dated August 24, 1912. The special assessments said to be involved are claimed to be payable in instalments after 1911. We think that the word “payable” used in regard to special assessments means by construction that the purchaser should pay any amounts not due but payable as special assessments after the year 1911; so that notwithstanding the special assessments were a lien prior to 1911, the instalments involved were not payable until after 1911. It therefore follows that the payment of unpaid special assessments devolved, under the contract, upon the purchaser. Furthermore, there is no evidence in the record establishing as a fact that any special assessments were ever levied, charged or assessed against any property embraced within the contract between the parties; neither is there any attempt to make any legal proof of any such special assessments. One of the witnesses assumed that certain special assessments rested upon the property, but such evidence is not sufficient to meet legal requirements

The finding and judgment of the Municipal Court are wrong, and as plaintiff was not entitled to a judgment for' any sum under his statement of claim and the evidence, the judgment of the Municipal Court is reversed and a judgment of nil capiat and for costs entered in this court.

Reversed with judgment of nil capiat and for costs.


text:
    William George Paul, Appellant, v. Josephine Paul, Appellee.
    Gen. No. 22,299.
    1. Divorce, § 87

      —when temporary alimony cannot be decreed. On a bill for divorce, be court is without jurisdiction to decree temporary alimony to the wife until the marriage is established.
    2. Divorce, § 135*—when counsel fees not allowable. On a bill for divorce, counsel fees cannot be allowed until the marriage is established.
    3. Divorce, § 52*—when bill sufficient admission of marriage. Where in a bill against a wife for divorce complainant averred the marriage, and where in her answer defendant admitted the marriage, held that the fact thus averred and admitted warranted the chancellor in finding that the marriage relation existed between the parties, although in his answer to a cross-bill by the wife for separate maintenance the complainant denied the marriage, since a fact averred and admitted needs no further proof, and since a court of chancery, as a court of conscience, will not permit a party to deny facts averred under oath, in order to escape a legal obligation arising from such averment.
    4. Divorce—when complainant estopped to deny marriage. A complainant who in his sworn bill for divorce avers the marriage, is estopped from denying the truth of such averment on a motion for alimony pendente lite.

    5. Divorce—when complainant estopped to deny marriage. A complainant, who in his sworn bill for divorce avers the marriage, is estopped from denying the truth of such averment on a motion for solicitors’ fees.
    6. Divorce, § 33*—when evidence inadmissible to prove marriage. Where complainant in a bill for divorce avers the marriage under oath and such fact is admitted by the answer, no evidence is competent either to rebut or maintain such averment.
    Appeal from the Circuit Court of Cook county; the Hon. George Kersteu, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed October 30, 1916.
    Rehearing denied November 13, 1916.
    Ryan & Lewis, for appellant.

      Harry J. Meacher and Paul J. Huxmann, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Appellant filed his bill for divorce from appellee, alleging a marriage between them on the 19th of December, 1907, also cohabitation from the time of the marriage until the 4th of December, 1915, and the birth of a son, George Louis Paul, as the fruit of said marriage, of the age of seven years at the time the bill was filed. Appellant in the bill charged his wife' with adultery and prayed for a divorce. Defendant answered, admitting the marriage and the birth of the son George, but denying the adultery charged. Appellee then filed her cross-bill, averring the marriage, the cohabitation, the birth of George, and charging the defendant with being guilty of extreme and repeated cruelty towards her and also with adultery and drunkenness. In this cross-bill she prayed for a divorce, the custody of the son born of the marriage, and for alimony both pendente lite and permanent. On motion of appellee the court entered an order that appellant pay appellee six dollars a week alimony and twenty-five dollars for solicitor’s fees pendente lite. From that order appellant prosecutes this appeal.

The bill of appellant and his answer to the cross-bill are both verified by appellant’s oath. In his answer to appellee’s cross-bill appellant denies the marriage, although admitting the cohabitation and the birth of the child as the result thereof. Appellant now contends that as the marriage between himself and his wife is disputed, the order for alimony and solicitor’s fees is erroneous and that no such order can be entered until it is judicially determined that the marriage relation existed between the parties. It is quite true that until the marriage is established the court is without jurisdiction to decree alimony or solicitor’s fees to the wife. McKenna v. McKenna, 70 Ill. App. 340.

The sworn hill of appellant averring the marriage, the answer of appellee admitting such marriage, the cross-bill of appellee again averring the marriage, were, we think, sufficient proof to warrant the chancellor in holding that the relation of husband and wife between the parties was proven. A fact averred by a complainant and admitted by the defendant needs no further proof. Furthermore, a court of chancery is a court of conscience, and it is not the policy of equity jurisprudence to allow a. party to sear his conscience by denying facts averred under oath, in order to escape a financial obligation which arises in law from such averment. The oath of appellant to his bill averring a marriage with particularity, and his denial of such marriage in his sworn answer to his wife’s cross-bill, savor of perjury. '

Appellant is estopped by the averments of his sworn bill averring the marriage from denying the truth of such averment on a motion for solicitor’s fees and alimony pendente lite. While appellant’s bill averring the marriage and appellee’s answer admitting such marriage remain in the record, no proof is admissible either to maintain or rebut such averment.

The order of the Circuit Court appealed from is affirmed.

Affirmed.


text:
    Bowman & Bull Company, Appellee, v. George R. Linn, trading as George W. Linn & Sons, Appellant.
    Gen. No. 22,305.
    1. Contracts, § 338—when time of breach controlling. In an action to recover for breach of an executory contract where the defense is grounded on a breach by plaintiff, the crucial question is which party first breached the contract.
    2. Sales, § 124*—when guaranty by seller of time of arrival immaterial. Where butter dealers, on a fluctuating market, contract for the shipment from Seattle of butter to arrive by sea about a date fixed by the seller, the time of performance of the contract is material, and in an action by the seller for nonacceptance, the rights of the buyer do not depend on whether the seller guarantied the time of arrival or whether by reason of the nonarrival of the ship by the time fixed, the buyer can maintain an action against the seller.
    3. Sales, § 124*—when delay in delivery fatal to recovery. In an action to recover for breach by a vendee of a contract for the shipment from Seattle of butter to arrive from New Zealand about a date fixed by the seller, where owing to delays in the voyage by reason of storms and stress of weather the vessel did not arrive in Seattle until eight days after the date fixed, during which time there was a fall in the market, the initial breach held imputable to vendor, who, if it desired the date fixed for arrival to be approximate, should have inserted in the contract- some qualifying phrase, such as “wind and weather permitting,” in default of which defendant is relieved from all obligation under the contract.
    4. Contracts, § 294*—when breach no ground for recovery. In an action on an executory contract, plaintiff must show that he has complied with all the provisions of the contract on his part, and if both parties are in default, neither can maintain an action.
    5. Contracts, § 396*—when erroneous to refuse to direct verdict for defendant. In an action on an executory contract, it is error to deny defendant’s motion for an instructed verdict in his favor where it affirmatively appears that plaintiff did not substantially perform the contract on his part.
    6. Appeal and error, § 1810*—when judgment of nil capiat entered in Appellate Court on reversal. In an action on an executory contract where it affirmatively appears that plaintiff did not substantially perform the contract, a verdict for plaintiff will be reversed and a judgment of nil capiat and for costs entered in the Appellate Court.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph P. Rafeerty, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed October 30, 1916.
    Rehearing denied November 13, 1916.
    J. Marion Miller, for appellant.
    Pearson & Herrick, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff on a trial before court and jury recovered a judgment upon the verdict of the jury against defendant for $2,184.39, and defendant appeals and assigns errors calling for a reversal.

The action is for damages for the alleged breach of a contract made between the parties, by which defendant agreed to purchase and plaintiff agreed to sell one car of New Zealand fresh creamery butter at 35% cents per pound upon terms which were in railway parlance f. o. b. Seattle. The butter was at the time of the contract en voyage from New Zealand to the port of Seattle in the State of Washington, and it was represented that the ship carrying it was expected to arrive in the port of Seattle about January 7,1914. The contract rested in a telephone conversation, which was December 31, 1913, confirmed in the following letter from plaintiff to defendant:

‘ ‘ Confirming telephone conversations with your Mr. Linn this morning and sale of one car New Zealand Fresh Creamery Cambridge Factory, equal to sample shown at Booth’s Cold Storage a few days ago, 32% F. O. B. Seattle, this butter is due to arrive in Seattle about January 7th, and shipment will be made as promptly as possible after goods are discharged from the ship and have passed through the customs, * * *”

On January 6th thereafter defendant wrote plaintiff:

“The car of New Zealand butter which you expect to ship about the 9th from Seattle, would like to have it come St. Paul Refrigerator freight, instead of express. Please advise promptly. * * * ”

It is in evidence that it usually takes about two days after the arrival of a ship in which to dock, unload, pass the customs, and start freight on its journey from the port of Seattle. The ship with the contract butter on board was delayed by stress of weather and did not arrive at Seattle until January 15th; two days thereafter the carload of butter contemplated by the contract was shipped from Seattle and arrived in Chicago on February 2nd following shipment. Plaintiff in its brief states that from December 31, 1913, to February 2,1914, there was a “drop in the butter market of 9% cents per‘pound.” Defendant refused to accept the butter, assigning several reasons—among others, that it was not of the quality of the sample inspected in Booth’s Cold Storage; that the butter was consigned to Cudahy Packing Company and not to defendant, and also that the butter did not arrive for delivery at the time stipulated in the contract. The butter was afterwards sold for 27 cents per pound, and it is for the difference between the contract and sale prices, with the charges for freight, etc., that plaintiff seeks to recover and for which it had judgment'in the trial court.

We think the crucial and controlling question is, which of the parties first breached the contract. That time of performance of the contract was material, the evidence amply demonstrates. Whether plaintiff had represented that the ship on which the butter- was being carried from New Zealand to Seattle was expected to arrive at its destination on January 7, 1914, is not a debatable question. It is clear that in faith that the ship would arrive at that time, defendant entered into the contract. The rights of defendant do not depend upon whether plaintiff guarantied the time of arrival or whether by reason of the ship’s nonarrival on time, defendant could maintain an action for damages against plaintiff. These are not controlling considerations. From the very nature of the transaction, the time of arrival of the butter was an important consideration. The market, as plaintiff admits, was fluctuating, and defendant, if bound to take the butter, must stand the loss occasioned by the nonarrival of the butter at the time specified in the contract, for which delay in arrival he is in no way responsible. The minds of the parties met as to the date when the ship should arrive at Seattle with the butter on board. This date was fixed by plaintiff from information assumedly within its own knowledge. It was the date of the arrival of a ship at sea, in the course of its voyage from New Zealand to Seattle, with commodities belonging to plaintiff, a portion of which was the subject-matter of the contract involved in this suit.

For the failure of plaintiff to take into account storms at sea and stress of weather (which it is common knowledge are often encountered in sea voyages) when fixing the time of the arrival of the ship with the contract butter in its cargo, shall the loss ensuing by reason of a falling market be chargeable to and be borne by defendant or plaintiff? We see no reason for penalizing defendant by saddling him with the loss occasioned by the nonarrival of the butter at the time fixed by plaintiff in its contract of salé. If plaintiff had intended that the date of the ship’s arrival should be simply an approximate date, then there should have been inserted some qualifying phrase, such as “wind and weather permitting.” The butter did not arrive at Seattle and was not in shape for delivery to defendant at the time agreed upon in the contract; the initial breach of the contract of sale is therefore imputable to plaintiff, and defendant was consequently relieved from every obligation resting upon Mm under the contract. In view of such primary breach of the contract by plaintiff it cannot maintain any action against defendant for any subsequent breach of such contract on his part. In Cincinnati, I. & W. Ry. Co. v. Baker, 130 Ill. App. 414, the court say:

“It was incumbent upon defendant in error, before he could recover damages from plaintiff in error for an alleg’ed breach of the contract, to allege and prove that he, himself, had complied with all the provisions of the contract upon his part. * * * If both parties are in default neither can maintain an action for a breach of the contract by the other.”

The legal principle is that neither party can in any manner obtain the aid of a court to enforce in his favor a contract which, without legal excuse, he has substantially failed to perform on his part. Applying this rule to the instant case, we find that there was a breach of contract by the nonarrival of -the butter at the time agreed upon by the contract and by plaintiff’s inability to make delivery witliin the time specified in the contract. This affirmatively appears from the evidence, and the effect is to defeat the right of recovery sought by plaintiff.

At the close of plaintiff’s proofs, defendant moved for an instructed verdict in his favor. This motion was denied. TMs action of the trial judge is assigned for error. The motion should have been allowed and a verdict instructed for defendant accordingly. For this error the judgment of the Municipal Court is reversed and a judgment of nil capiat and for costs will be entered in tMs court.

Reversed with judgment of nil capiat and for costs.


text:
    Ethel M. Cann et al. v. Leslie C. Hughes et al. Leslie C. Hughes et al., Appellants, v. Jacob Glos et al., Appellees.
    Gen. No. 22,325.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heard, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Bill in chancery by Ethel M. Cann et al., complainants, against Leslie C. Hughes et a,l., defendants, and cross-bill by Leslie C. Hughes et al., complainants, against Jacob Glos et al., defendants, in the Circuit Court of Cook county. From a decree dismissing the bill and cross-bill, and awarding to defendant Glos $665.44, Leslie C. Hughes et al. appeal.
    The bill sought a partition between complainants and defendants, who were tenants in common, and also the removal of the tax title of defendant Glos as a cloud on their title. The proper pleadings were filed by all parties, and the cause stood at issue and referred to a master, but before any hearings took place, condemnation proceedings were instituted in which the rights of all parties were adjudicated, and an order was made that the sum of $665.44, the amount found to be due defendant Glos, be paid to the county treasurer for his benefit. The cross-bill set up the facts in the original bill, including the money found due and ordered to be paid to defendant Glos, and prayed for the distribution and payment of such amount to the parties entitled thereto. Defendant Glos answered, denying complainants’ title and every material averment in the bill, which by interpretation included a denial of complainants ’ right to the money in the hands of the treasurer. The decree found that in equity, defendant Bios was entitled to the money.
    Abstract of the Decision.
    1. Appeal and error, § 1303

      —when evidence presumed sufficient to sustain finding. In the absence of a certificate of evidence, every intendment is to be indulged necessary to sustain the ultimate fact found in a decree, and in such case it will be presumed, as matter of law, that the evidence is sufficient to sustain such finding.
    2. Equity, § 549*—what decree need not recite. It is not necessary to recite evidential facts in a decree, it being sufficient if the ultimate fact found from the evidence is recited.
    3. Partition, § 54*—when award in eminent domain proceeding not challenged by hill. Where during the pendency of partition proceedings, in which the validity of a tax title on the property in question is attacked, a proceeding is commenced which results in the taking of such property by eminent domain, in which an order is made setting apart a sum to be paid to the owner of the tax title, a cross-bill filed after the termination of the condemnation proceedings to secure a distribution of the sum set apart by the order admits the propriety of the order where such cross-bill does not challenge such propriety.
    4. Partition, § 53*—when party estopped to dispute right of court to determine who is entitled to fund. Where, during the pendency of partition proceedings in which the validity of a tax title on the property is attacked, a proceeding is commenced which results in the taking of such property by eminent domain and in which an order is made setting apart a sum to be paid to the owner of the tax title, a cross-bill filed after the termination of the condemnation proceedings to secure a distribution of the sum set apart by the order, partakes of the nature of a bill of interpleader, in which the only question is to whom the money shall be paid, and complainant in the cross-bill is estopped to dispute the right of the court to determine such question.

      Rice, Lowes & O’Neil, for appellants. .
    John B. O’Connor and Aleen F. Bates, for appellees.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

5. Partition, § 15 —what is character of proceeds of sale in eminent domain proceedings. Where, during the pendency of partition proceedings, the property sought to be partitioned is taken by condemnation proceedings, the money awarded stands in the place of the land.


text:
    Ethel M. Cann and William A. Cann, Appellants, v. Leslie C. Hughes et al., Appellees.
    Gen. No. 22,842.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Bill in chancery by Ethel M. Cann and William A. Cann, complainants, against Leslie C. Hughes et al., defendants, in the Circuit Court of Cook county. From a decree dismissing the bill, complainants appeal. This is an appeal from the same decree as in Cann v. Hughes and Hughes v. Glos, Gen. No. 22,325, ante, p. 603. The rights and interests of parties here being the same as in that case, the decree appealed from is affirmed for the reasons given in the opinion in that case.
    Frank W. Swett, for appellants.
    John R. O’Connor and Ajoben F. Bates, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    H. D. Smith & Company, Appellant, v. Aurora Automatic Machinery Company, Appellee.
    Gen. No. 22,315.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 334

      —when seller in default preventing recovery by Mm,. In an action to recover on a contract for the delivery by plaintiff to defendant of a quantity of “crank forgings," the following facts appeared: Defendant attempted to cancel the order, but plaintiff refused, and threatened to send and did send the matter to its attorney. Defendant later decided to perform the contract and requested plaintiff to ship the goods as originally agreed, which called for payment in sixty days. Plaintiff refused to ship the goods unless $1,500 was paid in advance, whereupon defendant then canceled the contract. Held, that plaintiff was primarily in default in refusing to carry out the contract as made and in attempting to impose new conditions, and was without remedy for the damage sustained, although had it acted on defendant’s first attempted cancellation it might have recovered damages suffered by that breach.

      Appeal from the Municipal Cpurt of Chicago; the Hon. William N. Gemmill, Judge, presiding. , Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by H. D. Smith & Company, a corporation, plaintiff, against the Aurora Automatic Machinery Company, a corporation, defendant, in the Municipal Court of Chicago, to recover for breach of a contract for the delivery by plaintiff to defendant of a quantity of “crank forgings.” From a judgment of nil capiat, plaintiff appeals.
    Charles B. Haefenberg, for appellant; William Friedman, of counsel.
    Montgomery; Hart, Smith & Steers, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mb. Justice Holdom

text:
    Burkett Ovenu, Appellant, v. Esther Ovenu, Appellee.
    Gen. No. 22,348.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the March term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Bill for divorce by Burkett Ovenu, complainant, against Esther Ovenu, defendant, in the Superior Court of Cook county. From a decree dismissing the bill for want of equity, complainant appeals.
    The ground on which the divorce was sought was adultery, which was denied by the answer. The adulteries relied on were alleged to have been committed with an unknown man while defendant was living apart from complainant, and to prove the charge complainant relied on the testimony of detectives, who, although claiming to have seen defendant’s alleged paramour on several occasions, were unable to identify or trace him. For defendant was offered, testimony of neighbors, people of repute, who would have been likely to have seen the occurrences, had they occurred, who negatived the probability of such occurrences. It also appeared that an employee of the Commonwealth Edison Company lived in the apartment below that of defendant, and was in the habit of going in and out of the building at all hours of the night. This witness testified that he did not see the man who according to the detectives was in the habit of visiting defendant.
    Abstract of the Decision.
    1. Divorce, § 46

      —how adultery may be proven. Adultery is never presumed, but must be proven, and while it is a crime of secrecy, it may be established by proving acts from which the inference of adultery may follow.
    2. Divorce, § 46*—how presumption of innocence of adultery overcome. There are no presumptions of law favoring guilt where adultery is alleged, and the presumption of innocence must be indulged until convincing evidence sufficient to overcome it is found in the record.
    3. Divorce, § 46*—what essential to establish adultery. In order to establish adultery by circumstantial evidence, the proofs must convince the mind affirmatively that actual adultery was committed, since nothing but the carnal act can lay the foundation for a divorce.
    4. Divorce, § 50*—what presumption as to adultery where acts equivocal. In respect to acts capable of a dual construction—one of innocence and the other of guilt—that of innocence will be indulged.
    5. Witnesses, § 267*—when testimony of detectives disregarded. The testimony of detectives is to be closely scanned and regarded with suspicion, and where such testimony is contradicted by credible evidence, it may be disregarded.
    6. Divorce, §. 46*—when evidence sustains dismissal of bill. On a bill for divorce against a wife on the ground of adultery, where the affirmative proof of the charge was based on the testimony of detectives, a decree dismissing the bill for want of equity,, held sustained by the evidence.
    Miles J. Devine, for appellant; John T. Murray, of counsel.
    No appearance for appellee.

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

   Mb. Justice Holdom

delivered the opinion of the court.