text:
    The Landon-Sharp Machine Company, Appellant, v. Frederick G. Frankenberg et al., Appellees.
    1. Patents, § 10

      —validity of contract of assignment. A contract to assign a patent held insufficient to warrant its enforcement as a continuing contract, though valid so far as carried out.
    2. Patents, § 16*—when hill does not show right to specific performance of contract to assign. A bill for the specific performance of a contract to assign a patent, held not to show right to relief, •when it appeared therefrom that complainants had abandoned the contract and that the patent was worthless.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Miller & Smith, for appellant.
    Zane, Morse & McKinney, John M. Zane, E. Bentley Hamilton and Clarence E. Eldridge, for appellees.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This is a hill for the specific performance of a contract to assign a patent. A general and special demurrer was filed by the defendants to the bill, and on a hearing the demurrer was sustained and the bill dismissed for want of equity.

The bill alleges that the Landon-Sharp Machine Company is a corporation duly organized under the laws of the State of Illinois, by Byron S. Landon and William A. Sharp and George H. Klump, prior to the eleventh day of March, 1900; that prior to the organization of the corporation said Landon, Sharp and Klump were salesmen in the city of Chicago, and Frankenherg, one of the defendants, was the inventor of certain improvements in tobacco stripping machines; that Frankenberg was wholly without means to develop his inventions or even to make application for patents thereon, and that he agreed with Landon, Sharp and Klump that if they would supply funds to secure patents and to build an experimental machine he would assign the patents to them. An application for a patent was filed and the work of constructing a machine was begun; but the agreement between the individuals was shortly thereafter superseded by the contract with the corporation now to be set forth.

On or about March 17, 1900, a written contract was duly executed between Frankenberg and the Landon-Sharp Machine Company by which the latter agreed to pay all expenses of applying for and securing patents on inventions relating .to tobacco stripping machines then or thereafter made by Frankenberg; also to supply the necessary capital for the building and testing of an experimental machine or machines, including the expense attending the making of working drawings, material, labor, etc.; also to pay to the said Frankenberg the sum of $10 per week for such time as he might devote to the said invention during the existence of the agreement; and also in the event that a successful commercial tobacco stripping machine should be produced by the joint efforts of the contracting parties, to issue to Frankenberg one-fourth of the capital stock of the Landon-Sharp Machine Company. Frankenberg agreed in the same contract to prepare working drawings for the construction of machines in accordance with his inventions then made or thereafter to be made, and from time to time to supervise and to assist in the work of constructing the machines and in the experimental operation thereof, and to assign to the Landon-Sharp Machine Company all inventions pertaining to tobacco stripping machines which had theretofore been made by him or which should be made by him during the existence of the agreement, together with all patents issued or to be issued for such inventions. It was also agreed that the contract should remain in force until the Landon-Sharp Machine Company should demonstrate to its satisfaction whether or not a commercial tobacco stripping-machine could be built in accordance with Frankenberg’s inventions. The bill also alleges the loss of many of the papers belonging to the Landon-Sharp Machine Company, including the contract with Frankenberg ; alleges in detail the complete fulfilment by the Landon-Sharp Machine Company of the terms of the contract, and that sums were advanced to Frank enberg in excess of the amount required by the contract; that every effort was made to develop a commercial machine, including the construction of five successive experimental machines requiring the expenditure of more than $50,000 by the Landon-Sharp Machine Company; that after six years of futile experiments the Landon-Sharp Machine Company beCame convinced that no successful commercial machine conld be constructed along the lines then being followed by Frankenberg and thereupon terminated the contract; that the contract remained in force during the whole of the time from March 17, 1900, to some time in the year 1906, and that payments were made to Frankenberg on such contract until 1906.

The bill also alleges that Frankenberg on the seventeenth day of March, 1900, executed an assignment to the Landon-Sharp Machine Company of a certain application then pending; that subsequently thereto four patents were applied for and issued'as follows:

“No. 677,407, July 2, 1901, Tobacco Stripping Machine:
' No. 715,651, Dec. 9,1902, Tobacco Stripping Machine.
No. 715,652, Dec. 9,1902, Tobacco Stripping Machine.
No. 776,018, Nov. 29, 1904, Tobacco Stripping Machine.”

That all of- said letters patent, with the exception of No. 677,407, issued on July 2, 1901, were duly assigned by Frankenberg- to the Company; that until the fifteenth day of October, 1912, the Landon-Sharp Machine Company supposed and believed that this patent 677,407 had also been assigned to it in the same manner; that all the expense of obtaining this patent was paid by the Company; that the patent was, when issued, delivered to the Company and still remains in its possession; that the records of the patent attorney employed to procure the patent show that he rendered to the Landon-Sharp Machine Company a bill for the drawing and recording of an assignment of the said patent or of the application therefor; and finally that the defendant Frankenberg has heretofore admitted in the presence of a witness that it was his intention to assign all of the patents, and that he believed he had assigned this patent No. 677,407, but no record of such assignment can now be found.

The bill also alleges a prompt notice and demand upon Frankenberg, to wit, on the sixteenth day of October, 1912, and the refusal of Frankenberg to ássign the patent to the Company; that the appellee Frankenberg is employed by the appellee Automatic Stemmer Company, which is engaged, or is about to engage, in the business of manufacturing tobacco stemming machinery, and that upon Frankenberg’s refusal to execute the assignment the appellant notified the said Automatic Stemmer Company of the facts hereinbefore set forth and of the right of the appellant to have an assignment of the patent; that verbal notice was given on the sixteenth day of October, 1912, to the secretary of the Automatic Stemmer Company and that formal written notice to the same effect was served on the Automatic Stemmer Company on October 17, 1912, but notwithstanding such notice, and having full knowledge of appellant’s rights in the premises, the appellee Automatic Stemmer Company caused to be executed on the eighteenth day of October, 1912, and subsequently caused to be recorded in the United States Patent Office at Washington, an assignment by Frankenberg to the Automatic Stemmer Company of all his rights, title and interest in and to the said patent, which assignment recites that said Frankenberg is the sole owner of said patent; and that by virtue of such assignment the Automatic Stemmer Company is asserting title to said patent, to the great and irreparable injury of the appellant.

The bill prays specific performance by Frankenberg of his contract to assign United States letters patent No. 677,407, and that the Automatic Stemmer Company be required to join in such assignment, for an injunction restraining the assignment of the said patent to others, and for general relief.

It is argued that the contract is void for want of mutuality. While it cannot be enforced as to continuing the contract, it is we think, a valid contract, so far as carried out, but other questions are decisive of the case. The contract was abandoned by complainants, appellants, in 1906, so they allege in their bill. The contract having been abandoned by them they cannot enforce it. Cuppy v. Allen, 176 Ill. 162; Cheney v. Ricks, 168 Ill. 533. The allegations of the bill show that the patent is worthless and therefore an assignment will not be ordered. Johnson v. Steffens, 54 Ill. App. 193; Dunnon v. Thomsen, 58 Ill. App. 390.

Complainants having abandoned the contract and declined to promote the venture should not be permitted to tie up the defendants from the use of something they do not desire and refuse to use. They should have continued their efforts to make the patents a commercial success. Having abandoned it they may not after six years be heard to say it should be resurrected. The decree was right and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Sarah O’Connell, Plaintiff in Error, v. Chris Bunn et al., Defendants in Error.
    1. Intoxicating liquors, § 249

      —when instruction improper. In a suit by a widow for the loss of her means of support by reason of the sale of intoxicating liquors to her minor son, the giving of an instruction that under the laws of this State the conducting of a legally licensed dramshop is in all respects legitimate, held error.
    2. Intoxicating liquors, § 249*—when instruction erroneous. In a suit by a widow for the loss of support resulting from the sale of intoxicating liquor to her minor son, an instruction telling the jury that if they believe from the evidence that plaintiff during the time covered by the declaration received a sufficient sum of money from any of her other children which together with that received from her son was sufficient to and did support her in manner" suitable to her condition in life they should find defendants not guilty, held erroneous as not properly stating the law.
    3. Intoxicating liquors, § 249*—when instruction erroneous. In a suit by a widow for the loss of her means of support on account of the sale of liquor to her minor son, an instruction to the effect that if the plaintiff knowingly permitted the son to collect his wages himself and use the same as he saw fit she cannot recover for the wages spent by her son by reason of intoxication, etc., held erroneous as falsely assuming that plaintiff was attempting to recover her son’s wages.
    Error to the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    J. B. Searcy and F. M. Gunn, for plaintiff in error.
    Edward C. Knotts, W. H. Nelms and F. P. Drenan, for defendants in error.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This was an action on the case under the dramshop law, brought by plaintiff in error against defendants in error, to recover damages for an alleged injury to her memm of support by reason of the intoxication of her minor son, William O’Connell, .caused by the sale to him of intoxicating liquors by the defendants in error. The case was tried by a jury. The jury returned a verdict finding the defendants not guilty. A motion for a new trial was made and overruled and judgment entered on the verdict for the defendants, to reverse which this writ of error is prosecuted.

• The declaration charges that plaintiff is a widow and is the mother of one William 0 ’Connell, a minor son of seventeen years, with whom she resides, and on whom she has been dependent for a support and maintenance; avers that on to wit, the first day of February, 19D9, the said defendants sold and gave intoxicating liquors to the said William O’Connell which caused him to become intoxicated, and that on divers other days and times after that date the said defendants continued to sell and give to him intoxicating liquors which caused him to become habitually intoxicated from said first day of December, 1911, until the bringing of this suit; that whilst so intoxicated, and in consequence thereof, he spent and squandered his money and earnings for intoxicating liquors, bought of and from said defendants, and failed and neglected in consequence of his said intoxication to turn over his earnings to plaintiff which was his duty to do, and as he would have done except for said intoxication; and that as a result plaintiff was injured and damaged in her means of support.

The evidence showed that said William O’Connell worked in the mines and generally brought part of his pay home and gave it to plaintiff in error, and that plaintiff in error had another son and a daughter who also gave her a part of their wages;, soon after .said William O’Connell began to work in the mines he would get intoxicated nearly every pay day, and would spend all his money; that he was a customer' of the saloon of the defendants, and that his habits of intoxication were well known. The evidence also showed that on December 24, 1912, he became intoxicated and got into a fight and received personal injuries which laid him up about two or three weeks. On December 24, 19'08, the plaintiff in error gave the Superior Coal Company an order in writing to pay her sons Thomas and William O’Connell all wages earned by them from such company while in its employ.

Among the instructions given for the defendants were the following:

“No. 2. The court instructs the jury that you should not permit yourselves to be influenced in the slightest degree in favor of the plaintiff in this case or against the defendants, because of the fact that the defendants were engaged in the saloon or dramshop business in Macoupin county, Illinois, if you believe from the evidence they were so engaged; that under the law of this State the conducting of a legally licensed dramshop is in all respects legitimate, and the defendants and each of them are entitled to the same fair unbiased consideration at your hands as if they were engaged in any other business.”
“No. 8. The court instructs the jury that even though the jury may believe from a preponderance of the evidence that the defendants sold or gave intoxicating liquors to William O’Connell, and that the said intoxicating liquors materially assisted in causing said William 0 ’Connell to be and become habitually intoxicated, and that by reason of said habitual intoxication said William O’Connell wasted and squandered his wages and lost time from his work, yet if the jury further believe from the evidence that the plaintiff during the time by the declaration covered, received a sufficient sum of money from any of her other children which, together with what she did receive from her son, William O’Connell, was sufficient to and did support and maintain the plaintiff in a manner suitable to her condition in life, the jury will find the defendants not guilty.”
“No. 13. The court instructs the jury that even though the jury may believe from a preponderance of the evidence that the plaintiff during the period covered by the declaration was entitled to the wages of her son, William O’Connell; yet if the jury further believe from the evidence that the plaintiff knowingly permitted her said son to collect his wages himself, and use such wages as he saw fit, the same as an adult, then and in that event the plaintiff cannot recover for the wages so collected by her authority, and spent by her son by reason of intoxication, habitual or otherwise, if such is shown by the evidence.”

Instruction No. 2 should not have been given: 11 That unSer the law of this State the conducting of a legally licensed dramshop is in all respects legitimate, is a matter which the jury had no right to take into consideration in their deliberation. The business is a recognized subject for regulations by the police power of the State. Horan v. Cooke Brewing Co., 178 Ill. App.. 653. The eighth instruction informs the jury that if they believe from the evidence that the plaintiff during the time covered by the declaration received a sufficient sum of money from any of her other children which, together with what she received from her son, William O’Connell, was sufficient to and did support her in manner suitable to her condition in life, they should find the defendants not guilty. The test is, was the plaintiff injured in her means of support by reason of sales of liquor to her minor son? The fact that -she received support from her other children would make no difference. She was entitled to the support of her minor son, and anything that diminished it affected her means of support. The thirteenth instruction is faulty in that, it overlooks the issue. The cause of action in the declaration is that the defendants sold intoxicating liquors to her minor son and caused him to become habitually intoxicated and that by reason thereof he lost time and squandered his money and that plaintiff was deprived of his earnings. The instruction falsely assumes that plaintiff is attempting to recover his wages. Complaint is also made of the refusing of certain instructions for the plaintiff. While we think they should have been given they were covered by other instructions given for her. For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Soholfield

text:
    City of Leroy, Plaintiff in Error, v. P. A. Guthrie, County Clerk, Defendant in Error.
    1. Clerks of courts, § 18

      —fees of clerk of County Court in eminent domain proceeding Toy city for local improvements. Under section 18 of chapter 53, Hurd’s R. S. 1911, relating to Fees and salaries (X & A. If 5619), the clerk of the County Court is not authorized in special assessment cases to tax $20 as costs for the exercise of the right of eminent domain and $10 as costs for each lot when the local improvement requires the exercise of the right of eminent domain hy the municipality.
    2. Municipal corporations, § 455*—costs in eminent domain proceedings under Local Improvement Act. In eminent domain proceedings by a city under the Local Improvement Act of 1897 (X & A. ITU 1388 et seg.), the statutory provisions relating to costs in proceedings under the Eminent Domain Act (X & A. 5152 et seg.) are not applicable.
    Error to the Circuit Court oí McLean county; the Hon. Homes W. Hall, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Leslie J. Owen and Stone, Oglevee & Franklin, for plaintiff in error.
    Miles K. Young, for defendant in error; W. B. Leach, of counsel.

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

   Mr. Justice Soholfield

delivered the opinion of the court.

The plaintiff in error, the City of Leroy, filed in the County Court of McLean county its petition under the Act concerning Local Improvements in force July 1, 1897, and the amendments thereto, (J. & A. 1388 et seq.) for the appointment of two commissioners to act with the president of the Board of Local Improvements in fixing a just compensation for private property to be taken for a sewer system for said petitioner and to assess the benefits resulting therefrom under said Local Improvement Act. The commissioners were appointed and made report as provided by said act. Said improvement contemplated the construction of said sewer system across thirty-four tracks of land of individuals.

A jury was impaneled and returned thirty-four verdicts fixing the just compensation to be paid for the lands taken and damages for the lands not taken in each instance at the same sum which had been determined upon by the commissioners in their report, the total of which was $72, and upon the return of said verdicts the court entered an order directing that the sum due for the lands taken or damaged be paid by petitioner, and upon proof of said payment that the petitioner was entitled to take possession of said property for the purpose of constructing said improvement, and thereafter the special assessment proceeding went forward in regular form to final judgment and all services were performed in connection therewith by the clerk as provided by law, and the court ordered that the petitioner pay the costs of said proceeding.

Costs in said proceeding were taxed by the clerk in the following manner:

“For services special assessment...........$ 10.00
For issuing warrant, 607 descriptions at 10^
each .................. 60.70
For eminent domain...................... 20.00
For each tract in eminent domain, extra 34
tracts at $10 each...................... 340.00
Fees of Jas. Reeder, sheriff, serving and re-
turning summons...................... 99.15
Fees of LeRoy Journal, printer........... 32.10
Fees of George W. Payne, commissioner... 50.00
Fees of Harry Lamant, commissioner...... 50.00
Fees of W. R. Flint, guardian ad litem.... 5.00
$666.95”

The petitioner made a motion to retax the costs, objecting to the following items of costs as taxed by the clerk in said proceeding, to wit:

“Eminent domain......................... $20.00
Each tract in eminent domain extra 34 de-
scriptions at $10 each................. 340.00”

The motion was denied.

The question involved in this case is whether or not the clerk of the County Court is authorized by that paragraph of section 18 of chapter 53 of the Statute (J. & A. ff 5619), which concerns services in special assessment cases, to tax $20 as costs for the exercise of the right of eminent domain and $10 as costs for each lot when the local improvement requires the exercise of the right of eminent domain by the municipality.

The Local Improvement Act provides for the improvement as therein provided, and section 12 (Hurd’s R. S. 1911, sec. 518, p. 407, J. & A. 1399) provides if the ordinance for the improvement requires the taking or damaging of property the proceeding for making compensation shall be as described in sections 13 to 33.

It was said in Rieker v. City of Danville, 204 Ill. 192, that the Eminent Domain Act cannot apply to the Local Improvement Act; they are entirely different classes of proceedings. They being “wholly different” the Eminent Domain Cost Act cannot apply to the Local Improvement Act.. The county clerk having taxed $20 for costs on the proceeding and $10 costs for each tract or lot, the court should have allowed the motion to retax and set aside the said, items of $20 and the $10 on each tract or lot, amounting to $360. The order of the County Court is reversed and the case remanded to the County Court with directions to retax the costs by striking therefrom said items.

Reversed and remanded with directions.


text:
    Harry C. Bunn, Appellant, v. Nettie B. Smith, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Harry C. Bunn against Nettie B. Smith to recover the sum of $1,800 as a real estate broker’s commission. The case was tried by a jury and at the close of plaintiff’s testimony the court directed a verdict for defendant. To reverse a judgment entered on the verdict, plaintiff appeals.
    Defendant and her two brothers owned a store building occupied by a certain company as a tenant. Plaintiff testified that he called defendant by telephone and conversed with her as follows: “I told her I had a customer who would pay $87,000 for the building; she said she couldn’t accept it; she said her brother had always told her that it was worth $90,000, and they ought to have it, she referred to Dudley, and she also said she wouldn’t feel right to take a less amount. I said if I get a customer who will give you $90,000 will you sell! .And she said she would, and I said all right.” After this conversation plaintiff testified that he had a talk with the manager of the store and procured the name of Mr. Smith, the vice-president of the company, and wrote to him; that Mr. Smith later called upon him and that he (Mr. Smith) finally made the remark: “I expect we will have to buy this building, you get Miss Smith (the defendant) to come to the store.” Plaintiff further testified that he then went to look for defendant and that Mr. Smith went to the store; that after the latter reached the store the manager called in the defendant and very soon thereafter he (plaintiff) entered the store and spoke to defendant and said: “I have been looking and telephoning for you,” and that she said: “I can sell to these people as well as you can. I didn’t tell you to sell my budding ; ’ ’ that he said: ‘ ‘Don’t you remember my offering you $87,000? ’’ That she said: “Yes, and I refused it;” that he said: ‘‘Didn’t you tell me you would take $90,000 and you said yes?” That she said: 1 ‘My price is $90,000 and I won’t give a commission;” and that he said: “If you sell it to those people you will have to pay a commission.” It appeared that some months later defendant and her brother sold the building to the company which occupied it as a tenant and of which Mr. Smith was vice-president.
    Abstract of the Decision.
    1. Brokers, § 7

      —when evidence insufficient to show employment. In an action to recover real estate brokerage commissions, evidence held insufficient to show any employment by the defendant to sell her property.
    2. Brokers, § 32*—necessity of employment. The mere fact that a real estate agent was instrumental in finding a purchaser who afterwards purchased the property from the owner at the price the latter told him she would take for it does not entitle the agent to a commission, unless he is able to show he was employed by her to find a purchaser.

      DeMange, Gillespie & DeMange, for appellant.
    Barry & Morrissey, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.


author: Me. Justice Scholfield

text:
    The First National Bank of Lincoln, Appellant, v. Harry E. Starkey et al., Appellees.
    1. Cbeditobs’ suit, § 11

      —when creditor's bill .will not lie to reach trust funds. By section 49 of. the Chancery Act (J. & A. 1Í 929) a creditor’s bill will not "lie to reach a fund held in trust when the trust or the fund has proceeded in good faith from some • person other than the judgment debtor.
    2. Cbeditobs’ suit, § 9*—when distributive share of legatee cannot be reached. A creditor’s bill will not lie to reach' the distributive shares of judgment debtors, as legatees under a will, before the order of distribution is made, where there is no fraud on the part of the executors and they have honestly and openly received the estate.
    Appeal from the Circuit Court of Logan county; the Hon.' Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    C. Everett Smith and Thomas D. Masters, for appellant.
    W. A. Covey, for appellees.

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

   Me. Justice Scholfield

delivered the opinion of the court.

This is a bill in chancery filed by the First National Bank of Lincoln, Illinois, the appellant, against Charles A. Nicholson and Harry E. Starkey, executors of the last will and testament of Aaron B. Nicholson, deceased, in their capacity as executors and also against other persons in their individual capacity to reach the distributive interests in the estate of one Aaron B. Nicholson, deceased, of Mary B. Nicholson and Albert B. Nicholson, to pay a deficiency decree obtained by appellant against Mary B. Nicholson and Oharles A. Nicholson in a foreclosure proceeding and a judgment obtained by confession against Charles A. Nicholson and Albert B. Nicholson. The bill alleges that on the second day of November, 1912, appellant obtained a judgment by confession- against Charles A. Nicholson and Albert B. Nicholson for the sum of $2,612.21, and that on the sixteenth day of November, 1912, the appellant in a foreclosure proceeding obtained a deficiency decree against Mary B. Nicholson and Charles A. Nicholson and that appellant had had execution issued on both judgments. The bill further alleges that on the third day of October, 1912, one Aaron B. Nicholson departed this life testate; that said will was duly probated in the County Court of Logan county, and by its terms he bequeathed his personal property, amounting to the sum of about $30,000, to the said Mary B. Nicholson, Albert B. Nicholson, and to Emma Howell, Elvira Shaner, Buth Ewing, Lillie E. Starkey and Edward B. Nicholson, residuary legatees, share and share alike; that appellee Charles A. Nicholson is the husband of the said defendant Mary B. Nicholson, and a brother of the defendant Albert B. Nicholson, and that the appellee Harry E. Starkey is a brother-in-law of the said appellee Charles A. Nicholson ; that by the terms and provisions of said will, said appellees are nominated as the executors thereof, and that upon the probate thereof, letters testamentary issued to them out of and under the seal of the Connty Court of Logan county, and that said appellees have since been acting and are now acting as the executors thereof.

The bill further alleges that at the time of the death of the said Aaron B. Nicholson, according to land records of Logan county, Illinois, he was the owner in fee of certain real estate, described in said bill and located near the city of Lincoln; that appellant has been informed the said Aaron B. Nicholson, sometime before his death, conveyed said premises by deed to the said Mary B. Nicholson; that the said Mary B. Nicholson for the purpose of hindering, delaying and defrauding appellant has refused to file said deed for record and that appellant does not know whether by said deed the said Mary B. Nicholson took a life estate or the fee, and is unable to ascertain.

The bill further alleges that said appellees are insolvent; that they are serving as executors, as aforesaid, without bond; that the said Mary B. Nicholson and Albert B. Nicholson, judgment debtors, as aforesaid, have no property of any kind or description, except their said distributive share coming to them as legatees under the terms of the last will of the said Aaron B. Nicholson, deceased, and, excepting as to the said Mary B. Nicholson, the said real estate supposed to have been conveyed to her in the lifetime of the said Aaron B. Nicholson, which is of small value and in which she has a homestead.

The bill further alleges that the said Mary B. Nicholson, Charles A. Nicholson and Albert B. Nicholson have stated that they proposed to prevent appellant from satisfying its said judgment out of their said distributive shares and that although appellant has applied to the said Charles A. Nicholson and Harry E. Starkey, as executors, for information as to the amount of the distributive shares due the said Mary B. and Albert B. Nicholson under the terms of the last will of Aaron B. Nicholson, deceased, and as to when they would apply to the County Court of Logan county for an order of distribution in said estate, the said appellees, as executors aforesaid, have refused to give appellant such information or any information with respect to such matters.

The bill further alleges and points out that under the laws of this State, said appellees, as executors of the last will of Aaron B. Nicholson, deceased, cannot at any time before the County Court of Logan county makes an order of distribution in said estate be garnishied, and that said appellees, as executors, are standing with and propose to aid the said Mary B. Nicholson and Albert R. Nicholson in preventing appellant from satisfying its said judgment claim against them, the said Mary B. and Albert R. Nicholson.

In so far as appellees are concerned, the bill prays that they may be required, at any time they apply to said County Court for an order of distribution of said personal property in said estate, to set up therein petition for said order, the said judgment claims of appellant against the said Mary B. and Albert R. Nicholson; that they give notice to appellant of the time when they shall apply to said County Court for such order of distribution, and that upon such order of distribution being made, they be required to pay to appellant the ascertained distributive shares of the said Mary B. and Albert R. Nicholson, or so much thereof as shall appear necessary to satisfy the amount of said judgments so held by appellant against said legatees, and that appellees be restrained from paying to the said Mary B. and Albert R. Nicholson, either upon partial or final distribution, any part of their legacies until the further order of court.

The executors demurred to the bill, the demurrer was sustained and the bill dismissed as to the executors.

The executors are trustees of the estate of the deceased and hold the estate in trust until an order of distribution has been made. The executors do not hold anything they have received from the judgment debtors. There is no fraud on their part and they have honestly and openly received the estate undei the will and the legatees are simply beneficiaries under the will. Ah executor is a trustee of the estate. By section 49 of the Chancery Act (J. & A. 929), a creditor’s hill will not lie to reach funds when the trust or the fund held in trust has proceeded in good faith from some person other than the defendants. The court properly dismissed the bill as to the executors.

Decree affirmed. .


text:
    City of Lincoln by W. W. Houser, Appellee, v. A. D. Thompson, Appellant.
    1. Municipal corporations, § 377

      —ivhen contract for local improvements invalid. A city cannot let a contract for a local improvement without an ordinance and without advertising for bids, and where it does so the contract is without authority of law and the allowance and payment by the city of the contract price therefor is unauthorized.
    2. Municipal corporations, § 419*—right to recover hade money paid on illegal contract for local improvements. Where a city lets a contract for street paving without an ordinance and without advertising for bids and the work is performed by the contractor and accepted and paid for by the city, any citizen may bring an action in the name of the City to recover back the money thus illegally expended.
    Appeal from the Circuit Court of Logan county; the Hon, Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Humphrey & Anderson, for appellant.
    McCormick & Murphy, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This is an action by the City of Lincoln, Illinois, on the relation of W. W. Houser, a taxpayer of said City, appellee, against A. D. Thompson, appellant, to recover the sum of $4,485.56 and interest, alleged to have been unlawfully paid by the City of Lincoln to the appellant on a paving contract. The case was decided on the pleadings. The appellee filed his declaration to which a demurrer was filed and overruled. Pleas were then filed to the declaration, to which demurrers were filed and sustained except the general issue to the common counts, which were withdrawn and judgment was entered by default and the damages assessed and judgment rendered. The errors assigned are, overruling the demurrer to the declaration and sustaining the demurrers to the pleas.

The facts and circumstances touching the making of the pavement and the payment of the amount in question here to the appellant are found and set forth in. the case of City of Lincoln v. Harts, 250 Ill. 273, and 256 111. 253. The City of Lincoln made a contract with appellant to pave Kickapoo street in that City between the railroad tracks and paid him out of the general funds of the City. The contract amounted to over $4,000. Two ordinances had been passed for the paving of this street, which had been declared void by the Supreme Court in the cause of City of Lincoln v. Harts, 256 Ill. 253. So far as this contract is based upon either one of these ordinances of course there can be no recovery, and the only question that remains is whether a municipality can let a contract without an ordinance and without advertising for bids to do work of this kind for this amount. Clearly the City had no right to do so as it was directly in conflict with the provisions of the statute in regard to local improvements, which prohibits a city from letting any such contracts in this way. The contract was without warrant of law and the allowance and payment by the City of the contract price therefor was unauthorized. The statute gives the right to any citizen to bring suit in the name of the City to recover for moneys illegally expended. That was done in this case and the judgment must be affirmed.

Affirmed.


text:
    Hayes Pump & Planter Company, Appellee, v. G. R. Lott and Harry M. Lott, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Hayes Pump and Planter Company against Gr. B. Lott and Harry M. Lott. The declaration consisted of the common counts with a sworn statement of the account sued on. To said declaration appellants filed a plea, and afterwards an amended special plea, therein pleading, in bar of the action, appellee’s contract with appellants, averring that in and by said contract appellee sold, to appellants the planter and supplies in question and assigned to appellants certain territory for the trade season; that said contract was entire; that appellee had breached the territorial provisions oí the contract, and that therefore it could not recover for the planter sold and delivered to appellants. Appellee demurred to said plea craving oyer, of said contract. The court sustained the demurrer and appellants excepted and elected to stand by said amended plea. Judgment on demurrer was entered in the sum of $518.32, to reverse which judgment this appeal is prosecuted.
    Wight & Alexander, for appellants.

      Abstract of the Decision.
    1. Sales, § 323

      —when plea in bar of suit for price demurrable. In an action for goods sold and delivered under a special contract, a special plea setting up in bar of the action a breach of a provision of the contract to assign to defendants certain territory, held wholly bad as being a plea in bar of the action and therefore demurrable.
    2. Sales, § 59*—when contract severable. A contract containing an agreement by the buyer to pay for goods sold and delivered and an agreement by the seller to assign to the buyer certain territory for a trade season, held severable and not entire.
    3. Sales, § 59*—when covenant in contract is independent. Where a contract contained an agreement by the buyer to pay for goods sold and delivered and also an agreement by the seller to assign to the buyer certain territory for a trade season, held that the agreement to pay for the goods was an independent agreement and that the territorial provisions were not conditions precedent to the agreement to pay for the goods.
    4. Sales, § 331*—amount of recovery. In an action for goods sold and delivered, where the only plea filed was a special plea in bar of the action and such plea was bad and so held on demurrer, held that the plaintiff was entitled to a judgment for the amount sued for in the declaration.
    Rayburn & Buck, for appellee.

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

   Mr. Justice Scholfield

delivered th¿ opinion of the court.


text:
    George E. Lewis and R. M. Scanlan for use of George E. Lewis, Plaintiffs in Error, v. W. E. Rayburn, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.

      Statement of the Case.
    Action by George E. Lewis and R. M. Scanlan for the use of George E. Lewis against W. E. Rayburn on a promissory note for $750. There was a plea of the general issue, with an agreement that all evidence competent under any good plea which could have been pleaded should be heard at the trial. A jury being waived the case was tried by the court and defendant had judgment. To reverse the judgment, plaintiffs prosecute a writ of error.
    The facts showed that the George H. Paul Company was engaged in selling Texas land and that plaintiffs were its agents and made an earnest money contract with defendant for the sale to him of one hundred and sixty acres of the land for $5,040, payable $1,680 at first payment and the balance in vendor’s lien notes. The $1,680 was paid by the defendant giving to plaintiffs his note for $750 for their commission on the sale .and a note to the George H. Paul Company for $939, due one year after the date of the contract.
    The land contract contained a clause that if defendant failed to pay any part of the earnest money when due, the. George H. Paul Company had the option to declare the contract null and void and the amount paid should be forfeited as liquidated damages. Defendant paid in services as subagent the sum of $685 on the $930 note, but for failure to pay the balance therein the Company forfeited the contract. Thereafter the plaintiff brought this suit on the $750 note.
    DeMange, Gillespie & DeMange, for plaintiffs in error.
    Jacob P. Lindley and W. W. Whitmore, for defendant in error.

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

   Mr. Justice Scholfield

delivered the opinion of the court,

Abstract of the Decision.

Brokers, § 67 —when consideration for note given for commissions fails. Where a purchase of land of real estate agents under an earnest money contract gave his note to the agents for their commissions and also gave a note to the agents’ principal as the first payment, and under the provisions of the contract the principal forfeited the contract for failure to pay the balance due on the latter note, held that the consideration for the note given to the agents failed and that the agents could not maintain an action therein, it appearing that the agents were not entitled to a commission under their contract with their principal until a cash payment had been made and the deed delivered.


text:
    Etta L. Hill, Appellee, v. Harmey B. Hill, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Rehearing denied November 6, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Etta L. Hill against Harmey B. Hill for separate maintenance. The bill alleged that the complainant was married to defendant on September 2, 1906; that she lived with him as his wife until about May 1, 1913, when he abandoned her without fault on her part; that since said time he has refused and neglected to treat her as his wife; that on September 3,1908, a male child was born to them, whose name is Glen Bernard Hill, who is still living; that he is now forcibly held and retained in the custody of defendant contrary to the wishes of complainant and contrary to a certain agreement entered into between them; and that defendant is an unfit person to have the care and custody of said infant son. The hill also alleged various acts of cruelty towards her on the part of defendant and that defendant in December, 1912, induced her to sign and acknowledge a certain contract, by the terms of which complainant and defendant were to reside separate and apart and by which defendant binds himself to pay complainant upon the execution of the same the sum of $50 and thereafter on the twenty-seventh of each and every succeeding month, the said sum of $50 for the support and maintenance of complainant, and by further provisions the care of the minor child, Grlen Bernard Hill, was provided for. It was charged that such agreement was procured by means of fraud practiced by defendant. The bill further charged that appellant enjoys an income of from $5,000 to $10,000 a year and that the complainant has no means, and that defendant failed to carry out the terms of his said agreement with her and that he forcibly took from her the said infant son, Grlen Bernard Hill. The prayer of the bill is that defendant be required to pay complainant a sufficient sum of money to enable her to defray the costs and expenses of carrying on her suit against him, and that the court find upon final decree that she was living separate and apart from'defendant without her fault; that she be given the custody of the minor child and a sufficient sum of money to enable her to live according to her station in life; that said contract be set aside and that defendant be enjoined from taking said minor child out of the jurisdiction of the Circuit Court of Sangamon county.
    The answer of defendant admitted the marriage, birth of the child, and that said child is in the custody of the defendant; denied that he is living separate and apart from complainant without her fault and averred that complainant is living separate and apart from him by reason of her own wrongful and improper conduct; and that by reason of her own wrongful and improper conduct he entered into the agreement pleaded in her bill of complaint in December, 1912, under which agreement complainant was to reside separate and apart from him and was to receive from him the sum of $50 each month for her support and maintenance and was to have in her charge, subject to the supervision of defendant, the said infant child, Glen Bernard Hill; denied that complainant was induced to enter into said contract by virtue of any fraudulent conduct or acts on his part, but averred that complainant entered into said contract voluntarily and with a full understanding of the terms and conditions thereof; denied that he has been guilty of improper conduct and cruel treatment with respect to complainant; denied that he is not a fit person to have the care and custody of the child and averred that complainant, owing to her condition of health, is not a fit person to have the care and custody of said child.
    Abstract of the Decision.
    1. Husband and wife, § 264

      —when evidence shows living apart without wife's fault. In a suit for separate maintenance, evidence held sufficient to sustain a finding that the parties were living apart* without the wife’s fault, where it appeared that they had lived to-' gether for six years and during that time the wife had been pregnant four times, which resulted in three miscarriages and one birth, that she underwent two surgical operations necessitated by birth of the child, which rendered her nervous and petulant, and that during those times the husband, instead of treating her with kindness and forbearance, was guilty of conduct which was cruel, unkind and shameful.

      A decree was rendered finding that complainant had sustained the allegations of her bill and that she was living separate and apart from defendant without her fault, and allowing her separate maintenance and the custody of the infant child, and decreeing that she be paid the sum of $50 per month. To reverse the decree, defendant appeals.
    Hardin W. Masters and Thomas D. Masters, for appellant.
    W. St. J. Wines, for appellee.

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

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

   Mr. Justice Scholfield

delivered the opinion of the court.

2. Husband and wife, § 212*—when separation agreement enforceable. Articles of separation making a provision for the wife should be upheld by a court of equity, if it appears that it was fairly and voluntarily entered into free from any sort of coercion,' duress or fraud, and it further appears that the provision for the wife was fair and equitable in view of the property of the husband, the needs of the wife and their station in life.

3. Husband and wife, § 223*—effect of separation agreement on right to maintain bill for separate maintenance. A decree of separate maintenance finding that the court had jurisdiction of the subject-matter of complainant’s bill and that she had the right to maintain the same,-7teZ<Z not improper because of the fact that the parties had entered into a separation agreement, where the contract was unfair and inequitable to the complainant, and it appeared it was executed under a misunderstanding on her part of its terms and meaning while she was in a nervous condition of mind brought about by the cruel and unkind treatment of the husband, and it also appeared that the husband had breached the contract by refusing to make payments for her support.

4. Husband and wife, § 243*-—when allowance for wife’s separate maintenance not excessive. A decree in a separate maintenance proceeding ordering the husband to pay the wife $50 per month, held not excessive where it is admitted by the husband that he enjoys an’income of $250 per month.

- 5. Husband and wife, § 239*—power of court in making aTlov)ance for wife. Fixing the amount of alimony in a separate maintenance proceeding rests in the sound discretion of the court, having reference to the conditions of the parties in life and the circumstances of the case.

6.. Husband and wife, § 264*—when finding as to custody of child sustained by evidence. In an action for separate maintenance, a finding that it would be for the best interest of an infant son that the wife have his custody, care and control, 7ield warranted by the evidence. . _


text:
    W. F. Hackman, Administrator, Appellee, v. City of Staunton and Staunton Telephone Company (Staunton Telephone Company, Appellant.)
    1. . Death, § 36

      —essential averments of declaration. In an action for wrongful death, the declarations must allege that the deceased left next of kin surviving.
    2. Masteb and sebvant, § 537*—essential averments of declaration. In an action for wrongful death based on a violation of the Act of 1903 (J. & A. IT 5317) forbidding the employment of children under sixteen years in any dangerous occupation, the declaration must allege facts necessary to show that plaintiffs intestate was one of the class entitled to the benefit of the statute.
    3. Masteb and sebvant, § 523*—when amended declaration sets up new cause of action. In an'action against an employer for the death of a servant based on a violation of the Act of 1903 (J. & A. 1i 5317) prohibiting the employment of children under the age of sixteen years in dangerous occupations, an amended declaration supplying the deficiencies of original declaration by alleging the age of the deceased and that he left next of kin surviving him, held to allege a new cause of action.
    4. Pleading, § 231*—right to plead de novo. The right to plead de novo rests in the discretion of the trial court, and the discretion will not he interfered with except on a showing of gross abuse.
    5. Pleading, § 355*—when permitting withdrawal of plea not an abuse of discretion. Action of court in permitting a defendant to withdraw a plea of general issue and to file a demurrer to the declarations, held not an abuse of discretion.
    Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding. Heard "in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Williamson, Burroughs & Ryder, for appellant; J. S. Clarke and H. H. Willoughby, of counsel.
    Truman A. Snell, for appellee; Edward C. Knotts and Peebles & Peebles, of counsel.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This is an action on the case brought by W. F. Hack-man, administrator of the estate of Hobart Hackman, deceased, against The Staunton Telephone Company and the City of Staunton jointly for the alleged wrongful death of said Hobart Hackman which occurred July 20, 1912. The original declaration consisting of two counts was filed May 23, 1913. To this declaration the defendants filed a plea of general issue. On October 18, 1913, the defendants by leave of court withdrew their plea of general issue and filed a demurrer to the declaration, which demurrer was sustained as to the defendant City of Staunton and overruled as to the defendant Staunton Telephone Company. Plaintiff then by leave of court amended his declaration and dismissed his suit as to the City of Staunton. To this amended declaration the defendant Staunton Telephone Company filed first the plea of general issue and second and third the pleas of the statute of limitations. Plaintiff moved to strike the pleas of the statute of limitations from the files, which motion was overruled. Plaintiff then demurred to the pleas of the statute of. limitations and the demurrer was sustained. During the trial of the case, plaintiff by leave of court again amended his amended declaration. Defendant demurred to this amended declaration as amended which demurrer was overruled, and defendant then filed his plea of general issue and pleas of the statute of limitations.

Plaintiff demurred to the pleas of the statute of limitations and the demurrer was sustained. At the close of the plaintiff’s testimony the court directed a verdict of not guilty as to the first count, and the trial proceeded upon the second count of plaintiff’s amended declaration as amended. The jury returned a verdict finding the defendant guilty and assessing the plaintiff’s damages at two thousand dollars. Judgment was entered upon the verdict and the defendant appealed.

The errors assigned that we think it necessary to consider are, sustaining the demurrer to defendant’s pleas of the statute of limitations and refusing to direct a verdict for the defendant.

The second amended count as amended of plaintiff’s declaration is the only one necessary for us to consider, as there were no errors assigned in the court directing a verdict as to the first count. 'The second count of the declaration as originally filed contained no allegations as to the age of plaintiff’s intestate, Hobart Hackman. This second count was based upon the Act of 1903 (J. & A. If 5317), which forbids the employment of children under the age of sixteen years in any occupation dangerous to their lives or limbs. The statute relates only to the employment of children under sixteen years of age; consequently all facts necessary to show that plaintiff’s intestate was one of a class entitled to the benefit of such statute must be pleaded. The age of deceased was a material and essential fact necessary to be proven in order to entitle bim to the benefits of the statute. Swift & Co. v. Rennard, 119 Ill. App. 173-179.

The second count as originally filed also failed to allege that deceased left next of kin surviving him. The allegation is a material one, as without them no cause of action exists. West Chicago St. R. Co. v. Mabie, 77 Ill App. 176; Foster v. St. Luke’s Hospital, 191 Ill. 94; Lake Shore & M. S. Ry. Co. v. Hessions, 150 Ill. 546. By the amendments to the second count the plaintiff was permitted to allege the age of the deceased at the time of his injury and also what next of kin he left surviving. These amendments stated a new cause of action and were made more than one year after the cause of action occurred. The statute of limitations were good pleas, and the demurrer should have been overruled and the peremptory instruction given to find for the defendant. Plaintiff complains about the ruling of the court in permitting the defendant to withdraw its plea of general issue and demurrer to appellee’s declaration, and upon the subsequent ruling of the court on pleadings.

The right to plead de novo has always rested in the discretion of the trial court, and it certainly cannot be reversed except on showing the grossest abuse. We have examined the record carefully and find there was no abuse of that discretion. The pleas of the statute of limitations were good pleas, and after plaintiff amended his declaration the court should have permitted them to be filed. However, no cross-errors were assigned by plaintiff in this action of the court, and this matter is not before us.

For the errors indicated the judgment is reversed with direction to the court to overrule the demurrer to the pleas of the statute of limitations.

Reversed and remanded with directions.


text:
    Honora Gogerty, Appellee, v. City of Decatur, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Honora Gogerty against the City of Decatur to recover damages to plaintiff’s real estate caused by the lowering of the street in front of the property to make an underground railroad crossing.
    The declaration was in three counts. The first count, in substance, alleged that the City of Decatur made “large excavations and did cut out of said street and dig up the same with scrapers, spades and shovels, and other implements, so that the street is cut down from its original grade, to-wit, sixteen feet, .immediately in front of and contiguous to plaintiff’s premises on said North Jasper street, for the purpose of a subway under the tracks of a certain railway therein situate.” The declaration further charges that the plaintiff’s property and buildings have been much injured and damaged and the rental value thereof much impaired and lessened, and that by reason and in consequence thereof, the market value of plaintiff’s said property has been and is injured and is much depreciated, all caused and occasioned by the said defendant, and that such depreciation is special to said premises, and that by means thereof plaintiff’s premises have* become particularly worthless and of lessened value to her.
    The second count alleged that plaintiff was entitled to the peaceable enjoyment of her property, etc., without said premises being damaged or injured by the wrongful or illegal acts upon the part of the defendant which permanently and specially depreciated the value of said premises; and further alleged that an excavation was made which lowered the grade or surface in front of plaintiff’s premises on Jasper street, to wit, sixteen feet extending northward and southward one hundred feet in each direction, and by the means whereof, the right of egress from Jasper street to and from plaintiff’s premises was cut off and totally destroyed, and that she sustained special damage, etc.
    The third count of the declaration was a complete description of the premises, the change of grade, and stated that the plaintiff’s property had been specially and permanently damaged and that all of these acts were without the consent of the plaintiff. A general demurrer to the declaration being overruled, the appellant filed a plea of not guilty. To reverse a judgment in favor of plaintiff for two thousand dollars, defendant appeals.

      Abstract of the Decision.
    1. Municipal cobpobations, § 448

      —when suit for damages resulting from lowering grade of street not premature. An action against a city to recover damages to property by reason of lowering the grade of the street in front thereof, held not prematurely brought where the work in front of the property had been substantially completed and had progressed to such an extent as to obstruct ingress and egress at the time the suit was commenced.
    2. Municipal cobpobations, § 451*—when permitting jury to damaged premises not error. In an action against a city for damages resulting to property by lowering the grade of the street, permitting the jury to view the premises, held not an abuse of discretion and not error, it appearing that the jury were instructed that the view was not evidence.
    3. Evidence, § 365*—opinions. The qualification of witnesses to give their opinion is a question for the court in the first instance, but the weight to be given their opinions is to be determined by the jury, from the knowledge and experience of the witnesses and their capacity to form a judgment.
    4. Evidence, § 372*—persons qualified to give opinion as to value. All persons who are acquainted with property and have opinions of its value may give their opinions to the jury, together with their knowledge of the property and the facts upon which the opinions are based.
    5. Evidence, § 372*—when witnesses qualified to give opinion as to value of real estate. Witnesses held properly qualified to give their opinion of the value of real estate, where they stated that they were acquainted with the situation and location of the property and in a general way were acquainted with the value of real estate in the locality where the property in question is located.
    Baldwin & Carey, for appellant; James S. Baldwin and William J. Carey, of counsel.
    Whitley, Fitzgerald & McLaughlin, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.


text:
    Anna D. O’Harra, Plaintiff in Error, v. C. E. Graves and W. E. Stephens, Administrator, Defendants in Error.
    1. Wills, § 447

      —when settlement between legatee and heirs enforceable. Where upon a will contest a legatee entered into an agreement to take a less sum than the amount of her legacy, held that the settlement was of a disputed right and enforceable as a full satisfaction of her legacy in the absence of fraud.
    2. Trial, § 293*-—when rulings on propositions of law not error. Rulings of court on propositions of law cannot be held to be error where the parties were not entitled to a jury trial and therefore not entitled to the submission of such propositions.
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    S. P. Robinson, for plaintiff in error.
    Welty, Sterling & Whitmore and DeMange, Gillespie & DeMange, for defendants in error.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

The plaintiff in error, Anna D. O’Harra, filed her petition in the County Court of McLean county, praying that the administrator de bonis non, with will annexed of the estate of Abraham Stephens, deceased, be ordered to make an accounting and to pay her legacy as provided by said will.

Abraham Stephens died in December, 1908, leaving a will disposing of an estate of about $300,000. The residue was by the will given to be divided between the plaintiff in error, Anna D. O’Harra, Mary Ella Chapman, to each one-third, and the remaining one-third to the children of Richard Stephens, a brother of testator. The will was duly probated and after the will was probated, Addie Wooster, Fannie Westover and Abraham Squires, heirs at law of Abraham Stephens, filed a bill to contest the will on the ground of lack of capacity and undue influence on the part of Anna D. 0 ’Harra, the petitioner, and Mary Ella Chapman.

While the will contest was being tried by a jury an agreement was entered into by plaintiff in error and Mary Ella Chapman with Addie Wooster and Abraham Squires, the contestants, and the suit dismissed. By the agreement the petitioner in error, Anna D. O’Harra, and Mary Ella Chapman assigned to George L. Parker of Bloomington, Illinois, their legacies in trust, and upon payment to said trustee by the contestants or the administrator with will annexed to be appointed of $61,800, the said legacies and bequests given to the plaintiff in error and Mary Ella Chapman would be paid and satisfied in full and the receipt given by said trustee for the same would be a full receipt for said legacies. The money so paid to said trustee was to be distributed and paid out by him under the direction of the said Anna D. O ’Harra and said Mary Ella Chapman.

A decree was then entered confirming the will by agreement. The $61,800 was paid to the trustee by the administrator de bonis non from the funds of the estate, but some question arising as to the inheritance tax, $3,000, was withheld by the trustee from Anna D. O ’Harra and Mary Ella Chapman until the inheritance tax should be settled. The $61,800 was ordered by Chapman and O’Harra to be paid by the trustee— $25,000 to Mrs. Chapman and $15,000 to Mrs. O’Harra and the balance to their attorney. The residuary legacies amounted to about $71,000 each. 'The petitioner in error has actually received $12,000, but the entire sum agreed upon was paid to the trustee. The petition stated that petitioner had only received $15,000, Mrs. Chapman $35,000 and their attorney the balance of the agreed $61,800; that the remainder of the residuary legacy to her, about $58,900, that she has not received ought to be paid to her. The County Court ordered the accounting but denied the last part of the prayer. On an appeal the Circuit Court made the same order and she prosecutes this writ of error.

Error is assigned on the holding and refusing propositions of law. This was not a matter where the parties were entitled to a jury, hence there can be no error in the ruling of the court on the propositions, but the court held correctly as to the propositions. .

It is contended that a payment of a less sum than the legacy is only a satisfaction pro tanto. The settlement was of a disputed right. If the contest of the will had been tried, Mrs. O ’Harra and Mrs. Chapman, if defeated, would have received nothing, but by the settlement they made sure of, $61,800. Such settlements are favored and will be enforced. Smith v. Smith, (36 Ga. 184), 91 Am. Dec. 761; Adams v. Crown Coal & Tow Co., 198 Ill. 445.

The plaintiff in error having entered into the agreement and there being no fraud and it being a settlement of a doubtful right, she cannot now insist on having what the will gave her. There was no error and the decree of the Circuit Court will be affirmed.

Affirmed.


text:
    Polly Dunham, Appellant, v. Estate of Abraham Stephens, Deceased, Appellee.
    Wills, § 494

      —when portion of legacy remaining after reduction by compromise agreement becomes intestate estate. Where, upon a will contest, certain legatees entered into a compromise agreement with the contestants to take a less sum than the full amount of their legacies to avoid the litigation, and the money was so paid by the administrator with the will annexed to a trustee for the legatees as provided by the agreement, held that the money thus saved did not belong to the contestants, but became intestate estate and descended to the heirs.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Rehearing denied December 10, 1914.
    Livingston & Bach and Thurman, Hume & Kennedy, for appellant.
    DeMange, Gillespie & DeMange and Welty, Sterling & Whitmore, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This is an appeal from the order of the Circuit Court of McLean county, sustaining a demurrer filed by the administrator with will annexed, of the estate of Abraham Stephens, deceased, and certain of his legatees, to the petition of appellant, Polly Dunham, praying for an order of distribution. The petition sets up: (1) That appellant is an heir at law and a legatee under the last will and testament of Abraham Stephens, deceased; (2) the will of Abraham Stephens, deceased; (3) that Addie Wooster, Fannie Westover and Abraham Squires filed a bill in the Circuit Court to contest said will; (4) that petitioner took no part in said will contest; (5) that while the suit to contest the will was being tried and much of the evidence had been introduced the suit was compromised and a stipulation entered into between the contestants, Addie Wooster and Abraham Squires (the said Fannie Westover being dead) on one side and the defendants Mary Ella Chapman and Anna D. O’Harra on the other, which said stipulation was as follows:

“This agreement, made this 9th day of November, A. D. 1909, by and between Addie Wooster and Abraham Squires by Alfred G. Roberts, his curator, parties of the first part, and Mary Ella Chapman and Anna D. O’Harra, parties of the second part, Whereas said parties of the first part have heretofore filed a bill in the Circuit Court of McLean county, Hlinois, to set aside the will of the said Abraham Stephens, deceased, said will having been dated December 10, 1908. Whereas said parties of the second part, with other parties, were made defendants to said bill. Whereas it is the desire of the parties hereto to settle said litigation. It is therefore agreed by and between the parties as follows: First. That there shall be a decree of said Circuit Court confirming said will. Second. That said Mary Ella Chapman and Anna D. O’Harra do hereby assign to George L. Parker of Bloomington, Illinois, their legacies and devises given to them under said will, in trust, as hereinafter provided, that is to. say, that upon the payment to the trustee by the said parties of the first part, or the administrator with the will annexed of said Abraham Stephens to be hereinafter appointed the sum of Sixty-one Thousand Eight Hundred Dollars ($61,800) the said legacies and bequests given to the said Mary Ella Chapman and Anna D. O’Harra shall be deemed paid and satisfied in full; and the receipt given by the said trustee for the same shall be deemed a full receipt for said legacies and bequests.
“That the said money so paid to said trustee shall be distributed and paid out as per directions of the said Mary Ella Chapman and Anna D. O’Harra. Third. That the said Sixty-one Thousand Eight Hundred Dollars ($61,800) and the legacies given to Huida Ellen Gloyd, Bertha Gloyd, Balph Gloyd, Sherman L. Bobbins, Minor Kimball, Howard Kimball, arid Galen V. B. Gloyd, shall be paid by January 1,1911; and such portion of said sum of money and said legacies shall not be paid within ninety days of this date, shall draw interest at the rate of six per cent per annum after said ninety days, until paid; which interest, the parties of the first part, or the administrator with the will annexed, shall pay. Fourth. The court costs of said suit are to be paid by the estate of the said Abraham Stephens in due course of administration. This agreement signed in duplicate the day and year first -above written. The provision of the will relating to household goods shall stand. Mary Ella Chapman, Anna D. O’Harra, Addie Wooster, Abraham Squires.” (6) That pursuant to said stipulation a decree was entered confirming said will. The $61,800 was paid to George L. Parker, trustee, as provided in the above stipulation and ordered paid out by Mary Ella Chapman and Anna D. O’Harra, the two legatees. The will bequeathed $15,000 to Mary Ella Chapman and one-third of the residue; to Anna D. O’Harra one-third of the residue of the estate; and to the children of Bichard Stephens one-third of the residue of the estate. The legatees, Mary Ella Chapman and Anna D. O’Harra, are the two legatees who for $61,800 agreed that the will should be confirmed and their legacies paid by the payment of $61,800 to the trustee to whom the legacies are assigned.

The only question involved in this appeal is, whether or not the difference in the amount that Mrs. Chapman and Mrs. O’Harra would have received under the will and the amount for which they sold and assigned their legacies became intestate property, and descended to the heirs at law of Abraham Stephens.

The contention of appellee is that the compromise agreement between the parties settling the will contest suit effected a purchase of the legacies of Mrs. Chapman and Mrs. O’Harra, leaving the will to stand, under which agreement those two legacies were assigned to Parker in trust; that the purchase was not made for the heirs at law of Abraham Stephens, but for such persons as Mrs. Wooster and Abraham Squires should choose to designate; and that in no event could petitioner, having refused to contest the will, profit by the fruits of that contest; and that the contest having resulted in a decree of court confirming the will, and the will having made all the testator’s property testate, petitioner could and can demand only the specific legacy bequeathed to her by that will, and that no legacy bequeathed by the will having lapsed, there is and can be no intestate estate to descend to any heir at law.

The contention of appellee cannot be sustained. The stipulation contains no intimation that any person is to secure the benefit of the assignment of the legacies of Mrs. Chapman and Mrs. O’Harra to the trustee, unless it be inferred that the two contestants, who with the legatees signed the stipulation, are to be beneficiaries of the assignment. The contestants did not pay the $61,800, but it was paid from the funds of the. estate by the administrator de bonis non. No secret advantage or profit could be obtained by the administrator of the estate from the use of funds belonging to the estate, neither could the money be loaned or advanced to Addie Wooster or Abraham Squires for the purpose of making profit for themselves. The legacies did not lapse, they were paid for from the funds of the estate and a large sum thereby saved, to wit, the $15,-000 specific legacy and all of the two-thirds of the residuary legacies except such sum as was paid for the two residuary legacies plus the specific legacy. The money thus saved became intestate estate and should descend accordingly. The court erred in sustaining the demurrer and dismissing the petition, and the case is reversed and remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Elijah Anderson and John W. Anderson, Appellees v. A. P. Benjamin, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 373

      —when evidence insufficient to show completed contract of sale. Evidence held insufficient to show a completed contract for the sale of hay so as to authorize the buyer to recover damages for nondelivery, where no time was fixed for delivery and payment and the seller only agreed to sell the hay provided he could get his son to bale it, and the hay was never baled and the buyer never made a demand for it or offered to pay for it.

      Appeal from the County Court of McLean county; the Hon. Homes W. Hall, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Elijah Anderson and John W. Anderson against A. P. Benjamin to recover damages occasioned by the failure of defendant to deliver to plaintiffs a certain quantity of hay claimed to have been purchased by plaintiffs from defendant. The suit was originally brought before a justice of the peace and judgment was taken by default. Defendant appealed to the County Court and plaintiff recovered a judgment for fifty dollars. To reverse the judgment, defendant appeals.
    Lester H. Martin and Wesley M. Owen, for appellant.
    F. Y. Hamilton, for appellees.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

2. Sales, § 124*—when time for payment and delivery concurrent. Where contract is silent, the time of payment and delivery are to be concurrent.


text:
    George E. Black, Appellee, v. William H. Black, Appellant.
    1. Exchange of property, § 8

      —when evidence of value of property inadmissible. In an action where the issue was whether plaintiff made false representations concerning the drainage of lands exchanged, permitting witnesses for plaintiff to testify as to the value of the land, held error for the reason that there was no' such issue and that it was immaterial.
    2. Evidence, § 224*—when testimony of witness is hearsay. Testimony of a witness as to how much corn and oats were grown on a farm during a certain year should be excluded as hearsay where he states that he got his information from a certain book.
    3. Exchange of property, § 8*—when instruction as to false representations erroneous. An instruction that defendant would not be justified in relying on plaintiff’s representations concerning lands exchanged unless the defendant “did not have equal means of ascertaining the facts,” held erroneous.
    4. Instructions, § 7*—when must be accurate. Where evidence is in direct conflict, the instructions must be unambiguous and accurate or the judgment will be reversed.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.
    Le Forgee, Vail & Miller and Whitley, Fitzgerald & McLaughlin, for appellant.
    Crea & Housum and W. W. Reeves, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This is a suit on a promissory note for $7,800 given by appellant to appellee in settlement of a balance due on a trade of lands. The lands are located in Champaign and Douglas counties.

The declaration consisted of a count on a promissory note in the ordinary form and the common counts. The pleas are the general issue and a partial failure of consideration because of false representation as to the drainage of the land lying in Champaign county and a misrepresentation as to the time a note bearing seven per cent interest was to run. The case was tried by a jury which returned a verdict in favor of appellee and against appellant for $8,508.81. Judgment was entered upon the verdict and appellant appeals. The errors assigned are on the admission and rejection of improper evidence and the giving and refusing of instructions.

On the trial of the case the court permitted two witnesses, over the objection of appellant, to testify as to the valué of the one hundred and twenty acres in Douglas county. This was error, as there was no issue as to the value of that land and it was immaterial. The admission of this testimony, however, might be justified on the theory that appellant first introduced evidence on that question. If appellant made a good trade on the-Douglas county land and appellee paid more than it was worth, appellant was entitled to the benefit of his trade. Drew v. Beall, 62 Ill. 164; Antle v. Sexton, 137 Ill. 416. The court also, over the objection of the appellant, permitted the witness DeLong to testify how much corn and oats were grown on the farm in 1911. His testimony was objected to on the ground he was not testifying from his own knowledge. He was then asked where he got his information and stated that he got it from the book of the Baldwin Elevator Company. A motion was made to exclude his testimony and was overruled. This was error. The evidence was purely hearsay and should not have been admitted.

It is also urged that the court erred in giving appellant instructions 8 and 6 as modified. The concluding lines of those instructions, “did not have equal means of ascértaining the facts,” are erroneous. Appellant if he did not know the facts had the right to rely on representation if made to induce the trade. On the merits of the case we think the verdict and judgment are right, but the evidence is in direct conflict. Where the evidence is in direct conflict, the instructions must be ambiguous and accurate or the judgment will be reversed. Holloway v. Johnson, 129 Ill. 367; Junction Min. Co. v. Goodwin, 109 Ill. App. 144. For the errors indicated, the judgment will be reversed and the case remanded for a new trial.

Reversed and remanded.


text:
    Maggie M. Hidden, Appellee, v. William K. Baker, Jr., Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Maggie M. Hidden against William K. Baker, Jr., to recover damages for injuries suffered by her as a result óf a conspiracy entered into by the defendant with others to commit a criminal assault upon plaintiff. The defendant was sued alone. The plea was the general issue. Plaintiff had verdict and judgment for one thousand dollars. To reverse the judgment, defendant appeals.
    Abstract of the Decision.
    1. Assault and battery, § 22

      —when damages for wilful and. wanton assault not excessive. In an action to recover damages for an assault on a married woman at her home in the nighttime, where such assault was wilful and wanton and the result of a conspiracy, a judgment for one thousand dollars held not excessive.
    2. Damases, § 96*—when exemplary damages recoverable without proof of actual damages. Where an assault is wilful and wanton it is not necessary to prove actual damages in order to recover exemplary damages.
    The errors assigned by defendant were the rulings of the court as to admission and rejection of evidence, the giving and refusing of instructions and that the damages were excessive.
    The evidence showed that defendant and others after drinking intoxicating liquors went to the home of plaintiff and her husband after midnight and called for plaintiff’s husband to come out to the road where defendant’s companions were; that plaintiff’s husband went out to where they were and while he was talking to them the defendant entered plaintiff’s bedroom and made an assault upon plaintiff.
    James W. and Edward C. Craig and Jack & Whitfield, for appellant.
    E. J. Miller, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.


text:
    W. D. Smidt, Defendant in Error, v. J. C. Dubois, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 255

      —when booh of account admissible. In an action on an open account for sawing and hauling lumber for defendant, plaintiff's account hook held properly admitted in evidence, where he testified that the entries were true and just and that they were made each day at the mill on a hoard as the sawing was done and each evening transferred on the book.
    2. Tbial, § 71*—effect where witness has violated rule excluding witnesses. Ordinarily the party complaining should not he deprived of the testimony of a witness because the latter has violated a rule excluding witnesses from the court room; the witness should be punished for contempt.

      Error to the County Court of De Witt county; the Hon. Peed C. Hill, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by W. B. Smidt against J. 0. Dubois to recover $1,000 claimed to be due on an open account for sawing lumber and hauling. The declaration consisted of the common counts and the plea was the general issue. There was a verdict and judgment in favor of plaintiff for $545.95. To reverse the judgment, defendant prosecutes error.
    John Fuller, L. E. Stone and W. F. Gray, for plaintiff in error.
    A. F. Miller and E. B. Mitchell, for defendant in error.

      See Illinois Notes Digest, Yols. 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 Scholfield

delivered the opinion of the court.

3. Tbial, § 71 —discretion of court in permitting a witness to testify after violation of rule excluded witnesses. Action of trial court in refusing to allow a witness to testify after he violated a rule excluding witnesses from the court, held not an abuse of discretion.

4. Appeal and ebbob, § 1491*—when exclusion of-testimony harmless. Refusal to permit a witness to testify, held not reversible error where his offered testimony was in regard to a written schedule, and the schedule itself was the best evidence, and the failure to produce the schedule was unaccounted for.

5. Appeal and ebbob, § 1512*-—when improper remarks of court harmless. Remarks of court in refusing defendant to be represented by additional counsel in the case at the close of the examination of the jury, held not reversible error.

6. Appeal and ebbob, § 1500*—when limiting number of counsel harmless. Action of court at the close of examination of the jury in refusing to permit defendant to have other counsel appear for him in the case, held not reversible error, where it appeared that the person proposed as additional counsel thereafter took part in the trial and that defendant was ably represented by other counsel.

7. Account, action on, § 2*—sufficiency of instructions. Instructions singling out plaintiff’s book account and prominently calling the attention of the jury thereto, held bad.

8. Account, action on, § 2*—sufficiency of instruction. In an action to recover a sum claimed to be due on open account, an instruction eliminating the question of payment as a defense from the consideration of the jury, held bad.

9. Account, action on, § 2*—sufficiency of instruction. In a suit on an open account, an instruction held bad for the reason that it took away from the defendant the benefit of all circumstances proven which' would indicate payment.

10. Instbuctions, § 7*—when should be accurate. Where the evidence is in direct conflict, the jury should be accurately instructed as to the law.


author: Per Curiam.

text:
    John C. Hoxsey, Appellant, v. St. Louis & Springfield Railway Company, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by John 0. Hoxsey against the St. Louis & Springfield Railway Company to recover for personal injuries sustained by plaintiff by coming in contact with a wire of a certain telephone company which fell upon the trolley wire of defendant and became charged with electricity. On the first trial of the case the plaintiff recovered a judgment which was reversed and remanded on an appeal to the Appellate Court in 1711 Ill. App. 109, the cause for reversal being that the declaration did not state a cause of action and was insufficient to support a judgment even after verdict.
    After the cause was reinstated in the trial court, which was more than two years subsequent to the time of the injury, plaintiff amended the declaration by inserting therein certain additional averments. Defendant filed a plea of the general issue and a plea of the statute of limitations. A demurrer filed to the latter plea was overruled, and plaintiff electing to stand by his demurrer, judgment was rendered against him. To reverse the judgment, plaintiff appeals.
    Edward C. Knotts and Peebles & Peebles, for appellant.
    Rinaker & Rinaker and George W. Black, for appellee ; George W. Burton, of counsel.

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

   Per Curiam.

Abstract of the Decision.

1. Appeal and error, § 1725 —when decision on former appeal conclusive. The decision of the Appellate Court in a former appeal on questions of law involved cannot he reviewed and is binding on the parties and such court on a subsequent appeal.

2. Limitations of actions, § 53*—when amended declaration constitutes commencement of action. In an action for personal injuries, where the suit was brought within the prescribed time by the filing of a declaration which did not state a cause of action and an amended declaration was filed which for the first time stated a cause of action, the suit' is regarded as begun when the amended declaration was filed, and if the amended declaration is not filed within two years from the date of the injury, a plea of the statute of limitations is a good defense.


author: Mr. Presiding Justice McBride

text:
    Roley Wright, Defendant in Error, v. Chicago-Herrin Coal Company, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Williamson county; the Hon. Richard S. Farbatto, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Rehearing denied and opinion modified October 28, 1914.
    Statement of the Case.
    Action by Eoley Wright against Chicago-Herrin Coal Company, a corporation, to recover the value of coal alleged to have been removed by defendant from beneath lands owned by plaintiff. The defendant filed a plea of not guilty and also a plea of tender for the wrong done in the amount $42.35. The jury returned a verdict for plaintiff, and also in answer to interrogations specially found, that the fair cash market value of the coal at the top of defendant’s mine was ninety-five cents per ton, and that the cost of transportation per ton from the place it was mined to the top of the shaft was forty-five cents per ton. To reverse a judgment entered on the verdict in favor of plaintiff for $500, defendant prosecutes error.
    Abstract of the Decision.
    1. Mines and minebals, § 7

      —when finding as to cost of transportation of coal to top of mine warranted by evidence. In an action to recover the value of coal alleged to have been removed from beneath the land of plaintiff, held that a special finding of the jury that the cost of transporting the coal to the top of the mine was forty-five cents per ton would not be disturbed on the ground that the evidence showed the cost of transportation was more, where it appeared that according to the verdict plaintiff was allowed fifty cents a ton for the coal and that defendant made a tender of that sum per ton as the value of the coal.
    2. Mines and minebals, § 7*—when finding as to amount of coal taken contrary to evidence. In an action to recover the value of coal removed from beneath plaintiff’s land by defendant, a special finding that 1,000 tons had been thus removed, on a verdict based on such finding, held to be manifestly against the weight of the evidence where it appeared that the evidence as to the amount of coal taken was based on surveys made by three different surveyors, two of whom were experienced mining engineers and the other not experienced in surveying mines, and that the jury accepted the survey by the latter, which appeared inaccurate on account of the instruments used.
    Defendant urged as ground for reversal that the verdict and special findings were not sustained by the evidence.
    Denison & Spiller, for plaintiff in error.
    Neely, Gallimore, Cook & Potter, for defendant in error.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.