text:
    Thomas Brisch, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,880.
    1. Street railroads—evidence. Plaintiff’s intestate, while driving a loaded wagon over a crossing, was struck by an electric car and killed. Plaintiff’si testimony tended to prove that the motorman was negligent in propelling the car at a high rate of speed, not having the car under control and without sounding the bell, and three witnesses testified that the car was going at a speed of eighteen to twenty miles an hour. Defendant introduced evidence that the motorman rang the bell in ample time but that deceased disregarded the warning, that stopping appliances were employed and that the car was going at a speed of four to six miles an hour. Held, that the evidence was not clear that the car was under proper control, and a verdict for plaintiff was not against manifest weight of evidence.

      2. Instructions—preponderance of evidence. An instruction requiring the jury to determine from certain enumerated circumstances upon which side the weight of evidence is, is erroneous.
    3. Instructions—not referring to the-evidence. An instruction which does not require the jury to look to the evidence to ascertain a certain fact is properly refused.
    4. Street railroads—instructions. An instruction that if deceased saw or was aware of the approach of a car “at the time and place in question” no negligence is attributable to defendant, is misleading, since the question of whether a bell was rung or not is properly omitted only in case the car was seen by deceased in time to avoid the accident.
    5. Instructions—When assuming facts not in evidence. An instruction to find defendant not guilty if the jury believe that a motorman was led to believe that deceased would stop a wagon before going on the track is properly refused where there is no evidence tending to prove that fact.
    6. Damages—when not excessive. A verdict for $5,000 for causing the death of a teamster, forty-two years old, who had been in good health and who left a widow and four minor children is not excessive.
    Appeal from the Superior Court of Cook county; the Hon. Faelin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

      Oertiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed January 14, 1913.
    Rehearing denied January 28, 1913.
    James G. Condon and Watson J. Ferry, for appellant; Leonard A. Busby, of connsel.
    Caswell & Healy, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This action was brought for the benefit of the widow and next of kin of John Bauer, to recover damages sustained by them by reason of his death, which it is claimed was the result of the negligence of the appellant.

The trial of the cause resulted in a verdict and judgment in favor of appellee for $5,000. The accident resulting in the death of Bauer occurred on the 14th day of July, 1909, at the corner of Polk and South Clark Streets in Chicago. Appellee’s intestate was driving a team east on Polk Street, the wagon being loaded with crushed stone. As the wagon was crossing Clark Street, it was struck by a southbound electric street car of appellant. By the concussion Bauer was thrown from his seat on the wagon to the pavement, and died from the injuries received.

Bauer was forty-two years of age at the time of his death. He had been for six or seven years in the employ of Dolese & Shepard as teamster of a stone wagon.

The theory on which appellee seeks to recover, and which appellee’s evidence tends to prove, is that the motorman of the car was negligent in propelling it at a high rate of speed, not having his car under control, and without sounding its bell as a warning of its approach to the intersection of the streets. To substantiate this theory, appellee introduced four witnesses; one of them, however, did not see the car and wagon until the instant of the collision; the other three witnesses testified that the car was going at a speed of eighteen to twenty miles an hour.

The theory of appellant, supported by its evidence, is that warning was given by the motorman by ringing his bell when he saw that Bauer was intending to cross Clark Street, in ample time to give Bauer warning, and to enable him to stop his horses and avoid collision with the car, but that Bauer disregarded the warning and drove upon the track of the appellant in front of the car.

It appears from the evidence that when Bauer saw that the car was not under control and would strike his team, he endeavored to get out of the way of the car by turning his team to the south; the wagon, however, being heavily loaded, he was unable to get out of the way of the car. The evidence on both sides of the case tends to show that neither of the horses of deceased’s team was in the slightest degree injured, and that their harnesses remained intact. The evidence, we think, tends to show that the car struck the forward wheel of the wagon as the team was turned to the south, the fender of the car going under the wheel and causing the near or left-hand horse of the team to fall; and the car shoved the wagon and team along a few feet. The wagon was heavily loaded and thus tended to stop the car. Appellant’s testimony tends to show that the car, as it approached Polk Street, was going at a speed of four to six miles an hour; that its bell, was being sounded and that the motorman vigorously employed the stopping appliances of the car, and sanded the tracks as soon as he became aware that Bauer, instead of stopping his team, intended to cross the track.

The evidence is exceedingly contradictory, and it is apparently impossible to reconcile the testimony of the plaintiff’s witnesses with the testimony of appellant’s witnesses.

It is urged that the verdict is against the manifest weight of the evidence, and, therefore, the verdict and judgment should be set aside. Upon a careful examination of the evidence, we are unable to conclude that the verdict is manifestly against the weight of the evidence. In some respects the evidence for appellant is not reasonable. We cannot believe that the horses were struck by the car and still were uninjured. In our opinion the most reasonable evidence is that the car struck the forewheel of the wagon as the team was. turning to the south, and thus the main shock of the collision was given to the wagon, and that this threw Bauer from his seat to the pavement between the wagon and the car. We are not satisfied from the testimony that the car of appellant was under the control that it should have been as it was approaching the crossing at Polk Street, and upon a consideration of all the evidence we are unable to say that its manifest weight is against the verdict.

Appellant requested, but the court refused to submit to the jury the following instruction:

“In determining upon which side is the preponderanee of the evidence the court instructs you to take into consideration the number of witnesses testifying on one side or the other of a disputed point; the opportunities of the several witnesses for knowing the things about which they testify; their conduct and demeanor, while testifying, their interest or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements in view of all the evidence, facts and circumstances proven on the trial, and from all these circumstances determine upon which side is the weight or preponderance of the evidence.”

In our opinion this instruction was properly refused for the reason that it is misleading. It instructs the jury to take into consideration certain enumerated things in determining upon which side the preponderance of the evidence rested; then it closes with “and from these circumstances determine upon which side is the weight or preponderance of the evidence.” In our opinion the weight or preponderance of the evidence depended not only upon the circumstances referred to in the instruction, but upon all the evidence in the case as well. This instruction, or a very similar one, was condemned in Ryan v. People, 122 Ill. App. 461; see also Chicago Union Traction Co. v. Hampe, 228 Ill. 346.

Error is assigned and urged upon the refusal of the court to submit to the jury the following instruction:

“You are instructed that if the driver of the wagon saw or was aware of the approach of the street car in question, at the time and place in question, then no negligence is attributable to the defendant, Chicago City Railway Company, on account of any failure, if any, upon its part, to sound the gong upon the said car.”

We think this instruction was properly refused for the reason that it does not require the jury to look to the evidence to find whether or not the driver, Bauer, was aware of the approach of the car,—they are simply told that if the driver saw or was aware of the approach of the street car in question. The words “at the time and place in question” may mean several things and would justify the jury in saying or holding that if the driver of the wagon became aware of the approach of the car without the ringing of the bell, after it was too late for him to get out of the way of the car, the motorman was excused from ringing the bell in time so that the warning would be available. There was evidence that the deceased was looking at the car when his team was on the track, and one witness, Hammermeister, swore that the deceased was looking at the car just before he drove on the track. If the bell was rung too late as a warning, the instruction is misleading, as the driver may have been aware of the approach of the car at the time and place in question and still not aware of it in time to avoid the car, or in time to excuse the appellant from any negligence on account of failure to sound a gong. Even if under the testimony of Hammermeister the deceased saw the car in time to stop before he reached the track, we do not think that as a matter of law it can be said that there was no negligence in not ringing the gong. The crossing in question was a crowded crossing, and the deceased had just as much right to cross as had the motorman. The instruction does not mean and is not the equivalent of holding the law to be that, if the car was seen by the deceased in time to avoid the accident, it was immaterial whether the bell was rung, as held in Chicago Union Traction Co. v. Daly, 129 Ill. App. 519.

Error is predicated upon the refusal of the court to give instruction No. 12, as follows:

“You are instructed that if you believe from the evidence that while the defendant and its servants were, if they were in the exercise of ordinary care, all the surrounding circumstances at the time and place of the accident were such .that the motorman in charge of the car while thus in the exercise of ordinary care, was led to believe that the deceased would stop his wagon before coming upon the defendant’s tracks so as to allow the car to pass in front of him in safety and that the motorman thus relying upon such presumption attempted to drive the car so as to pass in front of the deceased in safety, but that nevertheless the deceased did not so stop his wagon but continued to drive upon the tracks so as to come into collision with the car, and if you further believe from the evidence, under the instructions of the court,' that the conduct of the deceased in that regard was a failure to exercise ordinary care for his own safety and that as a result thereof he was injured, then the plaintiff cannot recover in this case and you should find the defendant Chicago City Railway Company not guilty.”

This instruction, in our opinion, was properly refused on the ground that there is no evidence on which to base it, and it would, therefore, mislead the jury. It states that if the jury believe from the evidence the motorman was led to believe that the deceased would stop his wagon before going on the track, they should find the defendant, appellant, not guilty. As we read-the evidence in the case, there is no evidence tending to prove this fact. The .motorman testified that he did not rely upon this belief or assumption, but that when he first saw the horses he turned off the power and started to ring his gong; that when he first saw the horses they were moving slowly, and as he approached, they moved faster; and when they were within six feet of the track, the driver started to whip them. This evidence shows that the motorman was not led to believe that the horses would stop. This is the only evidence in the case which has any bearing upon the exact question as to what the motorman believed the deceased would do. The theory of the defense, as we understand the evidence, is that the motorman tried to stop and did all he could in that respect as soon as he saw the team, and that he did not “attempt to drive the ear so as to pass in front of the deceased in safety.”

Furthermore, instruction No. 14, given at the request of the defendant, covers the same ground as the instruction in question. Given instruction No. 15 covers in part the same ground.

Error is predicated upon the refusal of the court to submit refused instruction No. 15. Numerous other instructions given at the request of appellant, covered the question of negligence of the defendant and contributory negligence of the deceased, and we think no error was committed in refusing this instruction.

The evidence shows that the deceased left a widow and four children, the eldest being nine years and the youngest two years old. The deceased had always been in good health before he died. In our opinion the verdict is not excessive.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    Rasar & Johnson, Appellants, v. Harry Spurling, Appellee.
    1. Bbokebs—recovery of commission where negotiations discontinued. A broker is entitled to recover commissions, if he finds a buyer who is ready, able and willing to purchase the property on the terms of the original contract, or to whom his client finally sells the property upon other terms agreed upon by the latter and the purchaser.
    2. Bbokebs—discontinuance and abandonment of negotiations. In order to constitute an abandonment of negotiations between a broker and a prospective purchaser so as to defeat recovery of commissions, mere discontinuance for a short time is not sufficient, •but the evidence must also show an abandonment of all intention of purchasing the property.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Hogan & Wallace, for appellants.
    R. C. Neff and Edward E. Adams, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiffs against defendant to recover commissions alleged to be due from defendant to plaintiffs. The trial below resulted in a verdict and judgment agáinst plaintiffs, and they prosecute this appeal.

Numerous grounds are alleged as a cause of reversal, first, that the judgment is clearly and manifestly against the weight of the evidence, and second that the court erred in giving and refusing instructions. Owing to the fact that the judgment must be reversed on account of erroneous instructions, it is unnecessary' at this time to enter into a discussion of the weight of the evidence.

The record discloses that plaintiffs were employed by defendant for the purpose of finding a purchaser for certain property owned by defendant. Plaintiffs undertook to find such purchaser and entered into negotiations with several parties. The price for which the property was to be sold, by the original contract of employment, was forty-six hundred dollars; this price was deviated from, and plaintiffs were permitted by defendant to price the property at various prices during the attempted negotiations of sale, and were permitted at one time to price it as low as thirty-five hundred dollars; the price was afterwards raised to thirty-six hundred dollars. Defendant finally concluded a sale to the purchaser who was produced by plaintiffs.

The first" instruction given on behalf of defendant told the jury that before plaintiffs could recover it was necessary that they should show by a preponderance of the evidence not only that they had procured a purchaser, in accordance with their contract of employment, who was ready, able and willing to buy upon the terms expressed in the contract of employment, but that they must also show by a preponderance of the evidence that they were the efficient cause in effecting a sale of the premises according to the terms mentioned in the contract of employment, or on other terms agreed upon.' This instruction is not a correct statement of the law. Plaintiffs were entitled to recover if they found a buyer who was ready, able and willing to purchase the property on the terms of the original contract, or to whom defendant finally sold the property upon other terms agreed upon by the purchaser and defendant, and it was not necessary that a purchaser should be obtained who was ready, willing and able to purchase upon terms agreed upon by and between the plaintiffs and the -defendant. Hafner v. Herron, 165 Ill. 242.

The second instruction is also erroneous; this instruction told the jury that although plaintiffs had found a purchaser, they could not recover if there was no completion of the sale according to the terms of the contract of employment and there had been an abandonment of negotiations by the purchaser, even though defendant afterwards renewed the negotiations and finally completed a sale with the purchaser found by plaintiffs.

The mere fact that negotiations may have been discontinued for a short time will not defeat a recovery. In order to constitute an abandonment the evidence must not only show the breaking off of the negotiations but also an abandonment of all intention by the purchaser of purchasing the property. The record does not disclose such an abandonment. Rigdon v. More, 226 Ill. 382. This instruction is indefinite, vague and misleading. Instructions number three and four are also misleading and should not have been given.

For the errors in giving these instructions the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Edward L. Pegram, Appellant, v. Jesse K. Miser, Appellee.
    1. Usury—no defense where debt assumed by third party. -Where an indebtedness has been assumed by a third party as part consideration for a business, he cannot take advantage of the fact that the original contract ■ was usurious:
    2. Set-off and counterclaims—mutual account necessary. An arrangement to offset a partnership claim against an indebtedness of one of the partners does not affect the creditor of the latter unless he consents thereto.
    Appeal from the County Court of Macon county; the Hon. O. W. Smith, Judge, presiding. Heard in this court at the October term, 1911.

    Reversed and remanded.
    Opinion filed October 15, 1912.
    Buckingham & Gray, for appellant.
    Hill & Drew, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Prior to March 2, 1909, appellee and one Cain were in partnership, carrying on the business of coal, hay and feed. On that date Cain borrowed from appellant one hundred dollars, for which he executed to appellant a note for one hundred, seventeen dollars and fifty cents. Seventeen dollars and fifty cents of that amount was usury. This note was signed by appellee as surety for Cain. On this note Cain paid seventeen dollars and fifty cents. After that payment Cain and appellee dissolved partnership, appellee taking over the business and continuing therein. After the dissolution of the partnership appellee continued to make payments on the note executed by Cain and himself, and on January 4, 1910, the old note was taken up by appellee and a new note executed to appellant for sixty-two dollars and fifty-one cents; this note was signed by appellee alone and matured April 4, 1910, with interest at seven per cent. Appellee continued to make payments on the indebtedness until he had paid seventy dollars and eighty cents to appellant; this together with the seventeen dollars and fifty cents paid by Cain amounted to eighty-seven dollars and fifty cents paid on the indebtedness. After the dissolution of the partnership between Cain and appellee, appellee then formed a partnership with one Ward and continued the business. After Ward became interested in the business, appellant bought of the firm, through appellee, hard coal amounting to sixteen dollars and forty cents. By an arrangement between Ward and appellee, the coal was finally charged to appellee upon the books of Miser and Ward. On the eighth day of April, 1910, judgment was confessed on the note dated January 4, 1910, against appellee, in favor of appellant, for ninety-four dollars and thirty-nine cents, thirty-three dollars and thirty-six cents of which was for attorney’s fees. On application by appellee, the judgment was opened and appellee given leave to plead. Appellee set up as a defense the usury amounting to seventeen dollars and fifty cents in the original note, and claimed as a set-off the sixteen dollars and forty cents for coal purchased of the firm of Miser and Ward. The jury returned a verdict against appellant, in favor of appellee, for four dollars and thirty cents, upon which verdict judgment was rendered, from which this appeal is prosecuted.

It is insisted by appellant that the record discloses that a part of the consideration for which the business of Miser and Cain was taken over by appellee was that Miser, appellee, was to pay the note made by Cain to appellant and on which appellee was surety, and that by reason of appellee having assumed and agreed to pay this indebtedness, although the contract between Cain and appellant might have originally been usurious, appellee cannot take advantage thereof.' It is also contended by appellant that appellee is not entitled to claim as a set-off in this action the amount due for the coal purchased from the firm of Miser and Ward.

Appellee, on the other hand, denies that it was a part of the agreement or contract with Cain that he should pay this indebtedness, hut that Cain was insolvent and that he made his payments by reason of being surety on the note; also, that although the firm of Miser and Ward furnished the coal to appellant, appellee having assumed the indebtedness of Miser and Ward and having had the coal charged to his account, he therefore is entitled to set off that amount in an action on this note.

We are satisfied that the record sustains the contention of appellant, that appellee, under and by virtue of his contract with Cain whereby the business of Miser and Gain was turned over to appellee, assumed and agreed to pay the note executed by Cain and appellee, to appellant, and the payment of this indebtedness was a part of the consideration for turning over the partnership business of Miser and Cain to appellee. Appellee having assumed and agreed to pay that indebtedness as a part of the consideration for the business of Miser and Cain, it is immaterial whether the original contract between Cain and appellant was usurious or not, and although there may have been usury in the contract between Cain and appellant, appellee cannot take advantage thereof. Boylston v. Bain, 90 Ill. 283, 288.

There being no contention upon the part of appellee that at the time appellant purchased the hard coal, the partnership did not consist of Miser and Ward. Miser and Ward having furnished the coal to appellant, no agreement between them could affect appellant so as to permit appellee to off set the purchase price of the coal in this action. The law is too well settled in this state to permit of argument that before one debt or account can be off set against another, the accounts must he mutual between the parties to the action, and in an action against a person or partner individually the partnership debt cannot be allowed as a set-off, and no arrangement which might have been made regarding this account between Miser and Ward could in any manner affect appellant unless he consented thereto. Dameier v. Bayor, 167 Ill. 547.

The judgment, for the reasons above set forth, is so clearly and manifestly against the law and the evidence, that it must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Thompson

text:
    John Greer, Appellee, v. Finis E. Downing, Appellant.
    1. Bills and notes—maturity of demand note. An instruction that if a demand note which was negotiated a year after its date was so negotiated before demand, a set-off against the payee could not be urged against it is erroneous.
    2. Bills and notes—when question of set-off for the jury. It is for the jury to decide whether defendant has a set-off against the assignee after maturity of notes sued on for rent alleged to be due from the original payee, where the evidence is very conflicting.
    3. Judgment—trifling error. Where a judgment on notes is excessive by eleven cents, the maxim, de minimis non curat lex, should be applied.
    Appeal from the County- Court of Cass county; the Hon. Charles HC Martin, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied December 20, 1912.
    A. A. Leeper, for appellant.
    Neiger & Gordley, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Finis E. Downing, executed and delivered to J. D. Bussell two promissory notes. One of the notes is for $37.50, dated August 22, 1910, and is payable “on demand with interest at seven per cent, per annum after demand.” The other is for $35.50, dated May 20, 1911, due thirty days after date with interest at seven per cent, after maturity. The payee in the notes died August 4, 1911. His widow was appointed administratrix of his estate on August 8, 1911, and she indorsed the notes to John Greer, three or four days thereafter. Greer immediately demanded payment of the notes and brought suit against the maker before a justice of the peace to enforce their collection. From the judgment before the justice, Downing appealed to the county court, where a jury rendered a verdict against him, on January 5, 1912, for $75.56 on which judgment was rendered. Downing prosecutes this further appeal.

The first ground urged for reversal is that the court improperly instructed the jury and should have given other instructions in addition to those given. By agreement of counsel the court instructed the jury orally, and among other things the court told the jury, that the note dated May 20, 1911, was negotiated after maturity and was subject to the defense of set-off against it in the hands of Greer, the same as if it had not been negotiated and suit had been brought by the original payee; that if the note dated August 22, 1910, was assigned to Greer before demand made, then the defense of set-off could not be urged against that note. Complaint is made of that part of the charge, that applies to the note dated August 22d. We do not know of any case in which it has been held, that an indorsee of a demand note negotiated a year after its date, has been held to be a purchaser before maturity. That part of the charge was erroneous, both notes were indorsed after maturity. The jury found against the entire claim of set-off, since they rendered a verdict for the full amount of both notes. It is clear that the verdict was not affected by the erroneous part of the charge.

We have reviewed the contention of appellant although no objection or exception was taken to the instructions given, neither was there any request that the court should give any further instructions nor is it mentioned among the various reasons in writing, filed as a ground for a new trial, that the court improperly instructed the jury.

The defendant filed a set-off amounting to $148 by which he claimed the notes were paid and that there was a balance due him. The notes were assigned after maturity and the assignee took them subject to all defenses available against the payee. The set-off is for rent of a room rented to the payee by the maker of the notes at the rate of two dollars per month from May 26, 1905, to December 1907, and for eighteen months rent in 1910 and 1911, at the same rate. The defendant admitted he had been paid forty to forty-five dollars cash on the rent but, said he had. kept no book account of it although he had charged him up with the rent and that the charge for rent in 1910, and 1911, was made after the death of Bussell. Appellee testified that when he presented the notes for payment, he asked appellant if Bussell owed him anything and he replied, “No, sir, he did not owe me a cent,” and that he said he would pay the notes as soon as he could. This is denied by appellant. Appellee is corroborated by the improbability of a man executing notes to his tenant, if his tenant owed him such a large amount for rent for several years before the notes were given. There was also some evidence tending to impeach the reputation of appellant for truth and veracity. We think it was a question of fact peculiarly within the province of a jury to decide from the conflicting evidence whether appellant had a set-off against the notes. The verdict of a jury should not be disturbed by a reviewing court, when it has been approved by the trial court, unless the court can say the verdict is manifestly against the evidence. That we cannot say in the present case.

It is also assigned as error that the judgment is excessive. If the first note does not draw interest until it was presented for payment after Bussell’s death the judgment is excessive by eleven cents. This ground is not mentioned in the motion for a new trial and the amount is so small that the maxim de minimis non curat lex should he applied. If that had been suggested in the trial court it undoubtedly would have been remitted.

Finding no reversible error in the case the judgment is affirmed.

'Affirmed.


text:
    William H. Black, Appellee, v. J. H. Downs, Appellant.
    1. Pasties — waiver of irregularity in substitution. Alleged irregularity in the substitution of parties plaintiff after the beginning of suit on a note is waived where no motion is made for a discontinuance but the general issue is filed and a trial is had on the merits and the change in parties is in no way questioned.
    2. Continuance—absence of witnesses. In an action on a note it is not error to overrule defendant’s motion for a continuance because of the absence of witnesses where the affidavits in support of such motion show no diligence to get such witnesses into court and state that it is expected to prove by them that the payee sold the note to another, who sold it to an indorsee, and that both had notice that it was fraudulently obtained without consideration, where the question in issue is whether plaintiff was an owner before maturity and a holder in due course.
    3. Bills and notes—fraud and lack of consideration. A verdict is properly directed for plaintiff in an action on a note where there is no attempt to show that he had notice of the fraud in procuring it or of the absence of consideration, and the circumstances in plaintiff’s evidence tending to show lack of bona fides in the purchase are insufficient to sustain a verdict for defendant.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied December 20, 1912.
    M. J. Fitzgerald, W. B. McBride and Leahy, Saunders & Barth, for appellant.
    F. R. Wiley, for appellee; H. Hershey, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This suit was begun to the March term, 1911, of the Circuit Court of Christian County by the Citizens National Bank, plaintiff, against J. H. Downs and A. B. Donaldson, defendants. The declaration was filed to the said March term. On March 13, 1911, the time for the defendant to plead was extended to the second Monday of the term. On March 17th plaintiff was given leave to amend the declaration. On July 22d, leave was given plaintiff to amend the praecipe for summons by striking out the name “Citizens National Bank,” and to insert therein the name William H. Black, and on the same day an amended declaration was filed in which William H. Black appears as plaintiff in the place of the Citizens National Bank. On the 28th day of August, at the August term of the court, on the motion of the defendant Downs, the time of the defendant to plead was extended to the second Monday of the term. On the fourth day of September the defendant Downs filed the general issue, a plea of fraud and circumvention and a plea of total failure of consideration. There was a trial before a jury and the court instructed a verdict for the plaintiff on which judgment was rendered for $6,402 against the defendant Downs, who prosecutes this appeal.

This suit is brought to recover the amount of a promissory note executed by J. H. Downs to the order of A. B. Donaldson. The note is endorsed:

“A. B. Donaldson,
William McGinley, without recourse on me.
William H. Black,
Decatur, Ill.
“Pay American Mechanics’ Nat’l Bank of St. Louis, Mo. or order, Prior endorsements guaranteed Citizens National Bank, Decatur, Ill.
“Citizens National Bank,
“Geo. S. Connard, Cashier,
“Decatur, Illinois.”

It is insisted that it was error to permit a change of parties plaintiff, after the beginning of the suit. The record shows that leave was given plaintiff to amend the declaration generally and to amend the praecipe by substituting the present plaintiff. When the amendment had been made substituting the present plaintiff, the appellant asked for and was given time to plead. He then filed pleas and in no way questioned the change of parties, but went to trial on the merits. The appellee testified that he was the owner of the note at the time the suit was begun. The appellant by failing to in some way move for a discontinuance of the suit and by filing the general issue and going to trial on the merits, has waived whatever, if any, irregularity there was in the substitution of parties plaintiff. Chicago Legal News Co. v. Browne, 103 Ill. 317; Rothschild v. Bruscke, 131 Ill. 266.

Before the beginning of the trial a motion was made by the defendant Downs for a continuance. It was overruled and the appellant contends that the ruling was erroneous. The motion was based on the absence of witnesses. It appears from the affidavits filed in support of the motion that no diligence was used to get the absent witnesses into court. The appellant relied on their promise to be present. The affidavit states that it was expected to prove by the absent witnesses that Donaldson, payee in the note sued on, sold the note to one Ponting, and Ponting sold it to McGinley, and that Ponting and McGinley both had notice of the circumstances under which the note was given. The question in issue was whether Black was the owner of the note before maturity and was he a holder in due course. If the witnesses had been present and had testified to all that the affidavits set forth, it was immaterial to the issue and could not have changed the result. We have reviewed the contention of the appellant on the overruling of the motion for a continuance, although neither the affidavit for a continuance nor the ruling of the court thereon is contained in the bill of exceptions but they are only in the record of the clerk.

The evidence in the case shows that the note was fraudulently obtained from Downs without consideration, but it also shows that the appellee and the Citizens National Bank were both bona fide purchasers for value before maturity. The record shows that no attempt was made by the appellant to show that Black liad any notice either of the fraud in procuring or of the failure of consideration for the note. There are some things in the evidence of Black which tend to cast a shadow on the bona fides of his purchase of the note, but they are entirely insufficient to sustain a verdict and judgment in favor of the appellant. Bradwell v. Pryor, 221 Ill. 602. The court properly directed a. verdict. Clarke v. Newton, 235 Ill. 530; Village of Franklin Park v. Franklin, 231 Ill. 380. While the payment of this judgment imposes a hardship on him in that he received no consideration for it, yet appellee so far as the evidence discloses is a holder in due course.

Finding no reversible error in the cause the judgment is affirmed. -

Affirmed.


text:
    Thomas L. Pollock, Defendant in Error, v. W. J. Kinman, Plaintiff in Error.
    1. Pleading—plea in abatement. When the statute has not given defendant the right to plead over a plea in abatement and he takes the initiative and produces all his evidence on the issue of abatement and is defeated thereon, nothing remains but to ascertain the amount which the plaintiff is entitled to recover.
    2. Abatement— another action pending. When the parties are the same to two suits, the only diffprence being that the plaintiff in the one is the defendant in the other, both suits may be maintained at the same time, although such proceedings are unusual.
    3. Pbactioe—what constitutes commencement of suit. The issuing of a summons and its delivery to the sheriff is the beginning of a suit at law.
    4. Bill of exceptions—amendment. An amendment to a bill of exceptions may properly be made on notice within the time granted for filing it and before it is filed, to correctly show what transpired at the trial,
    5. Abatement-—repleader. Where defendant has proved the facts averred in a plea of abatement and moves to withdraw the plea and replead before default is taken or judgment rendered on the plea, it is error not to grant a repleader that substantial justice may be done.
    Error to the Circuit Court of Be Witt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Statement by the Court. On May 13, 1910, Thomas L. Pollock by a contract in writing agreed to sell and convey to William J. Kinman, certain described real estate in DeWitt County. In the contract Pollock agreed to furnish to the purchaser, on or before July 1, 1910, a complete abstract of title to said real estate, certified to by a competent abstractor, showing a good marketable title, free and clear of incumbrances except a certain mortgage for $1,500 which the purchaser shall assume and agree to pay with interest accruing after September 15, 1910, and to allow the purchaser a reasonable opportunity to have the abstract examined. The purchaser agreed to pay $2,500 for said real estate: $1,000 cash on September 15,1910, and the remainder by the assumption of said mortgage on the receipt of the deed. The agreement contains a provision that time is of the essence of the contract, and that if either party shall fail or refuse to comply with its provisions the party so failing shall pay to the other party five hundred dollars as liquidated damages for his failure or default. The contract is signed by both parties and under seal.
    The plaintiff, Thomas L. Pollock, on September 22, 1910, began this suit in the Circuit Court of DeWitt County, in assumpsit against William J. Kinman to recover the sum of $1,000. The declaration contains three special counts and after setting out the contract in haec verba, avers that on September 10, 1910, the defendant agreed with the plaintiff for a valuable consideration to extend the time of performance until to-wit, September 22, 1910, and that on that date the plaintiff tendered to the defendant an abstract showing a good marketable title free of incumbrances except the said $1,500, and a good and sufficient warranty deed, and demanded payment of said $1,000, etc., but that the defendant refused to accept and receive said abstract and deed and to make said payment and assume said mortgage, and avers that plaintiff from thence hitherto has been able, ready, and willing to carry out his part of the contract, and that the defendant has wholly refused to accept said abstract and deed and to pay the purchase price, to the damage of the plaintiff of one thousand dollars.
    The defendant filed a plea in abatement averring that on the same day that the writ of summons was, issued, on the 22d day of September, 1910, in the County Court of said DeWitt County, the defendant herein impleaded the plaintiff and issued his said writ, and afterwards filed his declaration therein against him in a plea of trespass on the case on promises upon the same identical promises, undertakings and written contract set forth in said declaration in the present suit mentioned; and the defendant avers that the said writ issued out of the said county court as aforesaid was served upon the said plaintiff herein prior to and before the writ in the present suit was served upon the defendant herein, as from the records and proceedings in the said courts will more fully appear; the defendant further avers that the parties to this suit and to the former suit in the said county court are the same, and that the said former suit is still pending in said court; and this the defendant is ready to verify and prays judgment that the writ in this suit be quashed. The plea is properly signed and verified. The plaintiff replied double: (1) that the promises in the declaration are not identical with those in the plea alleged (2) nul tiel record. No rejoinders appear to have been filed.
    A trial was had before the court without a jury on June 30, 1911, and propositions of law submitted. On July 14, 1911, judgment was rendered in favor of the plaintiff for four hundred dollars. The defendant prosecutes this writ of error to review that judgment.
    John Fuller and L. O. Williams, for plaintiff in error.
    E. J. Sweeney and E. B. Mitchell, for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

It is contended that the judgment upon the hearing on the plea in abatement should have been respondeat ouster. Section 45 of 'the Practice Act of 1907, provides: “If the issue on any plea in abatement is the truth of a statement in the return on the summons, or that the defendant is sued out of his proper county, or is not subject to suit in the county in which the suit is brought, or that the court has no jurisdiction over the person of the defendant, and such issue is found against the defendant the judgment shall be respondeat ouster.” None of the issues tendered by the plea come under any of the provisions of the Practice Act, which changes the common-law rule only as to the matters included within the statute. A defendant only has the right to plead over when the statute gives him such privilege. When the statute has not given a defendant such right and he takes the initiative and produces all his evidence on the issue of abatement and is defeated thereon, nothing remains but to ascertain the amount which the plaintiff is entitled to recover. Foreman Shoe Co. v. Lewis & Co., 191 Ill. 155; Italian-Swiss Agricultural Colony v. Pease, 194 Ill. 98.

The declaration filed in the case in the county court pleads the reverse in every particular as to the performance of the conditions of the contract by the parties thereto, from the averments of the declaration in this case. It pleads the same contract in haec verba that is plead in this case, and avers that the plaintiff in that case was always able, ready and willing to fulfil all the conditions of the contract agreed to be performed by him, and that the defendant had neglected and refused to perform each of the conditions agreed to be performed by him to the damage of the plaintiff of $1,000.

Both the parties to this suit were so anxious to have the luxury of á suit in court, that they each began a suit on the same day, each averring that he was always able, ready and willing to perform the conditions required of him by the written agreement, except that Pollock avers that Kinman waived the tender of the abstract at the date agreed upon, and each avers that the other neglected and refused0 to perform the things agreed to be done by him, and claims damages of the other for their alleged respective breaches of the contract.

When either party begins a suit to recover damages from the other for the alleged default of the defendant on a contract, the defendant might file a plea of set-off for alleged damages sustained by him through the default of the opposite party to carry out his part of the contract, and thus by Ms own cross-action recover damages from the plaintiff, if he is entitled thereto, since both alleged causes of action arise out of the same contract.

When the parties are the same to two suits, with the only difference that the plaintiff in one is the defendant in the other and vice versa, both suits may be maintained at the same time, although such proceedings are very unusual. Walsworth v. Johnson, 41 Cal. 61; New England Screw Co. v. Bliven, 3 Blatchf. 240; Colt v. Partridge, 7 Metc. 570; Crane v. Larsen, 15 Ore. 349. The defendant need not file his cross-action by way of set-off bnt may bring his original suit.

It was stipulated on the trial that Kinman, the defendant in this suit, brought suit in the County Court of DeWitt County against Thomas L. Pollock, the plaintiff in this suit; that a summons was issued in said suit, in the county court, on the 22d day of September, 1910, and that the same was served on said Thomas L. Pollock by H. L. Campbell, sheriff of DeWitt County on the 22d day of September, 1910; that a praecipe in this suit was filed in the Circuit Court of DeWitt County about thirty minutes before the praecipe was filed in the suit in the county court, and that summonses in both suits were issued on the same day, to wit, the 22d day of September, 1910; that Thomas L. Pollock, the plaintiff in this suit is the defendant in the suit in the county court, and that W. J. Kinman, the defendant in this suit is the plaintiff in the county court; that the summons in this suit was issued on the 22d day of September, 1910, and was served on the defendant on the 28th day of September, 1910, and that the suit in the county court is entitled, W. J. Kinman v. Thomas L. Pollock, No. 4253. It is also stipulated that the declaration and pleas in the county court are introduced in the evidence, that the declaration in this case, Pollock v. Kinman, in the circuit court, and the additional counts are in evidence, and that the contract sued on in this' case, and in the case in the county court, is in evidence. The stipulation and the pleadings in the two cases in evidence, show that the plea of former suit pending was proved with the exception that the suit in the circuit court was begun thirty minutes before the other. Neither the proof nor the stipulation shows which summons was first delivered to the sheriff. The issuing of a summons and its delivery to the sheriff is the beginning of a suit at law, Hekla Ins. Co. v. Schroeder, 9 Ill. App. 472; and while there might be a presumption that the summons was first isued for which the praecipe was first filed, we do not consider that material.

It is also assigned for error that the court erred in not permitting the defendant to withdraw his plea in abatement and to plead over. The record proper shows a motion entered and overruled before the judgment was rendered and an exception to the overruling of said motion. The original bill of exceptions signed by the trial judge, contained neither the motion to withdraw the plea in abatement and for leave to plead over, nor the recital of any judgment, but only that the court found the issues for the plaintiff and the assessment of damages with an exception thereto. Within the time granted for the filing of the bill of exceptions and before the same was filed, it was amended after notice to the plaintiff by incorporating therein the motion for leave to withdraw the plea in abatement and for leave to plead over; the order overruling said motion and an exception thereto by the defendant entered at the time of overruling said motion, and the judgment and an exception thereto.

Appellee insists that this amendment could not properly be made. The amendment was made within the time granted for filing the bill of exceptions and before it was filed. The record proper recites that the defendant entered a motion to withdraw his plea in abatement and for leave to plead, the overruling of the motion, an exception thereto by the defendant; a motion entered by plaintiff for a default of the defendant; that the defendant was called and defaulted although he was present in court asking for leave to plead, and that the court after hearing the evidence found for the plaintiff on the plea in abatement, assessed plaintiff ’s damages on the default and rendered judgment, to which the defendant then and there excepted.

The record itself shows that an exception was entered to the overruling of the motion to withdraw the plea in abatement and for leave to plead, and an exception to the judgment at the time it was entered, and the trial judge also recites in the order making the amendment, that from an examination of his “notes and writings made by him at the time of the hearing” that the matters contained in the amendment were by inadvertence left out of the original bill of exceptions. At the time judgment was entered, one hundred days from July 14,1911, were given to the defendant within which to file a bill of exceptions. The amendments were made on September 30,1911 from the record and notes of the judge, after notice to the plaintiff and before the bill of exceptions was filed. The amendment was properly made to correctly show what transpired at the trial. Chicago, M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607.

While the facts averred in the plea in abatement were substantially proved by the admissions of the stipulation and the pleadings offered in evidence, yet they were not a defense to the action for the reason that the plea tendered an immaterial issue. The court rendered a judgment giving substantial damages after hearing evidence on an immaterial issue after the defendant had moved to withdraw such issue and for leave to plead over. No sufficient reason appears for the refusal to permit the defendant to withdraw his plea in abatement and to replead, when the motion was made by the defendant before default was taken and before judgment was rendered on the plea in abatement. The hearing having been before the court it was error not to grant a repleader that substantial justice might be done. 11 Ency. of Pl. & Pr. 918. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


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    Harry Swigart, Appellee, v. D. L. Savely, Appellant.
    1. Instructions—preponderance of evidence. An instruction requiring the plaintiff to satisfy the minds of the jury by a preponderance of the evidence is properly refused.
    2. Instructions—giving undue prominence to particular facts. An instruction which singles out an inconclusive fact and directs a verdict thereon, or which particularly directs the attention of the jury and gives undue prominence to certain facts and portions of the evidence, is properly refused.
    3. Instructions—not duty of court to modify. The court may modify erroneous instructions requested, but it is not bound to do so.
    Appeal from the Circuit Court of De Witt county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Arthur F. Miller and Stone & Gray, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Appellee brought suit before a justice of the peace against appellant to recover damages for the breach of a contract concerning the sale of some hay; an appeal was taken from the judgment of the justice to the circuit court, where a verdict in favor of plaintiff was returned for sixty dollars, on which judgment was rendered.

The parties to the suit are both farmers. The evidence for appellee shows that appellee and Marshall Johnson met appellant and Win. Boss in the road. Appellant had some bales of clover hay in his wagon and Johnson wanted to buy it. Appellant said it was not for sale, but said he had twenty-two acres of tim.othy hay he would sell. Johnson replied he did not want timothy, but that he did want clover. Thereupon appellee spoke up and said he would buy the timothy. The evidence of appellee and Johnson is to the effect that appellee bought the hay at ten dollars per ton when cut and cured, and the twenty-two acres of timothy to be taken in the windrow after being cut and raked into windrows by appellant. Johnson after-wards bought two tons of this hay from appellee at sixteen dollars per ton and was given instructions by appellee to go and get the hay. Johnson went to appellant’s farm to get the hay under the directions of appellee and had a conversation with appellant. Appellant told him James Griffin was to cut the hay and for Johnson to let him know when to cut it. Griffin cut the hay a couple of days later and Johnson went to the farm to get the hay early in the morning following the day it was cut. When Johnson went to get the hay the morning after it was cut, appellant told him he had not taken the hay when it had been agreed to be taken and refused to let him have it, although he had not notified either appellee or Johnson when it would be or was cut. Johnson told him he would report to appellee, which he did immediately, and appellee went at once and asked appellant why he did not let the hay go to town; that if he didn’t want to let it go before getting his pay for it he would pay him. Appellant replied, 1 ‘ There is the gate and if you don’t go out I will throw you out. You have broken your contract.” Appellee tendered appellant pay for the hay in gold which seemed to make appellant so angry that he wanted to fight and called appellee vile names. The evidence also showed that the hay was worth at that time fifteen to eighteen dollars per ton.

Appellant’s defense is that he did not sell the hay to appellee but to Johnson and that it was to be taken in the afternoon .of the day it was cut; that he sold him green hay, not cured hay. In the record the evidence appears to be equally balanced as far as the number of witnesses is concerned, but there are always various matters seen by a jury and trial court, that affect the weight to he given to the testimony of witnesses of which an appellate court has not the benefit in weighing the evidence. We find no valid reason for interfering with the verdict of the jury, which was approved by the trial court.

Appellant also contends that there was error in the giving and also in refusing instructions. We have examined all the instructions and find no error in the rulings of the trial court. Two of appellant’s instructions were refused because they required the plaintiff to satisfy the mind of the jury by a preponderance of the evidence (Brady v. Mangle, 109 Ill. App. 172); others were properly refused because they singled outran inconclusive fact and directed a verdict thereon, and particularly directed the attention of the jury to particular facts and portions of the evidence, thereby giving them undue prominence. Moore v. Wright, 90 Ill. 470; Fargo & Co. v. Dixon, 63 Ill. App. 22.

Appellant insists the court erred in not modifying his erroneous instructions requested. While the court might modify them yet it is not the duty of the court to modify them. Nelson v. Fehd, 203 Ill. 120. The judgment is affirmed.

Affirmed.

Mr. Justice Philbrick took no part in this decision.


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    Jonas G. Bragg, Appellee, v. Hethcoat Chilcote et al., Appellants.
    1. Vendos and purchaser—receipt of abstract. Where a contract for the sale of land requires that the vendor shall furnish by a certain date an abstract of title showing a good title in the vendor, the vendee receiving an abstract after the date provided waives his right to rescind because the abstract was not furnished at the time agreed, but does not waive his right to rescind because the abstract does not show a good title.
    2. Vendos and purchases—when contract may be rescinded if abstract does not show good title. Where a contract for the sale of land gives the vendee a reasonable opportunity to have examined the abstract of title that is to be furnished by the vendor and is to show a good title, but contains no provision for an opportunity thereafter for the vendor to amend the abstract or cure defects in the title, if the title is not shown to be a good title by the abstract when it is furnished, the vendee has a right to rescind the contract, and it is immaterial that Ms attorney made suggestions as to how several of the defects could be cured, and sent a copy of his opinion to the abstracter.
    3. Vendos and purchases—abstract must show whether grantor is married or single. Where a contract for the sale of land requires that the vendor shall furnish an abstract of title showing a good title, the failure of certain conveyances in the abstract to show whether the grantors were married or single is a defect relating to the substance of the title and gives the vendee a right to rescind the contract.
    4. Vendos and purchases—rights of vendee when abstract is defective. Where a contract for the sale of land requires that the vendor shall furnish an abstract of title showing a good» title and does not give the vendor any right to cure defects after the abstract is furnished, if the abstract does not show a good title, the vendee may either treat the contract as inoperative and demand the return of payments made, or he may pay the balance of the purchase money and demand a deed of the premises.
    Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Statement by the Court. This is a suit in assumpsit begun by Jonas G. Bragg against Hethcoat Chilcote, Rebecca J. Chilcote and Roy J. Chilcote to recover $3,000 paid by plaintiff and interest thereon on the following contract:
    “This agreement made and entered into this 13th day of August, in the year 1910, by and between Hethcoat Chilcote and Roy J. Chilcote of Paris and Rebecca J. Chilcote, wife of Hethcoat Chilcote, of the County of Edgar and State of Illinois, parties of the first part, and Jonas G. Bragg, of the County of Douglas and State of Illinois, party of the second part.
    ‘ ‘ That the said party of the first part hereby sells to the said party of the second part, the following described real estate to-wit: 290 acres more or less, known as the Alec Helm farm and some small tracts adjoining, being all the land owned by Hethcoat and Boy Chilcote in sections 20, 21,' 28 and 29, town 15 north, range 10 east, of the 3rd p. m., situated in the County of Douglas, in the State of Illinois, for the sum of one hundred and fifty-five dollars per acre.
    “The said party of the first part hereby covenants and agrees to convey the said premises above described to the said party of the second part, by a good and sufficient warranty deed or deeds executed by the party of the first part, together with the wife of the said party of the first part in due form of law, which deed shall be delivered to the said party of the second part upon payment being made as herein provided, on or before the first day of March, 1911.
    “The said party of the first part also agrees on or before the 15th day of October, 1910, to furnish to the said party of the second part a complete abstract of title to said premises brought down to date, certified to by a competent abstracter, showing good title to the said premises free and clear of any and all encumbrances, parties of the first part to agree to execute deed and place in bank of Bragg, Helm & Co. within ten days, together with contract and allow the said party of the second part a reasonable opportunity to have said abstract examined.
    “The taxes of said premises for the year 1910 are to be paid by the said party of the first part. Possession of said premises is to be delivered to the said party of the second part on or before the first day of March, 1911.
    “On his part the said party of the second part agrees to pay the said sum of forty-four thousand nine hundred and fifty dollars (provided there are 290 acres of land) in the manner following. Check for one hundred dollars, cash in hand, upon the execution of this agreement, the receipt whereof is hereby acknowledged; bankable note for $2,900 due in thirty days from date of this contract, said note to be executed and delivered to parties of the first part when deed is executed and placed in the bank of Bragg, Helm & Co. Tuscola, Illinois, Which is to be on or before ten days from date of this contract. As part of the purchase price party of the second part agrees to execute note for $20,000 secured by first mortgage on above land, due on or before five years from March 1, 1911, with six per cent, annual interest, and the remainder in cash upon the first day of March, 1911, and on receipt of the deed as herein provided.
    “It is mutally agreed by and between the parties hereunto that the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties; that time is of the essence of this contract, and that either party hereto who shall fail or refuse to comply with the provisions of this contract, on his part to be performed, shall forfeit and pay to the other party the sum of'-dollars, which sum is hereby fixed and agreed upon as the liquidated damages to be sustained by either party from failure or default upon the part of the other.
    “The parties to these presents have hereunto set their hands and seals to this agreement, in duplicate, the day and year first above written.
    “Hethcoat Chilcote (Seal)
    Bebecca J. Chilcote (Seal)
    Boy J. Chilcote (Seal)
    Jonas Gr. Bragg (Seal)”
    The declaration contains only the common counts and the plea is the general issue. The case was tried by the court without a jury and a judgment rendered in favor of the plaintiff for $3,000 from which the defendants appeal.
    H. S. Tanner and Charles G. Eckhart, for appellants.
    Frank T. O’Hair, for appellee,
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The evidence shows that negotiations for the sale of the land were conducted by Hancock & England, real estate agents at Tuscola, Douglas County, Illinois. The appellee resided at Tuscola, and the appellants at Paris, Edgar County, Illinois. The parties were not personally acquainted and did not meet until after the contract was executed. The contract was executed at Tuscola by appellee and was carried to Paris by England to be executed by appellants. The appellee at the time of executing the contract paid one hundred dollars and executed and delivered a note for $2,900 payable to the order of Hethcoat Chilcote in thirty days. This note was transferred by Chilcote before it was due and paid by appellee at maturity. The contract provides “that time is of the essence of this contract.”

By the terms of the contract appellants were to furnish on or before October 15, 1910, “a complete abstract of the title to the premises, brought down to date, certified to by a competent abstracter, showing a good title to the premises, free and clear of any and all incumbrances.” Appellant did not furnish the abstract by October 15th but did furnish an abstract on November 13th and appellee received the abstract at that time. By receiving it he waived the default of the appellants in anything wherein they had made default prior to that time, but did not waive the provision that the abstract when furnished must show a good title to the premises in appellant. Appellee immediately gave the abstract to Mr. Chadwick, his attorney, for an opinion upon it. The abstract contained 154 pages and it took several days for the attorney to fully examine and make a report on it. On November 22d, the attorney made a written report, which was received by appellee on the 23rd, showing that there were many defects in the title, such as that in several of the deeds it was not shown whether the grantors were married or single, defective acknowledgments, outstanding tax titles and unreleased mortgages. As to a mortgage for $10,000 due December 29, 1910, there is proof tending to show that in August appellee agreed that he would advance the money to pay it out of the cash payment he was to make March 1, 1911, and accept interest on such advance payment. On November 25th appellee met Hethcoat Chilcote in the office of the real estate agents and stated that appellants had not lived up to the contract, that the title was not good and demanded his money back.' Appellee at the request of Chilcote went with him to the office of the abstracters. Appellee there stated that he did not believe the title could be perfected and Chilcote thought it could. After appellee left the abstract office, Chilcote directed the abstracter to do what was necessary to correct the title and to amend the abstract.

The attorney who examined the abstract, in his written opinion, made suggestions as to how several of the defects could be cured and sent a copy of his opinion to his client and one with the abstract to the abstracter. This the appellants argue was a request from the appellee for corrections in the title and amendments to the abstract. Appellee made no request to have the title corrected and did not authorize any one to make any such request for him, but immediately notified appellants that the title was not good and demanded his money back. This he did orally on November 25th, and on December 15th, by letter to appellants.

After the opinion of the attorney was rendered that the title was not good and after appellee had told appellants that the title was not good and demanded his money back, the abstracter between that time and February 25,1911, added twenty-four pages to the abstract after the original certificate to it made November 10th, inserted several pages in the body of the abstract, made corrections on the original sheets, added four pages of affidavits, removed the original caption at the head of the abstract and inserted a new one changing somewhat the description of the property. Hancock, one of the real estate agents who negotiated the sale, testified that he tendered the abstract as amended to appellee on February 25, 1911, and that appellee said he would not receive it; that his attorney had told him the title was not good. Appellee testified it was not so tendered him and that he never saw it as amended until March 1st, when the abstract and deeds executed February 24, 1911, were tendered to appellee by one of the attorneys for appellants and appellee again said he had decided not to take the land; that his attorneys had advised him in the fall that the title was not good.

The appellants did execute deeds and leave them at the bank within ten days from the execution of the contract, but it appears that there was an error in the description of the land in one of the deeds. After the opinion of the attorney on the abstract was rendered, appellants withdrew the deeds from the bank and on February 24,1911, executed new deeds, which were the deeds tendered on March 1st.

The contract gave appellee “a reasonable opportunity to have said abstract examined” that was to be furnished on or before October 15th, but contains no provision for an opportunity thereafter for appellants to amend the abstract or cure defects in the title. If the title was not shown to be a good title by the abstract when it was furnished, then appellee had the right at that time to rescind the contract because of the failure of appellants to furnish an abstract showing a good title. The waiver of the right to rescind because the abstract was not furnished at the time agreed was not a waiver of the right to rescind because it did not show a good title. 29 Am. & Eng. Ency. of Law 675. “A fee simple title is a merchantable title, that is, a title not subject to such reasonable doubt as would create a just apprehension. It is such a title as would be regarded as merchantable, so that persons of reasonable prudence and intelligence would be willing to take it and pay the fair value of the land.” Hale v. Cravener, 128 Ill. 414; Harding v. Olson, 177 Ill. 303; Attebery v. Blair, 244 Ill. 363.

The abstract as presented November 13th, did not show a good title in appellants and did show some serious defects in the title. The failure of certain of the conveyances in the abstract to show whether the grantors were married or single was a defect relating to the substance of the title, since if the grantors were married the wives, if they survived their husbands, would be entitled to dower after"the death of the grantors. The right to have dower assigned does not accrue until after the death of the husband. It was a substantive defect that could not well be remedied by a suit at law for damages under the contract. The covenant for a good title to be shown by the abstract, when it should be furnished was not dependent on any of the other covenants, but they were dependent on it. The abstract failing to show a good title when it was presented was a default in a substantial part comprehending the foundation of the contract. The appellee was, under the contract, entitled to know whether he was getting what he contracted for at the time fixed in the contract, or if he waived that time, then when-. ever he did accept the abstract, so that he might have the time provided for, except in so far as he waived it, after the title was shown to be merchantable to make preparation for the payment of the large amount of the purchase price. The contract did not provide that appellants might have any time after the abstract was furnished to cure defects; therefore the purchaser had the right after a reasonable time for its examination, the abstract not showing -a good title free and clear of any and all encumbrances—except the $10,000 mortgage due December 29,1910, which defect the appellee had waived so far as the abstract was concerned—• either to treat the contract as inoperative and demand the return of his payments made, or to pay the balance of the purchase money and demand a deed of the premises in the exercise of his legal option to take the defective title disclosed hy the abstract. Lancaster v. Roberts, 144 Ill. 225; Bishop on Contracts, sec. 828. Appellee did exercise his option to rescind the contract because the abstract did not show a good title, and did rescind it in November, immediately upon receiving the opinion of his attorney. He was not in default at any time, and appellants did make default in the performance of a substantial part of their contract. Appellee was entitled to recover the money paid on the contract; the judgment is therefore affirmed.

Judgment affirmed.


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    Emma Koch, Appellant, v. W. A. Sallee, Appellee.
    1. Husband and wife—wife may acquire property from husband. Since the Married Woman’s Act of 1874 a wife may acquire property from her husband.
    2. Husband and wife—wife’s property is not subject to disposal by husband. Since the Married Woman’s Act of 1874, if a husband, not being in debt, gives his wife money and she buys property with it, or if she buys property and her husband pays for it, or if he gives her property without prejudice to the rights of any of his creditors, the property is not subject to the disposal, contract or interference of the husband.
    3. Husband and wife—when husband may not dispose of wife’s property. Where a wife buys a piano which is paid for by the husband, and a person knowing that the wife claims it obtains it from the husband in a trade against her protest, in trover by the wife against such person, it is error to give a peremptory instruction to find for the defendant.
    Appeal from the City Court of Litchfield; the Hon. Paul Mo Wtlltams, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    T. A. Gasaway, for appellant.
    J. H. Atterbury, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit in trover begun by Emma Koch to recover from W. A. Sallee, the value of a piano, which the plaintiff avers she owned and the defendant converted to his own use. The court at the close of plaintiff’s evidence instructed a verdict for the defendant, on which judgment was rendered and the plaintiff appeals.

The evidence shows that in May, 1902, Emma Koch and her husband Julius Koch, were living together as husband and wife; that Julius Koch was running a cigar factory in which his wife worked; that Emma Koch ordered a piano from a catalogue through V. Hoffman; that the piano was shipped from the factory to Hoffman and he delivered it to appellant at the home of her husband; that the husband gave notes, secured by a chattel mortgage on the piano for the full amount of the purchase money, payable $25 per month until the full amount of the purchase price was paid. The notes were paid by Hoffman taking cigars from Julius Koch’s factory.

In 1910 the appellee several times went to the residence of appellant and her husband to buy or trade for the piano, and each time was told that it belonged to appellant. On one occasion appellee sought to trade to appellant’s husband a town lot for the piano and the husband said to him: “Go to my wife, my wife owns the stuff, and talk to her.” The appellee said to Mrs. B. F. Wood that he saw appellant and wanted to trade a lot in Arco Park and she wouldn’t trade; “you see I didn’t want to buy her piano, I wanted to trade for it.” In the spring of 1911, while appellant was absent from home on a visit to a daughter in St. Louis, the appellee made some deal with her husband by which he obtained the piano.

The appellee contends that under the rule announced in Farrell v. Patterson, 43 Ill. 52, and Reeves v. Webster, 71 Ill. 307, the peremptory instruction to the jury to find in favor of the defendant was properly given. These cases were decided while the Married Woman’s Act as passed in 1861 was in force. That act provided “That all the property belonging to any married woman * * * or which any married woman, during coverture, acquires in good faith, from any person other than her husband by descent, devise or otherwise * * * shall notwithstanding her marriage be and remain during coverture her sole and separate property under her sole control and be held, owned, possessed and enjoyed by her the same as though she was sole and unmarried; and shall not be subject to the disposal, control or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband.” In 1874, the Married Woman’s Act was revised and the clause “acquires in good faith from any person other than her husband” was entirely omitted. As the act now is she may acquire property from her husband. If he, not being in debt, gives her money and she buys property with it or she buys property and the husband pays for it, or if he gives her property without prejudice to the rights of any of his creditors, the property is not subject to the disposal, control or interference of her husband. R. S. chap. 68, sec. 9; Grondenberg v. Grondenberg, 112 Ill. App. 615; Eden v. Bohling, 69 Ill. App. 307; Morey v. Wiley, 100 Ill. App. 76; Racine Wagon & Carriage Co. v. Roberts, 54 Ill. App. 515.

The evidence in the record shows that appellant bought the piano and it was delivered to her in 19Ó2, although her husband paid for it; and that appellee knowing that appellant claimed to own the piano, got it from appellant’s husband against the protest of appellant. Under such a state of facts, it was error to give the peremptory instruction to find for appellee.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    John Y. Chisholm, Trustee, Appellee, v. First National Bank of Leroy, Appellant.
    1. Bankruptcy—evidence admissible to show preference was unlawful. .Where a grain company used the proceeds of a sale of its elevator to pay a debt to a bank, in an action by its trustee in bankruptcy to recover such amount from the bank as an unlawful preference, evidence by farmers who had sold grain to the company that their checks had not been honored by such bank when presented after the sale is incompetent to show that the payment of the debt was an illegal preference, and does not show that the bank had knowledge of the transactions with the farmers, but such evidence is competent as against payments to the bank after the checks were presented, if such payments were not made in the usual course of business or were made for the purpose of giving the bank á preference.
    2. Bankruptcy—when statement by agent of preferred creditor is inadmissible. Where a grain company sells its elevator and pays the proceeds to a bank in payment of a debt, and its trustee in bankruptcy sues the bank to recover such amount as an unlawful preference, evidence that the assistant cashier of the bank informed his brother that the company had sold its elevator has no bearing upon the issues.
    3. Bankruptcy—when evidence establishes insolvency. Where a grain company sells its elevator and applies the proceeds in payment of a debt due a bank, and its trustee in bankruptcy sues the bank to recover such amount as an unlawful preference, evidence that the company had received grain in storage from farmers, had sold it, deposited the proceeds with the bank and that the farmers had not received pay for the grain, is competent as tending to show that the company was insolvent, if there is evidence that the bank had knowledge of the insolvency at the time it received its preference.
    4. Bankruptcy—not presumed that creditor receiving payment lenew it was a preference. In an action by a trustee in bankruptcy to recover as an unlawful preference an amount received by a bank in payment of a debt, an instruction that the law presumes that the bank had no reasonable cause to believe a preference would be created by the payment of the debt, and the jury should act on such presumption unless it is overcome by a preponderance of evidence, states the law correctly and is not covered by an instruction informing the jury what the plaintiff must prove by a preponderance of evidence but not informing the jury what the presumption of law is in such a case.

      5. Bankruptcy—illegal preference. Where a grain company sells its elevator and applies the proceeds to paying a debt due a bank, the bank cannot contend that even if it knew the company was insolvent at the time of the payment it was not an illegal preference if the company was insolvent when it began doing business with the bank some months prior thereto, where the company had sustained heavy losses and the sale of the elevator was not in the usual course of business but a sale forced by the bank.
    6. Witnesses—when evidence of impeachment may he explained. Where a witness is asked, on cross-examination to lay a foundation for impeaching evidence, if he had not had a certain conversation, and he denies having had it, after the impeaching witness has testified that a conversation was had but not in the language of the question, the impeached witness is entitled to testify in rebuttal as to his version of the conversation.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Rehearing denied December 20, 1912.
    Leslie J. Owen and Barry & Morrissey, for appellant.
    Livingston & Bach, E. D. Riddle and Welty, Sterling & Whitmore, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action of assumpsit brought by John Y. Chisholm, trustee in bankruptcy of the Clark Grain and Elevator Company, against the First National Bank of Leroy, to recover the amount of an alleged unlawful preference under the provisions of the Bankruptcy Act. The declaration contains several counts alleging in various ways that while the Clark Grain and Elevator Company, hereinafter called the Grain Company, was insolvent and within four months prior to its being adjudicated a bankrupt, the defendant received from it a transfer of property or the payment of money to the amount of $10,000 which it applied on the indebtedness of said Grain Company and that, at the time of the transfer or the payment of the money, defendant had reasonable cause to believe that it would thereby obtain a preference over other creditors of the same class contrary to the Bankruptcy Act. A jury returned a verdict in favor of plaintiff for $8,815 on which judgment was rendered and the defendant appeals.

The Grain Company, a corporation organized under the laws of Illinois, had been engaged, prior to November, 1910, in buying and selling grain at Argenta. On November 1, 1910, it sold its elevator at Argenta and purchased one at Leroy for $12,500 paying $6,000 in cash and giving a mortgage on the property for $6,500. It also leased another elevator at Leroy and one at Empire. It began the operation of these elevators on November 4, 1910, and on that day made a deposit of $1,000 with the defendant in a general check and deposit account, known as the Leroy account. On November 21st, it borrowed $1,000 from the defendant giving its note therefor and opened a second check and deposit account called the Empire account. The accounts of the Grain Company at .the defendant bank were overdrawn much of the time. The Leroy account was continuously overdrawn from January 17th, to February 9th. On February 1, 1911, the Grain Company borrowed $5,000 from the bank for which it gave its note payable on demand. The Grain Company continued in business until March 22nd and was declared an involuntary bankrupt May 15, 1911. The Empire account was continuously overdrawn from February 23rd, to March 20th, when the overdraft in that account amounted to $1,438.59.

The Leroy account was continuously overdrawn from February 14th, the overdraft then being $5,746.68. On March 18th the overdraft was $4,027.51; it varied from February 14th, to March 20th, from $3,500 to $6,769.87. On March 20th, the Grain Company sold its elevator and a crib of corn to Simeon Crumbaugh from whom it had bought the elevator, and received two checks, one for $6,368, the other for $2,337, which were turned over to the defendant in payment of the $5,000 note and interest and the balance $3,657.50 deposited in part payment of the overdrafts in the Leroy and Empire accounts. Other money was deposited on March 21st, reducing the overdraft to $300.25.

The questions involved in the case are (1) was the Grain Company insolvent; (2) did the defendant have reasonable cause to believe the Grain Company was insolvent; and (3) did defendant receive money from the Grain Company in payment of its debts while the defendant had reasonable cause to believe the Grain Company was insolvent within four months prior to the adjudication in bankruptcy.

It is stated in the argument for defendant: “As a matter of fact, it (the Grain Co.) was insolvent at the time it opened its account with appellant but its condition was not known to appellant until after March 20, 1911.” The proof clearly shows that when the Grain Company began business at Leroy the only assets it had were the equity in the elevator and $1,385. The company at that time owed Thayer So Co. a note for $5,000 with interest from July, 1910, and had corn contracted at Argenta on which it lost $2,400. After buying the elevator the Grain Company expended $1,171 in improvements on it. The leased elevator in Leroy burned February 13, 1911, with only five hundred dollars insurance on the contents, the draft for which was received by the defendant. The loss resulting from the fire was between six and seven thousand dollars. The Grain Company sustained heavy losses on corn sold in December, 1910, and January, 1911. Clark, the president of the Grain Company in December, 1910, used $3,025 of the company’s money in paying a debt of the H. C. Clark Grain Co. in Oklahoma for which the Grain Co. was in no way responsible and this was a total loss as the party for whom it was paid was not financially responsible.

The owner of the leased elevator that burned, causing such a large loss to the Grain Company, was George Dooley, the vice president of the defendant. At the request of Taylor,- the cashier of defendant Clark immediately after the fire borrowed $1,065.75 on a $5,000 life insurance policy on his own life, which was used in reduction of overdrafts after the bank had already taken the $5,000 and $1,000 notes from the defendant. In December, 1910, the Grain Company borrowed $2,500 from Boyd of Indianapolis,- for which its note was given and the money was deposited in the bank a few days before the payment was made on the Oklahoma debt. Shortly before the sale of the elevator to Crumbaugh, the Grain Company at the demand of the defendant, that the Grain Company’s indebtedness should be reduced, borrowed another sum of $2,000 from Boyd which was paid to the bank on its overdraft. For several days before the elevator was sold, the bank, through Dooley, its vice president, and Taylor, its cashier, urged that it be given security and that its indebtedness and overdrafts be paid. The Grain Company offered the bank a second mortgage on the elevator, stock in the Grain Company and insurance policies on the life of Clark, but the bank insisted that the elevator and corn be sold and the proceeds applied on the indebtedness. The bank began and conducted the negotiations, which lasted several days, for the sale of the elevator to Crumbaugh. The evidence shows that the sale was forced through by the defendant, and that the defendant urged Crumbaugh to offer $12,000 for the elevator, that a few months before he had sold for $12,500 and on which $1,171 had since been expended by the Grain Company in improvements. After the sale of the elevator and the corn was agreed upon, the parties went to Hr. Owen, an attorney, to make the conveyance. Clark testified that Owen told the parties—Taylor representing the bank, Crumbaugh, and Clark representing the Grain Company—before the deed was signed, that if there were any other creditors the transaction would not stand, unless there was other property remaining to satisfy the other creditors, and Clark said there was no other property, and that after this statement the deed was executed and the checks drawn and credited on the indebtedness. This statement of Clark is denied by Taylor and the stenographer of the attorney —the testimony of Taylor being that Clark said the company had grain enough to pay all its debts and have nine hundred to one thousand dollars left. There is evidence also that the bank had notice that there was other indebtedness; Clark testified that he told Taylor, the cashier, on March 13th that the company owed Thayer $5,000 and Boyd $2,500. This, however, is contradicted by the cashier.

All the witnesses who testify regarding the making of the deed and the payment of the money fix the date as Monday, March 20th, and the checks and deed bear that date. The transcript of the record which contains a copy of the defendant’s accounts with the Grain Company has the credit, resulting from the money received on these checks, on March 17th followed by an entry of a deposit of $980 on the 18th, and one of $1,895 on the 21st and the payment of several checks on the 18th, 20th and 21st. No explanation of this discrepancy is offered by defendant nor any showing made as to the source of the last two deposits.

The defendant claims that the court erred in permitting a number of witnesses, farmers, who had sold grain to the Grain Company and received checks, some on March 20th and others on March 21st, to testify over objection, that they held checks on the defendant issued by the Grain Company, which are unpaid, and that they had been presented for payment on the days of their respective dates, but apparently subsequent to the sale of the elevator which was on the morning of the 20th. This evidence was incompetent to show that the application of the Crumbaugh checks to the .payment of the indebtedness of the Grain Company was an illegal preference and did not tend to show that the defendant had any knowledge of transactions between the Grain Company and the farmers to whom they were issued, unless they were presented before the sale of the elevator, but they were competent as against the application of any payments applied on the Grain Company’s indebtedness to the bank subsequent to their presentation which were not received in the ordinary course of business and without any intention of the Grain Company to give the defendant a preference, if any such were made. The evidence does not show from what source or under what circumstances the deposit of $1,895 on March 21st was received and made, nor whether it was before or after the grain was bought for which checks were issued on that day. Some of these checks were left at the bank on March 20th, the statement being made to the parties leaving them that they would be paid if money should be deposited that could be applied to their payment. The presentation and refusal of payment by the defendant of these checks was competent evidence against the defendant to show that the Grain Company was indebted to the parties presenting them and that the defendant had knowledge of such indebtedness if the same were presented before the deposit made on March 21st, if it be made to appear that the deposit on March 21st, was not made in the usual course of business or was made for the purpose of giving the defendant a preference and the defendant had reason to believe the Grain Company was insolvent, but it was not competent as to the application of the proceeds of the property sold Crumbaugh for the reason they were transactions subsequent to the sale of the elevator.

The assistant cashier also testified that on March 20th after the money had been received for the purchase of the elevator he telephoned to his brother asking him if he had sold his corn and telling him he would like to see him; the brother asked if the Grain Company had sold out and the assistant cashier told him it had sold to Crumbaugh. This evidence was admitted over objection. This was the statement by an agent of the defendant simply reciting that the Grain Company had sold its elevator and it had no bearing on the issues in the case.

The court also permitted proof to be made that the Grain Company had received grain in storage from farmers, had sold it, deposited the proceeds with the defendant and that the farmers had not received pay for the grain. This evidence was competent and proper as tending to show that the Grain Company was insolvent if there was evidence to show that appellant had reason to believe the Grain Company was insolvent at the time the elevator was sold and the proceeds applied on the indebtedness. The material question was, did the defendant know or have reason to know that there were other creditors, and that the Grain Company was insolvent because of such other creditors, without evidence tending to prove such knowledge; this evidence was immaterial and it was immaterial how the indebtedness arose.

Taylor, the cashier, was asked on cross-examination to lay a foundation for impeaching evidence, if he had not said to E. C. Baldwin that Clark said to him that the Grain Company “had started with a capital of $7,500 and that it was all borrowed money and that Clark had lied to him about his financial condition.” Taylor denied having had any such conversation. Baldwin over the objection of the defendant testified he did not have the conversation with Taylor in the language of the question; that he didn’t say “he had lied,” but he said he came there with a capital of $7,500, and it was nearly all borrowed, and that this conversation was prior to March 27th. Taylor was recalled in rebuttal to deny or explain this conversation with Baldwin. After Baldwin had testified to the conversation, Taylor should have been permitted to give his version of it.

The evidence is in direct conflict as to whether the appellant knew the Grain Company was indebted to anyone except to it and on the mortgage it owed on the elevator. The evidence of the assistant cashier as to the telephone message to his brother was prejudicial before a jury in a case of this kind; the admission of this prejudicial evidence and the refusal to permit Taylor to give his version of the conversation with Baldwin require a reversal of the case.

The court refused the following instruction asked by the appellant: “You are instructed that the law presumes and it is your duty to presume, that the defendant had no reasonable cause to believe a preference would be created by the payment of the note and overdraft and you should act upon and enforce this presumption of the law, unless it has been overcome by a preponderance of the evidence.” The first instruction given for the appellant told the jury what the appellee must prove by a preponderance of the evidence but did not tell the jury what the presumption of law is in such a case. The instruction announces a correct presumption of law and should have been given. Helbig v. Citizens’ Ins. Co., 234 Ill. 251, aff’g 138 Ill. App. 115. Error is assigned on the giving and refusing of other instructions, but we find no error in the rulings of the court in that regard.

The appellant contends that even if the Grain Company was insolvent and the appellant knew it at the time the elevator was sold and the money applied in payment of its debts, yet this is not an illegal preference because the Grain Company was insolvent when it began doing business with appellant. We cannot agree with this contention for the reason that the Grain Company sustained very heavy losses after November 4th, and the sale of the elevator with the crib of com was not in the usual course of business but was apparently a sale forced by the appellant; if the appellant knew of such insolvency or had reasonable ground to believe the Grain Company was insolvent, before it caused the Grain Company to sell its assets and apply them to the payment of the debt to the bank so that the sale was made for the purpose of applying the proceeds on the appellant’s debt, then the appellant obtained an illegal preference. In re Mohr Contracting Co., 157 Fed. 469; In re V. & M. Lumber Co., 182 Fed. 237; Schmidt v. Bank of Commerce, 15 N. M. 470.

The question of how the last two deposits came to be made, and if they were made in due course of business, what the rights of the parties are with reference to them has not been argued and we express no opinion concerning them, since the cause must be reversed and remanded because of the errors indicated and there may be additional evidence upon another trial. The judgment is reversed and the cause remanded.

Reversed and remande,d.