text:
    Duboc Paper Company, Appellee, v. E. P. Flint, trading as E. P. Flint & Company, Appellant.
    Gen. No. 22,908.
    1. Frauds, Statute of, § 16

       — when oral promise is collateral and not original promise. An oral promise for the payment for merchandise is a collateral and not an original promise where credit is given on the seller’s books, and bills for the goods are regularly rendered after delivery to the debtor, and it is immaterial that a duplicate statement of the account sent to the debtor was mailed to the guarantor with words in writing, placed thereon by the seller, that it was guaranteed by the guarantor.
    2. Frauds, Statute of, § 69* — when letter by one making oral guaranty satisfies. Where a letter written by one making an oral guaranty for the payment for merchandise subsequent to the making of such oral guaranty can be construed as indicating a clear intent to put in writing such promise made before delivery of the goods, the Statute of Frauds is satisfied.
    3. Frauds, Statute of, § 69* — when letter written by one making oral guaranty insufficient to satisfy. A letter written by one making an oral guaranty for the payment of goods subsequent to the making of such oral guaranty, acknowledging receipt of the creditor’s letter in regard to a bill due from the debtor and stating that the creditor should have had its money before, and that if the debtor did not pay the account before a certain time the guarantor would, constitutes nothing more than a promise to pay bills already due at a future time on failure of the debtor to pay the bill before such time, and there is an independent subsequent promise without consideration which cannot be converted into an intended original written promise of guaranty which would satisfy the Statute of Frauds.
    Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed.
    Opinion filed October 9, 1917.
    Edward J. Phillips, for appellant.
    Ernest W. Clark, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellee, plaintiff below, furnished merchandise to the American Letter Company on verbal guaranty of payment by appellant Flint, the defendant. The main issue presented by the defense is that the promise was not in writing, as required to be by- the Statute of Frauds and Perjuries.

Credit was given in plaintiff’s hooks, and bills for the goods were regularly rendered, after delivery, to the Letter Company. Duplicate copies' of the bills were also mailed to defendant. The controlling question is whether a letter from defendant to plaintiff written subsequent to the delivery of the goods and such rendition of the bills satisfies the requirement of the statute that the promise or a memorandum thereof must be in writing to charge defendant with the American Letter Company’s default. The letter reads:

“Tour letter dated the 27th, we received this morning. We note what you say in regard to the bill due you from the American Letter Company. We realize, that you want your money, and you should have had it before this time. But if the American Letter Company do not pay this bill before next week, we • will.
“Trusting this will be satisfactory, we are,
Very truly yours,
E. P. F!lint & Co.”

Thé case was tried without a jury and judgment for the amount of the bills, $136.89, was entered for plaintiff.

It is clear that, disregarding said letter, the oral promise of guaranty was, in view of the fact that the credit for each bill was extended as. aforesaid to the American Letter Company, a collateral and not an original promise, and its character in that respect was not changed by the fact that a duplicate statement of the account sent to the Letter Company was mailed to defendant with the written words ‘1 Guaranteed by E. P. Flint” placed thereon by plaintiff.

If the letter could be construed as indicating a clear intent to put in writing the oral promise or promises made before delivery of the goods, the statute would, in accordance with decisions cited by appellee, be satisfied. But there being no ambiguity in its language and no other legitimate testimony on the subject, we must look to the letter alone for the writer’s intention. The letter appears to set forth nothing more than a promise to pay bills already due at a future time on failure of the Letter Company to pay the bill before that time. This is something entirely different from putting in writing a promise previously made. It is in essence and indicated purpose a new and distinct promise, to support which there was no pretense of a consideration. It is the same as if defendant had said: “I am not liable for I did not put my promise in writing. But I now promise you that if you cannot collect from the Letter Company within a week then I will pay its debt.” The mere fact that defendant admitted making an oral guaranty and subsequently, after repeated requests to pay the bills, wrote the letter in the above form, did not indicate that he intended that the letter should express or relate back to his oral promise.

The authorities cited by appellee are so clearly not based on an analogous state of - facts, that we need not attempt to differentiate them. The promise here relied on is clearly an independent subsequent promise without consideration, and it cannot without violence' to the context of the letter and defeating the object and purpose of the statute be converted into an intended original written promise of guaranty. Consequently, the judgment must be reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    Sheppard-Strassheim Company, Appellee, v. George Nickas et al., Appellants.
    Gen. No. 22,915.
    1. Municipal Coubt of Chicago, § 25

       — applicability of provisions of Practice Act relating to approval of appeal bond to appeals from. The provisions of sections 92 and 93 of the Practice Act (J. & A. 1111 8629, 8630), relative to the approval of an appeal bond by order of court, or order authorizing the clerk to approve it, applies to appeals from the Municipal Court of Chicago as well as from other courts of record.
    2. Municipal Coubt of Chicago, § 25* — when appeal from not perfected. An appeal from the Municipal Court of Chicago is not perfected where there is no order of court approving an appeal bond, or authorizing the clerk to approve it, as is required by the Practice Act, sees. 92 and 93 (J. & A. || 8629, 8630).
    3. Municipal Coubt of Chicago, § 25* — when appeal must be dismissed. Where an appeal is not perfected owing to the fact that there is no approval of an appeal bond by order of court, nor any order authorizing the clerk to approve it, as required by the Practice Act, secs. 92, 93 (J. & A. HI 8629, 8630), the appeal must be dismissed.
    4. Municipal Coubt of Chicago, § 27* — when presumed that action of court in striking affidavit of defense and entering judgment by default is correct. It must be. presumed on appeal from the Municipal Court' of Chicago that the court’s actiori in striking an affidavit of defense and entering judgment by default was correct where the motion and decision of the court thereon are not preserved in the bill of exceptions.
    Appeal from the Municipal Court of Chicago; the Hon. WIlliam N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Appeal dismissed.
    Opinion filed October 9, 1917.
    Joseph Rosenberg, for appellants; Benjamin Rosenberg, of counsel.
    Webster & Sherrard, for appellee; Daniel Webster and Arthur A. Sherrard, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Inasmuch as this record contains no order of court approving the bond, or authorizing the clerk to approve it, such as must be entered under either section 92 or 93 of the Practice Act (J. & A. 8629, 8630), which applies to appeals from the Municipal Court of Chicago as well as from other courts of record (Israelstam, v. United States Casualty Co., 272 Ill. 161), the appeal was not perfected, and must, in accordance with settled practice, be dismissed. Phoenix Ins. Co. v. Hedrick, 69 Ill. App., 184, and cases cited.

But were the appeal properly perfected we could not consider the only point made, namely, that the affidavit of defense was erroneously stricken and judgment entered by default, because the motion and decision of the court thereon are not preserved in the bill of exceptions, thus not enabling us to determine the ground of the court’s action, which otherwise is presumptively correct. (Jones v. Roberts, 188 Ill. App. 609; Gaynor v. Hibernia Sav. Bank, 166 Ill. 577, and cases cited.)

Appeal dismissed.


text:
    The People of the State of Illinois, Defendant in Error, v. Peter Goldsand, Plaintiff in Error.
    Gen. No. 22,974.
    (Not to be reported in full.)
    Abstract of the Decision.
    Husband and wife, § 274

       — when burden of proof to establish offense in neglecting to support wife in destitute circumstances not satisfied. In a criminal prosecution of a husband for neglecting to support his wife, in destitute circumstances, in violation of the statute relating to the abandonment by a husband of his wife or children in destitute circumstances (J. & A. H 3431), the burden of proof resting upon the People to establish the offense is not satisfied without proof that the neglect was “without cause,” as such words of the statute constitute an essential element of the offense.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed October 9, 1917.
    Statement' of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Peter Goldsand, defendant, for neglecting to support his wife, in destitute circumstances, in violation of the statute relating to the abandonment by a husband of his wife or children in destitute circumstances (J. & A. If 3431). From a judgment of guilty, defendant brings error.
    Israel Cowen and Max Luster, for plaintiff in error.
    Maclay Hoyne, for defendant in error; John F. Cashen, Jr., of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    John Zwahlan, Defendant in Error, v. William O. Johnson, Receiver, Plaintiff in Error.
    Gen. No. 22,560.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Limitation of actions, § 74

       — when declaration in action by employee for personal injuries states new cause of action. Where the original declaration in an action by an employee against his employer for personal injuries is based upon defendant’s alleged common-law liability as an employer, and also upon section 101 of the Factory Act (J. & A. If 5398), making it the employer’s duty to keep his place of employment in a clean and wholesome condition, a breach of which was averred, and more than four years after the happening of the accident an amended declaration is filed, predicated upon section 89 of such Act (J. & A. If 5386), alleging the wilful failure on the part of defendant to comply with such act, an allegation not contained in the original declaration, the amended declaration states a new cause of action, since the alleged breaches of statutory duty under the respective sections are entirely different, and there is an allegation that the negligence was wilful in the amended declaration, an allegation not contained in the original declaration.

      Error to the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed.
    Opinion filed October 9, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John Zwahlan, plaintiff, against William 0. Johnson, receiver for the Chicago & Milwaukee Electric Railroad Company, a corporation, defendant, for personal injuries sustained while in the employ of defendant. From a judgment in favor of plaintiff for $4,000 and costs, defendant brings error.
    Bull & Johnson and Arthur S. Lytton, for plaintiff in error.
    Hyde, Westbrook & Watson, for defendant in error.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

2. Limitation of actions, § 74* — when question whether amended declaration sets up new cause of action is presented as one of law. Where, in an action by an employee against his employer for personal injuries, the defendant pleads the Two-Year Statute of Limitations by way of defense to an amended declaration, and plaintiff files a general replication setting up new matter in avoidance thereof, and it is conceded that the injury in question occurred more than four years prior to the filing of the amended declaration, defendant’s motion for a directed verdict presents to the court as a matter of law the question whether or not the ainended declaration sets up a new cause of action.


text:
    Francisco Vittelle et al., trading as F. Vittelle & Sons, Appellees, v. Louis Caravetta, Appellant.
    Gen No. 22,633.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by Francisco Vittelle, Guisseppe Vittelle and Henry Vittelle, trading as F. Vittelle & Sons, plaintiffs, against Louis Caravetta, defendant, to recover for the value of certain goods alleged to have been sold by plaintiffs to defendant. From a judgment for plaintiffs for $963.03 and costs, defendant appeals.
    Abstract of the Decision.
    1. Sales, § 126* — when delivery of hill of lading constitutes delivery of goods. Where a bill of lading by which goods are consigned to the shippers is indorsed by the shippers and sent to the buyer when shipment is made, there is a valid delivery of the goods.
    2. Sales, § 108* — what does not constitute cancellation of order for goods. In an action to recover for the purchase price of goods sold, held that an alleged cancellation of the ordejr, which was merely a request by the buyer for temporary delay of shipment, did not operate as a cancellation of the order for the goods.
    L. A. Sherwin, for appellant.
    Elbert C. Ferguson, for appellees.
   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Gertrude Waterbury, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company and Northwestern Elevated Railroad Company, Appellants.
    Gen. No. 22,782.
    1. Railroads, § 257

       — what was obligation at common Taw to provide and maintain crossings at highways. At common law a railway company constructing its line of road was under obligation to provide safe and convenient crossings at highways then existing, but no duty devolved upon it to construct and maintain a crossing over a highway subsequently created.
    2. Railroads, § 258* — what is meaning of word “safe" in act relating to construction and maintenance of railroad street crossings.
      The word “safe” in Hurd’s Rev. St. ch. 114, sec. 8 (J. & A. If 8820), relating to the construction and maintenance of crossings of railroads over highways and streets, means “reasonably safe.”
    3. Railroads, § 258

      - — what is duty of railroads under statute to provide safe and convenient crossings at highways. The statutory duty of railroads to provide safe and convenient crossings at highways extends not only to crossings in existence when the railroad was constructed but to those created afterwards as well, and includes those in cities as well as those in rural communities.
    4. Railroads, § 258*- — what care required in construction and maintenance of highway intersection. Under Hurd’s Rev. St. ch. 114, sec. 8 (J. & A. If 8820), providing that at all railroad crossings, highways and streets, railroads shall construct and maintain such crossings so that at all times they shall be safe as to persons and property, railroads are required to exercise reasonable care in the construction and maintenance of highway intersections, and they are entitled to notice, either actual or constructive, of a defective condition, as a prerequisite to a recovery against them for damages for personal injuries sustained by a pedestrian due to a defective condition of such portion of the highway.
    5. Instructions, § 38* — when instruction should not be given in exact language of statute. Where a modified construction has been placed upon a statute by the Supreme Court, an instruction in the language of the statute should be framed accordingly, as otherwise it would be apt to mislead the jury, and in such a situation the better practice is to instruct the jury as to the legal effect of the statute.
    6. Railroads, § 257* — when not incumbent upon railroad to maintain roadway in reasonably safe condition for pedestrians. Where a railroad company provides a sidewalk on each side of the street at a crossing over its right of way in a city, it is not under any duty to maintain the roadway allotted to vehicles and similar traffic in a reasonably safe condition for pedestrians.
    7. Railroads, § 257* — when question for jury whether plank, road over crossing is reasonably safe for vehicle traffic. In an action by a pedestrian to recover damages for personal injuries sustained as the result of tripping on a defective plank in the plank portion of the roadway over the railroad right of way allotted to vehicles and similar traffic, while attempting to pass over the crossing to defendant’s station, held that it was a question for the jury whether or not the plank road was reasonably safe for vehicle traffic.
    8. Railroads, § 257* — when instruction on nonliability Of railroad company for injury to pedestrian passing over crossing on right of

      way is erroneously refused. In an action by a pedestrian to recover damages for special injuries sustained as the result of stepping on a defective plank in the portion of the roadway of a crossing over defendant’s right of way allotted to vehicles and similar traffic, after passing from the sidewalk on one side of a street over the right of way, and while on her way to the station, held that an instruction that if the defendant did not expressly or impliedly invite the public to cross the street at and over their right of way, then they were not bound to keep the whole crossing in a reasonably safe condition for pedestrians, but they had discharged their duty if they exercised ordinary care to keep their sidewalks in a reasonably safe condition for pedestrians and the middle of the crossing in a reasonably safe condition for vehicle and similar traffic, and that if defendant did not expressly or impliedly invite the public to cross the street and it had exercised ordinary care to maintain the crossing where the plaintiff fell in a reasonably safe condition for vehicle and similar traffic, then defendant was not guilty, was improperly refused.
    Appeal from the Circuit Court of Cook county; the Hon. Edwakd M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed October 9, 1917.
    Rehearing denied October 19, 1917.
    ' Addison L. Gardner and Shepard, McCormick, Thomason, Kirkland & Patterson, for appellants; Weymouth Kirkland, of counsel.
    Edward Maher and Harvey E. Wynekoop, for appellee; Oliver K. Barrett and Francis L. Daily, of counsel.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

Appellee brought suit and recovered judgment against appellants for injuries sustained in a fall while crossing Foster avenue at its intersection with appellants’ tracks, in the City of Evanston.

Foster avenue runs east and west, and is crossed at grade by defendants’ three tracks, running in a northerly and southerly direction, about midway he-tween Sherman and Maple streets. It has a forty-foot roadway paved with macadam, except where it crosses defendants’ right of way, at which place it is planked for a width of about thirty feet across the entire right of way, leaving an open space of ground of about five feet on each side of the planking. The sidewalks on both sides of Foster avenue are of concrete, except where, like the street, they are- planked across defendants ’ right of way. Between the sidewalk and the curb on each side of the street there is a grass plot or parlfway. At the time of the injury, defendants’ easterly track was used for southbound and the middle for northbound traffic, and the westerly track for switching purposes. A railway station is located just north of Foster avenue, between the north and southbound tracks.

On September 14, 1912, about noon, plaintiff was walking along the south sidewalk of Foster avenue. Upon reaching a point directly south of the station, plaintiff turned north to cross the plank road on her way to the station, in doing which she tripped over a splinter which protruded from one of the planks in the road, causing her to fall and sustain injury.

This action was brought under section 8 of “An Act in Relation to Fencing and Operating Railroads,” ch. 114, Hurd’s Rev. St. of Illinois, 1915-16 (J. & A. 8820), which is as follows:

“Hereafter, at all of the railroad crossings of highways and streets in this State, the several railroad corporations in this State shall construct and maintain said crossings, and the approaches thereto, within their respective rights of way, so that at all times they shall be safe as to persons and property.”

It is the view of plaintiff — and the trial court evidently adopted it — that this section imposes an absolute duty on railroads to construct and maintain crossings in a reasonably safe condition. Defendants, on the other hand, contend that the said section requires the exercise of only reasonable care in the performance of this duty, and the action of the trial court in refusing instructions Nos. 33 and 34 offered on their behalf, which were based upon this theory, is now presented for review.

At common law a railway company, in constructing its line of road, was under obligation to provide safe and convenient crossings at highways then existing. (People ex rel. City of Bloomington v. Chicago & A. R. Co., 67 Ill. 118.) But it would appear that, in the absence of statutory provision to this effect, no duty devolved upon a railroad company to construct and maintain a crossing over a highway subsequently created. (Illinois Cent. R. Co. v. City of Bloomington, 76 Ill. 447; City of Bloomington v. Illinois Cent. R. Co., 154 Ill. 539.) By legislative enactment in this State, this duty now extends not only to crossings in existence when the railroad w*s constructed, but to those created afterwards as well, and includes those in cities as well as those in rural communities. (Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309; City of Bloomington v. Illinois Cent. R. Co., supra.) Obviously, therefore, so far as the foregoing section relates to highways already existing, it is merely declaratory of the common law, but is an innovation as to streets and roads subsequently laid out, in the latter case shifting the duty of construction and maintenance of crossings, and approaches thereto, from the municipality to the railroad company.

The word “safe,” as used in section 8, supra, has been frequently construed to mean “reasonably safe.” (Elgin, J. & E. Ry. Co. v. Raymond, 148 Ill. 241; Illinois Cent. R. Co. v. Stewart, 230 Ill. 204; Morgan v. City of Lewiston, 91 Me. 566, 40 Atl. 545; Mc-Closkey v. Moies, 19 R. I. 297, 33 Atl. 225.) But plaintiff, while conceding such construction of the word “safe,” contends that the said section .changes the well-established rule of reasonable care in the performance of the duty thereby imposed. In other words, it is argued that the word “reasonably” applies only to the condition required, and not to the means employed to secure it.

In our opinion, the expression “reasonably safe” implies a duty to exercise only reasonable care to bring about that result. To hold otherwise would be to make a railroad company an insurer of the reasonably safe condition of its crossings, irrespective of the degree of care exercised in the construction and maintenance thereof — a higher duty than it owes to its passengers. Manifestly such was not the intent of our Legislature. On the contrary, we are impelled to the conclusion that the statute fixes upon railroads the duty of exercising reasonable care in the construction and maintenance of highway intersections, entitling them to notice, either actual or constructive, of a defective condition, as a prerequisite to a recovery against them such as is sought in the case at bar. (Chicago & A. R. Co. v. Scranton, 95 Ill. App. 619; Cleveland, C., C. & St. L. Ry. Co. v. Arbaugh, 47 Ill. App. 360; Brown v. Chicago, I. & L. Ry. Co., 177 Ill. App. 599.) In view of the conflicting evidence as to the length of time that the alleged defective condition had existed prior to plaintiff’s injury, we think instructions 33 and 34 offered on behalf of the defendants should have been given.

Complaint is also made by defendants that the court erred in giving instruction No. 8 on behalf of the plaintiff. This instruction was in the precise language of the section of the statute hereinabove quoted, and informed the jury that the said statute was then and had been in effect a long time prior thereto.

While numerous authorities uphold the practice of giving instructions containing the very language of a statute, yet we think that where a modified construction has already been placed thereon by our Supreme Court, as in the case at bar, the instruction should be framed accordingly, otherwise it would he apt to mislead the jury. In such a situation, the better practice is to instruct the jury as to the legal effect of the statute.

It is also contended that the court erred in refusing to give instructions Nos. 35, 36, 37, 38, 39 and 40 on behalf of the defendants. •

Instruction 39, which is characteristic of the other five, is as follows: .

“The jury are instructed that if the defendants did not expressly or impliedly invite the public to cross Foster avenue at and over their right of way, then they were not bound to keep the whole crossing in a reasonably safe condition for pedestrians; but they had discharged their duty under the law if they exercised ordinary care to keep the sidewalks in a reasonably safe condition for pedestrians and the middle of the crossing in a reasonably safe condition for vehicle and similar traffic. And if you find that the defendants did not expressly or impliedly invite the public to cross Foster avenue as aforesaid, and that they exercised ordinary care to maintain the said crossing where the plaintiff fell in a reasonably safe condition for vehicle and similar traffic, then you must find the defendants not guilty.”

It must be borne in mind that the planking upon which plaintiff fell was not part of the sidewalk but was in the middle of the roadway allotted to vehicle and similar traffic, and there was neither crosswalk nor beaten path across Foster avenue at this point. Having provided a sidewalk on each side of the street, it was not incumbent upon defendants to maintain this roadway in a reasonably safe condition for pedestrians. (Kohlhof v. City of Chicago, 192 Ill. 249; Boender v. City of Harvey, 251 Ill. 228; City of Aurora v. Hillman, 90 Ill. 61; Brown v. City of Chicago, 135 Ill. App. 126.) Nor can it be said that defendants in any way invited pedestrians to cross at the place where plaintiff fell. And inasmuch as it was also a question for the jury whether or not the plank road was reasonably safe for vehicle traffic, we are of the opinion that the foregoing instructions should have been given.

As the case must necessarily be retried, we refrain from passing upon the other points raised.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    William Krug & Sons Company, Appellee, v. MacLean Construction Company, Appellant.
    Gen. No. 22,806.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by William Krug & Sons Company, a corporation, plaintiff, against the MacLean Construction Company, a corporation, defendant, to recover damages arising out of the breach of an alleged contract between the parties, by the terms' of which plaintiff as subcontractor was to do excavation work for defendant as general contractor in connection with the construction of a building. From a judgment for plaintiff for $1,000, defendant appeals.
    Henry M. Hagan and' Knapp & Campbell, for appellant; John B. Cochran, of counsel.
    Newman, Poppenhusen & Stern, for appellee; Lawrence A. Cohen, of counsel.

      Abstract of the Decision.
    1. Building and construction contracts, § 103

       — when judgment for plaintiff in action by subcontractor against general contractor for breach of contract not sustained by evidence. In an action by a subcontractor against a general contractor to recover for damages arising out of the breach of an alleged contract between parties, by the terms of which plaintiff was to do excavation work in connection with the construction of a certain building, where it appeared that a witness for plaintiff was permitted, over objection of defendant, to estimate the number of cubic yards of excavation required under the contract from a plan that contained no dimensions upon which to base such estimate, and that the witness did not take into consideration the expense to plaintiff of shoring and backfilling, both of which items the contract required of plaintiff, held that a judgment for plaintiff was unsupported by the evidence.
    2. Building and construction contracts, § 104* — when question for jury whether contract exists between contractor and subcontractor. In an,action by a subcontractor against a contractor to recover damages arising out of the breach of an alleged contract between the' parties for excavation work in connection with the construction of a building, held that it was a question for the jury whether a contract existed between the parties.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Fay Levitan, Appellee, v. Chicago City Railway Company and Calumet & South Chicago Railway Company, Appellants, and Chicago & Western Indiana Railroad Company.
    Gen. No. 22,934.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by Fay Levitan, plaintiff, against the Chicago City Railway Company, Calumet & South Chicago Bailway Company and Chicago & Western Indiana Bailroad Company, defendants, to recover damages for personal injuries sustained by plaintiff while a passenger on a street car owned by defendant Chicago City Bailway Company, which collided with a train of cars operated over the right of way of defendant Chicago & Western Indiana Bailroad Company. From a judgment for $2,500 for plaintiff, defendants Chicago City Bailway Company and Calumet & South Chicago Bailway Company appeal. Defendant Chicago & Western Indiana Bailroad Company has perfected a separate appeal.
    This cause of action arises out of the same accident involved in decisions in Kittier v. Chicago & W. I. R. Co., 203 Ill. App. 439, and Levitan v. Chicago City Ry. Co., 203 Ill. App. 441.
    Franklin B. Hussey and Charles Le Boy Brown, for appellants; John B. G-uilliams, of counsel.
    Edward J. Green and A. H. Banes, for appellee; Harry F. Brewer, of counsel.

      Abstract of the Decision.
    1. Witnesses, § 284

       — when textbook may be used to impeach expert medical witness. A textbook may be used to impeach an expert medical witness who bases his testimony thereon, but it is not permissible to introduce textbooks, for the purpose of contradicting a witness who makes no mention thereof as a basis for his opinion, and there is no substantial difference between contradicting a witness by reading from textbooks and asking him if he is aware that “the authorities” disagree with his view.
    2. Witnesses, § 220* — what is proper cross-examination of medical witness. Where the plaintiff in a personal injury action seeks to prove that ás a direct result of the injury sustained her eyesight has become impaired to such an extent as to cause her to become cross-eyed, and a medical witness for plaintiff testifies on direct examination that one of the objective symptoms is a twitching of the muscles of the right side of the face, it is proper to cross-examine such witness by asking him whether it was not possible to produce a voluntary twitch.
    3. Tbial, § 45* — what remarks of court upon cross-examination of medical witness are improper. Where the plaintiff in a personal injury action seeks to prove that as a direct result of the injury sustained her eyesight has become impaired so as to cause her to become cross-eyed, and a medical witness testifying on plaintiff’s behalf states that he noticed a twitch in the facial muscles as an objective symptom while examining plaintiff, and such witness is properly cross-examined as to whether it was not possible to produce a voluntary twitch, held that it was improper for the court to express his opinion as to whether such muscles could be voluntarily twitched.
    4. Carriers, § 482* — when instruction in action by passenger for personal injuries is erroneous as being inapplicable to evidence. In an action against two street railroad companies and a railroad company to recover damages for personal injuries sustained due to a collision between a car belonging to one of defendant street railroads with a train of the railroad company, held that an instruction setting forth the duties of the street railroad as a common carrier, stating that the failure to exercise a degree of care required constitutes negligence, and that if, under the evidence and instructions, the jury found defendants guilty of negligence as charged in the declaration, or some count thereof, and that plaintiff had sustained damages alleged in the declaration or any count thereof, they should find for plaintiff, was erroneous, where two counts averred respectively the violation of the provision of a city ordinance requiring a street railroad to bring its car to a full stop at a point one hundred feet from a railroad crossing, and a provision requiring a speed not to exceed two miles per hour upon approaching railroad crossings, and the alleged violation of the ordinance had nothing to do with the accident and the ordinance involved was not introduced in evidence.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Fay Levitan, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant, and Chicago City Railway Company and Calumet & South Chicago Railway Company.
    Gen. No. 22,882.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by Fay Levitan, plaintiff, against the Chicago & Western Indiana Bailroad Company, Chicago City Bailway Company and Calumet & South Chicago Bail-way Company, defendants, to recover damages for personal injuries sustained by plaintiff while a passenger on a street car belonging to defendant Chicago City Bailway Company, due to a, collision between such car and a railway train of defendant Chicago & Western Indiana Bailroad Company. From a judgment for $2,500 for plaintiff, defendant Chicago & Western Indiana Bailroad Company appeals, defendants Chicago City Bailway Company and Calumet & South Chicago Railway Company having prosecuted a separate appeal, for which see Gen. No. 22,934, ante, p. 384.
    Abstract of the Decision.
    Appeal and ebbob, § 1793

       — when judgment reversed against all joint defendants. Where a judgment against three defendants is reversed as to two of the defendants, it must likewise be reversed as to the third defendant.
    This cause of action arose out of the same accident involved in the cases of Kittier v. Chicago & W. I. R. Co., 203 Ill. App. 439, and Levitan v. Chicago City Ry. Co., 203 Ill. App. 441.
    Worth E. Caylor, for appellant.
    Edward J. Green and A. H. Banes, for appellee; Barry F. Brewer, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Adolph H. Bernstein, Appellee, v. George J. Langowsky, Appellant.
    Gen. No. 22,898.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by Adolph H. Bernstein, plaintiff, against George J. Langowsky, defendant, to recover the sum of $200 paid as earnest money to defendant as agent for one Mrs. Steen in a real estate transaction, whereby plaintiff had agreed to purchase from her certain real estate. From a judgment for plaintiff for $200, defendant appeals.
    Abstract of the Decision.
    1. Vendor and purchaser, § 94

       — when rescission of contract by purchaser is proper. The mere fact that a purchaser of real estate demands a fulfillment of the agreement on the part of the vendor does not consummate the sale nor does it preclude the purchaser from rescinding the contract when he discovers the futility of making further demand, owing to a sale of the property to a third person.
    2. Limitation of actions, § 24* — when cause of action for recovery of earnest money paid on contract for purchase of real estate accrues. An action to recover the earnest money paid on a contract for the purchase of real estate in the hands of a broker accrues when the purchaser, upon discovering that, the vendor sold the property to another person, notifies her in writing of the rescission of the contract and demands return of the earnest money.
    3. Vendor and purchaser, § 105* — what does not constitute unreasonable length of time for rescission of contract for the purchase of real estate. A delay by the purchaser of real estate of seven years before rescinding the contract is not an unreasonable delay where he is anxious to acquire the property and does not elect to rescind the contract until he learns that the property has been sold to another person, whereupon he acts immediately by commencing suit.
    James F. Hutchison and Harry C. Diamond, for' appellant.
    James S. Wight, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Museum of Fine Arts, Appellee, v. John B. Dicus, Appellant.
    Gen. No. 22,901.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 464

       — when tender of rent insufficient to prevent forfeiture of lease. A tender of a less amount than is actually due and owing by a tenant will not prevent a forfeiture of the lease for failure to pay rent, even though the tenant promises to pay the balance of the rent within a short time thereafter.
    2. Corporations — when affidavit of defense is insufficient to question corporation’s right to Tyring action. In an action of forcible entry and detainer by a foreign corporation as landlord to recover possession of premises from a tenant, held that an affidavit of defense which contained no averment that the plaintiff was organized for pecuniary profit, and did not negative the fact that plaintiff came within the exceptions of the act regulating the admission of foreign corporations for profit to do business in the State, Hurd’s Rev. St. ch. 32 (J. & A. K 2418 et seq.), was insufficient to question plaintiff’s right to bring the action.

      Appeal from the Municipal C.ourt of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action of forcible entry and detainer by the Museum of Fine Arts, a corporation, plaintiff, against John B. Dicus, defendant, for possession of certain premises in the City of Chicago. From a judgment in favor of plaintiff, defendant appeals.
    Frank A. O’Donnell, for appellant.
    ¡Henry M. Hagan, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

3. Appeal and error, § 1088* — when error of court in excluding evidence may not be considered. Any error of the trial court in excluding evidence cannot be considered on appeal where the party complaining has failed to set it forth in his brief or to refer the court thereto in the abstract or transcript of the record.


text:
    Edwin W. Schillo, Appellant, v. E. A. White and B. J. Millard. B. J. Millard, Appellee.
    Gen. No. 22,905.
    1. Chattel mortgages, § 37

       — when chattel mortgage not void because notes evidencing secured indebtedness do not recite on their face fact of such security. Section 1 of the act relating to the assignment of notes secured by chattel mortgages (J. & A. U 7602), applies only where an assignment of notes has taken place and, where notes have not been assigned, the contention that the chattel mortgage is void as against third persons, because the notes evidencing the indebtedness do not recite the fact of such security on their face, is without merit.
    2. Chattel mortgages — what are rights of mortgagee wpon unauthorised sale of chattel without satisfaction of indebtedness. Where a chattel mortgage provides that the mortgagee shall be entitled to immediate possession of the chattel if the mortgagor shall sell or assign it, a sale of the chattel, without satisfying the indebtedness or obtaining the mortgagee’s consent, constitutes a breach 'of the covenant, whereby the mortgagee becomes entitled to immediate possession of the property, .as against the mortgagor or any one claiming under him, and, being unable to recover the property, an action in trover lies for the wrongful conversion thereof.
    3. Trover and conversion, § 47* — what is measure of damages for conversion of mortgaged chattel in action against purchaser. The measure of damages in an action of trover against the purchaser of mortgaged chattels who converts them by making a sale to another is the amount due on the debt secured by the mortgage.

      Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed October 9, 1917.
    Juttl & Juul, for appellant.
    Scott Osten Cavette, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

This action was originally in replevin for the recovery of an automobile. Being unable to find the property, plaintiff was subsequently given leave to sue in trover. In the course of the trial, E. A. "White was dismissed from the case, and the cause proceeded against B. J. Millard as the sole defendant. At the close of plaintiff’s evidence, the court found the issues for the defendant and entered judgment thereon.

The evidence shows that the said. automobile was purchased from plaintiff by the said White; that he (White) made a cash payment thereon at the time of delivery and gave several judgment notes due at different times, the last of which matured on August 30, 1915, to evidence the unpaid balance of the purchase price; that said notes were secured by a chattel mortgage on said automobile, duly executed and filed for record; that the said notes, however, contained no recital upon their face that they were so secured; that on or about August 17, 1915, the said automobile was purchased by defendant (Millard) for $400 from one Moore, who acted on behalf of the said "White; that on August 18, 1915, defendant (Millard) sold it to one Biose Birk. The evidence also shows that at the time of the sale to Millard there was an unpaid balance of $275 due plaintiff on said car.

The first point presented for determination is, whether or not the chattel mortgage hereinabove referred to was a valid, subsisting lien on said automobile as against third persons. Defendant contends that because the notes evidencing the indebtedness do not recite the fact of such security on their face, the said chattel mortgage is void under section 1 of “An Act to regulate the assignment of notes secured by chattel mortgages,” etc., ch. 95, p. 1772, Hurd’s Rev. St. of Illinois, 1915-16 (J. & A. ¶ 7602). We think defendant has misconceived the effect of this statute. As indicated by its title, it is intended to “regulate the assignment of notes secured by chattel mortgages,” and applies only to instances where an assignment of the notes has taken place. (Hogan v. Akin, 181 Ill. 448; Sellers v. Thomas, 185 Ill. 384.) Since the notes in the instant case have not been assigned, and are still in the possession of the payee (plaintiff), obviously defendant’s contention that the mortgage is void because of the aforesaid omission is without merit.

The chattel mortgage now before us provides inter aMa that the mortgagee (plaintiff) shall be entitled to the immediate possession of the property “* * * if the mortgagor shall sell or assign or shall attempt to sell or assign the said chattel.” When the defendant White sold the said automobile to defendant Millard, without first satisfying the mortgage indebtedness or obtaining plaintiff’s consent thereto, he committed a breach of covenant, whereby plaintiff became entitled to the immediate possession of the property, as against the mortgagor (White) or any one claiming under him, arid, being unable to recover the property, an action in trover would lie for the wrongful conversion thereof. (38 Cyc. 2028; 28 Amer. & Eng. Encyc. of Law 667; Bailey v. Godfrey, 54 Ill. 507; Bank of Commerce of Kansas City v. Morris, 114 Mo. 255.)

The measure of plaintiff’s damages is the amount due him on his debt secured by the mortgage from White (Howard v. Burns, 44 Kan. 543), which the evidence shows is $275, and we think there is prima facie evidence that the' value of the car exceeded said amount. Accordingly, the judgment of the Municipal Court is reversed and judgment entered here for the plaintiff in the sum of $275 and costs.

Reversed and judgment here.


author: Mr. Justice Matchett

text:
    O. D. Stevens, Appellee, v. Charles Baltz and Otto Diederichs, trading as Baltz & Diederichs, Appellants.
    Gen. No. 22,346.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed with finding ■ of fact.
    Opinion filed October 9, 1917.
    Statement of the Case.
    Action by O. D. Stevens, plaintiff, against Charles Baltz and Otto Diederichs, trading as Baltz & Diederichs, defendants, to recover a balance for goods sold and delivered. From a judgment for plaintiff for $983.53, defendants appeal.
    Guy Guernsey and Charles W. Lamborn, for appellants.
    Isaac Landsberg, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.

Abstract of the Decision.

1. Accobd and satisfaction, § 4 — when acceptance of check constitutes. Where a claim is unliquidated and the amount due is not ascertained and, fixed, and a check is tendered indicating that it is to be in full of the account, the acceptance of such check by the creditor constitutes an accord and satisfaction.

2. Accobd and satisfaction, § 8* — what weight given denial of creditor that check had words indicating full payment of indebtedness upon it at time received. In an action to recover the alleged balance due on an account for goods sold and delivered, in which the defense\ was an accord and satisfaction by giving of a check, held that, under the facts in evidence, plaintiff's denial that the check had the words “in full payment of all demands up to date” upon it at the time he received and cashed it, was entitled to little credence.


text:
    Charles S. Rieman, Defendant in Error, v. Edward W. Morrison, Plaintiff in Error.
    Gen. No. 22,549.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 9, 1917.
    Rehearing denied October 20, 1917.
    Statement of the Case.
    Action by Charles S. Rieman, plaintiff, against Edward W. Morrison, defendant, to recover on a contract for service as attorney. From a judgment for plaintiff for $90,188.01, defendant brings error.
    The contract upon which the action was brought was considered in 184 Ill. App. 20, and also in 264 Ill. 279.

      Abstract of the Decision.
    1. Evidence, § 351

       — when parol evidence is admissible. Where a contract which is the basis of litigation is not clear as to the subject-matter, parol evidence on such point is admissible.
    2. Attorney and client, § 135* — what property shown to be subject of contract for services. In an action by an attorney to recover on a contract for a percentage of all property recovered by plaintiff, or through information furnished by him, from persons wrongfully withholding it from defendant, evidence held, sufficient to show that the contract covered a large amount of cash, bonds, real estate and other property which had been obtained from the wife of defendant by certain friends and servants of the family.
    3. Attorney and client, § 135* — what must be shown in action to recover on contract for services for recovering or aiding in recovering property urrongfully withheld from client. In an action by an attorney on a contract for a percentage of all property recovered by plaintiff, or through information furnished by him from persons wrongfully withholding it from defendant, it must be shown that the property for the recovery of which compensation is claimed was wrongfully withheld from defendant by others, and that the property has either been recovered by defendant, or it might have been recovered if he had availed himself of the help and information of plaintiff.
    4. Attorney and client, § 135* — when evidence insufficient to show that property of client was wrongfully uñthheld from him by third persons. In an action by an attorney on a contract for a percentage of all property recovered by plaintiff, or through information furnished by him, from persons wrongfully withholding it from • defendant, evidence held insufficient to show that certain bonds and money in the savings account of third persons were wrongfully withheld from defendant at the time of the execution of the contract.
    James R. Ward, for plaintiff in error.
    Fyffe, Ryner & Dale, Daniel W. Scanlan and Cola Gr. Parker, for defendant in error; Ira Ryner and Cola Gr. Parker, of counsel.

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

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Joseph B. Coambs et al., Appellees, v. Central Health & Accident Securities Company et al., Appellants.
    Gen. No. 22,591.
    1. Cancellation of instruments, § 35

       — when evidence in action to cancel notes for corporate stock and borrowed money shows fraud. On a bill to rescind notes given partly for the purchase of corporate stock in an insurance company and partly for money borrowed and a trust deed given as security, evidence held sufficient to show fraudulent representations as to the character and financial condition of the insurance company.
    2. Judgment, § 473* — when decree of foreign court vesting title to notes for stock and trust deeds in superintendent of insurance is pot binding in prior undecided suit. A decree in a suit in a foreign Court vesting the title to notes and trust deeds given to an insurance company and trustee respectively, for the purchase price of corporate stock and for a loan, in the foreign superintendent of insurance, cannot affect the rights of the purchasers of such stock in a prior undecided suit to rescind their contract, where they were not parties to the suit in the foreign court, and the domestic court has jurisdiction of all the parties.
    3. Bills and notes, § 102* — what are not negotiable instruments. Mortgages and trust deeds are not negotiable instruments.
    4. Insurance, § 26* — when company must deposit required amount of notes and bonds with State superintendent of insurance for security of policyholders. An insurance company organized under section 700, art. VI, ch. 119, Rev. St. 1899 of Missouri, and for the purposes enumerated in section 6995 of writing health and accident insurance, must comply with section 6922 of chapter 61, providing that no existing company organized under any general or special law of the State and transacting business of the character designated in section 6895, accident insurance, and no organized company shall commence, continue or carry on business until the sum of $100,000 in notes or bonds have been deposited with the superintendent of the insurance department for the security of its policyholders.
    5. Insurance, § 26* — what are rights of State superintendent of insurance as to secured notes or bonds deposited for benefit of policyholders. Under section 6922 of chapter 61 of the statutes of the State of Missouri, relating to the filing of notes or bonds to a specific value secured by mortgages or trust deeds with the State superintendent oí insurance for the benefit of policyholders, the rights of the superintendent are superior to those of the makers of notes and trust deeds so deposited, to the extent that there is proof of the existence of such policyholders having liens and the amounts thereof.
    6. Insurance, § 26

       — when "burden is on State superintendent of insurance to show existence of bona fide policyholders having liens on deposited securities. In a suit by the purchasers of stock in an insurance company to rescind such contract, including notes antitrust deeds given in pursuance thereto, and in which the State superintendent of a foreign State was a party, claiming right to the notes and trust deeds for the benefit of policyholders, held that the burden rested upon such superintendent to show the existence of bbna fide policyholders having liens.
    7. Insurance, § 26* — when exclusion of evidence of "knowledge of receiver of insurance company of existing policy claims is immaterial. In a suit by the purchaser oi stock in an insurance company to rescind such contract, including notes and trust deeds given in pursuance thereto, and in which the State superintendent of a foreign State was a party, held that the exclusion of evidence that the receiver had knowledge of existing, valid, unpaid policy claims outstanding, of a certain amount, was immaterial where, under the decree under which the contract was rescinded, the superintendent acquired more than sufficient property to pay all outstanding indebtedness to policyholders, the liability to whom he sought to prove.
    8. Insurance, § 26* — when decree of foreclosure in favor of State superintendent is improper. A decree in favor of a foreign State superintendent of insurance for the foreclosure of trust deeds, filed with such superintendent for the benefit of policyholders, is improper unless it is shown that some specific amount is due, or may become due on account of such policyholders and that such amount is a claim against the special 'deposit.
    9. Appeal and error, § 1214* — when error affecting nonappealing codefendant may not be urged. Defendants cannot assign error in their behalf because of errors affecting a nonappealing codefendant.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judged presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 9, 1917.
    L. A. Stebbins, for appellants.
    TTelmeb, Moulton, Whitman & Whitman, for appellees.

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the Central Health & Accident Securities Company, Walter K. Chom, as superintendent of the insurance department in the State of Missouri, and George E. Dickson, individually and as trustee, to reverse a decree of the Circuit Court of Cook county.

Said decree found that two certain notes executed by appellees Joseph B. Coambs, Fred. Coambs and Arthur D. Coambs on the 9th day of June, 1913, payable to their own order and by them indorsed, in the sums of $25,000 and $35,000, respectively, together with two trust deeds of the same date conveying certain real estate in Bureau county, Illinois, to appellant George E. Dickson, as trustee, for the purpose of securing said notes, had been obtained by false representations of certain defendants, and decreed that the transaction in which said notes and trust deeds were executed and delivered should be rescinded.

It further directed the payment and delivery to the superintendent of insurance of the State of Missouri of the consideration for which said notes and trust deeds were executed.

The transaction originated in the desire of Joseph B. Coambs to obtain a loan for $20,000 upon the security of the lands conveyed, which were the inheritance of the three appellees from their grandfather.

The Boyal Casualty Company, a casualty insurance company incorporated under the laws of the State of Missouri and controlled by appellant Dickson, was a defendant in the original suit, and pending the litigation in the Circuit Court of Cook county it was dissolved by decree of the Circuit Court of St. Louis," Missouri, and the entire assets of said Boyal Casualty Company by the decree of the Missouri court passed to and vested in the said superintendent of insurance. The Boyal Casualty Company, however, is not a party to this appeal.

Appellant Central Health & Accident Securities Company, a corporation, which Dickson caused to be incorporated under the laws of the State of South Dakota, was by its charter stated to be formed for the purpose of buying and selling securities of all kinds. Its articles as amended increased its capital stock to $3,000,000, divided into 100,000 shares preferred and 200,000 shares common stock.

The Boyal and the Securities Companies were both controlled by appellant Dickson at the time of the alleged false representations.

Appellant Dickson claimed to have formulated a plan of insurance which is referred to in the record as “commissary insurance” or “commissary plan of insurance,” it being an adaptation of the trading stamp idea to accident insurance. The Securities Company was claimed by its promoters to be organized for the purpose of raising money to develop this insurance plan.

At the time of the transaction with Coambs, the Boyal had an office in the Insurance Exchange Building in Chicago and Dickson was president and chief executive officer of the company, and one Woodward was its secretary. Dickson and Woodward were also president and secretary respectively of the Securities Company. The consideration which Coambs received for the execution of the two notes and trust deeds was $20,000 in cash by way of a loan, less one year’s interest on the full sum of $60,000 at six per cent, represented by the two notes, making a net amount of cash received by Coambs in the transaction of $16,400, and preferred and common stock of the Securities Company of the par value of $40,000 each.

The bill of complaint charges that the fraudulent representations were made by defendants as to the character and financial condition of the Securities Company; its ownership of the Boyal Company and this commissary plan of. insurance; that appellees relying thereon were induced to execute and deliver the notes and trust deeds in question.

The principal defenses relied on by appellants were the denial of the fraudulent representations, laches and estoppel, while the insurance superintendent of the State of Missouri also claims to be a holder of the notes and securities in due course; claims that the Negotiable Instrument Act of 19,07 (J. & A. ft 7640 et seq.) has changed the rule in Illinois as to the nonnegotiable character of m.ortgages and trust deeds; denies the jurisdiction of the Circuit Court of Cook county to decree the relief, and claims that appellees are concluded by the decree of the Circuit Court of St. Louis entered pending this litigation, vesting the notes and trust deeds in the insurance superintendent.

With the other appellants he also urges that the Boyal Casualty Company having passed out of existence, it was error for the trial court to enter a decree against it.

Appellants below made a motion requesting the chancellor to make specific findings of fact, which the chancellor declined to do. The review of this record would have been much less burdensome for this court had that request been complied with.

Upon the main controversy between appellants Dickson and the Securities Company, counsel -on both sides have at great length pointed out the evidence upon which they respectively rely, and after careful consideration of the evidence we are of the opinion that the charges of fraud upon appellees whereby they parted with said notes were fully substantiated and warranted the decree entered by the chancellor against appellants, except said superintendent of insurance, whose defense rested on a different basis, and is hereafter considered.

The defenses of estoppel and laches set up by appellants Dickson and the Securities Company were not established.

Nor do we think that the decree of the Circuit Court of St. Louis vesting the title to these notes and trust deeds in said superintendent of insurance gives him better title as against appellees than he had without it.

The bill in this cause was filed August 17,1914. The Missouri suit was filed April 13, 1915, and the decree entered therein November 5th, of the same year. The Missouri decree, entered upon proceedings to which appellees were not parties, could not affect the rights of appellees in a prior suit brought in Illinois in which the court had acquired jurisdiction of all the parties.

Nor is there merit to the contention of the insurance superintendent that the Circuit Court of Cook county did not have jurisdiction in view of the fact that by permission, if not direct order, of the Missouri court, the superintendent of insurance intervened in this suit, filed a cross-bill which he afterwards dismissed, and contested upon the merits.

Nor are we impressed with the contention that the Negotiable Instrument Act of 1907 (J. & A. j[ 7640 et seq.) has changed the law of Illinois as to the nonnegotiable character of mortgages and trust deeds as set forth in Olds v. Cummings, 31 Ill. 188, and subsequent cases. We find no language in the Negotiable Instrument Act which can be so construed, but we do not deem it necessary to decide that question.

The notes and trust deeds in question were deposited with the superintendent of insurance of Missouri by the defendant, Royal Casualty Company. Coambs knew at the time he executed and delivered them that they were to be deposited either in Missouri or Illinois and at the time, or shortly after the deposit, had knowledge of the fact. Neither at the time of the transfer, nor before the filing of this bill in Illinois, did the superintendent of insurance or his deputy have any knowledge, information or suspicion of any infirmity or defect either in the notes or trust deeds, or that any fraud had been used in obtaining them.

It is conceded that had they had any such notice or suspicion, the insurance superintendent of Missouri would have refused to relicense the Boyal in 1914. After such deposit the Boyal was relicensed and other securities of the Boyal held by the department released.

The Boyal’s application for deposit was as follows: “The superintendent of the insurance department of the State of Missouri is hereby requested by the Boyal Casualty Company to receive the following described securities which are herewith presented and legally transferred to said superintendent to be held by him in trust for the purposes specified by chapter 61 of the Bevised Statutes of Missouri 1909.”

Chapter 61 of the Missouri statutes deals with the subject of insurance.

Appellees contend that this deposit of securities was neither authorized nor required by the laws of Missouri and that the insurance superintendent of that State was, therefore, a mere volunteer or a naked bailee, and that since he assumed to act without authority of law or contract, he is not in a position to invoke the rights of any of the policyholders in, or creditors of, the Boyal Casualty Company.

We do not think, however, that this contention of appellees can be sustained.

Section 6922 of chapter 61 of the laws of Missouri which are in evidence provides:

“Mo existing company organized under any general or special law of this State, and transacting business of the character designated in section 6895, nor any company organized under this article, shall commence, continue or carry on business until such company has transferred to and deposited with the superintendent of the insurance department, for the security of its policy holders, the sum of one hundred thousand dollars in notes or bonds secured by mortgages or deeds of trust of the description mentioned in section 6920 # # * J?

It is conceded that the Boyal was not organized under the provisions of the article of which this section is a part, but section 6895 of the same chapter provides as follows:

“Any number of persons, not less than thirteen, may associate and form a company for the purpose of making assurance upon the lives of individuals, and every assurance pertaining thereto or contested therewith, and to grant, purchase and dispose of annuities and endowments of every kind and description whatsoever, and to provide cm indemnity against death, and for weekly or other periodic indemnity for disability occasioned by accident to the person of the insured; but such accident insurance shall be made a separate department of the business of the life insurance company undertaking it.”

The Boyal Casualty Company was organized pursuant to the provisions of section 7000 of article VI,chapter 119, Bevised Statutes Mo. 1899, and for purposes enumerated in section 6995 of that article, to wit, “to make insurance upon the health of individuals and, against personal injury, disablement or death resulting from traveling, or general accident by land or water.”

The character of the two sections does not, therefore, differ materially, both being descriptive of accident insurance, and we think it only reasonable to hold that the provisions of section 6922, which require a deposit from all companies organized under any general or special law for the transaction of business of the character designated in section 6895, authorized and required a deposit from the Boyal before it should begin doing business.

Such has been the construction placed upon the law by the superintendent of insurance of the State of Missouri and all parties dealing with it, and we think that that is the true meaning and intent of this section.

Appellants argue that as the deposit was required by the law of Missouri the superintendent of insurance is a holder of the notes in question in due course and for value.

By the terms of the Missouri statute under which the deposit was made, it is plainly stated that it shall be “for the security of its policy holders” and we think it must be conceded that whether as a holder of the notes in due course, or by reason of estoppel, the rights of the superintendent are superior to those of appellees to the extent that there is proof of- the existence of such policyholders having liens and the amounts thereof.

Policies issued by the Boyal Company were to run for a period of one year or less, and while they contained provisions for renewal, the renewals were optional with the company. There is no evidence that any policy of the Boyal was so renewed.

Its last license from the State of Missouri expired about February 1, 1915, and it would necessarily follow that the policies issued by the Boyal, while it was authorized to issue policies (namely up to February 1, 1915), expired by lapse of time on or before February 1, 1916, almost four months prior to the entering of the decree here appealed from. More than one year before that time all of its policies were reinsured.

Presumably through these reinsurance contracts the Boyal was relieved of all liability, and the fact that no policyholder has intervened in this suit strongly indicates that' there is no such outstanding liability.

We think it was for the superintendent to show the existence of bona fide policyholders having liens, if any such there were.

Evidently realizing this necessity he, on May 23, 1916, prior to the entry of the decree, asked leave of court among other things to prove that the receiver had knowledge of existing valid unpaid policy claims outstanding on the policies theretofore issued by the Royal Casualty Company “aggregating about $14,000.” The court denied permission so to do.

Aside from objections made to the form of the offer, we think that it became wholly immaterial by reason of the fact that under the provisions of the decree which was entered, and by reason of the rescission of the original transaction, the superintendent of insurance acquired from appellees, with other property, the sum of $17,569.87 in cash, which would more than pay all outstanding liabilities on policies of the Royal Company which the superintendent offered to prove.

In Falkenbach v. Patterson, 43 Ohio 359, an action was brought by the receiver of a life insurance company organized under the laws of Ohio to foreclose notes and a mortgage which had been deposited .with the superintendent of insurance of that State, under a statute with a provision similar to the one at bar.

The Supreme Court, reversing a decree of foreclosure entered below and while holding that the makers of the notes and mortgages were estopped as to the policyholders of the company, says:

“But what, if anything, is due in this case to policyholders ? There is no finding or evidence in the record from which we can ascertain any specific sum. The court finds ‘that the liabilities of said company to policyholders and general creditors amount to $35,000, or more;’ and in the record of the original case the plaintiffs, on May 25, 1876, ‘express the hope and belief that in a short time every policy outstanding against the company, and which shall not have lapsed by reason of the nonpayment of assessments and premiums, will be canceled and taken up.’
“It may be that no policyholder has a claim secured by these deposits. Before these mortgages can be foreclosed there must be. shown some specific amount due, or that may become due, on account of such policyholders, and that such amount is a claim against this special deposit.”

The law as here announced applies, in our opinion, to the case at bar.

As to alleged errors affecting the Royal Casualty Company, it has not appealed and appellants cannot assign error in its behalf. Norris v. Downing, 196 Ill. 91.

The decree of the trial court will be affirmed.

Affirmed,.


author: Mr. Presiding Justice Goodwin

text:
    Augusta M. Breton, Plaintiff in Error, v. Isaac Levinson and Henry L. Newhouse, Defendants in Error.
    Gen. No. 23,273.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Marcus A. Kavahagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Action by Augusta M. Breton, plaintiff, against Isaac Levinson and Henry L. Newhouse, defendants, to recover damages for the death of her intestate, claimed to be due to the failure of defendants to provide a safe scaffolding on a building of which one of the defendants was the owner and the other the architect. Ijhrom a judgment in favor of defendants, plaintiff brings error.

      Abstract of the Decision.
    1. Negligence, § 854

       — when owner and architect not liable for death of employee of independent contractor due to unsafe scaffolding. Where a bricklayer in the employ of an independent contractor who has undertaken the construction of the wall of a building is killed as the result of a defective scaffold, and the owner and architect retain no right to control or direct the action of the contractor in the progress of the work, except in regard to the depth of the foundation, the material to be used, and generally to require a compliance with the contract, they are not liable in the absence of a statute imposing liability upon them.
    2. Master and servant, § 155* — who has duty of constructing safe and suitable scaffolds. Under Hurd’s Rev. St. 1913, ch. 48, sec. 79 (J. & A. H 5368), providing that all scaffolds erected or constructed by any person for use in erecting, repairing, altering, removing or painting any structure shall be erected and constructed in a safe, suitable and proper manner, and shall be erected and constructed so as to give proper and adequate protection to the employee using it, the duty to comply with its terms is placed upon those actually constructing the scaffolds and other appliances, and consequently not upon the owner or architect where they do not erect the scaffolds or appliances.
    Chas. B. Bankin and C. Helmer J ohnson, for plaintiff in error.
    F. J. Canty and Brundage, Landon & Holt, for defendant in error Isaac Levinson.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    Richard F. Bicknell and David Gemmill, trading as Bicknell & Gemmill, Appellants, v. Albert J. Knollin and Charles H. Shurte, trading as the Knollin Sheep Commission Company, and the Knollin Sheep Commission Company, Appellees.
    Gen. No. 22,304.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Accord and satisfaction, § 4

       — when retention of check, constitutes. Where there is a bona fide dispute between parties as to the amount due one of them from the other, and a check is given by one party upon condition that it is to be received in full settlement of the claim, and the claimant retains possession of the check, there is an accord and satisfaction.
    Appeal from the County Court of Cook county; the Hon. Andrew D. Webb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Action by Richard F. Bicknell and David Gemmill, trading as Bicknell & Gemmill, plaintiffs, against Albert J. Knollin and Charles H. Shurte, trading as the Knollin Sheep Commission Company and the Knollin Sheep Commission Company, defendants, to recover an alleged balance on account. From a judgment for defendants, plaintiffs appeal.
    John A. Sheean, for appellants.
    Charles A. Butler, for appellees; Franklin Raber, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, ant} Cumulative QUarter]„ saroe topic and section number. ......

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

2. Accord and satisfaction, § 10 — when question for jury. In an action to recover an alleged balance.of an account due to sheep shippers from commission merchants, where, at the end of the season, a check was sent by defendants to plaintiffs in payment of an account but there had been no dispute in regard to the amount due, and the check was deposited in a bank in the regular course of business and a claim afterwards made for the alleged balance, held, that it was a question for the jury whether there was an accord and satisfaction.


text:
    William C. Regelin and William Jensen, copartners, trading as Regelin, Jensen & Company, Appellees, v. Carl A. Lothgren, Appellant.
    Gen. No. 22,341.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by William O. Begelin and William Jensen, copartners, trading as Begelin, Jensen & Company, plaintiffs, against Carl A. Lothgren, defendant, to recover for services rendered in connection with the sale of certain real estate belonging to defendant. From a judgment for plaintiffs for $2,750, defendant appeals.
    Arthur C. Baghrach, Hyman Polonsky and H. W. Sisson, for appellant.
    T. F. Monahan, for appellees.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Bbokebs, § 7 — when evidence shows employment as. In an action by real estate brokers for a commission for sale of real estate, evidence held sufficient to show employment of plaintiffs by defendant.

2. Bbokebs, § 90* — when evidence shows to be procuring cause of sale. In an action to recover a commission for the sale of real estate, evidence held sufficient to show that plaintiffs were the procuring cause of the sale.

3. Bbokebs, § 64* — when implied obligation to pay usual brokerage fee arises. Where brokers are employed to sell a piece of real estate, there is the implied obligation to pay the usual brokerage fee and not to compensate them for the time and effort expended.

4. Bbokebs, § 92* — when evidence as to value of services is shown. In an action by brokers to recover a commission for the sale of real estate, there was evidence in regard to the value of services rendered where the testimony of a real estate broker, that the usual and reasonable compensation was a certain per cent., was uncontradicted, and there was also competent evidence from which the jury could base a finding as to the sale or exchange price.

5. Appeal and ebbob, § 450* — when admission of incompetent evidence cannot be complained of. The admission of incompetent evidence cannot be complained of on appeal where no objection was made in the trial court.

6. Evidence, § 366* — when inadmissible as conclusion of witness. In an action by real estate brokers against the owner for a commission, in which the issue is whether the plaintiffs were the procuring cause of the sale, the evidence of the purchasers upon such question is inadmissible as amounting to a conclusion upon an ultimate fact to be decided by the jury.

7. Bbokebs, § 85* — when evidence of purchaser as to effect of efforts of brokers is inadmissible. In an action by real estate brokers to recover a commission for the sale of real estate, evidence of one of the purchasers as to the impression which the efforts of plaintiffs had on their minds is admissible, but it is improper to ask such witness whether he was induced by the talk with plaintiffs’ representative to transfer the exchanged property to the seller,

8. Appeal and ebbob, § 1498* — when error in exclusion of evidence is not reversible. In an action by real estate brokers to recover a commission for the sale of real estate, the refusal of the court to allow the answer of one of the purchasers as witness for plaintiffs as to whether the talk he had with the representative of plaintiffs increased his desire for the property was not reversible error, where the witness and the other purchaser had already disclosed in their testimony the extent to which plaintiffs’ representative had brought them into an agreement with defendant’s terms.

9. Brokers, § 97* — when instruction on right to commissions is not erroneous. In an action by real estate agents to recover a commission for the sale of real estate, an instruction that if plaintiffs were employed by defendant to effect an exchange or sale of the property, and were the efficient and procuring cause of the sale, they were entitled to a commission, no matter how slight the services performed might appear to be, was held to be correct, and not misleading.

10. Brokers, § 37* — when entitled to a commission. Brokers who are the procuring cause of a sale of real estate, and were employed to make the sale, are entitled to a commission, regardless of how little time they may have expended.

11. Trial, § 232* — when denial of request that document he taken to jury room is not error. The ruling of the trial court denying a request of defendant’s counsel that a certain document be taken to the jury room is not error where the defendant’s counsel erroneously referred to the document as a certain exhibit, which exhibit had not been received in evidence.


text:
    Ota P. Lightfoot, Appellee, v. Village of Evergreen Park, Appellant.
    Gen. No. 22,353.
    1. Municipal corporations, § 119

       — when power to remove village officers exists. In the absence of anything in a statute to show a contrary intention, the power to remove village officers is incidental to the power to appoint.
    2. Municipal corporations, § 112* — what is power, of president of village hoard of trustees as to appointment of officers. The provision in the Cities and Villages Act, art. XI, sec. 9 (J. & A. 1526), providing that the president of the board of trustees shall have the same powers as a mayor, is controlled by section 11 (J. & A. 1f 1528), providing that the president and board of trustees may appoint the officers necessary to carry into effect the powers conferred upon villages, to prescribe their duties and fees, etc., and which places the power of appointment in the hands of the president and village board.
    3. Municipal corporations, § 119

       — what is authority of president of hoard of village trustees as to removal of officers. The president of a board of village trustees possesses no more authority than any other trustee, even in the removal of officers appointed by him and the hoard.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed October 10, 1917.
    Alfred F. Tompkins, for appellant; Edgar M. Sinnott, of counsel.
    Harford & Lightfoot, for appellee; A. C. Harford, of counsel.

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

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

The appellant seeks to reverse a judgment against it for $225, recovered by appellee for salary as village attorney. The record discloses that appellee was regularly appointed village attorney for the period of one year, and that thereafter the board of trustees passed-a resolution dismissing him for an alleged failure to attend to certain legal matters. When this was brought to the notice of the president of the board, he stated that he had not discharged appellee, and instructed him to continue with his duties.

The Cities and Villages Act, art. XI, sec. 9 (J. & A. 1526), provides that the president of the board of trustees shall perform the duties and exercise the powers conferred upon the mayor of a city. Section 11 (J. & A. 1528) provides that the “president and board of trustees may appoint a clerk pro tempore * * * and such other officers as may be necessary to carry into effect the powers conferred upon villages, to prescribe their duties and fees,” etc. While there is no provision made in the statute in regard to the-removal of village officers, the law of this State is that, in the absence of anything to show a contrary intention, the power to remove is incidental to the power to appoint. (People v. Higgins, 15 Ill. 110.) The provision granting a village president the same power as a mayor is controlled by the provision already quoted, which places the power of appointment in the hands of the president and village board. (McKean v. Gauthier, 132 Ill. App. 376.)

The village trustees in this case passed a resolution removing the appellant. There is no proof that the president vetoed this resolution, if he had the power to do so. We think there is nothing in the point that he did not affirmatively express concurrence in the passage of the resolution. It has been held in this court, in Rowley v. People, 53 Ill. App. 298, and in McKean v. Gauthier, supra, that in matters of appointment, the president of a board possesses no more authority than does any other trustee, and by a parity of reasoning he stands in the same position with reference to the removal of village officers.

As the appellee appears regularly to have been removed from his office by the action of the properly constituted authorities, we are of the opinion that he is not entitled to recover the salary for the remaining portion of the time for which he was originally appointed. For these reasons, the judgment of the Circuit Court is reversed and remanded.

Reversed cmd remanded.


text:
    Kate E. Pardue and Harry A. Pardue, Appellants, v. E. Orris Hart, trading as E. Orris Hart & Company et al., Appellees.
    Gen. No. 22,634.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Exchange of pbopebty, § 1

       — when evidence shows that name of party was on contract at time of execution. Evidence of the parties and a stipulation that a bill of complaint set up a true and correct copy of an agreement for exchange of property as executed by the parties, and in the agreement the name of one of the parties appeared, held sufficient to show that the name of such party appeared in the contract at the time it was made.
    Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Bill by Kate E. Pardue and Harry A. Pardue, complainants, against E. Orris Hart, trading as E. Orris Hart & Company, Edwin H. Abbott and R. G-. Ingersoll, defendants, for an accounting for profits belonging to complainants and secretly kept by defendants in certain real estate transactions, in all of which defendant Hart acted as broker, and defendant Ingersoll as salesman for Hart.
    From a judgment for defendants, complainants appeal.
    Spencer Ward, for appellants.
    George W. Stockwell, for appellees.

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

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

2. Brokers, § 25 — when evidence does not show receipt of excessive fees. Evidence held insufficient to show that real estate brokers in the three deals made in the course of the indirect exchange of property through a third person received more than their legitimate fees.

3. Brokers, § 25* — when evidence shows that broker used best endeavors in behalf of owners. In a suit against brokers and a third person acting as a medium for the indirect exchange of real estate for an accounting of profits, evidence held insufficient to show that such person acted in a fiduciary capacity or that the brokers used other than their best endeavors in behalf of complainants.


text:
    John F. Devine, Administrator, Appellant, v. C. A. Carlson, Appellee.
    Gen. No. 22,373.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed October 10, 1917.
    Rehearing denied October 25, 1917.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of John A. Benson, deceased, plaintiff, against O. A. Carlson, defendant, to recover for the death of plaintiff’s intestate, alleged to have been due to the negligence of defendant, intestate’s employer, in carelessly constructing and permitting certain heavy timbers resting on crosspieces, nailed to certain uprights in a barn, to be so insecurely nailed as to allow the load of lumber resting upon them to be insecurely supported and dangerous and to fall upon intestate. From a judgment in favor of defendant on a directed verdict, plaintiff appeals.
    Haight, Brows & Haight, for appellant.

      Abstract of the Decision.
    1. Negligence, § 171

       — when evidence as to conditions surrounding glace of accident is admissible. Evidence as to the conditions surrounding the place of an accident shortly after it occurs is admissible.
    2. Appeal and ebbob, § 450* — when objection to evidence may not be raised. An objection that a question is improper because calling for the conclusion of the witness is improper unless made in the trial court.
    3. Death, § 44* — when exclusion of evidence as to whether witness saw fallen■ lumber after accident is error. In an action for the death of an employee alleged to he due to the negligence of the employer in carelessly constructing and knowingly permitting certain heavy timbers resting on crosspieces, nailed to certain uprights in a barn, to be so insecurely nailed as to.allow the load of lumber resting upon them to be dangerous so that they fell upon intestate, where the condition of the premises was one of the vital facts in the case, held that the exclusion of evidence of a witness, as to whether he saw any lumber that had fallen, was reversible error.
    Boss C. Hall and Oscar H. Olsen, for appellee.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.