author: Mr. Presiding Justice Holdom

text:
    The People of the State of Illinois, Defendant in Error, v. Oliver F. Paisley et al., Plaintiffs in Error.
    Gen. No. 23,415. (Not to be reported in full.)
    Error to the Criminal Court of Cook county; the Hon. George Kebstbit, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded in part and affirmed in part.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Oliver F. Paisley, James J. Paisley and William H. Paisley, defendants, for receiving as bankers deposits from Margaret Basch to the value of $700, on September 16, 1916, when they were knowingly insolvent, and causing loss of such deposits in violation of section 25a, ch. 38, Criminal Code (J. & A. ¶ 3617). From a judgment on verdict finding all defendants guilty and fixing punishment of William H. Paisley at one year in the penitentiary without fine and of the other defendants at three years in the penitentiary and a fine of $1,400 each, each defendant brings error.
    The defendants operated three private banks in north Chicago as partners. The banks were closed September 19, 1916, by the voluntary act of defendants, and on application of one of them a receiver was appointed by the Superior Court of Cook county. Soon thereafter on involuntary bankruptcy proceeding in the Federal District .Court, the Chicago Title & Trust Company was appointed receiver of the three banks.
    Marshall Solberg and Harry L. Shaver, for plaintiffs in error.

      Abstract of the Decision.
    1. Indictment and infobmation, § 32

      —what does not invalidate indictment. Charging in an indictment an act which is by statute a misdemeanor to have been “feloniously” done, does not invalidate the indictment if it is in other respects without fault.
    2. Banks and banking, § 64*—when indictment is against individual bankers. Where an indictment recited in the inducement part that the defendants were partners in the banking business but in the charging part averred the act of receiving deposits while knowingly insolvent as that of the defendants as individuals, the indictment was against them as individuals and not as a firm.
    3. Banks and banking, § 64*—admissibility of partnership’s books in criminal prosecution. The books of a banking partnership are admissible, against the partners in a prosecution against them as individuals for receiving deposits while knowingly insolvent.
    4. Banks and -banking, § 64*—when evidence of depositors as to loss of deposits admissible. Evidence of numerous depositors in a private bank conducted as a partnership that.they had made deposits in the bank and had lost them, held admissible in a prosecution against the individual partners for receiving deposits while insolvent, where the defendants did not concede the facts testified to.
    5. Banks and banking, § 64*—what admissible as part of res gestx in criminal prosecution. Transactions prior to receipt of a deposit, charged in an indictment to have been while defendants were knowingly insolvent, in which defendants failed to pay over to the parties entitled to same or misappropriated certain collections or knowingly made false statements to induce deposits, held admissible as parts of the res gestx and tending to prove the issue under the indictment.
    6. Banks and banking, § 64*—when witness is competent to testify as to insolvency of bank. Evidence of one who was in charge for a receiver of a bankrupt bank as to the insolvency of the bank, gathered from his possession and knowledge of all of the bank’s assets and books, held admissible and competent and not to invade the province of the jury, where the witness was shown to have had experience in such matters and gave detailed information regarding the assets and books and a correct definition of insolvency.

      Maclay Hoyne, for defendant in error; Edwin J. Raber and Edward E. Wilson, of connsel.

      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.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

7. Banks and banking, § 64 —when finding of insolvency warranted. Certain books, papers and documents of a bank charged in an indictment to have been insolvent at a time a certain deposit was received, held to warrant a finding of insolvency independent of the competency of the witness testifying to same.

8. Banks and banking, § 64*—when evidence as to value of leasehold of insolvents properly excluded. Evidence as to the value of a certain 99-year leasehold interest owned by the insolvent defendants, charged in an indictment' with receiving a certain deposit while knowingly insolvent, based upon a contemplated building upon the land which was not yet constructed or contracted for and upon the estimated rentals of the building when it should be constructed, held properly excluded.

9. Banks and banking, § 64*—when value of hank stock as assets cannot he calculated. In a criminal prosecution for receiving deposits while knowingly insolvent, the value of certain bank stock as assets of insolvent defendants held too uncertain to be capable of calculation, where certain banks of ample means had refused to retain same by paying assessments thereon and other banks of small means had retained same and assumed payment of such assessments.

10. Banks and banking, § 64*—when evidence in criminal prosecution shows payment of draft. In a criminal prosecution of private bankers for receiving deposits while insolvent, evidence held sufficient to show payment of a draft deposited with defendants, where it was shown the bank on which the draft was drawn paid same and defendants thereafter sent the depositor a note promising to pay the amount in full, and entry of the amount was made by defendants on their bank books and on the depositor’s pass book, and defendants received credit for the draft through their clearing-house representative, and the draft itself in evidence was marked “paid.”

11. Banks and banking, § 64*—when knowledge of insolvency shown. Evidence held to sustain the finding that defendants were insolvent and knew they were so at and for a long time prior to the time they received the deposit charged in the indictment against them.

12. Banks and banking, § 64*—duty of hanker to know whether insolvent. A private banker holds himself out to the public and to his customers as being possessed of money and of capital, and, therefore, to be safely trusted, and it is his duty to know, and he is under all ordinary circumstances bound to know, whether he is solvent, and it is criminal negligence of him not to know of his insolvency.

13. Banks and banking, § 64 —propriety of instruction as to form of verdict in criminal prosecution. In a criminal prosecution of private hankers for receiving deposits while knowingly insolvent, an instruction as to the form of the verdict in the language of the statute held sufficient

14. Banks and banking, § 64*—what is proper fine for receiving deposit while Tcnowingly insolvent. The fixing in the verdict, on conviction under an indictment against persons conducting a banking institution for receiving a deposit while knowingly insolvent, of a fine at an amount which was twice that of the deposit, held sufficient to comply with the statute.

15. Banks and banking, § 64*—what is proper punishment for receiving deposits while Tcnowingly insolvent. The provision of the statute that the punishment on conviction for receiving deposits in a hanking institution while knowingly insolvent shall he a fine of double the amount of the deposit is mandatory and cannot he dispensed with hy imposing no fine, but a jury may dispense with the additional part of the punishment of imprisonment authorized hy the statute.

16. Banks and banking, § 64*—extent of punishment for receiving deposits while insolvent where several defendants. The punishment on conviction under an indictment against several defendants as hankers for receiving a deposit while knowingly insolvent is as to each defendant, and the fine is the amount fixed by the statute.


source: Caselaw Access Project

license: Public Domain

text:
    Courtenay Barber, Defendant in Error, v. Mellish-Hayward Company, Plaintiff in Error.
    Gen. No. 23,468. (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 866

      —requisites of abstract. An abstract must state enough, of the record to permit the errors assigned to be determined from the recitations of the abstract.
    2. Appeal and ebbob—when evidence not reviewed. Errors assigned as to the admission and rejection of evidence cannot be reviewed where the abstract contains none of the pleadings.
    3. Pleading—when affidavit of merits insufficient to take place of plea of non est factum. An affidavit of merits held insufficient to take the place of a plea of non est factum, which was the defense attempted to be made by the evidence, notwithstanding it challenged the sufficient execution of certain insurance policies referred to in certain written instruments to pay premiums thereon sued on.
    Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by Courtenay Barber, plaintiff, against Mellish-Hayward Company, a corporation, defendant, to recover $478.65 on one and $727.20 on the other of two written promises of defendant to pay plaintiff certain insurance premiums, with interest. From a judgment for $1,431.03 for plaintiff, defendant brings error.
    George D. Wellington and Ernest W. Clark, for plaintiff in error.
    Henry T. Chace, for defendant in error.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

4. Appeal and erbob, § 864 —when record not searched for information to reverse judgment. To reverse a judgment, the reviewing court will not go to the record for information which the plaintiff in error should have furnished in the' abstract.

5. Appeal and erbob, § 1752*—when judgment affirmed. A judgment will be affirmed where appellant fails to file a complete abstract or abridgment of the record as required by rule 18 of the Appellate Court, and the evidence, as ascertained from the statements in the briefs, is conflicting.


text:
    Morris Katz, Defendant in Error, v. Joseph Elia, Plaintiff in Error.
    Gen. No. 23,516. (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by Morris Katz, plaintiff, against Joseph Elia, defendant, in garnishment. From a judgment for plaintiff, defendant brings error.
    For the opinion on another branch of same case, see Gen. No. 23,434, ante, p. 113.
    A. Gr. Dicus, for plaintiff in error.
    Harold J. Finder, for defendant in error; Samuel Bebenbaum, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion. of the court.

Abstract of the Decision.

1. Appeal and error, § 1098 —citing of authority. Sustaining authority should he cited upon legal propositions stated by counsel on appeal.

2. Judgment, § 277*—when discretion not abused in denying motion to vacate. A motion to vacate a judgment against a garnishee on the ground that there was a claim of attorney’s lien upon the judgment upon- which the garnishment proceeding was based and that notice of such claim was served prior to entry -of the judgment, but that the garnishee did not know the legal effect of the notice, held properly denied, and such denial not an abuse of discretion, as such evidence was not newly discovered, and if such claim was a defense it should have been interposed at the trial.


text:
    The People of the State of Illinois, Defendant in Error, v. Isaac Berger, Plaintiff in Error.
    Gen. No. 23,535. (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rurus P. Robinson, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Isaac Berger, defendant, charging defendant with violation of section 57, ch. 38, Rev. St. (J. & A. ¶ 3591), in renting or letting a room or rooms for purposes of prostitution, fornication and lewdness. From a judgment, on trial before the court without a jury, finding defendant guilty and fining him $200, defendant brings error.
    Charles Horgan, for plaintiff in error.

      Abstract of the Decision.
    1. Prostitution, § 4

      —when evidence warrants conviction of renting rooms for. Evidence held sufficient to sustain a conviction, under an information charging defendant with renting rooms for purposes of prostitution.
    2. Prostitution, § 4*—when evidence of character of inmates of house admissible. Evidence as to the character of certain persons who were inmates of defendant’s house was properly admitted, as tending to show the character of his house as immoral, under an information charging defendant with renting rooms for purposes of prostitution.
    3. Criminal law, § 506*—when evidence presumed to support judgment. Where a criminal case is tried before the court without a jury, the presumption will be indulged on appeal that there is sufficient evidence in the record, unchallenged, to sustain the judgment, and that the court heeded only competent evidence in rendering same, notwithstanding there may have been incompetent evidence.
    4. Criminal law—when denial of further argument proper. Where the trial judge without objection rendered his opinion, on a trial of a criminal case before the court without a jury, and pronounced judgment, going over the crucial questions in the case understandingly, his refusal thereafter to allow further argument was justified and within his rights.
    5. Criminal law, § 553*—when denial of privilege of argument harmless error. Denying to counsel the privilege of argument, on trial of a criminal case before the ■ court without a jury, will not of itself constitute reversible error where the record clearly sustains the judgment.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Paul E. Roegner and Emil F. Roegner, trading as Roegner & Company, Appellees, v. J. A. Frey, Appellant.
    Gen. No. 23,542. (Not to be reported in full.)
    Abstract of the Decision.
    Brokers, § 37

      —when not procuring cause of exchange of property. Plaintiffs were not the procuring cause of the trade of defendant’s property where defendant refused to make the trade, without knowing the name of the owner of the other property, when it was first proposed by plaintiffs, and several months later effected the trade through his answer to an advertisement by the owner of the property, with which plaintiffs had nothing to do.
    Dever, J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with judgment of nil capiat.

    Opinion filed January 28, 1918.
    Rehearing denied February 11, 1918.
    Statement of the Case.
    Action by Paul E. Roegner and Emil F. Roegner, trading as Roegner & Company, plaintiffs, against J. A. Frey, defendant, to recover a commission claimed on a certain real estate transaction. From a judgment for plaintiffs for $187.50, defendant appeals.
    William L. Barnum, Jr., for appellant.
    George C. Geier, for appellees.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Berz Company, Appellee, v. Peoples Gas Light & Coke Company, Appellant.
    Gen. No. 23,567. (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and gabaqes, § 6

      —what Constitutes fatal variance in action for injury to automobile. Where plaintiff alleged ownership of a certain automobile, in an action to recover damages for injuries to same by a collision with defendant’s automobile, and offered proof showing ownership in another, held that the variance was fatal to a recovery, notwithstanding there was no plea denying ownership in plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with judgment of nil capiat.

    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by Berz Company, a corporation, plaintiff, against Peoples G-as Light & Coke Company, a corporation, defendant, to recover damages for injuries to plaintiff’s ambulance automobile from a collision with defendant’s automobile. From a judgment for plaintiff for $750, defendant appeals.
    Meagher, Whitney, Ricks & Sullivan, for appellant; Oliver R. Barrett and Francis L. Daily, of counsel.
    Finían H. Welch and William J. Lacey, for appellee.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

2. Automobiles and garages, § 6 —what is effect of owners of cars being in pari delicto. Where the parties, in an action to recover damages for injuries to plaintiff’s automobile from a collision with defendant’s automobile, are in pari delicto, the law will not afford either of them relief.


author: Mr. Justice Dever

text:
    Frederick H. Wickett, Appellee, v. Katherine Hastings et al., on appeal of Ralph Temple and Benjamin F. J. Odell, Appellants.
    Gen. No. 23,403. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Bill by Frederick H. Wickett, complainant, against Katherine Hastings and others, defendants, to foreclose a.certain trust deed. From a decree holding that certain parties, Ralph Temple and Benjamin F. J. Odell, were entitled to redeem from the foreclosure sale made under the deed, as holder and assignee, respectively, of a certificate of a prior sale of the same premises upon foreclosure of a certain second trust deed, and that certain rents in the hands of the receiver should be paid to complainant, said Temple and Odell appeal.
    A master’s certificate was issued to Temple, on the sale under his second trust deed, who assigned same to Odell, to whom the master issued a deed for the premises. Temple was made a- defendant in this case and decree was entered against him pro confesso on publication notice. Odell was not made a party. After sale to complainant, a deficiency decree was entered and receiver appointed to receive the rents and profits from the premises. Odell received deed May 7, 1915, and on May 18, 1915, tendered complainant the amount at which the premises were sold under the first trust deed, with interest, which complainant refused, and Temple and Odell filed petition under section 19 of the Chancery Act (J. & A. ¶ 899) to be allowed to make redemption, on answer to which the decree npw appealed from was entered. Complainant received deed to the premises May 26,1916.
    Abstract of the Decision.
    1. Appeal and error, § 1078

      —what is effect of failure to assign cross errors. Complainant, not having assigned cross errors, was estopped from questioning the trial court’s jurisdiction to adjudicate the claim of one appellant as owner of an equity of redemption in the premises purchased by complainant under a first trust deed foreclosure as to certain rents and profits collected and held by a receiver in the foreclosure suit, on the ground that such appellant had not been made a party to the suit but had appeared therein by his own petition after sale to complainant, claiming an equity of redemption as purchaser under a prior foreclosure sale of a second trust deed upon the same premises.
    2. Mortgages, § 738*—when owner of equity of redemption is entitled to rents and profits. Where it appears that the rents and profits issuing out of' mortgaged premises have not been pledged by the mortgage or trust deed to secure the agreements and promises of the mortgagor! and where it further appears that the owner of the equity of redemption is not the person who executed such mortgage or trust deed, and who is not personally liable for the indebtedness, such owner of the equity of redemption is entitled of right to such rents and profits..

      Benjamin F. J. Odell, for appellants; Melville B. Adams, of counsel.
    Wickett, Walker & Wegg, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Mortgages, § 738 —when rents and profits after sale should not Ve applied in payment of deficiency decree. Where a first trust deed, containing the usual provisions for sale of the premises and for the application of the amount received therefor to the secured indebtedness, also provided that “any rents that may be collected after such sale and before the time of redemption expires” should be paid “to the purchaser or purchasers of said premises at such sale,” held that the language quoted was too uncertain and vague to authorize a holding that the rents and profits accruing after sale in the hands of a receiver should be applied in payment of a deficiency decree, where the equity of redemption was held by the assignee of a purchaser of the premises under a prior foreclosure of a second trust deed on the same premises.

4. Mortgages, § 709*—what interest redeeming owner of equity of redemption liable for. A decree holding that the redeeming owner of the equity of redemption in premises sold under foreclosure should be charged interest on the sum for which the premises were sold from the date of sale to the date of redemption, held proper.

5. Mortgages, § 709*—what should be included in tender by redeeming owner of equity of redemption. The tender by the redeeming owner of the equity of redemption in premises sold under foreclosure properly includes taxes theretofore paid, with interest thereon, by the purchaser from whom redemption is made.


text:
    Firestone Tire & Rubber Company, Defendant in Error, v. Saul I. Ginsburg, Plaintiff in Error.
    Gen. No. 23,461. (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1752

      —when judgment affirmed for deficiency in abstract. Where appellant fails to comply with rule 18, requiring that abstracts of record must contain abstracts of the pleadings which are sought to be reviewed, and also fails to properly preserve by bill of exceptions the ruling of the trial court complained of, the judgment will be affirmed.
    2. Judgment, § 104*—when duty of court to default defendant. Where special pleas only were filed to a declaration containing the common and special counts, and none of such pleas went to the common counts, it was the duty of the court to default the defendant.
    3. Pleading—number of affidavits of merits. It is not allowable under section 55 of the Practice Act (J. & A. f 8592), to file more than one affidavit of merits to a plea to a declaration, notwithstanding different defenses are set up to a part of plaintiff’s claim.

      Error to the Superior Court, of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by Firestone Tire & Rubber Company, a corporation, plaintiff, against Saul I. Ginsburg, defendant, to recover $8,329.50 on two promissory notes by defendant as maker, each for $5,000. From a judgment for plaintiff for $9,091.66, defendant brings error.
    Adolph Marks, for plaintiff in error.
    Miller, Gorham & Wales, for defendant in error.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

4. Pleading, § 153 -—when affidavit of merits is insufficient. An affidavit of merits that plaintiff had accepted one of two notes sued on in satisfaction and payment of the other note, with knowledge of the fact that both notes were given to the payee therein mentioned without consideration, was insufficient, even if plaintiff had received the notes with knowledge that they were given as accommodation papers, as knowledge of this fact alone would not defeat the action.

5. Pleading, § 366*—when pleas properly stricken. In an action against the maker of two promissory notes to recover thereon, where an affidavit of merits was properly stricken from the files, held that the pleas, being unsupported, were also properly stricken.


text:
    The People of the State of Illinois, Defendant in Error, v. Ottilia Bishop, Plaintiff in Error.
    Gen. No. 23,482. (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Ottilia Bishop, defendant, for violation of section 180 of the Criminal Code (J. & A. ¶ 3811), in unlawfully by lottery disposing of personal property, to wit, merchandise of the value of $10, to one Mrs. William Freeto. From a judgment of conviction and fine of $25, defendant brings error.
    Rosenthal, Kurz & Houlihan, for plaintiff in error.

      Abstract of the Decision.
    1. Lotteries, § 2

      —when recalled lottery contract admissible in criminal prosecution. Where an original, admittedly illegal lottery contract was recalled hy the party issuing same as the seller of certain merchandise, and another contract alleged to be legal substituted therefor, held that the former contract was admissible in evidence under an information charging only that the defendant unlawfully engaged in a lottery transaction, and not charging the illegality of the substituted contract, notwithstanding the latter contract was legal on its face.
    2. Lotteries, § 2*-—when evidence supports conviction, Evidence held to support a judgment of conviction on an information for unlawfully hy lottery disposing of personal property, where it tended to show that defendant had by her conduct led certain club members to believe payments would not be required of them under their contract, legal on its face, after they had received certain merchandise as a result of weekly drawings.
    Maclay Hoyne, .for defendant in error; George C. Bliss, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    George W. Dingman, Appellee, v. Lawrence P. Boyle, Appellant.
    Gen. No. 23,490. (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 88

      —when evidence shows insertion of provision for commission at date of contract. Evidence held to sustain the finding that a certain provision, inserted in the contract entered into by defendant for the sale and exchange of certain real estate, for the payment to plaintiff of a certain brokerage commission was inserted therein on the date of the execution of the contract, in an action to recover- the commission.
    2. Brokers, § 4*—when person not having license may recover under special contract. Evidence held to sustain the finding that plaintiff was not engaged in the real estate brokerage business but to be entitled to receive compensation from defendant under a special contract, notwithstanding his failure to qualify as a licensed broker, In an action to recover a commission on the sale and exchange of certain real estate.

      Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fey, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by George W. Dingman, plaintiff, against Lawrence P. Boyle, defendant, to recover $1,500 for services rendered to defendant in connection with a proposed sale and exchange of certain real estate. From a judgment for plaintiff for $1,500, defendant appeals.
    Lambert & Mayer, for appellant.
    John M. Sweeney, for appellee.

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

      See Illinois Notes Digest, Vola. XI tQ Xy, and Cumulative Quarterly# same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

3. Brokers, § 90 —when evidence shows procurance of person willing to exchange property. Evidence held to sustain the finding that plaintiff, in an action to recover a commission on the sale and exchange of certain real estate, had procured a person ready, willing and able to exchange properties with defendant.

4. Brokers, § 90*—when shorn that plaintiff was ready to procure loan. . Evidence held to sustain the finding that plaintiff was ready, able and willing to procure a certain loan for defendant, required of plaintiff under a certain contract with defendant as precedent to plaintiff’s right to a commission, in an action to recover a commission on the sale and exchange of certain real estate.


text:
    Geraldine B. Edlund, Defendant in Error, v. Arthur E. Edlund, Plaintiff in Error.
    Gen. No. 23,508. (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed in part, reversed in part and remanded.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Bill by Geraldine B. Edlund, complainant, against Arthur E-. Edlund, defendant, for divorce on the ground of extreme and repeated cruelty. From a decree for complainant, defendant brings error.
    Farlih H. Ball and G. A. Buresh, for plaintiff in error.
    Litziugeb, Healy & Reid, for defendant in error.

      Abstract of the Decision.
    1. Divorce, § 75

      —when decree for divorce reversed. Where a decree adjudging defendant to pay certain permanent alimony and solicitor’s fee made no specific finding of facts upon which such decree was based and the evidence introduced at the trial was not preserved hy complainant by a certificate of evidence or otherwise, held that the decree must he reversed.
    2. Equity, § 547*-—who must preserve evidence on which decree based. The party in whose favor a decree in chancery is rendered has the legal duty of preserving in some manner the evidence upon which it was based, hy a certificate of evidence or otherwise.
    3. Divorce, § 75*—when order for temporary alimony reversed. An order for temporary alimony based upon several affidavits not made a part of the record by signing of a certificate of evidence and otherwise without support in the record should be reversed.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    William N. Junker, Appellee, v. Fidelity & Deposit Company of Maryland, Appellant.
    Gen. No. 23,510. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Suimvan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment of nil capiat here.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by William N. Junker, plaintiff, against Fidelity & Deposit Company of Maryland, a corporation, defendant, to recover on an accident insurance policy issued by defendant to plaintiff. From a judgment for plaintiff for $23.45, defendant appeals.

      Abstract of the Decision.
    Insurance, § 187

      —what are rights as to return of earned premium upon cancellation of policy. The Insured under an insurance policy has no legal right to a return of that part of the premium paid which represents payment for a period .of time during which he was furnished the protection provided by the policy, where it was canceled in accordance with its provision that the" insurer might cancel it on notice and return of the unearned portion of the premium paid.
    A stipulated statement of facts showed plaintiff paid defendant $74.25 as total premium on the policy issued April 13, 1916, which defendant canceled August 2, 1916, and returned to plaintiff its check for $51.46 with letter notifying him of the cancellation. The policy provided that defendant might cancel it at any time by written notice with cash or check for the unearned portion of the premium.
    Mechem, Bangs & Harper, for appellant; B. M. Adams, Jr., of counsel.
    No appearance for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    George C. Bour, Appellant, v. Walter W. Cook, Appellee.
    Gen. No. 23,593. (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1752

      —when judgment affirmed. A judgment should be affirmed for appellant’s failure to abstract the pleadings, in accordance with the rules of court.
    2. Brokers, § 90*—when not shown broker was procuring cause of sale. Evidence held insufficient to show plaintiff was the procuring cause of the sale of defendant’s premises in question, in an action to recover a real estate broker’s commission.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Rehearing denied February 11, 1918.
    Statement of the Case.
    Action by George C. Bonr, plaintiff, against Walter W. Cook, defendant, to recover a commission as a real estate broker for endeavoring to procure a purchaser for certain premises owned by defendant. From a judgment for defendant, plaintiff appeals.
    Charles M. Haet, for appellant.
    Knapp & Campbell, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Moses C. Myers, Defendant in Error, v. Katherene May Andrews, Plaintiff in Error.
    Gen. No. 23,457. (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by Moses C. Myers, plaintiff, against Katherene M!ay Andrews, defendant, to recover under a certain contract, whereby plaintiff was to render certain services, for his expenses incurred in rendering such services. From a judgment for plaintiff for $4,502.45, defendant brings error.
    The services to be rendered by plaintiff were in assisting defendant to recover on a certain claim under a so-called grubstake agreement made January 31, 1898, by defendant with her then husband, who died December 30, 1909, whereby in consideration of $400 paid him by her to make a trip to Alaska he agreed, among other things, that she should have 50 per cent, of whatever riches he should possess on his return. The contract between plaintiff and defendant was evidenced by three agreements, prepared at the instance of plaintiff’s attorney, each reciting the grubstake agreement, and the first reciting an assignment to plaintiff by defendant of a one-half interest in such agreement and “in and to said claim, and in and to all moneys, properties and securities to be recovered,” a consideration of $10 paid by plaintiff to defendant, and further consideration in plaintiff’s agreement to use his best efforts to realize upon the claim of defendant, by litigation or compromise, “but all the costs and expenses which the said Moses C. Myers shall incur in and about so doing shall be paid by the said Katherene May Elliott. If, However, any sum of money shall be realized as the result of the enforcement of the above-mentioned claim, then one-half of the expenses thereof shall be taken out of the one-half of the proceeds of enforcement coming to said Moses C. Myers, by virtue of his ownership of an undivided one-half interest therein”; also reciting the delivery to plaintiff of a power of attorney from defendant authorizing him to represent her. The second agreement also appointed plaintiff attorney in fact for defendant in usual form. The third also assigned and transferred to plaintiff an undivided one-half of the claim of defendant and of any real or personal property recoverable thereunder, with authority to plaintiff “his executors, administrators and assigns * * *, for his or their own use and benefit, but at his or their own cost, to take all legal measures which may be proper or necessary for the complete recovery of said assigned claim.” These three agreements were dated the same and each recited a consideration of $10, but only one $10 was paid.
    Abstract of the Decision.
    1. Contracts, § 12

      —when contract does not lack, mutuality. A contract does not necessarily lack mutuality because it may be one-sided and unfair to one of the parties, where the other party gave a monetary consideration and undertook to give also his services.
    Haight, Brown, Haight & Harris, for plaintiff in error.
    Pam & Hurd, for defendant in error; Burrell J. Cramer, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Evidence, § 351*—when parol evidence is admissible to explain contract. Where a certain contract contained contrary provisions as to payment of certain expenses of an undertaking, held that parol testimony was admissible to clear up the question, in an action to recover such expenses.

3. Contracts, § 390*—when question of performance is for fury. The question of how far plaintiff performed his contract to give his best efforts in an undertaking whereby he was to recover on an assigned claim of defendant under a grubstake agreement of defendant with her husband, whereby she was to have one-half of the husband’s riches on his return, held to be for the jury.

4. Contracts, § 393*—when instruction as to performance is err roneous. In an action on a contract whereby plaintiff was, for a certain consideration, to assist defendant in recovering on a grubstake agreement between her and her husband, under which she was to have one-half of the husband’s riches on his return from the mining regions, an instruction that “best efforts and endeavors in good faith” mean that a man would do in his own case, held to be erroneous, as not necessarily true.


text:
    Sidney Montgomery Irving, Plaintiff in Error, v. Clara Grobman Irving, Defendant in Error.
    Gen. No. 23,478.
    1. Divorce, § 172

      —year in which parly may remarry as calendar year. The word “year” used in the statute on “Divorce” (J. & A. If 4126), providing that neither party to a divorce shall marry again within one year from the time the decree was granted, means “calendar year.”
    2. Time, § 1*—how calendar year computed. In computing time by the calendar year days are not counted, but the calendar is examined and the • day numerically corresponding to that day in the following year is ascertained, and the calendar year .expires on that day less one.
    Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.

      George W. Pennington, for plaintiff in error.
    George L. Schein and Leo H. Hoeeman, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Complainant by his bill asked to have his marriage with the defendant declared void. Answer was filed by the defendant, and also a cross-bill alleging cruelty and seeking separate maintenance and solicitor’s fees. To this an answer was filed. Upon hearing, the chancellor ordered the bill dismissed, and sustained the cross-bill and awarded the’ relief prayed for. Complainant by this writ of error seeks the reversal of this decree.

The voiding of the marriage was based by complainant upon the allegation that prior thereto defendant had been married to Frank C. Grobman, from whom she had obtained a decree of divorce, entered in the Superior Court of Cook county on June 27/1913, and that the marriage to complainant was on June 27, 1914. These are admitted to be the facts by the defendant, and the chancellor so found. Complainant claims that under such circumstances the marriage of the defendant with him was in violation of the statute providing “that in every case in which a divorce has been granted * * * neither party shall marry again within one year from the time the decree was granted.” Hurd’s Illinois Rev. St. 1916, ch. 40, sec. 1a (J. & A. ¶ 4126).

How shall this year be computed? Complainant argues for the application of the statutory rule of “excluding the first day and including the last” (chapter 131, sec. 1, subsec. 11, J. & A. ¶ 11102) which would make the day of the marriage fall upon the last day of the year of prohibition.

We recognize that a branch of this court, in Kahlo v. Kahlo, 204 Ill. App. 409, sustained a similar contention and applied this statute to like facts. We are not in accord with this decision. The statutory provision for “excluding the first day and including the last” is for computation when “the time within which any act provided by law is to be done,” which language is not applicable to the divorce statute referred' to. We are of the opinion that the situation before us calls for a different rule for computing time. Under the same statute, chapter 131, sec. 1, subsec. 10 (J. & A. ¶ 11102), the word “year” used in the statute on “Divorce” means “a calendar year,” and, in computing time by the calendar year, days are not counted, but the calendar is examined and the day numerically corresponding to that day in the following year is ascertained, and the calendar year expires on that day, less one. Among the cases holding this to be the proper method of computation are Migotti v. Colvill, 4 Com. Pl. Div. 233; McGinn v. State, 46 Neb. 427; Marcoux v. Society of Beneficence, 91 Me. 250; Nesbit v. Godfrey, 155 Pa. St. 251; Buchanan v. Whitman, 151 N. Y. 253; Vogel v. State, 107 Ind. 374; Taylor v. Brown, 147 U. S. 640. See also, People ex rel. Blachly v. Coffin, opinion by this court in 202 Ill. App. 100, in which we applied this rule of computation, and the opinion of the Supreme Court sustaining this method, in People v. Coffin, 279 Ill. 401. The same conclusion was reached in Trimmer v. Trimmer, 215 Ill. 121, although apparently by another process.

In view of these cases we are of the opinion that the chancellor was right in holding that the year within which defendant was prohibited from marrying expired on June 26, 1914, and that at the time of her marriage on the following day, that is, June 27th, she was free from any statutory inhibition. It follows, therefore, that her marriage was valid, and that the decree dismissing complainant’s bill was proper.

The other points presented for onr consideration are based upon the alleged invalidity of the marriage of’-the parties, and what we have said is sufficient to dispose of them.

For the reasons above indicated the decree is affirmed.

Affirmed.


text:
    India Rubber Tire Company, Appellant, v. Thomas F. Foy et al., Appellees.
    Gen. No. 23,488. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Rehearing denied February 11, 1918.
    Statement of the Case.
    Bill by India Rubber Tire Company, complainant, against Thomas F. Foy, Robert L. Stephens and John E. Traeger, as sheriff, defendants, to enjoin proceedings under an execution. From a decree dissolving a temporary injunction for want of equity, complainant appeals.
    John A. Bloomingston, for appellant.
    N. A. Partridge, for appellees.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and errob, § 309 —when appeal lies from order dissolving temporary injunction. An appeal lies from an order dissolving a temporary injunction, where the only relief prayed for in the bill is to enjoin proceedings under an execution and the order dissolving the injunction is for want of equity appearing on the face of the bill.

2. Injunction—when hill to stay proceedings at law dismissed as without equity. A bill setting forth that complainant, after praying appeal to the Appellate Court and filing appeal bond and bill of exceptions in a certain action at law in which judgment had been entered against complainant, had made settlement in full for the judgment with the judgment creditor and had so notified the latter’s attorney in the action; that the latter had refused to accept a certain tender as his fees in the action, and demanded a larger sum based on a notice of attorney’s lien which had been served upon complainant prior to • complainant’s settlement with the judgment creditor; that the attorney, knowing of the settlement, filed a short record in the Appellate Court, and, after notice to complainant, procured from the Appellate Court a dismissal of complainant’s appeal and assessment of damages against compláinant on which judgment of the Appellate Court execution issued and was served on complainant, and that the Appellate Court had refused to grant complainant relief; that the judgment creditor was insolvent, and that irreparable injury would be done complainant if the execution should be levied and complainant’s property sold thereunder, held to have been properly dismissed for want of equity on dissolution of a temporary injunction granted thereon. _I__


text:
    W. B. Louer, trading as W. B. Louer Company, Appellee, v. Thomas M. White and Thomas L. Russell, copartners, trading as Thomas M. White Company, Appellants.
    Gen. No. 23,494. (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 153

      —what constitutes acceptance of machine sent on trial. .Where a written contract for the purchase of an excavator machine provided that the machine was “to work in clay excavating satisfactory to the” purchaser, and that he should pay a certain amount when the machine was accepted and the balance in 30 days, the payment by the purchaser of the amount named after he had used the machine for 10 days constituted an acceptance of it according to the terms of the contract.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by W. B. Loner, trading as W. B. Loner Company, plaintiff, against Thomas M. White and Thomas L. Bussell, copartners, trading as Thomas M. White Company, defendants, to recover the balance of the purchase price of an excavator. From a judgment for plaintiff for $896.50, defendants appeal.
    S. M. Schall, for appellants.
    Webster & Sherrard and Julius Stern, for appellee; Julius Stern, Daniel Webster and Arthur A. Sherrard, 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 McSurely

delivered the opinion of the court.

2. Sales, § 146 —when machine deemed to work to satisfaction of purchaser. Where a machine is furnished to work to the satisfaction of the purchaser of it, and such work is a matter of common experience, such as ordinary mechanical work, what, in reason ought to satisfy the contracting party in law will he held to satisfy him.

'3. Sales, § 148*—necessity of early notice of dissatisfaction with machine. Where a machine is to he satisfactory to the purchaser of it, notice of dissatisfaction or of failure of the machine must he given to the seller at the earliest practicable moment.


text:
    The People of the State of Illinois ex rel. Joel E. Brumager, Plaintiff in Error, v. Joseph Johnson and Daisy Johnson, Defendants in Error.
    Gen. No. 23,507. (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. William Fenimobe Cooper, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Proceeding by the People of the State of Illinois on the relation of Joel E. Brumager, petitioner, against Joseph Johnson and Daisy Johnson, his wife, respondents, of habeas corpus for the custody of Jane Brumager, 6 years old, daughter of the relator. Prom a decree awarding the child to the respondents, petitioner brings error.
    GL A. Buresh, for plaintiff in error.
    Samuel Peterson, for defendants in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of. the Decision.

1. Infants, § 4 —what is principal consideration in awarding custody of child. The principal consideration moving the court, in awarding the custody of a minor child under a proceeding in habeas corpus, is the welfare of the child, and where opposing claimants are equally responsible courts will favor the claims of-those who stand in relationship to the child.

2. Infants, § 4*—determination of comparative merits of claimants of child. A determination as to the custody of a minor child, in a proceeding in habeas corpus, does not necessarily involve a decision upon the comparative merits of the respective claimants.

3. Infants, § 4*—when custody of child given to uncle and aunt. In a habeas corpus proceeding, held that the uncle and aunt of a minor child should be awarded its custody, on grounds of relationship, notwithstanding another claimant who was unrelated was equally proper and fit to have its custody.


text:
    Bertha M. Doyle, Defendant in Error, v. Samuel Fallows et al., Plaintiffs in Error.
    Gen. No. 23,547. (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gem mill, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by Bertha M. Doyle, plaintiff, against Samuel Fallows and others, defendants, to recover for services as stenographer and secretary to the finance committee of the Illinois Commission of Lincoln Jubilee and Half-Century Anniversary Exposition and for moneys advanced in the business of the Commission. From a judgment for plaintiff, defendants bring error.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim in action for services insufficient as basis for judgment. Judgment held Improperly entered against the defendants where the statement of claim made no mention of their names or of employment by-them or of services rendered to thena, but averred only a hiring of plaintiff by a certain commission, in an action to recover for services rendered to a committee of such commission and for moneys advanced in its business.
    2. Municipal Court of Chicago, § 30*—when failure of statement of claim to state cause of action is not cured. The failure of the statement of claim to state a' cause of action against the defendants because making no mention of their names or employment by them or of services rendered to them was not cured by the praecipe for summons wherein the names of the defendants were set out and they were designated as constituting a certain commission, against which commission only the statement of claim set up a cause of action.
    •3. Judgment, § 190*—necessity of against all joint defendants. "Where a joint liability is charged against several defendants, judgment must r,un against all or none, and may not be entered against a part only.
    The statement of claim averred plaintiff was “hired” by the Commission, but made no averment of employment by the defendants or óf services rendered to them, or mention of their names.
    See also, Doyle v. Fallows, 207 Ill. App. 5.
    John Dailey, Bichard J. Cooney and John A. Verhoeven, for plaintiffs in error.
    D. K. Cochrane, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Mary Connolly, Appellant, v. Amanda Bachman, Appellee.
    Gen. No. 23,559. (Not to be reported in full.)
    Appeal from the Municipal Court' of Chicago; the Hon. John F. Haas, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed January 28, 1918.
    Rehearing denied February 11, 1918.
    Statement of the Case.
    Action by Mary Connolly, plaintiff, against Amanda Bachman, defendant, to recover $750 under a provision of a certain lease made by defendant’s assignors as lessors to plaintiff’s assignors as lessees of certain premises. From a judgment of nil capiat, plaintiff appeals.
    The lease provided that the sum sued for should be held by the Glaser Savings Bank in escrow for the lessors or their assigns and should be paid to them or their assigns at any time the lessees should forfeit the lease by breaking any of its conditions and covenants, and, if the lessees should fulfil all such conditions and covenants, should be paid to the lessors or their assigns on a certain date and applied to the credit of the lessees for the last six months’ rent mentioned in the lease, for which the lessors or their assigns should give the lessees a receipt, and that the bank should pay 3 per cent, interest on the deposit while, held by it to the lessees.
    With defendant’s consent plaintiff sublet the premises. All instalments of rent were paid, and all conditions and covenants of the lease performed by the respective lessees. Defendant collected all rents for the entire term, and it was stipulated that this amount for the last six months should be considered as $750, and any judgment entered should be for that amount.

      Abstract of the Decision.
    1. Escrows, § 5

      —what does not constitute delivery of money in escrow. Delivery to the agent of the lessor of a lease by the lessee of a certain sum to be retained by him and paid ultimately to the lessor, either on account of damages for a breach by the lessee of the lease or on account of rent for the final months of the leased term, does not constitute a delivery in escrow, although so denominated in the lease, but a payment to the lessor.
    2. Escrows, § 1*—how money or papers should he held. Money or papers held in escrow should be held by a stranger to the transaction, delivery not to be made until certain conditions have transpired.
    3. Landlord and tenant, § 274a*—when lessee may recover deposit. Where, a certain sum was turned over, under the terms of a lease between plaintiff’s assignors as lessees and defendant’s assignors as lessors, to the lessors’ agent, to be retained by him and ultimately paid to the lessors either as damages on account of breach by the lessees of the lease or as rent for the final months of the leased term, and defendant collected aU instalments of rent to the end of the term, including thé final months for which the sum was to be paid to the lessors if no breach of the lease had occurred, the rent for the last six months to the amount of the deposit being collected from the subtenant of plaintiff and no breach had occurred, held that plaintiff was entitled to recover the sum from defendant.
    The business of the bank was done under that name by Benjamin J. Glaser, and the lease'was executed in his office and the $750 there turned over to him and the lessors, counted by them, and retained by Glaser,who prepared the lease and represented the lessors in the transaction. The bank later turned this sum, with its other business, over to the Ogden Avenue State Bank, from which neither of the parties was able to obtain it.
    Thurman, Hume & Kennedy, for appellant.
    Samuels & Samuels, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the courts


text:
    Michael Reilly and John Reilly, by Kate Hoy, Guardian, Appellees, v. Catholic Order of Foresters, Appellant.
    Gen. No. 23,596. (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 208

      —when answers of applicant do not constitute warranties. Replies by an insurance applicant to questions in the medical examiner’s blank concerning his treatment from a physician within 3 years and whether he had been in any institution for treatment for certain diseases, held, to be representations and not warranties, notwithstanding contrary statements in the application, where the applicant was uneducated and unable to read, or write the English language and signed only by mark, and many of the questions were very complicated and technical.
    2. Insurance, § 205*—when false answers in replies to questions in examiner's blank, constitute defense. The untruth of the statements made by an applicant for insurance in replies to questions in the medical examiner’s blank constitutes no defense to an action on the insurance policy unless the answers concern matters material to the risk and are made with the intent to defraud the insurer.

      Appeal from the County Court of Cook county; the Hon. Benjamin Bell, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Action by Michael Reilly and John Reilly, by Kate Hoy, their guardian and next friend, plaintiffs, against Catholic Order of Foresters, defendant, to recover on a benefit certificate for $1,000. From a judgment for plaintiffs, defendant appeals.
    Edmund S. Cummings, for appellant.
    Archibald Cattell and Carl A. Waldron, 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 McSurely

delivered the opinion of the court.

3. Insurance, § 897 —what are questions for jury. In an action on a death benefit certificate, held that whether misstatements made by an insurance applicant to the medical examiner were material to the risk or made with intent to defraud the insurer were questions for the jury.

4. Insurance, § 904*—when taolu of fraudulent intent in answering examiner’s questions shown. Evidence held to support the finding that there was no connection between an- injury for which an insurance applicant had been treated in a hospital prior to' his application and the disease which caused his death, and that his answers to questions in the medical examiner’s blank that he had not been treated in any institution prior to his application' were without fraudulent intent, in an action to recover on a death' benefit certificate..

5. Insurance, § 797*—when defense of nonpayment of assessments in prescribed time waived. Where the by-laws of a benefit insurance society provided ttiat monthly assessments should he paid without notice on the first day of each month and that on failure to pay same before the first day of the succeeding month the member should stand suspended, but the secretary of the society accepted subsequent payments with knowledge of such failure, and thereafter the insured a few days before his death gave the money to make another payment on which he had defaulted and a present due payment to his sister, with instructions to make these payments, which her husband did at the next lodge meeting to the secretary after the death of the insured, of which both her husband and the secretary were then ignorant, held that the defense of nonpayment in time under the by-laws was waived.

6. Insurance, § 793*—waiver of forfeitures. Forfeitures or suspensions for failure to pay insurance assessments and dues promptly may be waived.


text:
    Thomson & Taylor Spice Company, Appellee, v. I. Lanski & Son Scrap Iron Company et al., on appeal of I. Lanski & Son Scrap Iron Company, Appellant.
    Gen. No. 23,966. (Not to be reported in full.)
    Abstract of the Decision.
    1. Injunction, § 159

      —when temporary injunction against obstruction of street improvidently granted. A temporary injunction, issued on filing of bill, restraining defendants from further obstructing a certain street “throughout its entire width of sixty-six feet,” where the bill contained no allegation of an intent on the part of defendants to occupy more space than that occupied by them, and containing substantially all the mandatory relief sought by the bill by, in effect, requiring defendants to remove all obstructions, buildings and other things named from the entire' width of the street, was improvidently granted.

      Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and injunction dissolved.
    Opinion filed January 28, 1918.
    Statement of the Case.
    Bill by Thomson & Taylor Spice Company, a corporation, complainant, against the I. Lanski &-Son Scrap Iron Company, a corporation, and others, defendants, to enjoin the defendants from placing certain obstructions in a certain street adjoining plaintiff’s place of business. From an order granting a temporary injunction on the filing of the bill, with notice to Lanski and Son, only, the corporation defendant appeals.
    Frank H. T. Potter and William C. Rigby, for appellant.
    Vent & Warfield, for appellee; Thomas Gf. Vent, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Injunction," § 158*—what is pujóse of preliminary injunction. The purpose of a preliminary injunction is to preserve the status of the parties until the court can determine the merits of the controversy, and it cannot be used for the .purpose of compelling one to undo what he has already done.


author: Mr. Presiding Justice Taylor

text:
    Philipp Lips, Administrator of the Estate of Theodore Bierbaum, Deceased, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,463.
    1. Cabbiebs, § 479

      —when verdict for plaintiff sustained in action for ejection of passengers. In an action to recover damages for the wrongful death of plaintiff’s intestate, alleged to have been caused by the act of defendant street railway’s conductor in forcing him from the street car, evidence examined and its weight held not manifestly against a verdict for plaintiff.
    2. Cabbiebs, § 464*—when statement by another to conductor responsible for death of passenger is admissible. In an action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the act of defendant street railway company’s conductor in forcing the intestate from defendant’s street car whereby the intestate fell and received the injury which resulted in his death, evidence of a statement of plaintiff, who was present, made to the conductor immediately after his intestate fell and as a consequence of such fall, is admissible.
    3. Evidence, § 277*—when photographs are inadmissible in personal injury action. In an action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the act of defendant street railway company’s conductor in forcing the intestate from the street car, photographs purporting to show the positions occupied just before the accident by the intestate, the conductor and plaintiff, who was present on the' car, are properly excluded where it is not shown that the photographs were an exact reproduction of the position of such persons at the time of the accident.
    Appeal from the Circuit Court of Cook county; the Hon. Victor P. Arnold, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed January 30, 1918.
    Benjamin F. Richolson and Watson. J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Day & Guenther, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

Appellee, Philipp Lips, as administrator of the estate of Theodore Bierbaum, deceased, brought suit under the statute to recover damages alleged to have been sustained by the widow and next of kin of his intestate, through the negligence of the appellant. The declaration contains three counts, each of which charges, substantially, that a conductor of appellant, without just cause, and while Bierbaum (the deceased) was exercising due care for his own safety, negligently pushed him off one of appellant’s street cars and caused him to be so seriously injured that he died the next day. In the trial court the jury brought in a verdict of $3,500 against the appellant (Chicago City Railway Company), and, judgment being entered thereon, this appeal was taken.

The intestate, Theodore Bierbaum," lived at 1958 Clybourn avenue, near Racine avenue; was 67 years of age; about 5 feet 4 inches tall, weighed 110 to 112 pounds, and was, by occupation, a cigar maker. The plaintiff (administrator) is the son-in-law of the intestate’s widow, having married her daughter, who is the stepdaughter of the deceased. Early in the afternoon of Sunday, March 3, 1912, the day of the accident, plaintiff and Bierbaum (the deceased) walked to Larrabee street and thence to Clybourn avenue, where they boarded a northbound car designated ‘ ‘ Through-Route Car Number 2” of the large “Pay-as-you-enter” type. The evidence of the plaintiff is that after they got on the car Bierbaum paid their fares and they sat down on the long seat on the right, or east side of the car; that they wished to get off at Racine avenue; that at Osgood street, two blocks before Racine is reached, they got up from where they were sitting and walked to the rear door where the conduct- or was standing; that. Bierbaum opened the door with the plaintiff standing by him and asked the conductor to let them off at Racine avenue; that the conductor nodded his head and they stood there until they got to Racine avenue; that the conductor gave no signal to stop and, as they passed Racine avenue, Bierbaum and the plaintiff stepped out on the platform and Bierbaum said to the conductor, “You know we want to get off on Racine avenue, why didn’t you stop?”, and pulled the bell cord; that the conductor said, “* * * Greenhorns! You have no right to pull that rope; I am running this car; I am the boss”; that hy that time the car slackened its speed; that the conductor then rang the bell twice and the car went on; that after the conductor- rang the bell twice, Bierbaum said to the conductor., “Now conductor, I am going to make it hot for you. I am going to report you to the company”; that he, the plaintiff said, “I know his number; that is what we are going to do”; that the conductor said, “I don’t care what you do, Greenhorns! I am the boss and I am running this car”; that the. plaintiff responded, “Conductor, here don’t get so excited, calling an old man ‘Greenhorn’ right away; maybe the old man is right, or wrong, but if he is wrong,' you ought to excuse the old man, but I think he is right, of course. He told you he wanted to get off on Racine avenue, and I think he had a right to pull the alarm there”; that when the car was stopped at the railroad tracks (C. M. & St. P. Rd.), the conductor, Bierbaum and the plaintiff were, all three, on the rear platform; Bierbaum in the center and the plaintiff on the east side of the platform, nearest to the outside of the car, and the conductor on the other side of Bierbaum; that he, the plaintiff, got off slowly and on the way going off said, “* * * of conductors; they think they can do what they please”; that when he said that, Bierbaum was still on the platform and he, the plaintiff, was down on the ground; that after he had been on the ground ‘‘ two minutes ’ ’ he saw Bierbaum having an argument with the conductor; that the conductor said, “Now old man, you want to get off, get off or I push you off”; that he, the conductor, grabbed the old man somewhere around the shoulders or around the body and the old man “fall off right back on his head” and lay there on the ground unconscious, like a dead person, with his feet lying on the car track under the step; that he, the plaintiff, then walked over to. the conductor and said, “Now you see what you done, pushing the old man, 67 years old, off the platform; ain’t that a shame, and by God he is dead; will you please come down and help me pick him up?” that the conductor went down on the lower step, “sized up the old man” and said, “He ain’t dead, he is only shamming”; that the conductor then pushed Bierbaum’s legs from the car track, went back on the main platform, rang the bell twice and the car went on over the railroad tracks.

The evidence of the plaintiff as to its chief elements is corroborated by two witnesses, one Kosche and a Mrs. Busse. The evidence of Kosche is that he was sitting in the second seat of the car, on the right side in the rear; that when the car crossed Racine avenue, he heard loud talking; that when' he turned around he saw the conductor having an argument with an old man; that when the car stopped the conductor took the old -man hy the arm and said, “Ton want to get off and now get off” and so he brought him down to the lower step; that the conductor went to the lower step and brought the man down to the ground and then went up and pulled the cord of the car and it went ahead; that the conductor “grabbed him so he was master of him; he brought him down with force”; that he did not see whether the man fell to the ground; that he didn’t see anybody beside Bierbaum and the conductor; that there might have been somebody but he didn’t pay any attention to anybody else.

The evidence of Mrs. Busse is that she was walking along Clybourtí avenue and heard loud talking on the car; that she heard the conductor say, “What did you pull that bell for?”; that he (apparently meaning Bierbaum) said, “I told you why didn’t you stop when I told you to”; that the conductor then said, “If you don’t shut up, I will push you off”; so “he stopped the car and pushed the old gentleman off”; that she was walking along going to her daughter’s house; that the plaintiff was on the street when the old man was pushed off; that the plaintiff said to the conductor, “Now see what you have done, you have pushed the old gentleman off, and you have killed him”; that the conductor said, “But he is only shamming, he is not dead”; that the plaintiff then said, “Will you come down and help me pick up the old gentleman?”; that the conductor stepped down on the lowest step, took his foot and kicked the old gentleman’s feet away and then gave the signal to the car to go ahead.

The defendant’s theory, which is supported by the testimony of the conductor and two passengers who boarded the car at Larrabee street, is to the effect “that neither plaintiff nor Bierbaum notified the conductor of their desire to get off at Eacine avenue, or requested him to have the car stopped at that place, and that they did not go to the rear platform until it had crossed that avenue, and when they did so, one, or both, of them rang the bell; that after the car had reached and was stopped at the railroad tracks, Bierbaum was on the step, plaintiff standing on the east edge of the platform and the conductor further west of him; that before the plaintiff got off he applied to the conductor a vile epithet, struck him in the face, turned to get off and, in so doing, knocked Bierbaum from the step to the ground.”

It is claimed by the appellant that the testimony of the plaintiff, given at the coroner’s inquest, is some evidence that he struck the conductor, and, to a certain extent, it bears”that construction, although it is, as evidence, upon close analysis, unsatisfactory as a source of any inference of yalue.

The evidence of the conductor is that when the car stopped at the railroad track and the plaintiff and Bierbaum were going to get off, that Bierbaum was down on the step and the plaintiff was standing in. the doorway; that he asked them to get off so he could “run the railroad crossing”; that the plaintiff used an oath, struck him in the face, hitting the peak of his cap, and knocking it down over his face, stunning him; that he, the plaintiff, then jumped off the ear and he then saw that Bierbaum was lying on the ground; that he did not, at any time, put his hand on Bierbaum, or push him in any way. He, also, denied the conversation testified to by the plaintiff as taking place after Bierbaum was on the ground.

The evidence of the witness Bomzel is to the effect, that the plaintiff struck the conductor in the forehead, or peak of his cap and as he, the plaintiff, turned around to get off the car, he pushed Bierbaum, who was on the steps, off the -car; that the conductor after-wards came into the car and she noticed blood on his handkerchief, with which he was wiping his face. Likewise, the evidence of the witness Palm is to the effect that the conductor rang the bell and the car stopped, and he said, “Now get off, get off”; that the young man (plaintiff) hit the conductor in the face and turned around and-jumped off, and, with the same arm that he hit the conductor, “with the same elbow he come and strike the old man with the right elbow and knocked him right down”; that the conductor did not hit or push Bierbaum in any way. The evidence of the witness Dobrick is to the effect that a man was getting on the car at its rear end, was on the step facing the car that he fell off; that after him followed a younger man (apparently meaning Lips); that the man who followed was a man in the thirties, and that the one who fell was the older of the two. Two other witnesses, Dennison and the motorman, testified that the nose of the conductor had been injured.

Counsel for appellant have pointed out a series of alleged improbabilities in the testimony introduced on behalf of the plaintiff. In such a case, discrepancies, of course, are inevitable. Even , though each witness undertook to tell the whole truth, there would not necessarily be entire uniformity in their evidence. Whether the conductor pushed or knocked Bierbaum from the car or whether the plaintiff struck the conductor, and, himself, in getting off, knocked Bierbaum from the car, are, of course, the important questions. If the evidence introduced on behalf of the appellee— that of Lips, that the conductor grabbed Bierbaum somewhere around the body; that of Mrs. Busse that! the conductor stopped the car and pushed Bierbaum off; that of Kosche, that the conductor grabbed Bierbaum so that he was master of him and brought him down with force—is to be believed, in preference to that of the conductor, Bomzel and Dobrick,-as to what happened, then the jury were justified in finding appellant liable. It is evident the jury did not believe the witnesses who testified that Lips struck the conductor, and in getting off the car knocked or pushed Bierbaum off; and in-view of the record before us, we are not justified in concluding that they were evidently of so reliable a character and so evidently told the truth that the jury were not warranted in failing to believe them and giving credit to the testimony of Lips, Kosche and Busse. Of course, it is our function to determine whether the verdict is justified by the evidence; and, recognizing the duty which that involves, we are of the opinion, upon a careful consideration of all the evidence, that the verdict rendered is not manifestly against the weight of the evidence.

It is further contended by the appellant that the court erred in admitting in evidence the statement of the plaintiff—which was uttered after Bierbaum was off the car and on the ground—“Now you see what you done, pushing the old man 67 years old off the platform. Ain’t that a shame, and by God he is dead. Will you please come down and help me pick him up?”; and the response of the conductor, “He ain’t dead, he is only shamming.” The tendency of the courts seems to be to admit statements which are contemporaneously close to and seem spontaneously to spring from the transaction, as in this case, from the tragedy itself. It is true that the ejaculation of the plaintiff was, in actual point of time, subsequent to the concussion received by, and which caused the death of, Bierbaum. But it seems reasonable to assume that what was said, psychologically considered, was involuntarily inspired by the circumstances, and was not the result of premeditation and deliberate purpose. “The better reasoning is that the declaration, to be a part of the res gestee, need not be coincident in point of time with the main fact to be proved. It is enough that the two are so clearly connected that the declaration can in the ordinary course of affairs be said to be the spontaneous explanation of the real cause.” Leahey v. Cass Ave. & F. G. Ry. Co., 97 Mo. 172. “The modern doctrine has relaxed the ancient rule that declarations, to be admissible as part of the res gestee,- must be strictly contemporaneous with the main transaction. It now allows evidence of them, when they appear to have been made under the immediate influence of the principal transaction, and are so connected with it as to characterize or explain it.” Vicksburg & M. R. Co. v. O’Brien, 119 U. S. 99; Wigmore on Evidence, sec. 1750. That statement of the law seems to be consistent with all the decisions of our Supreme Court on that subject. The case of Mathes v. Chicago City Ry. Co., 178 Ill. App. 34, merely decides that the statement offered in evidence was properly excluded because it was made too long a time after the accident to which it pertained.

It is further contended by appellant that the trial court erred in excluding two photographs which purported to portray the positions occupied by Bierbaum, Lips and the conductor, on the rear platform, after the car reached and was stopped at the railroad tracks, and just before the accident occurred. The conductor testified, when asked if he knew anything about the position of the man standing on the step, corresponding with the position of Bierbaum at the time of the accident, “I didn’t exactly see his position; he was down on the step.” “I don’t know whether that was his position or not.” A careful analysis of the evidence, on that subject, leads us to the. conclusion that it does not sufficiently prove that the photographs were an exact reproduction of the actual physical relations—referring to the time of the accident—of the three men in question. The space in which, at the time, they were, was not large, and, in order that the photographs should be instructive and not in the least misleading, they must be shown to be a reproduction of an entirely accurately established physical condition. The admission of a. photograph of a slightly varied physical situation might seriously endanger the rightful effect of all the truthful testimony in the case; being necessarily ex post facto evidence, it should he rigidly exact. The mere doubt of the conductor, “I don’t know whether that was his position or not,” was enough to justify, the rejection. The court said, in Chicago & E. I. R. Co. v. Crose, 214 Ill. 610: “It needs no argument to show that a variation of a few feet in the location of the cars might make a vast difference as to whether the view was obstructed at the time of the injury or not”; and so, here, a variation of a few inches in such a limited space might make a vast difference in the seeming relations of the participants, and make a great change in the inferences to be drawn therefrom.

Finding no material error in the record the judgment is affirmed.

Affirmed.


text:
    G. L. Clausen, Appellee, v. Louis Finkelstein et al., on appeal of Garden City Wrecking & Lumber Company, Appellant.
    Gen. No. 23,178. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Mastín,. Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Action by G-. L. Clausen, plaintiff, against Louis Finkelstein and others, defendants, to recover damages for personal injuries. From a judgment for plaintiff for $500, defendant Garden City Wrecking & Lumber Company appeals.

      Abstract of the Decision.
    1. Master anb servant, § 836*—when doctrine of respondeat superior applies. The doctrine of respondeat superior applies only when the one sought to he charged has some right in some way to control the conduct of the one charged with having caused the injury.
    2. Master and servant, § 867

      —when evidence shows independent contractor relation. In an action to recover for personal injuries, evidence examined and held to show that the person through whose negligence the injury was alleged to have been caused was not working under the control and direction of defendant, hut was an independent contractor, and that the doctrine of respondeat superior was inapplicable.
    Adams, Follansbee, Hawley & Shorey, for appellant.
    Bice, Lowes, .0 ’Neil & Bicharos and James T. Jarrell, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    David A. Erikson, Appellee, v. Merchants Reserve Life Insurance Company, Appellant.
    Gen. No. 23,192. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Action by David A. Erikson, plaintiff, against Merchants Reserve Life Insurance Company, a corporation, defendant, to recover on a policy of life insurance. From a judgment for plaintiff for $1,000, defendant appeals.
    Abstract of the Decision.
    1. Insurance, § 214

      —when statements claimed to he warranties considered as mere representations. In an action on a policy of life insurance, warranties are not favored, and if there is anything tending, to show that statements claimed to be warranties were not intended as such, the falsity of such statements as were' not material to the risk and were honestly made in the belief that they were true will not prevent recovery, but will be considered as mere representations, even though the policy states that they are to be deemed warranties.
    2. Insurance, § 214*—when statement in health certificate filed on application for reinstatement does not constitute certificate a warranty. In an action to recover on a policy of life insurance, the statement in a health certificate, filed on application for reinstatement, that the insured did “declare, guarantee and warrant” the statements therein contained, held not to constitute the certificate a warranty, when read in connection with the remainder of the certificate in which spaces to be filled in with particulars as to disease or injury suffered and physicians • consulted were left blank.
    3. Insurance, § 356*—when imperfections in health certificate are waived on reinstatement. Manifest imperfections in a health certificate filed on an application for the reinstatement of a policy of life insurance are waived where the insurer reinstated the policy without further inquiry.
    Archibald A. McKinley and Luther F. Binkley, for appellant.
    Alfred A. Norton and Albert Gr. Miller, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    May H. Luehrs, Appellee, v. A. H. Marshall, Appellant.
    Gen. No. 23,244. (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 147

      —when question of oral rescission of contract for sale of stock is for jury. The question whether the seller and the purchaser of stock orally agreed to rescind the contract is for the jury, where the evidence is conflicting.
    2. Corporations, § 147*—when shoton that contract was not orally rescinded. In an action to recover on promissory notes given for the purchase price of stock, evidence held to support a finding that the contract for the sale of the stock was not orally rescinded by the parties thereto.
    3. Corporations, § 149*—when plaintiff may testify as to part of conversation with defendant relating to inability to pay for stock. In an action to recover on promissory notes given in payment for "stock, where defendant has testified as to part of a. conversation with plaintiff, the latter may also testify to a part of such conversation which related to a statement by defendant as to why he was unable to pay the notes.

      Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    . Action by May H. Luehrs, plaintiff, against A. H. Marshall, defendant, to recover upon promissory notes. From a judgment for plaintiff for $2,071.66, defendant appeals.
    W. Knox Haynes and Michael Feinberg, for appellant.
    George E. Brannan, for appellee. *

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

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

4. Appeal and ebbob, § 1561 —when refusal to give instructions is not ground for reversal. Refusal to give instructions which were actually given in substance in other instructions is not ground for reversal.

5. Appeal and ebbob, § 573*—when exception to refusal to give instructions is insufficient. An exception to the refusal of the court to give “the instructions I have requested,” without any claim that the substance thereof was not given, is insufficient


text:
    Virginia Dreyfuss, v. William Freud et al., Intervening Petitioners. Thomas M. Hoyne et al., Appellees, v. Louis Grollman et al., Appellants.
    Gen. No. 23,273. (Not to be reported in full.)
    . Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Petition by Thomas M. Hoyne and others, petitioners, against Louis Grollman and others, respondents, to establish a lien for an attorney’s fee. From a decree providing that petitioners should have a lien in the sum of $518.65, respondents appeal.
    Julian C. Byer, for appellants.
    Hoyne, O’Connor & Irwin, for appellees.

      Abstract of the Decision.
    1. Attorney and client, § 150

      —nature and establishment of attorney’s lien. An attorney’s lien is purely a creature of statute, and the statute must be followed in order to establish it.
    2. Attorney and client, § 149a*—what is effect of service of notice of attorney’s lien. Where notice has been duly served by an attorney as provided by the Attorney’s Lien Act (J. ,& A. If 611), the attorn'ey becomes a part owner of the decree in favor of the client and stands in the same position as if the client had assigned him an interest in the decree.
    3. Attorney and client, § 141*—When attorney has lien upon realty. Where the decree in favor of his client is a lien upon realty, an attorney who has served notice as provided by the Attorney’s Lien Act has a lien on such realty.
    4. Attorney and client, § 141*—what is effect of conveyance of land upon attorney’s lien. The fact that, after an attorney has served notice of his lien, real estate bound by his lien is conveyed by the holders does not destroy his lien, but the grantee takes the realty subject thereto.
    5. Attorney and client, § 149a*—what is effect of acknotoledging receipt of notice of lien. One who in writing acknowledges receiving notice of a lien cannot thereafter successfully deny it.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    McMaster-Carr Supply Company, Appellee, v. Phoenix Electrical Company, Appellant.
    Gen. No. 23,282. (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 107

      —when telephone conversation is admissible. In an action against a corporation to recover for goods sold and delivered, evidence of an officer of plaintiff that defendant's president answered a telephone call from witness and said he was defendant’s president and, upoh being asked for a payment of the account, answered that he could not then pay it but would g.o over and see witness, which he did, is admissible.
    2. Evidence, § 188*—when statement of officer of debtor admissible as admission of liability for debt. A statement by the president of a debtor corporation to an officer of the creditor that the debtor was doing a good business but was short of money and would pay one half the account on a certain date and the other half at a later date should not be excluded' as a hypothetical concession looking to effecting a settlement, but is admissible as an admission of liability, whether the offer, contained therein was accepted or rejected.

      Appeal from the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Action by McMaster-Carr Supply Company, plaintiff, against Phoenix Electrical Company, a corporation, defendant, to recover for goods sold and delivered. From a judgment for plaintiff for $94.51, defendant appeals.
    L: C. Thesen and Arthur Carlsten, for appellant.
    A. M. Schwarz, J. A. Joseph and M. E. Burr, for appellee.

      See Illinois Notes Digest, Vola, 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 Taylor

delivered the opinion of the court.

3. Instructions, § 120 —when properly refused. Instructions not applicable to the evidence are properly refused.


text:
    Thomas C. Worden and Fashion Automobile Station, Appellees, v. Dennis J. Nolan and Sydney W. Andersen, Appellants.
    Gen. No. 23,959. (Not to be reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Marcus A. Havanagh, Judge, presiding.
    Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Bill by Thomas C. Worden and Fashion Automobile Station, a corporation, complainants, to enjoin Sydney W. Andersen and any corporation controlled by him from employing or using the services of Dennis J. Nolan in certain capacities in a certain area, and to enjoin said Nolan from in any way becoming connected with any garage business in. such area. From an interlocutory order granting such injunction, defendants appeal.
    Mánierre & Pratt and Delavan B. Cole, for appellants.
    Newman, Poppenhusen & Stern, for appellees; Charles T. Farson, of counsel.

      Abstract of the Decision.
    1. Sales—when seller cannot set up invalidity of assignment of option to purchase business. -Where it is alleged in a bill for an injunction and not denied that one of the complainants procured a third person to negotiate with defendant for the purchase of the latter’s property and that, after the purchase by such third person of an option thereon, such complainant informed defendant that the option should be assigned to him for the benefit of the other complainant and the assignment by the third person to the former complainant was made with the knowledge and consent of defendant, defendant cannot set up that the assignment by such third person was invalid and that the assignee did not succeed to such third person’s rights with regard to a negative covenant contained in defendant’s agreement.
    2. Contracts, § 216

      —when seller of business not relieved from compliance with negative covenant. The fact that mutual rights under a contract for the sale of a business are temporarily held in abeyance by a deposit of the purchase price and the bill of sale in escrow does not relieve the seller, on the ultimate consummation of the contract, from the compliance with a negative covenant not to engage in business contained therein, which was Understood to constitute a part of the contract as consummated.
    3. Contracts, § 216*—what constitutes violation of covenant not to enter into garage business. The covenant on the part of one selling a garage business and good-will for $20,000, $17,000 of which was for the good-will, “not to enter into the garage business” in certain limits, will not permit him to become the manager of a garage in such limits, even though he merely receives á salary as manager and has no financial interest in the business.
    4. Injunction—when employer enjoined from using services of employee violating negative covenant in sale of his business. One who is seeking to get another to enter into a contract of employment which will constitute a breach of a negative covenant in a contract of sale by the latter is properly enjoined from employing or using the services of the latter in a suit by the other party to the contract of sale to enjoin both of such persons from a breach of such covenant.
    5. Injunction, § 80*—what are proper terms of decree against violation of agreement not to enter into business. Where one selling a garage business and the good-will agreed not to enter in the garage business in a specified area for a specified period, a decree enjoining the violation of such covenant may properly restrain him from in any way becoming connected with any garage business within the inhibited area.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.