text:
    In the Matter of the Estate of James M. Jennings, Deceased. On appeal of James P. Jennings, Appellant, v. James P. Jennings, Administrator et al., Appellees.
    Gen. No. 19,890.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1913.
    Dismissed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Appeal by James P. Jennings to the Circuit Court from an order of the Probate Court disallowing and dismissing his claim against the estate of his father, J. M. Jennings, deceased. On May 3, 1913, the Circuit Court entered an order dismissing the appeal. The claimant on May 7, 1913, filed a motion to vacate the order of May 3rd but no such motion was in the record. On May 27th, a day of the next term of court, an order was entered that the record be amended nunc pro tunc as of May 7th to show the motion to vacate the order dismissing the appeal and for leave to file a new appeal bond, and that such motion was continued; that such motion was denied and an appeal to the Appellate Court prayed by claimant and allowed on his filing a bond.
    The bond was filed and a motion to dismiss the appeal was reserved to the hearing.
    John A. Bloomingston, for appellant.
    Thomas G. O’Hare, for appellees.

      Abstract of the Decision.
    Appeal and error, § 934*—what must be shown when record is amended after term. Where the Circuit Court at its next term enters an order nunc pro tune to make the record of the preceding term show a motion made to vacate a judgment that the motion was denied, etc., and that an appeal was allowed, the appeal will be dismissed where it neither appears in the bill of exceptions nor the clerk’s record that there was any minute, memoranda or memorial paper before the court to amend by.
   Mr. Justice Baker

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    In re Estate of Peter Therens, Deceased. On appeal of Clement Therens et al., Appellants, v. Cecelia M. Therens, Administratrix, Appellee.
    Gen. No. 19,919.
    1. Executors and administrators, § 428

      —right of defendant not served to vacate decree to sell land for payment of debts. Section 19 of the Chancery Act, J. & A. ¶ 899, giving a defendant not served three years within which to vacate a decree against him, is not applicable to a petition by an administratrix to sell land for the payment of debts.
    2. Executors and administrators, § 458

      —right of redemption. There is no right of redemption from a sale made on a petition by an administrator to sell land to pay debts.
    3. Process, § 41

      —right to service by copy of bill. In a proceeding by an administrator to sell land to pay debts, service cannot be made on a defendant by copy of the bill as in chancery.
    Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Bradley, Harper & Eheim, for appellants.
    Holdom, Manierre & Pratt, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

Appellants, defendants to a petition by appellee as administratrix to sell the real estate of her intestate, who were served by publication, but who claim that they did not in fact get the notice which the law provided should be mailed to them, filed their petition in the Probate Court three days less than three years after the decree of sale'was entered, praying for leave to answer the petition of the administratrix. On motion of the administratrix the petitions were stricken from the files, and from such order this appeal is prosecuted.

The contention of appellants is that because section 101 of the Administration Act (J. & A. ¶ 150) provides that, “the practice in such cases shall Tie the same as in cases in chancery,” the proceedings by the administratrix to sell real estate was, in effect, a suit or proceeding in chancery, and the provisions of section 19 of the Chancery Act (J. & A. ¶ 899), that when a defendant to such suit or proceeding has not had notice thereof he may within three years petition to be heard touching the matter of such decree, etc., are applicable to such petition.

With this contention we are unable to concur. The proceeding to sell real estate is a purely statutory proceeding and governed by the provisions of the Administration Act. That act contemplates a sale within the one year allowed for the payment of debts. From such a sale there is no right of redemption, while there is a right to redeem from a sale under a decree of foreclosure for the payment of money, or the enforcement of a mechanic’s lien. In chancery, service may be made by copy of bill, but not in a proceeding, to sell real estate to pay debts under the Administration Act.

We think the Probate Court properly held that section 19 of the Chancery Act could not be read into or held to be a part of the Administration Act, and that the petition of appellants was properly stricken from the files, and the order appealed from is affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    Tony Shoeman, Defendant in Error, v. Temple Safety Deposit Vaults and North Side State Savings Bank, Plaintiffs in Error.
    Gen. No. 19,605.
    1. Bailment, § 1

      —when relation is created by renting safe deposit box' Where a corporation engaged in renting safe deposit boxes rents such a box to a party, the relation of bailor and bailee arises.
    2. Safe deposit companies, § 1

      —degree of care required. A bailee depositary for hire, engaged in the renting of safe deposit boxes, is bound to exercise ordinary care for the preservation of property intrusted to it.
    3. Safe deposit companies, § 1

      —degree of care required. The ordinary care exacted of a corporation engaged in renting safe deposit boxes is such care as prudent men take of their own property.
    4. Safe deposit companies, § 1

      —when evidence insufficient to charge company with negligence. Evidence held insufficient to charge with negligence a corporation engaged in the renting of safe deposit boxes, where plaintiff sought recovery for a thousand dollar bill alleged to have disappeared from his rented box.
    5. Evidence, § 23

      —right to base presumption upon a presumption. A conclusion cannot be drawn by indulging in a presumption based upon another presumption.
    6. Evidence, § 477

      —what essential to justify inference from facts. To justify an inference from facts, such facts must be established by direct evidence and not upon a presumption.
    7. Safe deposit companies, § 1

      —degree of care required. A corporation engaged in the renting of safe deposit boxes is not required to prqve a condition of perfect safety in the management of its vault. '
    8. Safe deposit companies, § 1

      —degree of care required. In an action to recover damages for failure to keep property safe in a deposit box, it is erroneous to submit the cause to the jury on the theory that unless the depositary proved its safe deposit boxes absolutely impregnable it should be held negligent, since it was bound to use only ordinary care.
    9. Judgment, § 206

      —when judgment against joint defendants cannot he sustained. Where negligence is shown as against one defendant only, a judgment rendered jointly against such defendant and a codefendant is erroneous.
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed October 13, 1914.
    Pam & Hurd, for plaintiffs in error; Burrell J. Cramer, of counsel.
    Harris F. Williams, for defendant in error; Eldon M. Votaw and W. Scott Hodges, 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.

Plaintiff rented a safety deposit box in the vaults of the defendant, Temple Safety Deposit Vaults, a corporation. He brought suit to recover damages for the alleged failure of defendants to keep safe certain property deposited in said box by plaintiff, namely a one thousand dollar bill. He had judgment, which defendants seek to have reversed.

The Temple Safety Deposit Vaults is a corporation engaged in renting safety deposit boxes, and plaintiff rented such a box. The relation between the parties was that of bailor and bailee. As such bailee, or depositary for hire, defendant was bound to exercise ordinary care for the preservation of plaintiff’s property intrusted to it. Ordinary care in such a case is such care as prudent men take of their own property. Bauman v. National Safe Deposit Co., 124 Ill. App. 419; Mayer v. Brensinger, 180 Ill. 110; National Safe Deposit Co. v. Stead, 250 Ill. 584. Plaintiff says that on or about January 11, 1911, there was in the box a one thousand dollar bill which he had previously placed therein; that" when he next had occasion to go to the box, which was on or about January 31, 1911, this bill was not in the box. In his statement of claim plaintiff charges that it was stolen by someone an agent or employee of the defendants, or someone acting in collusion with an agent or employee, or one given access to the box through the carelessness and neglect of an agent and employee. The negligence charged is that defendants employed incompetent, indiscreet and dishonest persons to guard the safety deposit boxes and vaults. It is sought to prove this charge- of negligence by showing the following facts; Each box was fitted with a lock to which there were three keys. One key was known as a master key and remained always in possession of someone in charge of the vaults; the other two keys, which were duplicates, were in the possession of the customer, unless the box was not rented. We do not think it necessary to advert to the evidence concerning- the security of the vaults and boxes from burglary. The evidence shows that protection in this respect was entirely adequate. It also was clearly shown that after a box was rented it could not be unlocked except with the master key and one of the customer’s keys operating at the same time.

The issue seems to center around the provision made for the keeping of keys before boxes were delivered to customers. It appears that these keys were kept in a wooden cupboard in the vault; that this cupboard was under lock and key and the key to it was kept on the keyring along with the master key, and this ring was kept right over the desk where the employees sat. Only-the employees could get the keyring. The men having to do with the vault were a Mr-Weilbrenner, secretary and manager of the vaults, a Mr. Lipky, assistant cashier of the defendant North Side State Savings Bank, and Boulivant and Millmore, the latter two clerks who were particularly assigned to take care of the vaults. No attempt is made to throw even suspicion on Messrs. Weilbrenner, Lipky or Millmore, but in argument plaintiff’s counsel would seem to wish to have it thought that Boulivant might have been in some way responsible for the loss of the money. Without going into detail, it is sufficient for us to say that the evidence clearly shows that there was no negligence in the matter of investigating Boulivant’s record prior to his employment by the defendant, and that there was nothing in that record which should cause the defendant to suspect him of any incompetency or dishonesty. As was customary, he was required to give a surety company bond in the sum of one thousand dollars.

From the facts concerning the method of keeping keys to boxes before they wbre delivered to customers, plaintiff attempts to deduce the theory that some one of these employees, at a time prior to October, 1910, the date the box was rented to plaintiff and the keys delivered to him, took the keys from the wooden cupboard and had a duplicate made, and that this dishonest employee then returned the keys to the cupboard, retaining the extra duplicate; that between January 11th and January 31st, surreptitiously, by the use of the master key and the extra duplicate key,.this employee opened the box and stole from it the one thousand dollar bill.

While this is an ingenious and in some respects a plausible theory, it does not attain to the dignity of proof. There is no direct evidence that any employee took the money from the box. If we accept as true the statement of plaintiff that when he closed the box on January 11th the money was therein, and that it was not there on January 31st, and that plaintiff had not between these dates opened the box, there might be a presumption that an employee opened the box and took the money. Based upon this presumption it is not unreasonable to indulge in the further, presumption that the employee gained access to the box through the scheme suggested by plaintiff. On the other hand, if we reverse the argument and from the fact of the accessibility of the keys before delivery to a customer, presume that an employee procured an extra duplicate key, we might presume that the box was opened through the use of such a duplicate key in the hands of a dishonest employee. In either line of reasoning we reach our conclusion only by indulging in a presumption based upon another presumption. “No inference of fact should be drawn from premises which are uncertain. Facts upon which an inference may legitimately rest must * * * be established by direct evidence as if they were the very facts in issue; one presumption cannot be based upon another presumption.” 16 Cyc. 1051. It follows, therefore, that the' evidence concerning the accessibility of the keys avails nothing, whether it be considered as a conclusion of fact tending to establish negligence, or as a probative step towards the conclusion that an employee took the money. The defendant was not obliged to prove a condition of perfect safety in the management of the vault, and certainly not a condition beyond any possible speculative theory of insecurity. The case should not have gone to the jury upon the theory that unless the defendant proved its deposit boxes to be absolutely impregnable it would be held negligent. As we have said, the defendant was bound to use only ordinary care, and the evidence shows beyond any question that such a degree of care was exercised.

There is no evidence whatever that the codefendant, North Side State Savings Bank, a corporation, was in any way responsible for the management of the vaults in question, so that even if negligence on the part of the Temple Safety Deposit Vaults should be shown, a judgment jointly against it and the bank would be erroneous; but, as we have indicated, the plaintiff has failed to prove his charge of negligence against the Temple Safety Deposit Vaults, a corporation, and the judgment will be reversed.

Reversed with finding of fact.

Finding of fact.—We find from the evidence that defendants were not negligent in manner and form as charged in plaintiff’s statement of claim herein.


text:
    H. A. Fleckles for use of A. C. Greenbaum, Defendant in Error, v. General Film Company, Plaintiff in Error.
    Gen. No. 19,720.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    H. A. Fleckles, suing for the use of A. C. Greenbaum, secured a judgment against General Film Company, a corporation, which filed a petition to vacate the same. By order of court, the petition was stricken from the files. Defendant corporation sued out a writ of error to review the original judgment and the action of the trial judge in striking the petition.
    Richard J. Cooney and John A. Verhoeven, for plaintiff in error; Zimmerman & Myers, of counsel.
    Rudolph Frankenstein, 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.

Abstract of the Decision.

1. Municipal Court of Chicago, § 26 —what essential to preserve questions for review. Where no statement of facts, stenographic report or bill of exceptions was tendered or presented to the trial court to preserve a petition to vacate a judgment in the Municipal Court, or any evidence that might have been heard by the court in considering the petition, or its action on the petition, there remains nothing of record for review by an Appellate Court.

2. Appeal and error, § 800 —when motion must he incorporated in the hill of exceptions. A clerk of a court of record cannot make a written motion part of the record by copying it into the transcript.

3. Appeal and error, § 800 —what must he incorporated in the hill of exceptions. A motion upon a petition to vacate a judgment does not become a part of the record for the purpose of error or appeal unless it is made so by the bill of exceptions.

4. Municipal Court of Chicago, § 5 —when judicial notice will not he taken of the rules by an Appellate Court. The Appellate Court' cannot judicially know what the rules of the Municipal Court of Chicago require.


text:
    Anton Waitkus, Appellee, v. Anton Olszewski, Appellant.
    Gen. No. 19,736.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Rehearing denied October 27, 1914.
    Statement of the Case.
    Action by Anton Waitkus against Anton Olszewski upon the common counts to recover the value of labor and materials furnished in connection with a building owned by the defendant. Judgment was entered against the defendant, who appeals.

      Abstract of the Decision.
    1. Assumpsit, action of, § 24

      —right to recover under common counts. Where, after a part of work agreed to be done under a special" contract had been performed, there arose some difficulty out of plaintiff’s relations with a labor union because of which plaintiff was not permitted by the owner of the building to continue with the work, the plaintiff may treat the contract as rescinded and declare on the common counts and recover the value of his labor and of materials furnished.
    2. Assumpsit, action of, § 71

      —when recovery cannot be based on contract price. A recovery cannot be had under the common counts for the contract price of labor and materials, but only for the actual value of the work done and the materials furnished.
    3. Building and construction contracts, § 57

      —when provisions in contract as to architect’s certificate may be disregarded. Where the plaintiff may treat a special contract to furnish labor and material on a building"as rescinded because of the owner’s refusal to permit him to continue with the work, a provision in the contract for payment upon the architect’s furnishing a certificate should be disregarded.
    F. P. Bradchulis and Edgar A. Jonas, for appellant; Edward J. Hess, of counsel.
    Forest Garfield Smith, 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 court.


text:
    George H. Mead, trading as The George H. Mead Agency, Appellee, v. Chicago and Northwestern Railway Company, Appellant.
    Gen. No. 19,763.
    1. Payment, § 1

      —when contract becomes payable in money. Where a railroad company orally contracted for advertising to be paid for in passenger transportation and thereafter a statute was enacted prohibiting the issuance of passenger tickets for such purpose, held that the railroad became liable to pay in money any balance due on the contract.
    2. Frauds, statute of, § 25

      —when contract not within statute. An oral contract is not within the statute of frauds for the reason that it is not to be performed within a year, where it might have been performed in a year by being terminated by either party, or it might be terminated within the year by the death of one of the parties.
    3. Frauds, statute of, § 89

      —when party estopped to set up statute. Where a contract has been fully performed by one party the other party is estopped to set up the statute of frauds.
    4. Limitation of actions, § 22

      —when balance, due running account not barred. Five-Year Statute of Limitations held not to have run against a balance due on a mutual running account, where no obligation was created in regard to each particular item but only for the balance, and a part payment had been made to apply on account within five years before suit brought
    5. Action, § 15

      —when demand unnecessary. A demand for payment for services rendered under a contract not necessary before suit where it would have been useless.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Irving Herriott and Ira C. Belden, for appellant;. Edward M. Hyzer and William G. Wheeler, of counsel.
    Bulkley, Gray & More, 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 court.

Plaintiff conducted an advertising agency and contracted orally in 1901 with defendant, a railway corporation, to place, when requested by the defendant, its advertisements in papers and magazines, for which defendant agreed to pay plaintiff, at regular advertising rates, in passenger transportation on its lines, as plaintiff might request. This business arrangement was continued between them until December 31, 1906, at which time plaintiff claims there was a balance due him in money of $4,600.84. By suit plaintiff recovered judgment for this amount, from which defendant has appealed.

The case was tried on a stipulation of facts. The only questions presented are those of law. The occasion of the controversy was the passage by Congress of the so-called Hepburn Act, which became effective January 1, 1907, and which operated to prohibit defendant issuing passenger tickets for advertising. This terminated the contract, and of course made it illegal for defendant after that date to pay plaintiff, in transportation, any balance there might be due him for advertising placed before the Hepburn Act went into effect. The question therefore is, where the medium of payment for services is rendered impossible by a statutory enactment subsequent to the contract, is the debt cancelled or does it become payable in money?

In Parsons on Contracts, vol. 3, sec. 215, it is said:

‘ ‘ The true question is, whether it was intended that the promissor might elect to pay the money or deliver the articles; or in other words, whether it was agreed only that he owed so much money, and might pay it either in cash or goods, as he saw fit. There might be something in the form of the promise, in the res gestae, or in the circumstances of the case, which, by showing the intention of the parties, would decide the general question * * *. But if the promise be only to pay one thousand dollars at a certain time, in flour, then this sum is to be paid either in flour or in money, at the election of the payor.”

The author cites in support of this proposition the case of Brooks v. Hubbard, 3 Conn. 58; and in that opinion it- is said that the effect of such an agreement is “to give an option to the defendant to pay the debt in collateral articles, at a stipulated price.”

The basic reason for holding such a contractual obligation to be payable in money if it cannot be paid in the commodity agreed upon, is touched upon in the opinion in Heywood v. Heywood, 42 Me. 229, where it is said, in substance, that agreements for paying in anything else than money “are always presumed to be made in favor" of the debtor;” and further, concerning the contract in question in that case, “the contract to pay a certain sum in specific articles, at an ¿greed price, being for the benefit of the debtor, he has the election to pay in that manner, or in cash.” To the same effect are Murray v. Gale, 52 Barb. (N. Y.) 427; and Rodes v. Bronson, 34 N. Y. 649, where it is said that the established rule of law is “that a provision in a contract for the payment of an expressed sum, making such sum payable in a specific commodity, is for the benefit of the promissor.” See also Hitchcock v. Galveston, 96 U. S. 341; Parsons on Contracts, vol. 2, sec. 657, says: “If one branch of the alternative becomes impossible, so that the promisor has no longer an election, this does not destroy his obligation, unless the contract expressly so provide; but he is now bound to perform the other alternative. ” This is almost the exact language of the court in Chapman v. County of Douglas, 107 U. S. 348. Many other cases might be cited in support of this doctrine, including Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102; Bacon v. Cobb, 45 Ill. 47; Tartt v. Ramey, 158 Ill. App. 468; and Barstow v. McLachlan, 99 Ill. 641, where the Court said: “The stipulation to pay $6,000 in hardware became, in default of payment, an obligation to pay in money.” Borah v. Curry, 12 Ill. 66, and numerous other cases.

Simple justice, fortified by consideration of these numerous decisions, leads easily to the conclusion that the operation of the Hepburn Act cannot avail to defeat plaintiff’s right to be paid the balance due him in money.

We are also of the opinion that the action does not come within the statute of frauds, for the reason that the contract is not a contract that is not to be performed within one year. The contract might have been performed within one year, as it could be terminated at any time by either party, or it might be terminated within the year by the death of the plaintiff. In Hulse v. Hulse, 155 Ill. App. 343, it is said: “If the contract might, by any contingency, have been performed within one year, it is not within the Statute of Frauds.” To the same effect also is Osgood v. Skinner, 111 Ill. App. 606. A further reason appears from the fact that the contract has been fully performed by the plaintiff; therefore the defendant is estopped from relying upon the statute of frauds. It is said in Swansey v. Moore, 22 Ill. 63, that executed contracts are never within the statute of frauds. To the same effect are Pearce v. Pearce, 184 Ill. 289; Cleveland, C., C. & St. L. Ry. Co. v. Wood, 189 Ill. 352; MacDonald v. Crosby, 192 Ill. 283.

There is no ground in this ease for the application of the statute of limitations. Under the stipulation of facts there appears to have been a mutual running account kept between the parties, with payments by the defendant in railroad tickets on account of the balance due and owing by it to the plaintiff, and such payments were made within five years previous to the bringing of the suit. No obligation was created in regard to each particular ^ item, but only for the balance, which was a constantly varying balance. The stipulation also shows that a certain amount was paid On account during December, 1906. These payments applied to the entire debt, as there was but one debt, and when these payments were credited it left the balance specified. As suit was commenced within five years from that date, those payments took the entire account out of the statute. See Knight v. Collings, 227 Ill. 348; Hennessey v. Walsh, 142 Ill. App. 237; Waldron v. Alexander, 136 Ill. 550; Neish v. Gannon, 198 Ill. 219.

The point that plaintiff should have first made a demand for transportation is answered by the numerous decisions to the effect that the law never requires •the performance of a useless act, and it is conceded that after the Hepburn Act went into effect it would have been useless for plaintiff to have demanded from the defendant payment in transportation.

Other contentions raised are without merit, and the rulings of the trial court on the propositions of law being free from error, the judgment followed properly .and is affirmed.

Affirmed.


text:
    Jacob Salfisberg, Appellee, v. Village of Western Springs, Appellant.
    Gen. No. 19,780.
    1. Limitation of actions, § 11

      —when suit on contract for public improvement barred. Where a village becomes liable to pay for an improvement on its acceptance thereof, the claim of the contractor is barred by the statute of limitations where suit is not brought thereon within ten years from the date of such acceptance.
    2. Municipal corporations, § 401

      —when compensation for improvement restricted to particular fund. A contract with a village for work done in making a sidewalk improvement, construed as restricting the contractor for his compensation to the special taxation fund, though the ordinance under which the work was done was adjudicated to be void.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed October 13, 1914.
    Frederick W. Winkler, for appellant.

      Sonnenschein, Berkson & Fishell and Salfisberg & Sears, 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 court.

This is a case of a contractor seeking to enforce a general liability of defendant for work done in pursuance to an ordinance which, after the work was-done, was adjudicated to be void. In the trial court the plaintiff had judgment.

Counsel seemingly agree that if the contract had expressly provided that the contractor should make no claim against the Village except from the special taxes for the improvement, and that he should assume all risks of the invalidity of such special tax, he could not recover on any general liability of the Village. This is the clear ruling in Village of Park Ridge v. Robinson, 198 Ill. 571; City of Alton v. Foster, 207 Ill. 150; Conway v. City of Chicago, 237 Ill. 138. It is contended, however, by the plaintiff that the contract in; question contains no such provisions in this regard as were present in the Robinson case, supra, and that this contract comes within the rule in Maher v. City of Chicago, 38 Ill. 266, and City of Chicago v. People, 56 Ill. 327, in which cases the municipality was held to a general liability.

It would seem, therefore, that the matter for our determination is the construction of the contract. In-clause 6 thereof, the contractor “agrees to receive in full payment for said walk, warrants drawn upon the. treasurer of the said Village and payable out of the special taxation fund created in the manner provided in said ordinance, in accordance with the provisions of. Section 3 of an Act of the General Assembly of the State of Illinois,” etc. The warrant issued and accepted by the contractor reads that the amount is:

“From the collection of Special Assessment No. 217, made by the Village of Western Springs, for laying cement sidewalks on Chicago St. in the Village of Western Springs, but out of no other assessment or fund, and when and as so collected and in the Village Treasury, the Village of Western Springs will pay on demand to J. E. Salfisberg or order, the sum of Two Hundred Sixty-eight 75/100 Dollars.
* * *
“The agreement of the payee accepting this voucher herein below attached is a part of this voucher.
* * *
“In consideration of the issuing of this voucher ...........hereby, for..........sel........, heirs, executors and assigns, accept the same in full payment of the amount herein stated, and relinquish any and all claims or liens................may have against the Village of Western Springs for the work mentioned herein, or for the payment of this voucher, except from the collection of installment herein named.”

We are of the opinion that a reasonable construction of this contract requires the contractor to be restricted for his compensation to the special taxation fund, and that he cannot recover on any general liability.

However, as we view the case, this point is really not the decisive one, for even if it should be held that a general liability existed under the contract, plaintiff cannot recover for the reason that the statute of limitations has expired. Upon the theory of plaintiff’s case the Village was liable and bound to pay for the improvement upon its acceptance. This acceptance was on August 31, 1899, while the suit was not commenced until October 17, 1910, more than ten years after the defendant became liable, if it did become liable generally. Hence there can be no recovery.

The judgment is reversed without remanding the cause.

Reversed.


text:
    Ideal Electric Company for use of Violet Stone Ryerson, Appellee, v. Penn Mutual Life Insurance Company, Appellant.
    Gen. No. 19,797.
    1. Insurance, § 667

      —when finding against suicide sustained By the evidence. In an action for life insurance where the defense was that the insured committed suicide, a verdict for plaintiff and a special finding that the insured had not committed suicide held sustained by the evidence.
    2. Insurance, § 601

      —presumption against suicide. In an action for life insurance where the defense is suicide, the plaintiff has a right to invoke the presumption that persons do not ordinarily take their own lives.
    3. Appeal and error, § 1403

      —conclusiveness of special finding. A special finding of fact by a jury is binding upon the person against whom it is found, where no action was taken in the trial court to have it set aside.
    4. Insurance, § 214

      —when answer to question in application not false. The answer “none” to a question in an application for insurance: “Have you had insanity * * * or any other disorder of the brain or nervous systein,” held not false though the evidence showed that the applicant had complained of dizziness and deafness in connection with a perforated eardrum.
    5. Insurance, § 214

      —when portion of answer to question in application immaterial. Where a question in an application for insurance was whether the applicant had had a long list of ailments which included “ear discharge” and the answer was: “None except slight ear discharge from perforated drum, right, in early childhood. No trouble now for 20 years, though drum is still perforated,” held that the words of the answer “none except slight ear discharge” was a complete answer to the question, and that the following portion of the answer was immaterial as not being responsive to the question.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Holdom, Manierre & Pratt, for appellant.

      Shepard, McCormick & Thomason and Rose, Symmes & Kirkland, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

On May 16,1910, John A. Ryerson came to his death by falling through the open light well from the thirteenth floor to the ground floor of the Chamber of Commerce building in Chicago. Whether with suicidal intent he jumped over the guard railing on the thirteenth floor or involuntarily fell over it into the light well is in dispute.

At the time of his death Ryerson was insured by the defendant, a life insurance company. The policy was dated November 30, 1909, and contained a provision that in case of the suicide of the insured within one year' from the date of the policy the Company’s liability would be limited to the amount of premium paid.. This suit is for the full amount of the insurance named in the policy, and upon the trial the jury-returned a verdict awarding plaintiff this amount.The jury was also required to find specially on a question of fact submitted, which was: “Did John A. Ryerson commit suicide?” and to this the jury* answered, “No.” From .the judgment entered on this verdict defendant appeals, saying among other things that the evidence shows Ryerson to have committed suicide, and as this occurred within one year from the date of. the policy the Company is not liable beyond the amount of the premium paid.

The testimony as to the occurrence itself is meager. Shortly after.six o’clock in the evening the single eyewitness saw Mr. Ryerson standing by the railing surrounding the light shaft. This railing is of metal and is three feet eight inches high. This, witness while momentarily looking elsewhere heard Ryerson give a loud, gasp, as if; gasping for breath, and the witness, attracted by this, turned "just in time to see the body go over the railing, as he described it, “like he had been shot out of something.” In argument it is attempted to support the assertion that Ryerson purposely jumped over the railing by deductions sought from the position of the body while falling, certain angles of the fall and measurements of distances. As against these circumstances plaintiff, to support its-claim, introduced the testimony of medical witnesses to the effect that one with a perforated eardrum, which Mr. Ryerson had, would be subject to dizziness or vertigo, and that the gasping for breath and the direction of his fall would indicate that he had fallen under the influence of a sudden seizure of dizziness or vertigo. In our opinion it cannot be said that either of these variant theories has been established to a degree amounting to a demonstration. However, we can see no reason for saying that the jury was not as fully-justified in accepting the theory of the plaintiff as of the defendant as to the conclusion to be drawn from the testimony of the witnesses and the surrounding conditions.

The relevant facts prior to the occurrence appear to be that at the time of his death Mr. Ryerson was about forty-five years of age, was married and had one child about eighteen months of age. Three weeks after his death another child was born. He was a strong man, physically and mentally, an athlete, and was very good in many physical sports. His marriage was a happy one and he seems to have been devoted to his wife and child. He was a man of religious habit, regular in his church attendance and interested in religious' questions, a scholarly man, graduate of Columbia University, and a reader. His friends say of him that he was optimistic in disposition, generally looking on the bright side of life, and enjoyed companionship among a large circle of friends. He seems to have had ample credit at his bank, at one time had been secretary of A. C. McClurg & Company and a stockholder, holding stock of the face value of $27,000, and of an actual value of $42,000. At the time of his death he was financial man and bookkeeper of Charles F. Reed & Company, in which corporation he owned one-half of the stock; and was also a stockholder in and president of the Ideal Electric Company, which seems to have had a growing business. On the morning of the day of his death he parted with his wife and child in his usual manner. In the afternoon he went to the Northern Trust Company vaults, where he kept the papers of Reed & Company, among which were seventy-two leases under his charge. He stayed there until about five o’clock, at which time he exchanged some pleasant remarks with the manager, who knew him well. Another acquaintance, with whom he then met and had some conversation, testified that his apparent frame of mind was normal and that he gave no indication of being downhearted. He was next seen about 5:30 o’clock on the thirteenth floor of the Chamber of Commerce building, where he had occasion to go on business at different times during the day. There is a great deal of evidence and argument concering his financial condition at the time immediately prior to his death, which it is unnecessary to narrate for the reason that it leads to no very definite conclusion as to his financial needs. Certainly it cannot be said to show so clear a condition of financial stress as to impel an inference that any sufficient motive for self-destruction was produced thereby.

The court committed no error in permitting the jury to pass upon all these predisposing circumstances. It was said in Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205, that it was not necessary that the plaintiff prove by an eyewitness that the injuries which caused death by violent and external means were accidental, but that fact might be established by circumstantial evidence. This case is also authority for our holding that in addition to the facts above related the plaintiff had the right to invoke the presumption that men in the condition in which the evidence showed Ryerson to have been just prior to his injury do not ordinarily take their own lives. In its opinion the court said (p. 212): “While this presumption is a rebuttable presumption and may be overcome by proof, when not rebutted by proof or the circumstances in evidence surrounding the death, such presumption, when taken with the admission that the injuries which caused death were violent and external, is sufficient to require the court to submit to the jury the question whether the injuries which caused the death * * * were accidental or self-inflicted.” (See also Fidelity & Casualty Co. of New York v. Weise, 182 Ill. 496.) Considering the testimony before the jury in the light of these authorities, the conclusion of the jury that suicide was not proven must stand.

A further reason is suggested why defendant’s contention cannot prevail, in that, at its request the jury returned a special verdict that Ryerson had not committed suicide. In many cases it has been held that a special finding of fact by a jury is binding upon the person against whom it is found, unless some action is taken in the trial court to have it set aside. No such action was taken in this case, and no convincing reason is presented why this general rule should not prevail. See Avery v. Moore, 133 Ill. 74; City of Aurora v. Rockabrand, 149 Ill. 399; Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; Empire Laundry Machinery Co. v. Brady, 164 Ill. 58; Illinois Steel Co. v. Mann, 197 Ill. 186; Voigt v. Anglo-American Provision Co., 202 Ill. 462; Kuchler v. Stafford, 185 Ill. App. 199.

It is also claimed as a matter of defense that the insured made false representations in Ms application for insurance, and thereby the policy became void. These representations were in response to questions, one of which was: “Have you had Insanity, Apoplexy, Palsy, Vertigo, Convulsions, Sunstroke, Congestion, Inflammation, or any other disorder of the Brain or Nervous System?” and to this the applicant in writing answered, “None.” A physician testified that Mr. Ryerson had called on him in 1896 and in 1904 and at that time complained of dizziness and deafness in connection with a perforated eardrum. He had, when a child, dived from a vessel into the sea and ruptured his right eardrum, which had never healed. We are not inclined to hold this as evidence that the answer was false. It is manifest that the ailments listed in the question have reference to some disorder of the brain or nervous system. The language of the question is, “or any other disorder of the Brain or Nervous System.” There is no evidence that the dizziness mentioned by Mr. Ryerson to his doctor some years before could, speaking accurately, be such a disorder of the brain or of the nervous system as is contemplated in the question. A doctor testifying for the defendant stated, in substance, that what is called dizziness is a symptom, not a disease; that it may be a symptom of disturbance of the circulation of the brain, or in the nervous system, or of digestion, or a symptom of hardened arteries, or. of poison. We. are not inclined to read this question and answer as a positive statement that at no time in his life had the applicant ever felt the sensation of dizziness. There is no evidence that the answer was untrue, considering the question as it would ordinarily be understood.

• Another representation which is said to be false appears in the question and answer as follows: Question. “14. C. Have you had Appendicitis, Cancer, or any Tumor, Chronic Diarrhoea, Ear Discharge, Dropsy, Fistula, Gall-stones or Gravel, Renal or Hepatic Colic, Open Sores, Inflammatory Rheumatism, Gout, Syphilis or Stricture, or any Disease of the Liver, Kidneys, or Bladder?” Answer. “C. None except slight ear discharge from perforated drum, right, in early childhood. No trouble now for twenty years, though drum is still perforated.” It is said that there is evidence that applicant suffered from “ear discharge” at some period within the previous twenty years, and hence his answer was false. We do not think so. The question is: “Have you had” any of a long list of ailments, in which is included ' ‘ ear discharge,” and the answer is plain that he had had none of these ailments except the ear discharge. This is the complete answer to the question. It is not material or responsive that the applicant in his answer volunteered the information that he had a perforated right eardrum in early childhood which had given bim no trouble for twenty years although the drum was still perforated. Also, it is to be observed that the words, “No trouble now,” are rather indefinite and do not unequivocally state that there has been no discharge.

In this connection it might be said that the forceful argument of defendant’s counsel, as to the very excellent physical condition of Mr. Ryerson prior to his death, is hardly consistent with the contention that the representations criticised were material to the risk.

Complaint is made of rulings on evidence and of instructions given by the court, but we see nothing sufficiently prejudicial to require a reversal.

For the reasons above indicated the judgment is affirmed.

Affirmed.


text:
    Tom K. Chan et al., Appellees, v. Israel Lanski et al., Appellants.
    Gen. No. 19,819.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Tom K. Chan and others against Israel Lanski and others to recover back money paid under an agreement for the leasing of the second floor of a building to be erected by the defendants, the term of the lease to begin November 1, 1912, and end October 31, 1927. In the lease the defendants acknowledged the receipt of $1,800 from plaintiffs, which was to be applied towards the payment of rent for the last five months of the demised term. It was further provided that the premises thereby leased were part of an entire building to be erected by the defendants at the southwest comer of Indiana avenue and Thirty-first street, in Chicago, Illinois. Said lease further provided that the defendants “agree to have said premises completed and ready for occupancy by the first day of January, 1913; provided, however, that the time within which said lessors are obligated to complete said premises herein demised shall be extended to the extent that said lessors are delayed or hindered by strikes, fire or any cause whatsoever beyond the reasonable control of said lessors. Lessees agree that in the event said premises are not completed or erected as provided herein, said lessors shall not be liable for any sums whatsoever beyond the abatement of rent and return of money deposited by the lessees hereunder, and lessees shall have the right to terminate said lease.” That $1,800 was paid was admitted, and one of the plaintiffs testified that on October 24, 1912, he paid defendants an additional amount of $272, upon the agreement of the lessors to install in the premises a certain kind of art glass.
    Abstract of the Decision.
    Landlord and tenant, § 66

      —when lessors contracting to have building completed presumed to know quicksand will be encountered with. Where lessors executed a lease of a part of a building to be erected in Chicago with provision in the lease that the premises were to be ready for occupancy by a certain date, and the lessees paid in advance a certain sum to be applied as rent and a further sum for the purpose of having a certain kind of art glass installed, held, in an action by the lessees to recover back the sums paid on the ground that the building was not completed in time, that it was no defense that the delay resulted from removing old buildings and rubbish - from the grounds and from encountering quicksand and water in making, the excavations and laying the foundations, since the lessors are presumed to know that in making excavations and laying foundations for buildings in Chicago quicksand and water will probably be encountered.

      The building was not completed and ready for occupancy on January 1, 1913, and this suit is for the recovery of money paid by plaintiffs to defendants. Defendants filed an affidavit of defense, that the building was not completed within the time contracted for, for the reason that there was some delay in removing some old buildings and rubbish from the ground, and further that in making excavations and laying foundations it was found that the ground contained quicksand and water in large quantities. The affidavit was. stricken from the files as insufficient and default was entered for failure to file a proper affidavit. Plaintiffs had judgment for $2,072. To reverse the judgment, defendants appeal.
    Ringer, Wilhartz, Louer & Concannon, for appellants.
    Ammen, Streyckmans & Joyner and Benedict J. Short, for appellees.

      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.


text:
    Grand Lodge Independent Western Star Order, Appellee, v. Illinois Surety Company, Appellant.
    Gen. No. 19,856.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Grand Lodge Independent Western Star Order, a corporation, against Illinois Surety Company on a fidelity bond. By the terms of the bond defendant guarantied to reimburse plaintiff for such pecuniary loss as it should sustain by-any act of larceny or embezzlement on the part of A. R. Fifer, Grand Endowment Treasurer of plaintiff, committed between October 21,1911, and October 21, 1912. The bond was in the penal sum of $6,000. Plaintiff had judgment for $5,457.86, which was the amount plaintiff claimed Fifer embezzled from it. To reverse the judgment, defendant appeals.
    By the terms of the bond it was provided that plaintiff “on his becoming aware of any act which may be made the basis of any claim hereunder, shall, within ten days, give the Company notice thereof by telegraph at the Company^ expense, and-in writing by a registered letter, addressed to the Secretary of the Company, Chicago, Illinois, * * * and this Bond shall become void both as to any existing or future liabilities thereunder unless the aforesaid notice shall have been given as provided for.”
    Abstract of the Decision.
    Indemnity, § 12

      —when obligor in fidelity bond discharged from liability for failure of obligee to give notice. Where a fidelity bond was given to a fraternal Order by a surety company to indemnify the Order against larceny or embezzlement on the part of its treasurer, the bond providing that the Order on becoming aware of any shortage should notify said surety company within ten days, held that the surety company was discharged from any liability for the reason the Order failed to give the notice within the required ten days, it appearing that the officers-of the Order had definite and accurate information as to the exact amount of the shortage in the treasurer’s accounts more than ten days before giving the notice.
    Hopkins, Peffers & Hopkins, for appellant.
    Julius Goldzier and William A. Jonesi, 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 court.


text:
    Harry A. Biossat, Appellee, v. Sarah Betz Eckhardt, Appellant.
    Gen. No. 19,880.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Rehearing denied October 27, 1914.

      Abstract of the Decision.
    Corporations, § 1062

      —when finding as to payment of subscription price of stock sustained by the evidence. In an action for the subscription price of shares of capital stock, a finding by the trial court that a certain amount remained unpaid held sustained by the evidence.
    Statement of the Case.
    Action by Harry A. Biossat against Sarah Betz Eckhardt to recover the sum of twelve hundred and fifty dollars claimed to be due as the subscription price of twelve and one-half shares of capital stock issued to the defendant by the African-American Ostrich Feather Company. The defense was that the stock was fully paid for. The trial court found that there remained unpaid three hundred and fifty dollars and entered judgment in favor of plaintiff for that amount. To reverse the judgment, defendant appeals.
    Roman G. Lewis, for appellant.
    Harry A. Biossat, pro se.

      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.


text:
    Iona V. Hassett, Appellee, v. Timothy F. Hassett, Appellant.
    Gen. No. 19,896.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.

      Abstract of the Decision.
    1. Husband and wife, § 217

      —right to separate maintenance. Evidence held insufficient to show that the wife was without fault on her part so as to entitle her to separate maintenance, where it appeared she did many things which were unreasonable and which amounted to conduct on her part far short of that expected of a devoted and loving wife.
    2. Divorce, § 9

      —what does not constitute desertion. A separation by a wife from her husband largely at his instance and suggestion and occasioned by his mistreatment, held not to constitute desertion within the meaning of the divorce statute.
    Statement of the Case.
    Bill by Iona V. Hassett against Timothy F. Hassett for separate maintenance charging that complainant, without her fault, was compelled to live separate and apart from defendant because of his unkind, cruel and inhuman conduct. The defendant filed an answer denying the allegations of the bill and subsequently filed a cross-bill for divorce on the ground of desertion. To the cross-bill complainant filed her answer stating that she was compelled to leave defendant because of his treatment and his failure to support her. The chancellor dismissed both the original bill and the cross-bill for want of equity. To reverse the order, defendant appeals. .
    Litzinger, McGurn & Reid, for appellant.
    Percival Steele & Albert H. Meads, 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 court.


text:
    W. C. Foster, Appellant, v. D. Swanson, trading as D. Swanson & Company, Appellee.
    Gen. No. 19,924.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Building and construction contracts, § 33

      —what constitutes acceptance. "Where the evidence tends to show that work on a building was done in a good and workmanlike manner, that •the prices charged were the usual and customary prices for such work, that the owner saw the work while in progress, making no objections but expressing himself as satisfied, and made several .payments after moving into the building and did not make any complaint until several months had elapsed, the Appellate Court will not disturb a finding in favor of the defendant for a balance due for work done, in an action by the owner to recover damages for poor work and alleged overcharges.

      - Appeal from the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    W. C. Foster employed D. Swanson, trading as D. Swanson & Company, to make repairs on his flat building. As the work progressed and after it was completed Swanson was paid certain amounts. Later plaintiff, claiming to be dissatisfied with the work, refused to pay the balance claimed to be" due; and brought action for damages for poor work and alleged overcharges against D. Swanson, who filed an affidavit of merits and-also a claim for the balance said to be due for the work. The jury disallowed plaintiff’s claim and a judgment was entered on a verdict for defendant in the full amount of his claim. Plaintiff appeals.
    Frank D. Fulton, for appellant; Eugene L. Garey and Archie J. Deutschman, of counsel.
    Wiley & Mack, for appellee; Hoyne, O’Connor & Irwin and Carl J. Appell, 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. Appeal and error, § 1411 —when verdict will not he disturbed. Where conflicting testimony is properly submitted to the jury, the Appellate Court will not disturb its verdict simply because greater credence and weight was given to the evidence in favor of one party than that in favor of the other.


text:
    Emma C. Walter, Appellee, v. Charles H. Walter, Appellant.
    Gen. No. 19,934.
    1. Divorce, § 105

      —when approval of court necessary to binding effect of agreement as to permanent alimony. Before an agreement between husband and- wife, after divorce, can become binding and conclusive, its fairness and equity must be made manifest to the court having jurisdiction, and its approval must appear of record.
    2. Divorce, § 93

      —nature of right to alimony. Alimony is not founded on contract express or implied, but arises out of the relation of marriage.
    3. Divorce, § 118

      —when alimony may be altered. In general, alimony may be altered at any time according to the circumstances of the parties.
    4. Divorce, § 115

      —how alimony is enforced. Alimony cannot ordinarily be enforced by an action at law, but only by application to the court which granted it and subject to the court’s discretion.
    • 5. Divorce, 105

      —when approval of alimony agreement within discretion of court. The approval of a contract fixing alimony between divorced husband and wife rests entirely in the discretion of the court upon a review of all the circumstances.
    6. Contracts, § 135

      —laws which cannot be abrogated by private agreement. Laws providing for alimony, enacted from considerations of public concern and to subserve the general welfare, cannot be abrogated by mere private agreement.

      7. Divorce, § 145

      —when refusal of court to approve agreement as to alimony not an atuse of discretion. Where, after divorce, the immediate parties entered into an agreement fixing permanent alimony, but failed to secure the approval of court to the agreement, it was held not to be an abuse of the discretion vested in the chancellor to disregard the agreement and to order the divorced husband to continue to contribute a reasonable amount to the support of the complainant.
    Appeal from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    W. P. MacCracken, Jr., for appellant.
    Samuel B. Hill, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from an order entered April 15, 1913, directing defendant to pay complainant five dollars a week as alimony until the further order of the court. The original decree of divorce, with an order allowing alimony, was entered August 16, 1905, and this order of April 15, 1913, was entered upon the petition of complainant filed March 17, 1913, setting forth the nonpayment of the alimony and her need. The prayer of the petition was resisted on the ground that by an agreement between the complainant and defendant the defendant was released from the payment of further alimony. A memorandum of this agreement was introduced in evidence, and although it is not signed by either of the parties, yet it may be considered as containing their agreement. It is as follows:

“This agreement made and entered into by and between Emma C. Walter and Charles H. Walter, both of the City of Chicago, County of Cook, and State of Illinois, witnesseth:
“For that Whereas, the said Emma C. Walter having been granted a decree of divorce from said Charles H. Walter on August 16, A. D. 1905, in the Superior Court of Cook County, case numbered 246,217, as alimony, and Twenty-five Dollars ($25.00) as solicitor’s fees, to be paid by Charles H, Walter, and which amount of alimony was subsequently by order of court reduced to Six Dollars ($6.00) per week, and for the purpose of adjusting the alimony and solicitor’s fees now due and the alimony hereafter coming due, the said parties have agreed and by these presents do agree in consideration of the assignment made by Charles H. Walter of a certain Life Insurance Policy in the State Mutual Life Assurance Company of Worcester, Massachusetts, on the life of the said Charles H. Walter and for the further consideration that - said Charles H. Walter agrees to pay the premiums on said Insurance Policy as the same may accrue, therefore the said Emma C. Walter has agreed and by these presents does agree to free, release and discharge the said Charles H. Walter from all money that is now due her for alimony and solicitor’s fees hy virtue of said decree herein and the order of the court thereafter made, and the said Emma C. Walter does further agree to release and by these presents does forever release, free and discharge said Charles H. Walter from all claims, demands for alimony or moneys that may from the date hereof and hereafter accrue to her and become due and owing her by virtue of said decree hereinbefore set forth, provided, however, that said Charles H. Walter will pay the premiums on said Insurance Policy in the manner as hereinbefore agreed to by him.
“In Testimony Whereof, the said parties have hereunto set their hands and seals this 28th day of November, A. D. 1905.”

The policy mentioned in this agreement was delivered to complainant. When the next annual premium on the policy fell due the defendant did not pay the same, but wrote to the complainant saying that as he was “hard up” he would be unable to pay it. This was in violation of his agreement to keep the annual premiums paid up. Complainant thereupon surrendered the policy to the insuring company for its cash surrender value, which, while more than the amount of alimony due at the time of the surrender, was only a small part of the amount in arrears at the time of filing her petition, estimated on the basis of the original order.

It does not appear that this agreement between the parties was ever brought to the attention of the court, but it seems to have been made without the knowledge or approval of the court, and there is no modification of the original order directing the payment of alimony. Is such a contract binding upon the complainant and on the court, so that the court may not on application grant whatever relief to complainant may seem equitable and just? We think it is not. We hold that before such an agreement can be binding and conclusive its fairness and equity must be made manifest to the court having jurisdiction, and that its approval must appear of record. In Audubon v. Shufeldt, 181 U. S. 575, the Court said: “Alimony does not arise from any business transaction, but .from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. * * * Alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it, and subject to the discretion of that court. Permanent alimony is regarded rather as a portion of the husband’s estate to which the wife is equitably entitled, than as strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings; and the considerations, which affect either, can be better weighed by the court having jurisdiction over the relation of husband and wife, than by a court of a different jurisdiction.” This was quoted with approval in Welty v. Welty, 195 Ill. 335 (340). To the same effect also is Barclay v. Barclay, 184 Ill. 375, while in Silberschmidt v. Silberschmidt, 112 Ill. App. 58, where a contract was involved substantially the same as the one before us, the court held, in effect, that the approval of such a contract rests entirely in the discretion of the court upon review of all the circumstances, and said that “the agreement executed by the parties, unsanctioned by the court, could not control the court * * * and that the court was as untrammeled in the premises as if said agreement had not been made.” And in Recht v. Kelly, 82 Ill. 147, quoted with approval in Zachmann v. Zachmann, 201 Ill. 380, the general principle is stated to be that “laws enacted from considerations of public concern, and to subserve the general welfare, cannot be abrogated by mere private agreement.”

It follows, therefore, that it is not sufficient for the immediate parties to agree as to alimony. The approval of the court must also be secured, and by failing to secure this approval the agreement in question was subject to the discretion of the court to be disregarded or not by it as it might see fit. We see no abuse of the discretion vested in the chancellor in his choosing to disregard the agreement. We are of the opinion that it was proper for the court to order that the defendant should continue to contribute to the support of the complainant, and as the amount allowed is reasonable the order will be affirmed.

Affirmed.


text:
    D. Schnitzer, Appellee, v. John Kramer and Maggie Kramer, Appellants.
    Gen. No. 19,949.
    1. Bills and notes, § 24

      —right of payee to fill in blank for attorney’s fees. Where the amount of attorney’s fees in a judgment note was not written in the blank space provided for that purpose, the authority to fill in the blank for a sum not excessive in amount exists in the payee of the note.
    2. Alteration of instruments, § 18

      —effect of filling in blank left for attorney’s fees. The filling in a blank space left for attorney’s fees in a judgment note is not a material alteration.going to the validity of the instrument, but is supplying a manifest omission.
    3. Bills and notes, § 24

      —when blank in note may he filled in. Where additions or insertions are made in conformity with the apparent character and object of a blank in a note, they are proper and binding upon the maker of the instrument.
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Thomas W. Reilly, for appellants.
    Sonnenschein, Berkson & Fishell, 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 court.

Defendants gave plaintiff their judgment notes, but in the power of attorney authorizing any attorney of a court of record to confess judgment the amount of the attorney’s fees to be allowed was not written in the blank space provided for that purpose. Some of the notes were for two hundred and fifty dollars and others for one hundred and fifty dollars each, and plaintiff after receiving them wrote in the blank space of the two hundred and fifty dollar notes the amount of twenty-five dollars as attorney’s fees, and in the space in the one hundred and fifty dollar notes, the amount of fifteen dollars as-the attorney’s fee. Judgment was entered on these notes for the amount of the principal due and also the attorney’s fees which had been written in as described.

Defendants claim that this supplying of the amount of attorney’s fees constituted a material alteration of the notes which was fatal to their validity. We do not agree with this contention. Filling in the blank spaces was not altering the notes but rather supplying a manifest omission. The general rule is that such additions or insertions when made in conformity with the apparent character and object of the blank are proper and binding upon the maker of the instrument. See Tiedemann on Commercial Paper, sec. 283; 1 Daniel on Negotiable Instruments, sec. 142; Parsons on Notes and Bills, 33. See also the opinion in White v. Alward, 35 Ill. App. 195, in which case this identical question was involved and in which the Court said, in substance, that even if an excessive amount of attorney’s fees had been put in it was not an alteration of the note; the authority to supply the omission existed, even if it had been exceeded, and that at most the excess amount was void. There is no question before us as to the reasonableness of the attorney’s fees in this case.

The judgment is affirmed.

Affirmed.


text:
    D. Schnitzer, Appellee, v. John Kramer, Appellant.
    Gen. No. 19,948.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.

      Statement of the Case.
    This case involved the same facts and the questions presented for determination were the same as those considered in Schnitzer v. Kramer, ante, p. 350, and the decision in that case held conclusive.
    Thomas W. Reilly, for appellant.
    Sonnenschein, Berkson & Fishell, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Peter Schwickrath, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,982.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Peter Schwickrath against Chicago City Railway Company to recover damages for personal injuries received by plaintiff in a collision between a wagon in which plaintiff was driving and one of defendant’s cars. Plaintiff claimed that he was driving north on Halsted street in the northbound tracks of defendant and that he was struck by a northbound car when he attempted to turn his team across the southbound track. Defendant’s evidence tended to show that plaintiff was driving north on the east side of the street between the northbound track and the curb, and that at a time when the car was about thirty feet behind him the plaintiff suddenly turned his team westward across the tracks in front of the northbound car. From a judgment in favor of plaintiff, defendant appeals.
    Abstract of the Decision.
    Street railroads, § 149

      —when refusal of requested instruction prejudicial. In an action to recover for personal injuries received by plaintiff in a collision between a wagon he was driving and a street car, a requested instruction which told the jury that if they believed that as the street car approached the place in question it was being operated with ordinary care, that the plaintiff drove his team in the way of the car so suddenly that the motorman had no notice of any danger to said plaintiff as to give him an opportunity to avoid the danger by the exercise of such presence of mind and of such ordinary care as is to be expected from a man of ordinary coolness and prudence, and under such circumstances as were then surrounding him, then they should find the defendant not guilty, held to contain a correct statement of the law touching the conduct of the motorman, and a refusal of the court to give the same held reversible error, in view of the fact that the case was a close one on the facts.
    Watson J. Ferry, for appellant; Leonard A. Busby, Warner H. Robinson and John E. Kehoe, of counsel.
    Daniel A. Levy, for appellee; John F. Tyrrell and William H. Devenish, 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.


author: Per Curiam.

text:
    The People of the State of Illinois ex rel. Wabash Railroad Company et al., v. Mazzini Slusser.
    Gen. No. 21,027.
    (Not to be reported in full.)
    Abstract of the Decision.
    Mandamus, § 26

      —when application for leave to file petition to compel judge to sign hill of exceptions mil he denied. An application to the Appellate Court for leave to file a petition for a writ of mandamus, to compel a trial judge to sign a bill of exceptions containing informal language of the judge to the attorneys before his final and recorded disposition of a motion for a new trial, was denied for the reason that the language had nothing to do with matters occurring at the trial or which could have in any way influenced the jury, and for the reason the action of the judge speaks for itself through the record as to the reasons for and against the allowance of a new trial.
    Original proceeding in the Appellate Court for mandamus against Hon. Mazzini Slusser, Judge of the Superior Court of Cook County. Heard in this court at the October term, 1914.
    Petition denied.
    Opinion filed October 14, 1914.
    Statement of the Case.
    Application to the Appellate Court by the People of the State of Illinois ex rel. Wabash Railroad Company and others for leave to file a petition for a writ of mandamus directing Mazzini Slusser, sitting as a judge of the Superior Court of Cook county, to sign a bill of exceptions containing informal language used by said judge.
    Zane, Morse & McKinney, for relators.

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

   Per Curiam.


text:
    Martha B. Miller, Defendant in Error, v. Sven Svensson et al., Plaintiffs in Error.
    Gen. No. 18,323.
    Negligence, § 12

      —when seller of coat not liable for injuries resulting from, concealed knife therein. Where a lady purchased a fur coat from dealers in ladies garments and after wearing it was injured by reason of a furrier’s knife found concealed in the coat, held that the dealers were not liable for the injury, it appearing that the coat was sent to the furrier’s for alterations after she purchased it, and there being no evidence to show that the dealers knew the knife was in the coat or that their failure to discover it resulted from not using reasonable and ordinary care.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed November 9, 1914,
    James R. Ward, for plaintiffs in error.
    No appearance for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

The defendants, Sven and Rudolph Svensson, are ladies tailors and sold but did not manufacture fur garments. They sold to plaintiff a fur coat. It required some alterations, was sent to a furrier to have such alterations made, and when it came back was delivered to the plaintiff, Martha Miller. It was a lined coat with padding between the lining and the fur. Plaintiff wore the coat three days, and then, in walking up stairs, received a cut in the calf of her leg from a furrier’s knife which was found in the coat near the bottom. She recovered in the Municipal Court a judgment for two hundred and fifty dollars damages for such injury, on the ground that the defendants were guilty of negligence in leaving the knife concealed in the coat.

There is no evidence tending to show that the defendants knew that the knife was in the coat. The defendants had not used the knife or any similar knife in their business, and when they purchased the coat and when it was returned after the alterations were made, examined and inspected it. We think that the conclusion to be drawn from the evidence is that the knife was left in the upper part of the coat when it was made and that it worked down to near the bottom of the coat while plaintiff was wearing it, and that the evidence does not show that the failure of the defendants to discover that there was a knife concealed in the coat was caused by any failure on the part of the defendants to use reasonable and ordinary care in respect to the coat. The defendants were not bound to anticipate and search for that which was unusual" and unforeseen.

Some of the cases in which it has been held that the plaintiff could not recover are Hasbrouck v. Armour & Co., 139 Wis. 366, where plaintiff sued the manufacturer and the retail vendor of a cake of soap in which a needle was concealed by which she was injured; Akers v. Overbeck, 18 Misc. (N. Y.) 198, where a grocer employed plaintiff to roast coffee in plaintiff’s machine and in one of the bags of coffee furnished was a stone, which went into the roaster and caused the damage complained of. To same effect are Slattery v. Colgate, 25 R. I. 220; Gould v. Slater Woolen Co., 147 Mass. 317, and Bruckel v. Milhau’s Son, 116 App. Div. (N. Y.) 832.

The evidence in the record does not show that the defendants were guilty of any negligence in respect to the coat purchased of them by the plaintiff, and the judgment is reversed.

Judgment reversed with finding of fact.

Finding of fact.—The court finds as a fact from the evidence that the defendants were not guilty of any negligence which caused or contributed to the injury of the plaintiff for which she recovered in this case.


text:
    John J. Meany, Defendant in Error, v. Ephraim Anglemire, Plaintiff in Error.
    Gen. No. 18,708.
    (Not to be reported in full.)
    Abstract of the Decision.
    Physicians and surgeons, § 28

      —proof of employment. In an action for services rendered by plaintiff in operating on defendant as a surgeon, evidence held sufficient to show that plaintiff was employed by defendant, it appearing that defendant first consulted his physician as to the advisability of calling some one else and said physician called plaintiff who told defendant he would perform the operation and defendant assented.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement of the Case.
    Action by John J. Meany against Ephraim Angle-mire to recover for his services as a surgeon in operating on defendant, removing his prostate gland, and for further services. To reverse a judgment in favor of plaintiff for one hundred and fifty dollars, defendant prosecutes a writ of error.
    P. R. Boylan, for plaintiff in error.
    Thomas J. Young, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    The People of the State of Illinois for use of Cook County et al., ex rel. A. C. Wegner, Plaintiff in Error, v. Sigmund J. Reizenstein, Defendant in Error.
    Gen. No. 19,070.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement of the Case.
    The questions presented in this case were the same as those in People ex rel. Wegner v. Johnston and other cases, 186 Ill. App. 117, and the decision rendered in those cases held controlling.
    Frank H. Culver, for plaintiff in error.
    Holt, Cutting & Sidley, for defendant in error; Donald F. McPherson, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.


text:
    The Equitable Trust Company v. Edwin B. Jennings et al. Estelle G. Howland, Cross-Complainant, Plaintiff in Error, v. Edwin B. Jennings et al., Defendants in Error.
    Gen. No. 19,685.
    1. Wills, § 371

      —when income accruing to "beneficiary before his death does not go to his estate. Under a will providing that the income of the estate shall be divided equally between the testator’s two sons and a grandson and payable quarterly, and providing that in case either should die without issue his portion should be added to that of the survivor or survivors, held that where one of them died without issue, leaving a will devising and bequeathing his entire estate to his wife, that the wife was not entitled to any portion of the income which accrued from the date of the last quarterly payment up to her husband’s death.
    2. Equity, § 188

      —when matters already adjudicated cannot be reconsidered under cross-bill. A defendant in a case, when the merits are determined and the equities settled, cannot, under the guise of a cross-bill, bring the previous proceedings before the court and thus have the court reconsider questions already passed on.
    3. Estoppel, § 66

      —when parties precluded from insisting on different construction of will. Where a beneficiary in a will accepted benefits which accrued to him by reason of the court’s construction of the will, both the beneficiary and a person claiming under him are estopped from insisting on a different construction.
    4. Judgment, § 495

      —when decree approving action of trustee conclusive. A decree approving the action of a trustee in paying a portion of the income of an estate to a person mentioned in a will, held conclusive against the claim of a person that the income was not properly disbursed, where such person was served with a copy of the bill in the proceeding and was defaulted for want of appearance.
    5. Appeal and error, § 1568

      —when setting aside default granting leave to plead, etc., harmless. Error of court in setting aside a default decree, in granting defendant leave to file a cross-bill and also in denying a motion to strike the cross-bill from the files, held not reversible error where the cross-bill was dismissed.

      Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement by the Court. John D. Jennings died testate April 14, 1889, leaving a large estate to the Mutual Trust Company in trust. That Company refused to accept the trust and the Jennings Trust Company was, by decree of the Circuit Court entered May 3, 1889, appointed trustee. The name of that Company was afterwards changed to the Equitable Trust Company. The will makes a bequest of income to testator’s wife, who died April 1, 1892, and another to her sister, who died August 24, 1893. The only provisions of the will involved in this case are the third and fourth clauses, which are as follows:
    ‘' Third. All my real estate, including any hereafter acquired, and all the rest of my personal property, after payment of my debts, I devise and bequeath to The Mutual Trust Society, an Illinois Corporation, but in trust, nevertheless, for the following uses, purposes and trusts: viz., to hold and manage the same as fully as I could do, if still living, and after defraying all expenses of the estate, including five (5) per cent, on the moneys of the estate, as the compensation hereby fixed for the trusteeship, the net income from the estate to dispose of quarter-yearly as follows: One-third (1/3) of said net income shall be paid to my wife as a life annuity; and sixteen hundred dollars ($1,600) per annum as life annuity to her sister, Eliza Brizsee; three thousand dollars ($3,000) per annum, as a term annuity to my grandson, John Henry Jennings, until he shall reach the age of twenty-five (25) years, which will be June fourth (4) Nineteen Hundred (1900) and the rest of the said net income shall be divided into three (3) equal parts, one of which shall be paid to each of my two sons, George P. and Edwin B. Jennings, until said date, June 4th, 1900, and the remaining part, or one-third (1/3) shall be applied as far as needed, to the payment of my debts, and of the legacies named in item No. two (2) of this will, should the funds on hand & bills receivable at my death be insufficient to pay said debts & legacies; and the surplus of said third, after such payment, shall be invested and reinvested by my trustee, for accumulation till said date, June 4th, 1900, from which date forth, the entire income from my estate, after payment of its expenses, and annuities of the surviving annuitants, if any, shall be equally divided between my two sons and my grandson, one-third (1/3) to each, and also payable quarter-yearly, as annuities for their lives, with remainder over, as follows: should either of said three die, leaving issue, the said issue to take the annuity of the deceased so long as either of the other two shall live, and should either of my two sons or my grandson die without leaving issue, the annuity of him so dying shall be added to that payable to the survivor or survivors, and on the death of the last survivor of said three, the estate, subject to my wife’s and her sister’s annuities, if still alive, shall be divided equally between the respective issue then living of my two sons and my grandson, such issue of each taking per stirpes, and if there be no issue then living of either of said three, then in default of such issue, or lineal descendants of my two sons & my grandson, the estate, subject to said two annuities or to either, if still alive, to go to my heirs at law.
    ‘' Fourth. Whilst thus providing for my real estate remaining intact the income only to ■ be disbursed quarter-yearly, I authorize my trustee, if deeming it best for the interest of the estate, to sell or otherwise dispose of any of the realty, provided my wife and two sons, or the survivors or survivor of said three, signify in writing their approval of such sale or disposition, by joining the trustee in the deed, or other instrument of conveyance, & such jointly executed instrument shall .convey the title to the property, according to the tenor and purport of said instrument—the same being acknowledged before a Notary Public.
    ‘ ‘ Fifth. I appoint my wife the executrix of this will, and should she not survive me, or for any cause should not serve, then I appoint my son, Edwin B. Jennings, my executor, hereby requesting that no bond be required of either of them.
    John D. Jennings. ’ ’

      Testator’s grandson, John Henry Jennings, died without issue February 2, 1899, and testator’s son George died February 19, 1902, also without issue, but leaving a will by which he devised and bequeathed his entire estate to his wife, Estelle G. Jennings, now Estelle G. Howland, the complainant in the cross-bill and plaintiff in error here.
    Her contention is that one-half of the income which accrued from January 1, 1902, up to which time the income was paid, to February 19, 1902, the date of the death of George F. Jennings, should have been paid to plaintiff in error, the sole beneficiary under the will of George F. Jennings, while in fact the entire income of the estate which accrued during said period was paid by the trustee, the Equitable Trust Company, to Edwin B. Jennings, the surviving son of the testator.
    April 3, 1899, the Equitable Trust Company filed in the Circuit Court a bill for the construction of the will of John D. Jennings, to which testator’s sons, Edwin B. and George F., and all other persons interested in said estate were made defendants. One of the questions presented in that case was, who was entitled to the one-third of the quarter-yearly income of the estate which accrued prior to the death of John Henry Jennings? The court in that case adjudged and decreed that all the income distributable after the death of John Henry Jennings was distributable and payable to George F. and Edwin B. Jennings, and that “upon the settlement of each quarter-yearly accumulation of income * * * commencing with the first quarterly distribution thereof subsequent to the death of said John Henry Jennings, the complainant account and pay over to said George F. Jennings and Edwin B. Jennings, in equal parts, the entire net proceeds of such income for such quarter-yearly period.”
    On the death of George F. Jennings February 19, 1902, the trustee, following the rule declared in the suit above referred to, paid all of the income accruing after the date of the last quarterly payment to Edwin B. Jennings. November 1, 1903, the Equitable Trust Company filed a bill against Edwin B. Jennings, the plaintiff in error, as the sole beneficiary under the will of George F. Jennings, and others. Plaintiff in error was duly served with process in that case and the court by its decree approved and confirmed the act of the trustee in paying to Edwin B. Jennings all of the income which accrued during the quarterly period within which George F. Jennings died and thereafter.
    The suit in which the decree brought before us by this writ of error was entered was brought April 4, 1906, by the Equitable Trust Company against Edwin B. Jennings and plaintiff in error, and she was duly served with a copy of the bill, and'failing to appear was defaulted. July 7, 1906, a decree was entered wherein the court found that the income had been paid out in accordance with the will bf John D. Jennings, and decreed inter alia:

    (1) That the resignation of Equitable Trust Company as trustee be accepted.
    (2) That Chicago Title and Trust Company be appointed successor in trust.
    (3) That the outgoing trustee deliver to the new trustee the trust estate.
    (4) That the new trustee have certain powers as such.
    (5) That when the transfer of assets have been made to the new trustee a further order should be entered approving all action of the retiring trustee and releasing it from liability.
    By a supplemental decree entered December 31, 1909, the court found that the Equitable Trust Company had assigned and delivered to the Chicago Title and Trust Company as substituted trustee the entire estate, pursuant to the decree of July 6, 1906, and ordered that the acts of said Equitable Trust Company as trustee be approved and confirmed and said trustee released from all further liability-on account of the administration of said trust.
    No complaint of any of said orders was made by plaintiff in error until April 29, 1911, when she filed her motion, supported by a petition, to vacate her default and for leave to answer the bill.and file a cross-bill. Her motion was granted and June 5, 1911, she filed her answer and also a cross-bill. The facts above set forth are either stated in the hill and not controverted, or are set forth in the cross-bill. Edwin B. Jennings filed a general and special demurrer to the cross-bill, which was sustained, and the cross-complainant electing to stand by her cross-bill, the same was -dismissed. The errors assigned by plaintiff in error are that the court erred in sustaining the demurrer to the cross-bill and in dismissing the same. Edwin B. Jennings assigns for cross-errors that the court erred in setting aside the default of the defendant, Estelle G. Howland, and permitting her to answer the bill; in giving her leave to file a cross-bill and in overruling the motion of Edwin B. Jennings to strike the cross-bill from- the files.
    Harry A. Daugherty, Robert J. Folonie and Thomas L. Stitt, for plaintiff in error.
    Defress, Buckingham & Eaton and David M. Hillis, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

If plaintiff in error ever was entitled to the income which she now claims, she became so entitled on the death of her husband, George F. Jennings, February 19, 1902; yet she made no claim to such income until June 5, 1911, when she filed her answer and cross-bill. We find in the cross-bill no averment sufficient to bar the defense of laches, and upon that ground we think the demurrer to the cross-bill was properly sustained.

Plaintiff in error was a defendant to the bill filed by the trustee November 1, 1903, for the purpose inter alia of obtaining a decree, “ratifying, affirming and confirming its acts as trustee of said estate,” was served with process and defaulted, and a decree entered approving “the action of the trustee in and about the collection, receipt and disbursement of the income. ’ ’ The disbursements included the payment to Edwin B. Jennings of the income now claimed by plaintiff in error, and that decree must, we think, be held conclusive against her present claim.

In the suit in which the cross-bill was filed, plaintiff in error was served with a copy of the bill defaulted and a decree entered July 6, 1906, finding that the trustee had carried out the directions of the will as to the distribution of the income. We think that plaintiff in error is barred by the adjudication that the income which accrued in 1902 was properly disbursed. A defendant in a case, when the merits are determined and the equities settled, cannot, under the guise of a cross-bill, bring the previous proceedings before the court and thus have the court reconsider questions already passed on. Roby v. Calumet & C. Canal & Dock Co., 165 Ill. 277.

The bill as a cross-bill was not good and the demurrer was properly sustained thereto.

Plaintiff in error claimed under the will of her husband, George F. Jennings, and any adjudication which would be binding on him if living is binding on her. The decree of April 23, 1899, entered after the death of John Henry Jennings, in a suit to which George F. Jennings was a party, interpreted and construed the will to provide and mean that all of the income which had accrued after the last quarterly payment and before the death of John Henry Jennings should be paid over to George F. and Edwin B. Jennings. George F. Jennings accepted the benefits of this decree by accepting one-half of the one-third of the income which accrued before the death of John Henry Jennings, and the decree was an adjudication that the income which accrued before the death of John Henry Jennings should not be apportioned which estops plaintiff in error, claiming under George F. Jennings, from insisting on a different construction of the will.

■ The will provides that after the death of the testator’s wife and her sister the entire income of the estate should be, “equally divided between my two sons and my grandson, one-third to each, and also payable quarter-yearly, as annuities for their lives, with remainder over, as follows: should either of said three die,- leaving issue, the said issue to take the annuity of the deceased so long as either of the other two shall live, and should either of my two sons or my grandson die without leaving issue, the annuity of him so dying shall be added to that payable to the survivor or survivors.” The language above quoted seems to us carefully to provide for the effect of the death of the grandson or either of his sons on the distribution of the net income of his estate. The payments are to be made quarterly, and the trustee from the first seems to have reckoned from the first day of the year. The gifts of income are called in the will annuities, and the will provides that should either of his sons or his grandson die without issue the, “annuity of him so dying shall be added to that payable to the survivor or survivors.” The testator’s sons and grandson are not given any interest in the income except the right to their quarterly payments in the manner directed. The language of the will seems to us to necessarily exclude any apportionment between the estate of George F. Jennings or plaintiff in error as the sole beneficiary under his -will, and Edwin B. Jennings, the sole survivor of the sons and grandson of the testator.

We think that irrespective of the other grounds on which we hold that the demurrer to the cross-bill was properly sustained and the cross-bill dismissed, the facts appearing in the record show no right on the part of the complainant in the cross-bill to any part of the income of said estate which accrued after the last quarterly payment of income and before the death of George F. Jennings, and therefore the demurrer to the cross-bill was properly sustained and the cross-bill dismissed. Hemenway v. Hemenway, 171 Mass. 42.

If it be conceded that the court erred in setting aside the default of Mrs. Howland and granting her leave to file a cross-bill and also in denying the motion of Edwin B. Jennings to strike the cross-bill from the files, we do hot think the decree should be reversed therefor, because the dismissal of the cross-bill is, in effect, equivalent to the striking of the same from the files.

The decree of the Circuit Court is affirmed.

Affirmed.