text:
    Florence Nolte, Appellee, v. Alvina Nolte et al., Appellants.
    1. Husband and wife, § 280

      —when evidence sufficient to justify verdict for plaintiff in action for alienation of husband’s affections. Where the evidence in an action by a wife against her husband’s parents and brothers for the alienation of his affections, where the evidence shows that plaintiff had lived in happiness and harmony with her husband until their interference, the evidence justifies a verdict for plaintiff.
    2. Appeal and erbob, § 1466*—when admission of improper evidence elicited by cross-examination not reversible error. Even though there is a question as to the admissibility of evidence to corroborate a witness as to answers elicited on cross-examination, where the evidence is not harmful, its admission is not reversible error.
    3. Husband and wife, § 280*—when evidence admissible in action for alienation of husband’s affections. In an action by a wife against her husband’s father, mother and brothers for alienation of her husband’s affections, a notice, caused to be published by one of such brothers while the husband was ill, that the husband would not be responsible for the wife’s debts and purporting to be signed by the husband is admissible to show such brother’s connection with the matter at issue, and the credit to be given to such brother’s explanation of his actions as to the publication is for the jury.
    4. Appeal and error, § 1526*—when inexactness in phrasing definition not reversible error. Even though an instruction defining malice given for plaintiff does not employ exact legal technical terms, where it is the same as one given in another case affirmed in the Appellate and Supreme Courts, and plaintiff’s evidence, if true, clearly establishes malice, the giving of the instruction is not reversible error.
    5. Instructions, § 81*—when refusal to single out fact not error. It is not error to refuse an instruction which singles out one of numerous facts and ignores the rest.
    Scholfield, J., took no part in the consideration of this case.
    Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Vause & Hughes, for appellants.

      James W. & Edward C. Craig and Donald B. Craig, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Florence Nolte, appellee, sued appellants, Alvina Nolte, Clarence Nolte, Arthur Nolte and also August Nolte, in an action on the case for damages for the alienation of the affections of her husband, Elmo Nolte. The jury found the appellants, Alvina, Clarence and Arthur Nolte, guilty and assessed appellee’s damages at the sum of $2,000. Judgment was rendered on the verdict. August Nolte was found not guilty. We deem it unnecessary to repeat the details of the pathetic story presented by the record in this case, the main facts only will be .noticed here. Appellee, a young girl, in 1911 was teaching school in the country in Humbolt township near the city of Mattoon, Illinois, and about three-quarters of a mile from the home of August Nolte, who was a farmer residing in said township. The family of August Nolte consisted of" his wife, Alvina, and his sons, Clarence, Arthur and Elmo. On September 30,1911, appellee and Elmo were married. She continued to teach school until February -1, 1912. On the twelfth of February appellee and her husband moved onto, a forty-acre farm rented from one C. F. Behrend, located between one-half and three-quarters of a mile from the home .of August Nolte. The money appellee had earned teaching school was spent in buying furnishings for their new home. Clarence Nolte owned forty acres adjoining the farm they had rented, and Clarence and Elmo helped each other in the farming of their respective .farms. The- evidence shows, and it is wholly undisputed, that the young couple lived most happily together until after a baby was born, which occurred on January 6, 1913. In fact, the record shows that there never was at any time any discord of any kind between appellee and her husband. There is no contention but that at all times appellee was hard working, dutiful and affectionate and the same may be said of her husband, Elmo Nolte. When the baby was born Elmo was delighted and very happy over the event. Appellee was very sick at this time and continued ill for about six weeks after the birth of the child. About a week after the birth of the child, Elmo was taken sick and his mother, Alvina Nolte, spent most of her time at Elmo’s home taking care of him, with the result that Elmo was taken to the home of his father, August Nolte, as the evidence tends to show, through the procurement of his mother, Alvina, and his brother, Clarence. The incidents surrounding the removal of Elmo from his own home to that of his father it is unnecessary to repeat. The evidence clearly tends to show that through the efforts of the mother, Alvina, and the brothers, Clarence and Arthur, Elmo was persuaded and prevented from again returning to his wife and child, except for a short time hereinafter mentioned, and the jury were warranted in finding their verdict for appellee upon this issue. The evidence tended to show that the father, August Nolte, took no part in the matter and expressed his regret therefor, and the jury found him not guilty.

Appellee was left on this farm in the middle of winter, with a child barely two weeks old, in ill health, with no means of support, and, as the evidence tends to show, with insufficient provisions in the house, and on the advice of her physician went to the home of her mother at Mattoon with her baby. She left everything in the house as it was, and took only her clothes with her. Complaint is made of the admission in evidence on behalf of appellee of a certain notice. As above mentioned, when appellee left her home in the country to go to her mother’s house at Mattoon, she left everything in and about the premises as they were, with the- exception of her own clothing. ■ There was an apparent contention made by appellants on the trial that appellee abandoned her home and that she had refused to live with her husband. The evidence tended to show that after appellee had been at her mother’s house for some time, through her efforts and those of her counsel, her husband, Elmo, agreed to go back and live with her and went back to her at her mother’s house and they were again apparently perfectly happy. They went to Behrend and asked him if they could have the farm for another year, and, upon being told that they could, they were making-preparations to return and live thereon. Barely two days elapsed before Arthur Nolte came to the" house of appellee’s mother in Mattoon, where Elmo and his wife were staying, and had a private whispered conversation with Elmo which resulted in Elmo again leaving appellee, since which time he has never returned. On cross-examination of appellee she was asked if Elmo did not offer to take her out home and live with her at that time, to which she replied that they had agreed that they would go. Then the following questions were asked her:'

“Q. Now, when the time came to go, you wouldn’t go, would you?
A. The time never came, Arthur came before that.
Q. But you had refused to go with him?
A. I had never refused to go with him.
Q. Now, after that meeting down there at the house you afterward sent out there and got all the furniture and hauled it in to town?
A. After the notice was served on me I did.
Q. What notice?
A. Mr. Behrend served a notice on me.
Q. Mr. Behrend served some kind of a notice and you went out there and got all the furniture and moved them into town?
A. Yes, sir.”

On redirect examination the notice was offered in evidence. The notice was dated March 11, 1913, addressed to appellee, signed by O. F. Behrend, notifying her to remove all her personal property from the said dwelling house and that he would not be responsible in any manner for any possible damage that might occur to said property while located on said premises. Pursuant to this notice appellee removed the household furnishings to her mother’s home. The plain inference this cross-examination sought to convey was, that appellee had refused to go out to her husband’s home on the farm and had taken all the furniture and personal possessions therein to her mother’s home at Mattoon and had abandoned her former home. The subject of the notice was necessarily brought out in response to questions propounded by counsel for appellants, and we think the notice itself was competent in corroboration of the truth of her answers given on her cross-examination. However, if it was error, it was not of such a harmful nature as should cause a reversal of the judgment.

The admission in evidence of certain newspaper notices is also complained of. Within two days after Elmo Nolte had been taken from his own home to that of his father, and at a time when, Arthur Nolte testified, he was very seriously ill and his life was despaired of, Arthur Nolte caused to be published in the newspapers at Mattoon the following notice:

“Notice. I will not be responsible for any debts contracted by my wife, Florence Nolte.
Elmo Nolte.”

There was no error in the admission of this in evidence. It tended to show Arthur Nolte’s connection with the matter at issue. The credit to be given to his explanation of his actions in regard to the publication of these notices was for the jury to determine.

Complaint is made of the giving of the third instruction for appellee on the ground that it does not contain the proper definition of “malice.” It seems to be conceded that this instruction was given in a case which was affirmed by the Appellate and Supreme Courts. We think that the criticism of the instruction is hypercritical, and even if it does not set out the definition of “malice” in exact legal technical terms, if the evidence offered on behalf of appellee is true, it clearly shows malice.

It is urged that the court erred in refusing appellant’s second instruction which, in substance, instructed the jury that if they believed from the. evidence that the defendant took Elmo Nolte home and cared for him while he was sick and not for the purpose of alienating his affections from appellee, that they should find defendant not guilty. This instruction was clearly erroneous, as the taking of Elmo to his father’s home was only one of numerous facts and circumstances which tended to prove appellee’s cause of action. -

There is no substantial error in the record and the judgment will be affirmed.

Affirmed.

Mr. Justice Scholeield took no part in the consideration of this case.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    David A. Teegarden, Appellee, v. Supreme Tribe of Ben-Hur, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by David A. Teegarden against Supreme Tribe of Ben-Hur on a certificate of beneficial membership issued to Bosa A. Teegarden, deceased wife of plaintiff, in her lifetime, in the sum of five hundred dollars.

      Abstract of the Decision.
    1. Insurance, § 876

      —When verdict sustained where evidence as to falsity in answers to application conflicting. In an action On a certificate of beneficial insurance, where the insurer claims that false answers were made in the application, the burden of proof is on it, and where the evidence is conflicting, the verdict for plaintiff will not be disturbed.
    2. Insurance, § 752*—When fraud of agent in answering questions in application for life insurance policy not a defense. Where the insurer’s agent, authorized by it to solicit insurance, take applications, fill in a part of them and collect first premiums, writes false answers in the application for a certificate of beneficial insurance in an action on the certificate the insurer is estopped to set up the falsity of the answers as a defense, the agent’s knowledge being the knowledge of the insurer.
    The defense was that certain answers by the insured in the application for insurance were false. To this plaintiff filed replication that defendant’s agent, of his own initiative, inserted false and different answers without the consent or direction of the insured, and that certain other answers were inserted by him without any question being asked and were the answers of the agent and not of insured.
    The jury found the issues for the plaintiff and returned a verdict for five hundred dollars, on which verdict judgment was entered. From this judgment, defendant appeals.
    Error is assigned on the failure of the court to direct judgment for defendant on the ground that the answers were warranties and the defendant is not es-topped by its agent’s fraud to set up their falsity.
    Charles Troup, for appellant.
    Thomas A. Graham, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    H. Ernest Hutton, Administrator, Appellee, v. Forest City Life Insurance Company, Appellant.
    1. Insurance, §. 598

      —when payment of premium to insurer presumed. Where an insurer issues a policy of life insurance and sends it with a receipt for the whole premium to its agent, who delivers it to the insured, there is prima facie evidence that the premium was paid.
    2. Insurance, § 593*-—when health of insured when premium paid not in issue. In an action on a life insurance policy, where the pleas allege that insured was not in good health when the policy was issued, the fact of his being in bad health at the time the premium was paid is not put in issue.
    3. Insurance, § 704*—when finding of fury as to health of insured not disturbed. When the jury finds adversely to the insurer, in an action on a life insurance policy, on the question as to whether the insured was in good health when the premium was paid, and this is not properly an issue, and there is no competent evidence in support of the defendant’s contention, its verdict will not be disturbed.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Engstrom Bros. and W. R. Jewel, Jr., for appellant.
    Rearick & Meeks, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant appeals from a judgment for $1,112.50 rendered against it in favor of appellee in an action of assumpsit to recover on an insurance policy for $1,000, issued by appellant to William Ray Ramsey, now deceased. Appellant filed four pleas to the declaration: The first plea being the general issue; the second, that said policy of insurance was without any good and valuable consideration; the third, that said policy was obtained by fraud and circumvention in that at the time said policy was delivered to said Bamsey he, the said Bamsey, was not in good health and that said Bamsey by fraud and circumvention concealed that fact from appellant; the fourth, that said policy was obtained by fraud and circumvention in that at the time the policy was delivered to said Bamsey he was not in good health and that he and one O. K. Baldwin, agent for appellant, by fraud and circumvention concealed from the defendant that fact.

Bamsey, the insured, was a young man twenty-one years of age, residing at Sidell, Illinois, and while attending medical college at Chicago was taken ill and died of pneumonia April 20, 1911. On December 31, 1910, he made application for a policy on his life in the amount of $1,000 to the Forest City Life Insurance Company of Bockford, Illinois, then a mutual and fraternal life insurance company incorporated under the laws of this State. The application was taken by one O. K. Baldwin, an agent of the Company, and forwarded to the home office. The amount of the premium was $27.08. At the time the application was made Bamsey paid $12.08 of this premium. After the application was made the Company procured a new charter as an old-line legal reserve Company and this charter was issued by the Secretary of State, March 24, 1911. The only difference in the name of the two companies was that in the latter Company the words “of Bockford, Illinois” are omitted. Between February 2, and 5,1911, $15, the balance of the premium due, was paid to said Baldwin by the insured. Appellant, without any further application, on March 27, 1911, issued the policy in question to said Bamsey. With this policy was sent to the agent Baldwin for delivery the official receipt of appellant for the first annual premium. The policy and receipt were mailed by Baldwin to the deceased in Chicago about April 1,1911.

It is urged that as the appellant Company which issued the policy was not incorporated until March 24, 1911, that the premium which was paid to Baldwin before that time could not have been a premium paid to appellant Company because Baldwin-could not have been an agent of a company which did not exist. This contention is without merit for the reason that it issued the policy in question and sent it with a receipt for the whole premium to Baldwin as its agent, who delivered it to Bamsey. This was prima facie evidence that the premium for the policy was paid, and there is nothing in the record to rebut this presumption. Rose v. Mutual Life Ins. Co., 240 Ill. 45.

It is further contended that the evidence shows that the insured was sick at the time the premium was paid, and that under the following provision of the policy the policy became void: “I agree that my policy issued under this application shall not be valid, until the first premium therefor is paid to the Company or its authorized agent, and the receipt therefor countersigned during my lifetime, and while I am in good health.”

In answer to this contention, the record discloses no' competent evidence that Bamsey was not in good health when the premium was paid, and further there was no plea putting this fact in issue. The two special pleas, it will be observed, allege that the insured was not in good health at the time the policy was delivered.There was no provision in the policy that it should be void unless the insured was in good health when it was delivered and there is no rule of law to that effect. On the trial appellant abandoned the theory of these pleas and procured the court to instruct the jury that unless they believed from the evidence that the insured was in good health at the time the premium was paid, appellee could not recover. The jury found adversely to appellant on this improvised issue, and we can see no reason for disturbing its verdict.

The judgment will be affirmed.

Affirmed.


text:
    John J. Convery, Appellee, v. Brotherhood of Railroad Trainmen, Appellant.
    1. Insurance, § 717

      —provision in constitution and by-laws of benefit society construed. A section in the constitution and by-laws of a benefit society merely providing what in certain instances will be considered a total disability of a member, held not to have the effect of excluding all liability for any other kind of' permanent disability than that enumerated therein.
    2. Insurance, § 740*—rule in construing contract. In construing beneficial insurance contracts, an ambiguity and uncertainty created when the benefit certificate is read in connection with the constitution and by-laws must be resolved in favor of the assured.
    3. Insurance, § 856*—when provision making decision of board of benefit society final invalid. A provision in the constitution and by-laws of a benefit society which leaves it wholly within the discretion of the beneficiary board whether they will pay any disability claims, and provides that such provision may he pleaded in any suit brought on a benefit certificate and that no appeal shall be allowed from the decision of the board, held to be against public policy.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.

      Oertiorari denied by Supreme Court (making opinion final).
    . George M. Morgan, for appellant; E. Jay Pinney, of counsel.
    T. F. Condon and Albert Salzenstein, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

In the language of counsel for appellant: “This is an appeal from a judgment of $1,350.00 obtained by appellee against appellant in assumpsit for injury sustained by him to his right knee, which appellee claims and the evidence tends to prove resulted in a total and permanent disability from performing the duties of a railroad trainman.”

Appellant on the 9th day of July, 1905, issued a beneficiary certificate to appellee in which it is declared that he “is entitled to all the rights, privileges and benefits of membership, and to participate in the beneficiary department Class C of said Brotherhood to the amount set forth in the constitution thereof, which amount, in the event of his total and permanent disability, shall be paid to him, or at his death shall be paid to his mother, if living, ’ ’ etc. The certificate also provides that it is issued on the condition that appellee shall comply with the constitution, by-laws, rules and regulations then in force, or which may thereafter be adopted by the said Brotherhood, and which are made a part thereof. To the declaration appellant filed the plea of general issue and three special pleas. To the special pleas a demurrer was sustained, and the only error presented to this court for consideration is the ruling of the trial court in sustaining the demurrer to the special pleas. These special pleas, in substance, aver that under the multitude of by-laws, rules, regulations and sections of the constitution the certificate does not mean what it says, and although appellee, in fact, became totally and permanently disabled and has paid all his assessments to said Brotherhood for nearly five years and performed all his obligations thereto, nevertheless he is not totally and permanently disabled and appellant is not liable to pay this certificate.

Appellant is a fraternal beneficiary association organized under the laws of this State, and the ostensible object of its organization appears to be: “To unite the railroad trainmen, to promote their general welfare and advance their interests, social, moral and intellectual, to protect their families by the exercise of a systematic benevolence very needful in a calling so hazardous as theirs.” Section 54 of the constitution and by-laws provides for the establishment of a general fund, beneficiary fund, beneficiary reserve fund, protective fund and a convention fund. Section 58 provides that the beneficiary fund, in which all members, excepting nonbeneficiary members, shall participate, shall be disbursed exclusively in paying death, total and permanent disability and benevolent claims as described in sections 68, 69 and 70. This section further provides that the general secretary and treasurer shall, in order to maintain said fund, levy assessments monthly upon each beneficiary member in the following amounts, viz.: Upon each $1,350 certificate, $2; upon each $1,000 certificate, $1.50; and upon each $500 certificate, 75 cents. Section 60 provides for three classes of beneficiary certificates, viz.: Class' A, $500, Class B, $1,000 and Class C, $1,350. Each certificate shall provide for the payment in accordance with the constitution of the full amount of such Class upon the death of the member insured therein or upon his becoming totally and permanently disabled within the meaning of Section 68. Section 68 is as follows:

1 ‘ Sec. 68. Any beneficiary member in good standing who shall suffer the amputation or severance of an entire hand at or above the wrist joint, or who shall suffer the amputation or severance of an entire foot at or above the ankle joint, or who shall suffer the complete and permanent loss of sight of both eyes, shall be considered totally and permanently disabled and shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, the full amount of his beneficiary certificate, but not otherwise.”

Section 70 provides that all claims of disability not coming within the provision of section 68 shall be held to be addressed to the systematic benevolence of the Brotherhood and shall in no case be made the basis of any legal liability ón the part of the Brotherhood. Every such claim shall be referred to the beneficiary board, composed of the president, assistant president, and general secretary and treasurer, who shall prescribe the character and decide as to the sufficiency of the proofs to be furnished by the claimant, and if approved by said board, the claimant shall be paid an amount equal to the full amount of the certificate held by him, and such payment shall he considered a surrender and cancellation of such certificate, provided that the approval of said board shall be required as a condition precedent to the right of any claimant to benefits thereunder; and, further, that said section may be pleaded in bar of any suit or action at law, or in equity, to enforce the payment of any such claims, and that no appeal shall be allowed from the action of the board in any case.

It is insisted that section 68 defines what shall be a total and permanent disability and that it excludes all liability for any other kind of permanent disability than that enumerated therein, no matter how total and complete it may be. We do not think this section should receive any such construction. This section simply provides what in certain instances will be considered a total disability, thus, if a member shall.suffer the amputation of an entire hand at or above the wrist joint, or of a foot at or above the ankle joint, or the complete loss of sight of both eyes, he will be considered as being totally and permanently disabled without further question, and upon furnishing sufficient and satisfactory proofs the full amount of his certificate will be paid, but not otherwise. The words “but not otherwise” refer to the furnishing of the proofs in such cases, and do not have the effect of excluding liability for all other forms of permanent injury. At least an ambiguity and uncertainty is created when the certificate is read in connection with these various sections of the constitution and by-laws, and it is a fundamental law of construction of insurance contracts in this State that all such uncertainties shall be resolved in favor of the assured.

In any event, however, appellee would have a right to recover under section 70. Section 58, above mentioned, provides that the Grand Lodge shall establish and maintain a fund to be known as a beneficiary fund in which all members, excepting nonbeneficiary members, shall participate, same to be disbursed exclusively, in paying death, total and permanent disability and benevolent claims as described in sections 68, 69 and 70. Section 70 provides that all claims for disability not coming within the provision of section 68 shall be held to be addressed to the systematic benevolence of the Brotherhood and every such claim shall be referred to the beneficiary board, and if approved by said board the claimant shall be paid an amount equal to the full amount of the certificate held by him. Appellee filed his claim in proper form under said section 70 with said board but the “systematic benevolence” of appellant was refused in this instance for “insufficient evidence.” Section 58 declares that appellee shall participate in the beneficiary fund for permanent disability as described in section 70, Section 70 described such disabilities as all those not coming within the provision of section 68. It is insisted, however, that as section 70 leaves it wholly within the discretion of the beneficiary board whether they will pay any disability claims or not, and provides that said section may be pleaded in any suit brought on said certificate, and that no appeal shall be allowed from the action of said board and that said board having rejected the claim of appellee, he has no remedy. These provisions are clearly contrary to public policy. In the case of Brotherhood of Railway Trainmen v. Greaser, 108 Ill. App. 598, the court in passing upon this section states in its opinion: “The-trend of judicial authority is so decidedly against the propriety of allowing one of the parties or its especial representatives, to be judge or arbitrator in its own case, that even a strained interpretation will be resorted to, if necessary to avoid such a result. If a different construction is fairly admissible it should be adopted.” And again in the case of Bond v. Brotherhood of Railroad Trainmen, 165 Ill. App. 490, it was held: “It appears to us that it is plainly against the policy of the law to permit a beneficiary society to determine by its own officers whether or not conditions have arisen which entitled a beneficiary under one of its policies to benefits so as to prevent that beneficiary from applying to the court for relief in case of the neglect ■ or refusal by the society to determine his rights or to pay his claim. The demurrers to the special pleas were, in our opinion, properly sustained.”

In the last case the court also held: “One of the objects of the certificate is plainly to insure benefits to the beneficiary in the event of his total and permanent disability and it is reasonable to assume that this is one of the reasons why the beneficiary takes out his certificate and pays his dues and assessments, but the provision of the constitution above referred to, deprives him, except in certain limited cases, of those benefits. That the interpretation sought to be given the certificate and constitution, by appellant, is unjust and unfair to the beneficiary, is obvious and, as it appears to us, cannot be sustained under the holdings of our courts of appellate jurisdiction.” To this we fully agree.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    B. A. Stewart, Appellee, v. Chicago, Bloomington & Decatur Railway Company, Appellant.
    (Mot to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myees, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by B. A. Stewart against the Chicago, Bloomington & Decatur Railway Company to recover the value of a horse killed by one of defendant’s cars upon its right of way. The declaration charged that it was the duty of defendant to keep and maintain suitable and sufficient cattle guards to prevent animals from going upon the right of way, and that it negligently failed to keep and maintain such suitable and sufficient cattle guards, as provided by statute, at the point where plaintiff’s horse passed over and upon the right of way. The jury returned a verdict in favor of plaintiff for two hundred and fifty dollars, and also allowed attorney’s fees to the amount of twenty-five dollars. To reverse the judgment entered on the verdict, defendant appeals.
    Abstract of the Decision.
    1. Railroads, § 298

      —when evidence shows insufficient cattle guard. In an action for stock killed on the right of way of a railway company, where it was charged that defendant did not maintain a suitable and sufficient cattle guard, evidence held to show the cattle guard was not such as contemplated by statute, where the only defense was that it was of standard construction and was of the same kind used by other railroads, and plaintiff’s evidence ■ showed that stock had passed over it on numerous occasions.
    2. Railroads, § 298*—sufficiency of cattle guards. The statute’s requirements with reference to sufficiency of cattle guards'cannot be amended by general usage or custom among railroads.
    3. Appeal and error, § 1522*—when return of two verdicts not prejudicial. The fact that the jury rendered two verdicts, one for damages and the other fixing the amount of attorney’s fees, held not prejudicial error.
    This case was before the Appellate Court on a former appeal in 180 Ill. App. 608.
    Livingston & Bach, for appellant; Sigmund Livingston, of counsel.
    N. W. Brandican, for appellee; Welty, Sterling & Whitmore, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Belle Bates, Appellee, v. Danville Street Railway & Light Company, Appellant.

      (Not to he reported in full.)
    Abstract of the Decision.
    I. Appeal and error, § 1413

      —when finding of facts hy jury will he sustained. Where the evidence was conflicting and two juries have heard it and found the facts the same way, and there is evidence tending to sustain the findings, the judgment will not he reversed on the facts.

      Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Belle Bates against the Danville Street Railway & Light Company to recover for personal injuries sustained by plaintiff while riding as a passenger on one of defendant’s cars. ■ According to her testimony after she boarded the car and entered the vestibule, it was suddenly started with a jerk causing her to fall backwards and strike the small of her back against the controller box, causing a tearing sensation in her abdomen, resulting in a severe hemorrhage. The trial resulted in a verdict assessing plaintiff’s damages at three hundred and fifty dollars. To reverse a judgment entered on the verdict, defendant appeals.
    There were two jury trials of the case. At the first trial the jury returned a verdict for plaintiffs and the court set aside the verdict and granted a new trial.
    H. M. Steely and H. M. Steely, Jr., for appellant.
    F. L. Draper, 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 lection number.

   Mr. Justice Eldredge

delivered the opinion of the court.

2. Damages, § 244 —when answer to improper question harmless. In an action for personal injuries, where plaintiff was asked by her counsel if she was a married woman and had a family, and she answered that she had, before an objection could be interposed, and the answer was stricken out, held that though the question and answer were erroneous, their effect was not prejudicial in view of the small amount of the verdict.

3. Damages, § 244*—when conduct of plaintiff and remarles of counsel not reversible error. In an action for personal injuries, where plaintiff during the closing arguments of her counsel burst out into a loud fit of crying and was guilty of other conduct tending to arouse the prejudice and passions of the jury, and counsel thereupon stated to the jury, “When that woman’s soul dissolves in tears you know that she is telling the truth,” which remark was objected to, and the court remarked, “Keep within the eviderice,” held that the conduct of plaintiff and the remarks of counsel did not, under the circumstances, constitute reversible error, as the size of the verdict did not indicate the jury were influenced thereby.


text:
    Hattie F. Kaufman, Appellant, v. Adam Helmick and Howard Helmick, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Hattie F. Kaufman, Adam Helmick and Howard Helmick to recover on a promissory note purporting to have been executed by defendants, payable to the order of J. F. Newbanks for the principal sum of $825. The note was assigned by Newbanks to plaintiff. Defendants filed the plea of general issue, verifled, and also a verified special plea averring that they did not make and deliver said note. A jury returned a verdict in favor of defendant. To reverse the judgment entered on the verdict, plaintiff appeals.
    Abstract of the Decision.
    Bills and notes, § 462

      '—when instruction erroneous as ignoring the issue of ratification of the execution of note. In an action on a promissory note, where the execution thereof was denied by defendants and there was evidence tending to show that defendants had ratified the execution by acknowledging the same and by receiving the benefits from the proceeds thereof, held that instructions given for defendants which ignored the issue of ratification were clearly erroneous.

      : The - evidence tended to show that Newbanks had signed as surety several-notes executed by defendant $nd' one G. W. Helmick, and that on said notes becoming'due Newbanks induced defendants to sign the note sued on, payable to his order, so that the same might be negotiated and the proceeds used in the payment on the other notes on which he was surety;" that New-banks took the blank note to defendant Howard Helmick arid that Howard took the note to his father, Adam Helmick, and returned it with the latter’s name signed thereto and then signed his own name thereto in the presence of Newbanks and delivered it to New-banks. Plaintiff’s evidence also shows that Newbanks took the note for the purpose of negotiating it to one Stone, who called up Adam Helmick and asked him if the note was genuine, and that the latter told him that it was. Stone then sold the note to plaintiff. There was other evidence tending to show that Adam Helmick asked -for an extension of time when the note became due. The evidence of defendants tended to show that neither of them signed the note nor ratified their signatures.
    Ingham & Ingham and W. F. Gray, for appellant.
    John Fuller and Herrick & Herrick, for appellees.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mb. Justice Eldredge

text:
    Kingan & Company, Ltd., Appellant, v. P. J. Breen, Appellee.
    (Not to he reported in full.)
    Abstract of the Becision.
    Principal and agent, % 9*—estoppel to deny authority to collect. Where it appeared that defendant had been a regular customer, placing his orders through plaintiff’s traveling salesman substantially every two weeks for four or five years, and during that period had purchased from plaintiff meats and lards to the amount of about $10,000, and that during the last two years his purchases from plaintiff had amounted to about $2,700 annually, and the salesman had collected substantially all of the money for plaintiff, held plaintiff, having recognized and ratified the acts of its salesman in collecting accounts for so many years and for so large amounts, was not in a position to deny the authority of his agency to collect the item in question, upon defendant’s plea of payment.

      Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Kingan & Company Ltd., against P. J. Breen to recover an account of $116.57 and accrued interest.
    From a judgment upon a verdict for defendant, plaintiff appeals.
    Stewart W. Kincaid, for appellant.
    Dyas & Dyas and O’Hair & Rhoads, for appellee.
   Mb. Justice Eldredge

delivered the opinion of the court.

Scholfield, J., took no part in the consideration of this case.


author: Mr. Justice Scholfield

text:
    Corn Belt Bank, Defendant in Error, v. W. H. Fisher et al., Plaintiffs in Error.
    1. Moetgages, § 504

      —requisite proof on 5ill taken pro confesso. Where a decree of foreclosure and for a deficiency is entered pro confesso upon default, such decree if warranted by the averments of the bill is unassailable, there being no need of any evidence, as the finding of the court as to facts is conclusive.
    2. Moetgages, § 504*—effect of decree pro confesso. Upon the prosecution of a writ of error to reverse a deficiency decree entered against subsequent grantees of mortgaged premises, where the averments in the bill of foreclosure were sufficient to support the decree and defendants permitted the cause to go by default so that a decree pro confesso was taken against them, held that they were concluded from questioning its correctness.
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 16, 1914.
    DeMange, Gillespie & DeMange, Welty, Sterling & Whitmore and James F. Clark, for plaintiffs in error.
    H. A. Bailey, for defendant in error.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

The defendant in error, the Corn Belt Bank, filed a bill in the Circuit Court of McLean county to foreclose a mortgage. On July 12, 1907, E. J. Bobbins, a real estate dealer, held the record title to “all of block forty-two (42) in the First Addition to the Town of Normal, except fifty (50) feet adjoining the Chicago and St. Louis Bailroad right of way * * * in McLean county, Blinois,” and on that day, with Julia F. Bobbins, his wife, executed the mortgage in question thereon to the Corn Belt Bank of Bloomington, to secure the payment of thirty-five hundred dollars, payable three years after date, with interest at six per cent, payable semiannually as per note and coupons. After the execution of the mortgage by Bobbins to the Corn Belt Bank the property changed hands several times and finally the title landed in the plaintiff in error Grace P. Golden. In none of the deeds which were taken by the various grantees of this property was it provided that the grantee should assume and agree to pay the mortgage, but the dee'ds each time were made subject to the mortgage. Default was finally made in the payment of the interest and mortgage and a foreclosure had. All the subsequent grantees after the owner who executed the mortgage' to the Corn Belt Bank were made party defendants.

The bill, after reciting the execution of the mortgage by E. J. Bobbins and wife, averred that “thereafter- the defendants Ida M. McGinnis, John w~„ Grapes, John H. Holmes, W. H. Fisher, Harvey E. Duncan, Herbert L. Hinton and Grace P. Golden respectively purchased and successfully became owners of the mortgaged premises, and that as a part of the consideration or purchase price paid by each of said defendants therefor each in turn assumed and agreed to pay said mortgage indebtedness; that the amount of said mortgage indebtedness was then and there deducted from the consideration or purchase price paid by each of said defendants for said premises.”

A default was entered against all defendants and the cause was referred to the master who made his report. Evidence was introduced before the master tending to show that the grantees in various conveyances assumed and agreed to pay the mortgage, with the exception of the defendant John W. Grapes, who although defaulted was permitted to appear before the master and testify that the trade between him and his grantor McGinnis was only a trade of the equities and that he did not assume and agree to pay the incumbrance, and on this testimony no decree was taken against him personally for the payment of the indebtedness. The decree entered in the foreclosure proceeding ordered that the defendants, all of them who were the subsequent grantees excepting the defendant John 'W. Grapes, should pay this mortgage. A deficiency decree was prayed for, the property sold for less than the amount required to pay the mortgage and a deficiency decree was taken against all defendants excepting John W. Grapes.

' This writ of error is prosecuted to reverse the deficiency decree against these subsequent grantees. The deeds were offered in evidence in the foreclosure proceeding and none of them show that the grantees assumed or agreed to pay the mortgage indebtedness, but the evidence offered before the master in chancery and contained in his report tends to show that this was the agreement, although the agreement is not contained in the deeds.

It is very evident from this record that if the parties had made a proper defense to this action no deficiency decree' could have been entered against anybody excepting the original mortgagor, but under the practice in this State it is the rule that when the bill contains proper averments and a default is entered and a decree o.f pro confesso taken that it is not necessary to sustain the allegations by any proof, and that after that it is too late for the defendant to attack the decree. Such decree if warranted by tbe averments of the bill is unassailable. Monarch Brewing Co. v. Wolford, 179' Ill. 252. There need be on evidence. The finding of the court as to the facts is conclusive. Gault v. Hoagland, 25 Ill. 266; Wing v. Cropper, 35 Ill. 256; Martin v. Hargardine, 46 Ill. 322; DeLeuw v. Neely, 71 Ill. 473; Hannas v. Hannas, 110 Ill. 53; North Chicago St. R. Co. v. Ackley, 171 Ill. 100. The averments in the bill were sufficient to support the decree, and the defendants having permitted the case to go by default and a decree pro confesso to be taken against them, they are now concluded from questioning its correctness and the decree must be affirmed.

Affirmed.


text:
    Kittie B. Dice et al., Defendants in Error, v. Dale Wallace and James S. Catherwood, Plaintiffs in Error.
    1. Principal and agent, § 35

      —right of agent to purchase principal’s property for resale. Where defendants acted as agents for a woman whose property they had under control, and in a final settlement of their affairs bought of her, without a complete disclosure of conditions to her advantage, a piece of real estate for $2,200 and immediately sold it for $5,000 to a purchaser with whom they were negotiating at the time for its sale at said price, held that they' were rightly decreed to account to her for the $5,000 with interest, and without any allowance of a commission for consummating the sale, as they occupied a fiduciary relation to the owner.
    2. Brokers, § 61*—effect of had faith. A broker’s had faith will forfeit his right to commissions and profits in a transfer of real estate.
    Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Rehearing denied November 6, 1914.

      Certiorari denied by Supreme Court (making opinion final).

      C. M. Briggs and Jay Briggs, for plaintiffs in error.
    A. B. Dennis, for defendants in error.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This is a writ of error to the Circuit Court of Vermilion county to review a decree rendered in a suit between the defendants in error and the plaintiffs in error for an accounting. The case was heard upon the amended bill, answers, replications, master’s report and exceptions thereto. Both parties filed objections and exceptions to said report and have filed errors and cross-errors in this court. Upon a hearing a decree was rendered against the plaintiffs in error on the accounting and they were ordered to pay the defendant in error Kittie B. Dice the sum of $2,683.48. The decree also allowed the plaintiffs in error a commission of $271.17, and did not allow the defendant in error, Kittie B. Dice any interest.

The evidence shows that on December 20, 1902, the defendant in error Kittie B. Dice conveyed by deed to the plaintiff in error Dale Wallace real estate described as follows: All of Dice’s first addition to Hoopeston that remained unsold, together with lots, one, two, three and four of Dice’s subdivision of part of section 14, township 23 north, rang*e 12 west, which lies just west of and adjoining Dice’s first addition to Hoopeston, to sell for and account to her for the proceeds after paying certain debts.

Plaintiffs in error were agents for Mrs. Dice. They had her property under their control and occupied a fiduciary relation with her and were bound to disclose to her everything to .her advantage. They properly accounted to her, so far as disclosed for all the property sold except the last tract of five acres (block 2).

This, on a final settlement of their affairs, they bought of her without a complete disclosure of conditions for $2,200, and immediately sold it for $5,000. to a purchaser with whom they were negotiating at the time for its sale at $5,000. The decree is right in requiring them to account to her for the $5,000, but cross-errors by defendants in error are well assigned. Under the above facts no commission should be allowed to plaintiffs in error, and they should be charged with interest at five per cent, on $2,954.65 from October 20, 1904, the day the lot was sold by plaintiffs in error for $5,000.

The defense of laches cannot prevail under the pleading and evidence in this case. The decree will be reversed and remanded at the costs of plaintiffs in error with directions to enter a decree in conformity with this opinion.

Reversed and remanded with directions.


text:
    Thomas Sylvester, Appellant, v. Bloomington & Normal Railway and light Company, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. ConosTiisr D. Myeks, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by Thomas Sylvester against the Bloomington & Normal Railway and Light Company for damages for the killing of a horse and the destruction of a wagon. The court instructed the jury to find the defendant not guilty. From a judgment entered upon a verdict for defendant, plaintiff appeals.
    At about seven o’clock at night on October 24, 1911, plaintiff’s servants were driving a team of horses belonging to plaintiff north on a public street upon which were defendant’s tracks. When they came in sight of a signal light placed upon a pile of rock they were compelled to drive on defendant’s car track. When they were just ready to turn onto the track the street car was from 800 to 1,000 feet south of them. The horses at that time were moving at the rate of from three to three and one-half miles per hour, and just as the horses were going on the track the street car was about 300 "feet south of the rock pile. The team had gone far enough to go around the rock pile and the driver had turned them off the track when the rear end of the .wagon was struck by the street car going north with such force as to demolish the wagon and break the back of one of the horses. The declaration alleged the plaintiff’s servants were using all care and caution for the safety and care of the horses; charged the defendant with negligence in failing to equip the motor car with a good and sufficient headlight so that objects on the track in front of the car could be seen by its motorman. That the car was negligently running at a high rate of speed, to wit, thirty miles per hour, and that it failed to give reasonable or proper warning to plaintiff’s servants of its approach.
    Abstract of the Decision.
    1. Teial, § 195

      —when direction of verdict improper. If there Is any evidence which fairly tends to support the plaintiff’s case it must he submitted to the jury, and the weight and credit to he given it is for the jury. 2. Street railroads, § 100*—when driving on car tracks not negligence per se. For plaintiff’s servants to drive on a track held not negligence per se under the circumstances shown by the evidence, and the question of whether or not they were guilty of contributory negligence in doing so was a question of fact to b'e determined by the jury.

      Hart & Fleming, for appellant.
    Livingston & Bach, for appellee; Sigmund Livingston, of counsel.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

3. Street railroads, § 86*—care required in avoiding collision with animals and vehicle. Where, in an action to recover for the killing of a horse and the destruction of a wagon struck by defendant’s street car, it appeared that a team of horses were driven on the street railway tracks to avoid a rock pile, and that the car was coming from the rear at the rate of between thirty and thirty-five miles per hour, and that the headlight was but a 16-candle power reflector, in a rusted condition, by which an object could not be seen at a distance greater than twenty-five or thirty feet in front of the car, and that no bell was rung or whistle sounded, held the court erred in directing a verdict of not guilty.


author: Mb. Justice Scholfield

text:
    William S. Dunham, Appellee, v. Adyline D. Slaughter and Kate D. Huston, Appellants.
    1. Equity, § 56

      —when improper ruling on demurrer waived. Answering over constitutes a waiver of any error in overruling a demurrer to a bill in equity.
    2. Specific perform as oe, § 45*—when hill will not lie to specifically enforce a contract relating to personal property. Where one of three heirs to an estate sold his interest to his sisters for a certain sum to be paid, upon the admission of the will to probate, in certain bonds, and a certain note which were in excess of the contract price, and the excess was to be repaid by a check from such heir, and the sisters refused to carry out the contract, held that a bill in equity for specific performance was not the proper remedy, as he had an adequate remedy at law for breach of contract.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1913. Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Rehearing denied November 6, 1914.

      Certiorari allowed by Supreme Court.
    Humphrey & Anderson, for appellants.

      Beach & Trapp and Bevan & Bevan, for appellee.

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

   Mb. Justice Scholfield

delivered the opinion of the court.

This is a bill filed by William S. Dunham, appellee, against Adyline D. Slaughter and her sister Kate D. Huston, appellants, for the specific performance of a contract. The parties are the children and only heirs at law of Martha E. Dunham, who died testate April 15, 1912, leaving an estate worth about $106,000. By her will she bequeathed to Kate D. Huston $16,000, and to Adyline D. Slaughter $15,000, and after making some other small bequests directed that the residue of her estate be converted into money by her executors (her daughters) and divided equally amongst her children, the parties to this suit. The will was filed for probate and the son, William S. Dunham, the appellee, threatened to contest the will and its probate was postponed.

After some negotiations the parties made and entered into a contract in writing by which the son sold out all his interest in the estate to his sisters for the sum of $25,000, to be paid to him within five days after the will should be admitted to probate, and his sisters appointed as executors, the said sum to be paid in certain United States bonds and a certain note, amounting in all to $27,260, he to pay back $2,260 in cash by check. The will was then probated, the son then made a deed conveying to his sisters all his interest in the estate of his mother, and tendered a check for $2,330, being the amount agreed upon plus some accrued interest on the United States bonds and a note mentioned in the written agreement executed by the parties before the will was probated. The sisters declined and refused to carry out the contract and the bill was filed for specific performance.

A demurrer to the bill was overruled and the defendants answered over. They now insist that error was committed by the court in overruling the demurrer. By answering over they have waived the error, if any, in the overruling of the demurrer. Hall v. Hall, 125 Ill. 95; McDole v. Kingsley, 163 Ill. 437.

The answers, however, claim the "same benefit and advantage they would have had by the demurrer and pray that the bill be dismissed for want of equity.

There is no reason apparent or alleged why a suit at law would not have given appellee an ample and complete remedy. By the agreement appellee was to get personal property only under its terms. Specific, performance is not the proper remedy under such circumstances. Anderson v. Olsen, 188 Ill. 505; Cohn v. Mitchell, 115 Ill. 131; Barton v. DeWolf, 108 Ill. 197; Pierce v. Plumb, 74 Ill. 331; Parker v. Garrison, 61 Ill. 250; Grape Creek Coal Co. v. Spellman, 39 Ill. App. 630. The parties had a complete remedy at law.

The decree will be reversed and the cause remanded with directions to dismiss the bill for the reason that the proper remedy is at law.

Reversed and remanded with directions.


text:
    Charles F. Bryant, Defendant in Error, v. Charlotte M. Ayers et al., Plaintiffs in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed with finding of fact.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.
    Statement of the Case.
    Action by Charles F. Bryant against Charlotte M. Ayers, Cora Fleming, Thomas J. Danison and Arthur F. Miller to recover a commission alleged to have been earned in procuring a loan under a written contract. From a judgment in favor of plaintiff for $175, the defendants, except Arthur F.'Miller, bring error.
    The declaration consisted of a special count under the contract and a common count. The written contract declared upon is as follows:
    “Witness this agreement entered into by and between Cora Fleming, Thomas J. Danison, Charlotte M. Ayers and Arthur F. Miller, parties of the first part, and C. F. Bryant, the party of the second party, that-party of the second part agrees to furnish the sum of twelve thousand dollars on August 19th, 1911, as a loan upon what is known as the Danison farm located in Nixon Township in Dewitt County, Illinois, at the rate of 5% per cent, interest for a period of ten years with prepayment privileges of any multiple of hundreds at the end of the second year and to pay the agent C. F. Bryant a commission of $240, or 2 per cent, commission.
    “Said land to be sold at a Master in Chancery’s sale and said first parties to buy said land at a price at as high as $210 per acre if necessary to purchase same. It is also agreed that in case the said parties of the first part fail to purchase said land that they are to pay all expenses of George J. Cable for appraising the land, also the expense of the examination of the abstract and also any necessary expenses incurred by the said C.'F. Bryant. And if said loan is made all the said C. F. Bryant is to receive is the said $240.
    “It is also agreed that the expenses and reasonable compensation shall be paid Ira L. McKinnie for being here on day of sale and closing deal.”
    Defendants desired a loan of $12,000 to protect their interest in land to be sold at a master in chancery’s sale on August 19th following. The matter ran along until about the middle of August, when plaintiff notified Mr. Ayers, the husband of Charlotte M. Ayers, one of the defendants, that the company from which the loan was to be secured had turned down the application on the ground that the applicants did not have title to the property. Plaintiff and Ayers then went to Springfield to the office of the Franklin Life Insurance Company, from which the loan was to be secured, and had a conversation with Mr. Scott, its president, and Mr. MeKinnie, a clerk in the loan deparment. Plaintiff and MeKinnie testified that the situation of the title was explained to Ayers to the effect that he could not get title to the loan if he purchased it short of twenty days after the sale and until the sale was approved by the court, and the Insurance Company would hold the money. Ayers denied this and testified that Mr. Scott, the president of the Insurance Company, said that they would not hold the money for them until that time. Afterwards an arrangement was made by which defendants borrowed $1,000 of the Dewitt County National Bank. Plaintiff in error claimed that he made the arrangement with the bank for the $1,000, and Ayers claimed that he did. An arrangement was then made with the master in chancery, by which he agreed to accept $1,000 as the amount of cash required to be paid on the day of the sale, instead of one-fourth of the purchase price, as provided by the decree, and on August 19th the land was bid in under the arrangements thus made.
    Abstract of the Decision.
    1. Bbokebs, § 70

      —effect of declaring on special contract. Where a loan agent declares on a special written contract for commission alleged to have been earned in procuring a loan, he cannot recover on the quantum meruit.

    Herrick & Herrick, for plaintiffs in error.
    Ingham & Ingham and F. K. Lemon, for defendant in error.

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

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

   Mr. Justice Scholfield

delivered the opinion of the court.

2.. Brokers, § 70 —nature and form of action for compensation. Where plaintiff by a written contract agreed to have money on hand for defendants to bid in their interest at a master’s sale of certain real estate, and the money was not furnished on that day or any other day, and the contract was not in any way complied with, plaintiff is not in a position to recover compensation for a loan in a declaration upon a special contract.


text:
    Anna O’Hern, Appellee, v. Illinois Central Electric Railway, Appellant.
    (Not to fee reported in full.)
    Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 16, 1914.
    Rehearing denied December 10, 1914.
    Statement of the Case.
    Action by Anna O ’Hern against the Illinois Central Electric Railway to recover damages for personal injuries received by plaintiff while she was a passenger on one of defendant’s ears. From a judgment on a verdict for fifteen hundred dollars in favoi of plaintiff, defendant appeals.
    Chiperfield & Chiperfield, for appellants.
    O. J. Boyer and Quinn, Quinn & McGrath, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

Abstract of the Decision.

1. Carriebs, § 452 —when declaration states cause of action. Where the declaration averred that defendant was the owner and operator of an electric railroad from the city of Canton to the village of Norris in Fulton county, Illinois, on which it operated motor cars for the conveyance of passengers for reward; that plaintiff became a passenger thereon to be carried from Canton to Brereton and that it was the duty of defendant to use the highest degree of care to safely convey her on said car, yet the defendant, not regarding its duty, negligently ran said car against another car of defendant, whereby plaintiff, while in the exercise of due care, was injured, etc., held to state a good" cause of action for damages for personal injuries.

2. Damages, § 209*—sufficiency of instruction. In an action for personal injuries, an instruction authorizing a recovery for such sum or sums of money shown by the evidence that plaintiff had paid out or become liable for as reasonable charges for medical services, if any, rendered necessary by reason of such injuries, and to the effect that the jury should award her such sum as it believed from all the facts and circumstances in evidence would compensate her for all the damages sustained by her as the proximate result of her injuries, and also authorizing the jury to allow her all money she had paid out or become liable for, .held, though technically erroneous in not limiting the jury on the question of damages, not to have been prejudicial to defendant, since instructions were given for defendant on the question of damages.

3. Damages, § 115*—when verdict excessive for temporary injuries. In an action to recover damages for personal injuries received by a school teacher as a passenger on defendant’s electric motor car through a collision with another car on defendant’s railroad, where it appeared that she did not sustain any scratch or cut of any kind but only a bruise on her knee, which did not prevent her resumption of her occupation within two weeks, and that immediately after the accident she was able to ride in a standing position on a hand car to a boarding-house, and no permanent or serious injury was shown to be the proximate result of the accident, held that a verdict for fifteen hundred dollars was so excessive as to require a reduction to seven hundred dollars.


text:
    Mrs. N. L. Cope, Appellant, v. T. W. Brentz, Sheriff, and Frank Cheney, Appellees.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Trial, § 82

      —discretion of court in reopening cause for further evidence. Where the court permitted defendants, after both parties had rested, to reopen the case and introduce in evidence a judgment upon which an execution was based and a levy made, it was held not erroneous, as being a matter wholly within" the discretion of the court, the exercise of which is ordinarily not a subject for review.
    2. Instructions, § 11*—when erroneous. An instruction directing a verdict and not requiring the jury to find the facts from the evidence, and leaving it to the jury to say what is a valid mortgage, without telling what constitutes a valid mortgage, is erroneous.

      Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action of replevin by Mrs. Ñ. L. Cope against T. W. Brentz, sheriff of Christian county and Frank Cheney to recover the possession of property levied on under an execution. Plaintiff claimed that she by her agent was in possession under a chattel mortgage and bill of sale executed by the execution debtor. From a judgment in favor of the defendants, plaintiff appeals.
    John W. Preihs and George T. Wallace, for appellant.
    Arthur Roe and W. B. McBride, for appellees.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

3. Instructions, § 94*—where witness testifies falsely to fact material to issues. An instruction to the jury to the effect that if any witness has knowingly and wilfully testified falsely to any “material fact or allegation, etc.,” is erroneous as it should have been any “fact material to the issues, etc.”

4. Instructions, § 119*—necessity of lasing on evidence. An instruction should be based on evidence with which to support it.

5. Instructions, § 114*—necessity of confining to issues of pleadings. Where there is no plea alleging that there was no consideration for a mortgage, it is erroneous for the court to instruct the jury upon such a question.

6. Replevin, § 147*—when instruction erroneous as ignoring defense. In an action of replevin of property taken under an execution, an instruction that entirely ignores the defense that plaintiff was in possession of the property under a chattel mortgage is held erroneous.

7. Replevin, § 26*—sufficiency of instruction. In an action of replevin to recover the possession of property taken under an execution, an instruction is held to fail to correctly state the law; that if possession is taken under an unacknowledged mortgage before possession is taken under the execution, possession will defeat the execution.


text:
    E. R. Dickerson and C. A. Cantrall, Trustee, Appellees, v. James A. Goodrich and Mary J. Brya, Appellants.
    1. Waters and . water courses, § 4

      —duty of owners along streams. The owners of land along a stream must use the same so as not to injure the land of others both as regards to surface and overflow waters.
    2. Waters and water courses, § 15*—when owners along stream not entitled to lúild or maintain levee. Owners of land along a stream have no right to huild or maintain a levee on their land where by doing so the current of the stream during high waters will be diverted across the land of others.
    3. Waters and water courses, § 22*—admissibility of evidence. On bill to restrain owners of land along a stream from erecting and maintaining a levee on their land so as to divert the overflow waters upon the lands of complainants, evidence with reference to an overflow at the time of a high water, and with reference to the effect of the levee upon the flow of the water after the levy was erected down to the time of the trial, held admissible.
    Appeal from the Circuit Court of Christian county; the Hon. Jambs C. McBbide, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 16, 1914.
    F. P. Drennan, for appellants.
    Provine & Provine and W. B. McBride, for appellees.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This was a bill for injunction filed in the Circuit Court of Christian county by appellees to restrain appellant’s from erecting and maintaining a levee on appellants’ land and to tear down that portion of said levee already built. The bill alleges, in substance, that Dickerson is the owner of the northwest quarter (14) of the southeast quarter (14) and C. A. C'antrall as trasteé, etc., is the owner of the east half (%) of the southwest quarter (]4) of section twenty-five in township sixteen (16) north, range two (2) west of the third principal meridian, in Sangamon county, Illinois, lying north and west of, contiguous to the north fork of the Sangamon River, and which are bottom lands of great value; that Goodrich owns large tracts of land lying south of, adjacent to and near said river, among which are the south half (%) of the southeast quarter (14) and the northeast quarter (*4) of the southeast quarter (14) of said section twenty-five (25) in the same township in Christian county, Illinois, which are also bottom lands, and that said Goodrich’s lands lie on a lower level than the lands of appellee’s, and that the lands of appellees are the dominant and the lands of said Goodrich the servient estate, with regard to the natural flow of the surface water; that the said stream in times of high water overflows its banks and spreads out over the surface of the lands of the said Goodrich, and is carried by depressions and channels southeasterly and thence southwesterly from said stream, emptying into a lake which empties into Mosquito Greek; and that said Goodrich and Byra to reclaim their lands propose to construct a levee of the height of two and one-half to fourteen feet on said Goodrich’s land, beginning at the center of the east line of said section twenty-five, and running thence west, following the course of said stream eighty rods, to the half quarter section line, running north and south through the center of said section, and thence south, to connect with the old levee on said Goodrich’s land, a distance of something over eighty rods, and that the building and maintaining of said levee will arrest or stop the flow of surface water in time of high water flowing down said stream, and preventing the same or the overflow water from flowing where, in a state of nature, they are wont and accustomed to flow, and will throw such surface water and overflow water back upon the lands of appellees, and will render such lands at such times unfit for cultivation, and will greatly injure appellees ’ lands and cause them irreparable damages, and also that the effect in course of time will be to cut a new channel for said stream across the lands of appellees, or some of them, etc.

The appellants by their answer admit that Goodrich is the owner of the lands above described, together with other lands lying adjoining the same, and admit that the above described lands of said Goodrich are overflow lands, but deny that they lie on a lower level than the lands of appellees, but aver that the lands of said Goodrich are the dominant and the lands of appellee the servient estate, in regard to the natural flow of surface water, and admit that they are about to build the levee above described, and have commenced to build and erect same, and have now completed the same from the center of the east line of said section, west a distance of about eighty rods, and thence south, a distance of about sixty rods, and intend to eventually extend the same to meet the old levee above mentioned ; but aver that they have a right to so construct and maintain said levee, and that it will not damage appellees, as alleged in said bill, and will not cause them irreparable injury, etc.

The lands are bottom lands and subject to overflow from the north fork of the Sangamon River. The river swings in a southwesterly direction north of the lands of appellant Goodrich until it reaches the northwest corner of his land, when it proceeds practically directly south along the quarter section line between his land and appellee Dickerson’s land, and then turns and proceeds west practically across the south side of appellee Dickerson’s lands, and then turns and runs north along the west side of appellee Dickerson’s land.

The evidence shows that the overflow waters of the river north of Goodrich’s land originally followed a more or less well-marked channel across his land and emptied into a lake south thereof. During the winter of 1912 appellants built a levee across the north portion of Goodrich’s land and partly down the west side thereof. This levee runs directly across what is known as the old channel and across all other depressions in said tract on the north side running south, thereby diverting the overflow waters of the river from Goodrich’s land westward into the channel of the river. Appellant’s claim that this caused the waters to break through the bank of the river at the northeast corner of Dickerson’s land and flow southwesterly across his land forming a new channel.

Appellant concedes that, there is no distinction ber tween surface water, and overflow waters and running waters in regard in the right of dominant and servient owners, and that overflow waters of running streams are treated as surface waters. It is also conceded by appellants that the levee in flood time will cause the water to run higher on appellees’ land, but insists that such fact will not damage them or render them unfit for cultivation.

Appellants insist that in the interest of good husbandry they have a right to maintain this levee and prevent surface water from spreading out over their lands, and cause it to run in the natural waterway where it is wont to flow when the river is not out of its banks, even though the levee might cause the overflow water to be deeper at times on the Dickerson and Can-trail lands than it would be were it not for such levee.

This is true providing the construction of the levee did not cause injury to the lands of others. The evidence in the case tends to show that during the high water in March, 1913, the current of the river was diverted across appellees’ lands, and at the northeast corner of the Dickerson land, where the current first struck by reason of the diversion caused by the building of the levee in question, there was a large place washed out in his land and several large trees washed down, and after the flood went down there was a well-marked line of demarcation showing where the current had been washing out the corn stalks and weeds and in some places taking part of the earth with it, showing that there was a new current created which had never been in existence before. This high water was the first that occurred after appellants commenced the construction of the levee, and was not an extraordinary high water.

It is apparent from the evidence that the levee if permitted to stand would cut a new channel across the Dickerson forty acres and the Cantrall land west of same. The owners of land along a stream must use them so as not to injure the land of others both as regards to surface and overflow water. Pinkstaff v. Steffy, 216 Ill. 406.

Objections were made to the admission of evidence in regard to the overflow in the spring of 1913. This evidence was competent, and it was proper to prove the effect of the levee upon the flow of the water after the levee was erected down to the time of the trial. Suehr v. Chicago Sanitary Dist., 242 Ill. 496. The decree was right and will be affirmed.

Affirmed.


text:
    John D. Wilson, Appellee, v. City of Mason City, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Mason county; the Hon. Gut R. Williams, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by John D. Wilson against the City of Mason City to recover damages for injuries to a building and the contents thereof, caused by the blowing over and falling upon the same of a fire alarm tower with an eight-hundred-pound bell on the top of it. The declaration, consisting of two counts, charged that defendant did not properly construct the tower and attach it to the ground so as to prevent it from falling during an ordinary windstorm and that the tower was built of light material, grossly out of proportion by making the height thereof so much greater than its width, etc.' There was a verdict and judgment for plaintiff for $300.07. To reverse the judgment, defendant appeals.
    W. E. Stone, for appellant.
    Edward Wilson and W. A. Covey, for appellee.
   Mr. Justice Scholfield

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebbob, § 512*—sufficiency of objections to questions ashed of expert. An objection that questions asked of an expert were irrelevant and immaterial does not save for review the question whether they were strictly hypothetical.

2. Appeal and ebbob, § 512*—when sufficiency of hypothetical questions not saved for review. The sufficiency of hypothetical questions cannot be considered on review where the missing element or inaccuracy is not pointed out in the objection or in the argument in the Appellate Court.

3. Municipal coepobations, § 1122*—when city liable for fall of tower. Where a city improperly constructs a fire alarm tower and the property of an adjoining owner is damaged by the falling thereof during a windstorm, the city is liable though the storm was unusual.

4. Appeal and ebbob, § 1421*—effect of errors in decisions doing substantial justice. Courts will not grant a new trial or reverse a judgment for error in admission or rejection of evidence or in the giving of improper instructions, if it appears from the entire record that justice has been done.


text:
    Reuben Hammond, Appellee, v. The Bloomington Canning Company, Appellant.
    1. Evidence, § 110

      —when testimony relating to X-ray photograph inadmissible. In an action for personal injuries, permitting doctors, over objection, to testify what an X-ray photograph of plaintiff’s person showed without producing the photograph, held error for the reason that the photograph was the best evidence.
    2. Evidence, § 436*—sufficiency of hypothetical question. In an action for personal injuries, a hypothetical question asked of doctors who had examined plaintiff, which commences: "Assuming that a man whose present condition is as you disclose the condition of plaintiff to be,” etc., held improper, for the reason that the question should have in it all the facts on which the answer is based and that plaintiff claims his evidence proves his condition to have been.
    3. Damages, § 115*—when excessive. A judgment for forty-five hundred dollars for personal injuries held excessive in view of the work which plaintiff did after the injury.

      Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Bracken & Young and W. B. Leach, for appellant; Burt A. Crowe, of counsel.
    DeMange, Gillespie & DeMange, for appellee.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

This is an action on the case by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained by appellee because of the negligence of appellant.

A trial resulted in a verdict in favor of appellee and against appellant for forty-five hundred dollars. Judgment was entered on the verdict and appellant has appealed to this court.

Appellee was employed by appellant as a carpenter and general purpose man at appellant’s canning factory in Leroy, Illinois. At the time of the accident complained of appellee was engaged in helping repair a broken drive shaft over a corn conveyor. The doing of this work required those who were engaged in it to get into the conveyor. Before beginning the work the conveyor was stopped and the men who had charge of operating the machinery were instructed not to start the conveyor while the men were repairing the drive shaft and until they were instructed to do so. While appellee was thus at work in helping repair the drive shaft and standing in the conveyor, the conveyor was suddenly started and appellee was thrown down and carried by the conveyor under a shaft nine inches above the top of the slats of the conveyor. He caught hold of the shaft and several slats of the conveyor passed under him, injuring him before the machinery was stopped.

Appellee was off work about four days, did not consult a doctor and then worked regularly for several weeks at his trade, a carpenter. An X-ray picture was taken of appellee’s person and doctors were permitted, over objection of appellant, to testify what the X-ray showed without producing the photograph. This was error. The photograph was the best evidence as to what it showed, and appellant was entitled to see them in order that he might properly cross-examine the doctor as to what they showed and to offer testimony as to what they did not show.

A hypothetical question was asked several doctors who examined appellee. They were the doctors who had been employed by appellee. The question starts: “Assuming that a man whose present condition is as you disclose the condition of plaintiff to be,” etc. The question should have in it all the facts on which the answer is based that appellee claims his evidence proves his condition to have been, so that the jury may know the facts on which the expert bases his answer. There may have been many things the doctor discovered that are a foundation for the answer made that are not known to the jury. There is a serious question in this case whether appellee was injured nearly as seriously as he now insists he was. The question also varies from the proven facts but not very materially. The question was improper and the objection to it should have been sustained. Appellee’s judgment of forty-five hundred dollars is also excessive we think from the work he did after the injury.

In argument, reference was made to appellee as “a poor man,” “a humble man.’’ While we do not regard this, standing alone, as constituting reversible error, still the remarks were highly improper and prejudicial to appellant and should not have been made. For the errors indicated, the judgment will be reversed and the case remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. John H. Obermeyer, Plaintif in Error.
    (Not to he reported in full.)
    Error to the County Court of Morgan county; the Hon. Edwaed P. Bbockhouse, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Prosecution by the People of the State of Illinois on an indictment against John H. Obermeyer for selling intoxicating liquor within anti-saloon territory. The indictment contained five counts and was certified to the County Court for trial. A trial was had by a jury and defendant was convicted. To reverse the judgment, defendant prosecutes a writ of error.
    The evidence was that defendant was engaged in the drug business at Jacksonville, Illinois, and that he sold to a number of witnesses essence of ginger, the compound containing ninety-three per cent, alcohol and seven per cent, ginger. Witnesses for the People testified that they bought the compound as a liquor to be used as a beverage, while defendant testified that the compound was poisonous in its state as sold and unsafe to use as a beverage and that he sold it for medicinal purposes only.
    William N. Hairgrove, for plaintiff in error.
    Robert Tilton and Thomas F. Smith, for defendant in error.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

Abstract of the Decision.

1. Intoxicating liquors, § 158 —when instruction erroneous as ignoring element of good faith. In the prosecution of a druggist for selling intoxicating liquor in anti-saloon territory, where the evidence showed that the alleged liquor was a compound containing a large percentage of alcohol, instructions given for the People ignoring the element of good faith on the part of defendant and therefore requiring a conviction though he sold the compound in good faith for medicinal purposes and not as a shift or device to evade the law, held erroneous.

2. Intoxicating liquors, § 158*—when instruction erroneous as assuming facts. In a prosecution of an indictment for selling intoxicating liquor in anti-saloon territory, an instruction is erroneous if it assumes the defendant sold such liquor in such territory.

3. Criminal law, § 308*—sufficiency of instruction. In a criminal case, an instruction directing the jury to find the defendant guilty without requiring the jury to find from the evidence beyond a reasonable doubt is erroneous.


text:
    William McIlvrid, Receiver, Plaintiff in Error, v. Murphy and Walsh, Defendants in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Action by William Mcllvrid, receiver of Cockburn Company, a corporation, against Murphy & Walsh, a copartnership, on a contract against the defendants in error to recover the price of three aero pulverizers with combustion chambers alleged to have been sold and delivered by Cockburn Company to the defendants in error, and also to recover the market price of some extras furnished defendants in error for said machines. The contract sued on is as follows:
    “Rec’d.
    May 20, 1912 Murphy & Walsh.
    Pekin, Illinois, May 18, 1912.
    Cockburn Co.
    New York, N. Y.
    Ship by freight.
    Order No.
    1166 D Job 7305
    “In acknowledging this order refer to Number and Date, and state when Shipment will be made.
    “Direct to Murphy & Walsh.
    Knox, Indiana.
    3 Aero Pulverizers with Combustion Chambers Price $3000.00 F. O. B. New York City, Terms 25% upon delivery. Balance or 75% sixty days after delivery. Two complete outfits to be shipped—ten days—third to be shipped within 30 -days. These machines to be guaranteed to give results equal to fuel oil. Cost of operation to be 30% less than fuel oil, basing cost of coal at $2.50 per ton F. O. B. Knox, Ind., and fuel oil two cents per gallon, F. O: B. Knox. Invoice must show NUMBER AND DATE OF THIS ORDER.
    Murphy & Walsh, Per Miles Murphy.
    Accepted,
    Cockburn Co.,
    By W. A. Evans,
    ' May 18, 1912.”
    The declaration consisted of the common counts with a bill of particulars attached. The pleas were the general issue and a special plea with a bill of particulars attached. There was a verdict and judgment on the special plea for the defendants in error for $591.99. To reverse the judgment, plaintiff prosecutes a writ of error.
    Goodrich, Vincent & Bradley and Thomas F. Ferns, for plaintiff in error.

      Abstract of the Decision.
    1. Assumpsit, action of, § 88

      —admissibility of contract. In an action based on the common counts to recover the purchase price of goods sold under an express contract, the contract is admissible in evidence.
    2. Sales, § 309*-—when price or value may be recovered under common counts. When the terms of a special contract of sale have been so far performed that nothing remains to be done, except the payment, the amount due may be recovered under the common counts. If, however, the contract remains executory, the plaintiff must declare specially on the contract.
    3. Sales, § 325*—burden of proof. A clause in a contract of sale warranting machines sold to give certain results, held to be an independent covenant and therefore not a condition precedent, requiring the seller in an action for the purchase price to prove that the machines complied with the warranty before he could recover.
    4. Sales, § 388*—remedies for breach of warranty. Where an independent covenant of warranty in a contract of sale is violated, the purchaser has a right of action against the seller for damages or he may recoup for damages.
    5. Set-ofe and counterclaim, § 31*—sufficiency of plea of set-off,A special plea in order to constitute a plea of set-off entitling defendant to an affirmative judgment must allege that the amount due the defendant exceeds the amount of damages claimed by plaintiff, and offer to allow to plaintiff his damages and ask for judgment for excess.
    6. Sales, § 330*—when instructions erroneous. In an action for the price of machines sold where there was a clause of warranty in the contract, instructions submitting to the jury whether the machines were accepted by defendants and stating that if they were not accepted to find the issues for defendants, held erroneous where the evidence conclusively shows that the machines were accepted, and it also appears that defendant must rely on the alleged breach of warrant and cannot rescind the contract, and that the plaintiff should be allowed a credit for the value of the machines whatever they were worth.
    Jesse Black, Jr., for defendants in error.

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

   Mr. Justice Scholfield

delivered the opinion of the court.