text:
    C. A. Bucks et al., Appellees, v. Helen Strawn et al., Appellants.
    Gen. No. 5,760.
    1. Injunction, § 180

      —when bill not multifarious. A bill by several separate owners to enjoin several defendants from conducting houses of ill fame is not multifarious where it alleges that all of the defendants have contributed to the result from which the property of all the complainants suffer.
    2. Injunction, § 181*—defects in bill curable by amendment. Where a bill for an injunction in its prayer for process asks only for a summons and not for an injunction, the defect is formal and curable by amendment.
    3. Injunction, § 174*—joinder of parties—Where several persons contribute to the creation of a nuisance they may be joined in a suit to abate the same, although each transacts his business, from which the nuisance flows, separately and without any connection with the others, and there is no joint intent or joint action; but under such circumstances it is not necessary that all persons contributing to the nuisance should be joined as defendants.
    4. Appeal and ebkob, § 420*—preservation of objections to pleadings. Formal defects in bill readily curable by amendment cannot be first objected to on appeal.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Alschuler, Putnam & James, for appellants; William F. Fowler, of counsel.
    John M. Raymond, John K. Newhall and Fred B. Shearer, for appellees.

      See Illinois Notes Digest, Vols. XI to XIY, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

When this suit was begun, three women, Strawn, Steelier and Atherton, each kept a house of ill fame in a residence district just outside the city limits of the city of Aurora, and another woman, Pettit, was in active control of the house of ill fame conducted by Stecker. Six men, Bucks, Danly, Host, Werline, Brunnemeyer and Ludwig, having homes in the vicinity and owning lands in the vicinity, filed this bill against said women to enjoin them from conducting said houses of ill fame. Each defendant filed a separate demurrer to the bill. The demurrers were overruled. Each defendant elected to stand by her demurrer and a final decree was granted as prayed and the defendants appeal. They argue that the decree is erroneous, because, though the prayer for relief asked for a temporary and for a permanent injunction, the prayer for process asked only for a summons and not for an injunction. Each demurrer was general and special. This was not one of the points assigned as ground for special demurrer. The point is purely technical and formal. Story’s Equity Pleadings, sec. 455, says that a general demurrer is sufficient when the bill is defective in substance, but a special demurrer is indispensable where the objection is to defects of the bill in point of form. 16 Cyc. 272, states the rule that a special demurrer particularly pointing out the cause must be resorted to to reach any formal defect or any defect readily curable by amendment. This supposed defect could have been cured by amendment, if it had been pointed out by special demurrer. It is too late to raise the question here for the first time. The bill alleged that, shortly prior to the filing of this bill, Stecker conveyed the premises to one Warner, of Wisconsin, but that Warner had never had possession and control of the premises, and that they were still maintained by Stecker. We are of opinion that Warner was not a necessary party to the relief here granted, which restrains Stecker and her assistant Pettit, but does not profess to enjoin Warner. The main argument of appellants is that each of the complainants owns property by himself and necessarily injured differently from the property of any other, complainant, so that the cause of action of each is separate; and that there is no charge of joint action by the three defendants, Strawn, Stecker and Atherton, and therefore there should have been separate suits against the three; in other words, appellants contend that to obtain the relief here granted there should have been eighteen separate bills in equity. This result is reached partly by relying upon authorities from other jurisdictions not in harmony with the rule prevailing in Illinois, and partly by failing to duly consider certain allegations of the bill.

The bill names the several lots occupied by the respective parties and makes a part thereof a plat, which is so small that in the main the lots do not appear thereon, but the portions occupied by the respective parties are indicated by their names. It therefrom appears that the premises kept by Stecker are on the southwest corner of a certain block; that the premises kept by Strawn are immediately south thereof across a street; and that the premises kept by Atherton are in the second block east of Stecker’s premises; that the house of Host is directly across, the street west from the Stecker premises; that the home of Werline is next north thereof; that Danly owns lots across the street west from Stecker’s premises, and also lots next adjoining Stecker on two sides and also directly across the street from Strawn in two directions and directly across the street from Atherton, but that he lives on a lot several blocks further away; that Brunnemeyer lives on property across a railroad from the block in which Strawn’s premises are situated; and that Bucks lives five blocks from the Strawn and Stecker houses and seven blocks from the Atherton house. The allegations as to the manner in which each of these three places are conducted are very full. Much condensed, the allegations as to Strawn are that she keeps upon premises described, owned by her, a house of ill fame and keeps thereon about ten lewd women, who there prostitute themselves with men and boys during each day of the week and each night until two or three o’clock in the morning, and that the inmates and patrons make loud noises, use obscene and blasphemous language, within the hearing of these complainants, whose premises are located in the vicinity thereof, and conduct themselves in a drunken and riotous manner and make indecent exposures of their persons at the windows and in the yards of said premises, within view of the windows of the premises of some of the complainants; that said women conduct themselves with men on said premises of Strawn in a lewd manner, within view of the windows of a majority of the complainants; that Strawn occupies a large house with a roof painted red and at night red lights are displayed from the windows and roof thereof, and that said premises and the land in the vicinity thereof is commonly called “the red light district;” that Strawn has spent over $15,000 in fitting up buildings and grounds, and that by reason of the business so conducted by her, the streets and property in the vicinity are shunned by decent people; and that Strawn maintains a barroom on said premises and sells intoxicating liquors to the patrons thereof, without a license so to do, and operates a dance hall on said premises, and many persons visiting said resort become intoxicated there, and when departing indulge in loud talking, in indecent language, and in singing, quarreling and fighting, until the early hours of the morning, thereby depriving complainants and their families of sleep. There are very similar allegations as to the places kept by Stecker and Atherton, including the display of red lights at night, but the amounts alleged to have been spent in fitting up the places are not the same. The bill and decree are not dependent alone upon these allegations as to each place separately. It is further alleged as to all said places that many persons visiting them, become drunk and disorderly and while going to and from them engage in fights and disorderly scenes at all hours of the day and night; that at times more than fifty men and boys visit said resorts in a single night and their conduct is so vile and disorderly that decent people shun the neighborhood, and thereby defendants depreciate the value of complainants’ properties and deprive them of the peace and quiet to which they are entitled as citizens and property owners; that each of said houses of ill fame is conducted in a similar manner and that the conduct and noises of the inmates and of debauched men and boys going to and from said places are commingled with each other, and complainants cannot ascertain what part of the noises, lewd conduct and disturbances in the neighborhood of said three resorts are due to the patrons, inmates and habitues of any one of said resorts, and cannot separate the nuisances, injury and damage to their respective properties which are occasioned by the presence and unlawful conduct of each of said resorts. The bill further alleged that a certain street car line about five hundred feet from said resorts is the only means of railway transportation for complainants and their families between their homes and the business part of the city of Aurora; that the property in the vicinity of complainants and of said resorts is chiefly adapted and used for residence purposes; that, in using said street ear line, complainants and their families are annoyed and insulted by drunken men and boys going to and from said resorts, and that, by reason thereof, it is unsafe for women and children to travel in the vicinity of said resorts by day or night. The bill further alleges that Strawn, Stecker and Atherton have been periodically prosecuted for keeping said houses of ill fame for the past seven years and have pleaded guilty thereto, but such small fines have been assessed against them that it has amounted to a licensing of such houses, and the nuisances have flourished instead of being abated; that by reason of the maintenance of said houses, that neighborhood has acquired a bad reputation and the value of complainants’ property for residential purposes has been destroyed and its renting and selling value has been diminished more than one-half by the maintenance of said illegal resorts; and that said resorts are a continuing source of injury and damage to the properties of complainants, and that this is an especial damage and injury, different from that suffered by the public; and that the maintenance of said houses of ill fame is a private nuisance to all the properties of the complainants and to their respective uses of the same and a great and irreparable injury thereto, and that their remedy at law is wholly inadequate; and that they could only recover nominal damages at law because the damages produced by one are mingled with the damages produced by each of the others.

It will therefore be seen that while the bill shows that each of the three owners of the three resorts named in the bill conducts her resort entirely separate from the other resorts, and there is no allegation of joint ownership or operation, yet it is alleged that they each contribute to the nuisance which is the general result of the three resorts conducted, as these are, in close proximity to each other, and that it would be impossible in an action at law against any one of them to show how much of the injury resulting to the complainants and to their comfort and in depreciation of the value of their property is caused by one of the resorts separate from the other two. The right to enjoin such a nuisance in a proper case is settled in Hoyt v. McLaughlin, 250 Ill. 442, and in People v. Billburg, 175 Ill. App. 136. It is obvious that the grievance in question is common to all the property owners who have joined in this bill. In Baumgartner v. Bradt, 207 Ill. 345, it is held that if the act complained of affects a common right of several persons, whose interests are in a legal point of view substantially the same, proceedings for an injunction may be instituted by some of them in behalf of others, and that in proceedings to restrain a private nuisance, if the grievance is common to several different property owners, they may unite in one action for an injunction. In North American Ins. Co. v. Yates, 214 Ill. 272, it is said that considerations of convenience to the court, the avoidance of a multiplicity of suits and of unreasonable hardship to the several parties joined are to be taken into account in determining whether a bill of complaint against.several defendants is multifarious, and, that although there may be several causes of action, if they grow out of the same transaction and all the defendants are involved in the same rights and the relief against each is of the same general character, the bill may be sustained. The principle which we deem applicable here was applied in Stephens v. Collison, 249 Ill. 225, where it is said that there is no flexible rule for determining whether a bill is multifarious or not, but that the courts exercise a sound discretion in determining whether the subject-matters and the parties, plaintiffs and defendants, are properly joined and that each case must to some extent depend on its own facts. It was there said: “In accordance with the aim of equity to administer complete relief in one suit, a bill is not multifarious so long as it seeks to enforce a single right, although that enforcement demands an investigation of several matters and relief of a complex character and consisting of different elements. The court will in a single suit investigate and determine all questions incidental to the determination of the main controversy and will grant all relief incidental to the accomplishment of the main object of the bill.”

The rule applicable here is stated in 29 Cyc. 1239, as follows: “Where several persons contribute to the creation of a nuisance they may be joined in a suit to abate the same, although each transacts his business, from which the nuisance flows, separately and without any connection with the others, and there is no joint intent or joint action; but under such circumstances it is not necessary that all persons contributing to the nuisance should be joined as defendants.”

It is clear that under the "allegations of the bill, con-" fessed by the demurrer, all the defendants have contributed to the result from which the property of all the complainants suffer. The fact that the complainants do not all suffer in the same degree ought not to prevent their joining in a common action to abate the nuisance and thereby to avoid a multiplicity of suits. As to Host, Werline and Danly, the injury is immediate and, even if the houses of Bucks and Brunnemeyer are so far distant from the red light district that they suffer an injury very much less in degree than the other complainants, yet we would not consider that any reason for reversing the decree. As to the sale of liquor upon the premises, the decree only enjoins its illegal sale. We find no reversible error in the decree.

The decree is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    James L. Swayer, Administrator, Appellee, v. Clara B. Wiemers et al. (Cooke, Pope & Pope, Appellants.)
    Gen. No. 5,780.
    1. Appeal and error, § 43

      —court to which appeal lies from orders of County Court in administration of estates. Appeals from the orders of the County Court in the administration of personal estates of deceased persons go to the' Circuit Court, but appeals from orders or decrees of the County Court to sell real estate to pay debts must be to the Appellate Court, unless a freehold is involved, in which latter case they go to the Supreme Court.
    2. Appeal and error, § 43*—when an order of County Court relates to proceeding to sell real estate. An order of the County Court on petition to sell real estate determining the rights of the several parties growing out of their supposed liens on the real estate, and deciding how distribution of proceeds from the sale should be distributed between such lienors, is an order relating solely to the proceeding to sell real estate to pay debts, and an appeal therefrom does not lie to the Circuit Court.
    3. Executors and administrators, § 383

      —jurisdiction of County Court. County Court in a proceeding to sell real estate to pay debts has jurisdiction to set aside a judgment as fraudulent.
    4. Executors and administrators, § 12*—when regular order for continuance not necessary. Section 21 of the Circuit Court Act, J. & A. If 3019, which continues all proceedings not disposed of at the end of the term, applies to the County Court in a proceeding to sell real estate to pay debts.
    Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Paul MacGuffin, Ray F. Fowler and J. D. Pope, for appellants.
    Chipman & Jackson, Ernest S. Gail and David H. Jackson, for appellee.

      See Ulinios Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

On July 11,1912, an order was entered in the County Court of Lake county in a matter pertaining to the estate of William F. Wiemers, deceased, which order was adverse to the interests of Cooke, Pope & Pope. They appealed therefrom to the Circuit Court and perfected the appeal and filed a transcript of various proceedings of the County Court, including a part of said order of July 11, 1912. After various special appearances, motions to dismiss the appeal made by parties whose interests were adverse to Cooke, Pope & Pope, and other proceedings in the Circuit Court, which we deem it unnecessary to recite, the court required Cooke, Pope & Pope to file a transcript of the entire order appealed from and when that had been done, the court dismissed their appeal for want of jurisdiction, and Cooke, Pope & Pope prosecute this appeal from, that order. Appeals from the orders of the County Court in the administration of the personal estates of deceased persons go to the Circuit Court, but appeals from orders and decrees entered in proceedings in the County Court to sell real estate to pay debts must be to the Appellate Court, unless a freehold is involved, in which latter case they go to the Supreme Court. Wachsmuth v. Penn Mut. Life Ins. Co., 231 Ill. 29; Atherton v. Hughes, 239 Ill. 632; Sifford v. Cutler, 244 Ill. 234, and cases there cited. If the order appealed from was a part of the proceedings to sell real estate to pay debts in said estate, then the appeal of Cooke, Pope & Pope should have been to this court, and the appeal to the Circuit Court was properly dismissed for want of jurisdiction. If the order appealed from related to the ordinary administration of said estate, then the Circuit Court should have taken jurisdiction and tried the matter de novo.

On December 21, 1909, William F. Wiemers died, testate, and James L. Sawyer was appointed administrator with the will annexed and qualified. Thereafter said administrator filed a petition in the County Court to sell real estate to pay debts of said deceased. All parties interested were made defendants, including persons holding liens by way of trust deeds upon various pieces of real estate of which Wiemers died seized, and also creditors who had judgment liens upon said real estate. The transcript of the County Court proceedings, filed in the Circuit Court, is exceedingly defective, but it appears therefrom that several cross petitions were filed by the widow and by other judgment creditors in the County Court in said proceeding, which cross petitions attacked the validity of the judgments of Cooke, Pope & Pope and George P. Wiemers. On December 10, 1910, a decree was entered in said cause. It found many facts proved, including a list of many pieces of real estate of which Wiemers died seized, a description of the homestead, and a statement of the widow’s rights therein, a statement of various trust deeds resting on various pieces of real estate and of the amounts due upon each, a statement of various judgments against Wiemers which were liens upon said real estate, the first of which in point of time was a judgment by confession in favor of appellants on November 23, 1909, for $2,363.46, and a statement of other later judgments in favor of other parties, including one on December 4,1909, for $814.75 in favor of George F. Wiemers. It found that it was for the best interests of the estate that the real estate should be sold free from the judgment liens and subject to the liens of the trust deeds, and that the judgment creditors had consented that the real estate be sold free of their liens and that they be paid the amounts due them out of the proceeds of the sale, and it provided that the land should be sold free and clear of the dower and homestead rights of the widow. It ordered the sale of the real estate free from the judgments and subject to the trust deeds. It directed that from the proceeds of the sale costs and attorney fees should be paid, and that from the proceeds of the sale of each piece should be paid the value of the dower interest of the widow in such piece, and from the sale of the homestead should be paid $1,000 to the widow, and then the judgments should be paid; but if the sum remaining after paying costs and the value of the dower and homestead estates was not sufficient to pay all said judgments in full, then the administrator should pay the various judgment creditors “in the order of their priority to be hereinafter determined by-the court.” On July 11,1912, the order appealed from was entered. It is entitled in the petition to sell real estate to pay debts and also in three cross petitions, one of which was by most of the judgment creditors other than Cooke, Pope & Pope and George F. Weimers. It recited the prior proceedings and the decree of December 10, 1910, for the sale of the real estate and for the distribution of the proceeds, and the provision that if the proceeds were not sufficient to pay all the judgments, they then should be paid in the order of their priority, to be thereafter determined by the court; and that the real estate had all been sold and that the net proceeds were insufficient to pay said judgments, and that the judgment in favor of Cooke, Pope & Pope, if permitted to stand, would absorb all the money derived from the sale of real estate, and that there was no other money belonging to the estate, and that there had been no adjudication as to the validity or priority of any of said judgments with reference to each other. The order then found the date of each judgment and the amount due thereon, except the judgments in favor of George P. Wiemers and of Cooke, Pope & Pope, and it found in detail many facts against their validity and that said judgments and the notes upon which they were based were obtained with intent to defraud the creditors and especially the other judgment creditors and the widow. It decreed that the judgment in favor of Cooke, Pope & Pope and the judgment in favor of George P. Wiemers be set aside and declared fraudulent and void as to the other judgment creditors and the widow and that the other judgments and the widow be paid out of the proceeds of the sale of real estate in the order therein prescribed, and that, if any funds remained after such other judgments and the widow were paid, the residue should be paid pro rata upon the judgments of Cooke, Pope & Pope and George F. Wiemers.

In our opinion the foregoing statement of the decree for the sale of the real estate and of the substance of the order of July 11,1912, demonstrates that the latter order related solely to the proceeding to sell real estate to pay debts. The court was there determining the rights of the several parties growing out of their supposed liens upon said real estate and was there deciding how the proceeds arising from the sale of the real estate should be divided among said lienors. The order had nothing to do with the personal estate, except to find that there was none left. Appellants contend that the County Court had no power to set aside a judgment of the Circuit Court as fraudulent but that a suit in chancery must be resorted to for that purpose. Clayton v. Clayton, 250 Ill. 433, holds that, under section 101 of the Administration Act as amended in 1887 (J. & A. 1¡150), such a controversy as this is within the jurisdiction of the County Court in proceedings to sell real estate to pay debts. But if the County Court committed an error in attempting to adjudicate upon that question in distributing the proceeds of the sale of this real estate, yet the appeal to correct that error should have been to the Appellate Court. Appellants contend that the decree of December 10, 1910, found the order of priority of the several judgments and was final and could not be disturbed by the order of July 11,1912. If this were true, it did not give the right of appeal to the Circuit Court to correct the error. After the decree of sale of December 10, 1910, regular orders of continuance of said proceeding to sell real estate to pay debts were not entered. Appellants contend that the statute which continues cases pending in the Circuit Court from term to term without any formal order is not applicable to proceedings to sell real estate to pay debts in the County Court, and that, for want of proper orders of continuance from term to term, the County Court lost jurisdiction to enter the order of July 11, 1912. "We are of opinion that this position is unsound and that the County Court retained jurisdiction of said proceeding to pay debts until the land had all been sold and the proceeds thereof had all been distributed. Said section 101 of the Administration Act (J. & A. H150) provides that the practice in proceedings to sell real estate to pay debts shall be the same as in cases in chancery. We are of opinion that this brings such proceedings within section 21 of the Circuit Court Act (J. & A. Tf 3019), which continues all proceedings not disposed of at the end of the term. But, if this were not so, still this was an effort by the County Court to act in the proceeding to sell real estate to pay debts, and, if it erred in taking such jurisdiction and action, nevertheless the action was in a proceeding to sell real estate to pay debts and such erroneous action could only be corrected by an appeal to the Appellate Court, no freehold being involved. On June 26, 1911, the administrator filed two papers in the County Court in said estate, one of which he called a final account and the other a final report. The final account reported all of the administrator’s receipts and disbursements, including receipts from the sale of real estate and disbursements for costs and attorney fees in the proceeding to sell real estate to pay debts. The final report itemized the receipts of personal property and stated the totals of claims allowed, and gave a long account of valueless personal assets and of the situation of the proceeding to sell real estate to pay debts, .and that the court had not yet determined the priority of said judgments, and it asked that the administrator be allowed to pay the balance in his hands to the clerk of the court for the benefit of the judgment creditors as their priority might thereafter be determined, or that the court would enter an order determining the priority of said judgments and directing the administrator to pay the same, and that he might be directed to pay the widow all the personal property and assets and might be discharged. Appellants contend that in entering the order of July 11, 1912, the court was acting, not in the proceeding to sell real estate to pay debts, but upon those papers filed by the administrator. We cannot concur in this view. The administrator had no power to thus terminate a proceeding to sell real estate to pay debts and such was not the purpose of the papers he filed. The order made no reference to said papers. Cooke, Pope & Pope had had their judgment allowed as an ordinary claim against the estate and were thereby entitled to share in the distribution of the personal estate, if any personal estate had been left to apply upon the seventh class claims. But there is nothing to show that the other judgment creditors had presented their judgments as ordinary claims, and it is manifest that they had not done so.

They had no standing to attack the validity of the judgments of Cooke, Pope & Pope and George F. Wiemers, except in the proceeding to sell real estate to pay debts, and that is where the controversy was tried and determined.

The appellants threw this cause into much confusion by taking a transcript from the County Court of many things which in fact have no bearing upon or relation to the order of July 11, 1912, and by omitting from the transcript many papers which directly related to that order and that proceeding, such as the answers and cross petitions, but when the wheat is separated from the chaff it is entirely clear that the order of July 11, 1912, was in the proceeding to sell real estate, and could not be removed to the Circuit Court by appeal. The order of the Circuit1 Court is affirmed.

Affirmed.

" Mr. Presiding Justice Whitnet, having tried the case in the court below, took no part in this decision.


text:
    Henry A. Pope, Executor, Appellant, v. W. Irving Osborne et al., Appellees.
    Gen. No. 5,781.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 517

      —duty to trespassers. Persons operating railroad trains owe no duty to a trespasser to look out for him and discover his presence in a place of danger, and when he is discovered in a perilous situation the persons running the train owe him no duty except to abstain from wantonly and recklessly injuring him.
    2. Railroads, § 531*—duty to trespassers when seen on the trade. Engineer is not required to stop as soon as he sees a trespaser on the track, but, in the absence of anything to warn him to the contrary, may assume that he will act as a reasonably prudent man and leave the track to avoid being run over.

      Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Henry A. Pope, executor of the estate of Mrs. Ethel P. West, deceased, against W. Irving Osborne and others for the benefit of next of Mn to recover for the wrongful death of deceased caused by being struck by a railroad car operated by defendant while deceased was walking along the railroad track. From a judgment finding the defendants not guilty, plaintiff appeals.
    Paul MacGuffin and Cooke, Pope & Pope, for appellant.
    Bull & Johnson and Charles H. King, for appellees.

      See Illinios Notes Digest, Vois. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

3. Railboads, § 588 —when question for jury whether aot of motorman was wanton or wilful. Where the evidence shows that a motorman running his car saw deceased walking along the track and blew the whistle and rang the gong without attracting attention of deceased but kept on going without slackening speed until within such distance of deceased he would be unable to stop in time, held, that it cannot be held as a matter of law that the act of motorman was not wanton or wilful or in reckless disregard of human life, and the direction of a verdict for defendant, held, error.

4. Costs, § 33*—when executor not personally liable for costs. In an action for wrongful death, a judgment for costs against the executor personally is improper.


text:
    John O’Connor, Executor, Appellant, v. Mrs. Belle Fox Messenger et al., Appellees.
    Gen. No. 5,783.
    1. Assignments, § 36

      —when evidence sufficient to show transfer of title to funds in hank. On bill in equity by a conservator to recover money deposited in bank by ward before becoming insane and withheld by bank because the deposits were claimed by another, evidence held, to show that the ward had transferred the title to the deposits to such person in consideration for services rendered.
    2. Assignments, § 37

      —when possession of pass hook evidence of ownership of deposit. Possession by a person of a depositor’s savings pass book is evidence tending to show that it was delivered to him and that he owns the fund.
    3. Insane persons, § 76

      —necessity of amendment of pleadings in suit hy conservator when ward dies before hearing. On bill by conservator when ward dies testate before the hearing, and such conservator is executor of the will, there should be a supplement or an amendment both to the bill and to the cross-bill setting up the death of the ward and the appointment and qualification of the conservator as executor and that he thereby became the representative of the ward’s personal estate.
    4. Equity, § 242

      —when leave to amend pleadings, not an amendment. The rule at law that leave to amend does net constitute an amendment applies in equity.

      5. Appeal and error, § 1079*—when appellee cannot complain of decree. A bank made a defendant in a bill to recover money deposited with it cannot complain that it is not sufficiently protected by the decree where it failed to file a cross-bill of interpleader and has not assigned cross-errors.
    6. Appeal and error, § 1488*—when errors in admission or exclusion of evidence, harmless. Errors in rulings upon the admission or exclusion of evidence on the hearing of a chancery case are unimportant when there is competent evidence in the record sufficient to support the decree. In such case the presumption is that the chancellor in rendering the decree will only regard that which is legal and competent and will disregard all that is immaterial and incompetent.
    7. Appeal and error, § 1677*—whew failure to amend pleadings, waived. Failure to amend pleadings to show that complainant is made executor is waived where question is not raised in trial court and both parties are at fault.
    8. Appeal and error, § 1078*—necessity of cross-errors. A ruling denying relief prayed in appellee’s cross-bill cannot he considered when no cross-errors assigned.
    Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Opinion modified and rehearing denied October 9, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    C. W. Brown and O ’Donnell, Donovan & Bray, for appellant.
    Benjamin Olin and Robert A. Childs, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

The pleadings disclose that Lydia A. Turner married Christopher C. Robinson in 1852; that he died in 1872, leaving to his widow, Mrs. Lydia A. Robinson, a large estate, which, at the time of her subsequent death, amounted to over $100,000, consisting of the home in Lockport, in Will county, and of quite a number of lots of land in Chicago and in Lockport upon which it is implied that there were buildings which produced an income, and of moneys loaned upon real estate securities; that on December 16, 1902, she deposited $300 in the savings department of the Illinois Trust & Savings Bank of Chicago, Illinois, and said bank then issued to her a depositors’ savings pass book No. 328,976, which book showed said deposit; that on July 6,’ 1903, she deposited an additional sum of $800 which was entered upon said pass book; that on April 18, 1906, $100 additional was so deposited, and on the same day certain other entries were made and papers were signed which authorized her niece, Mrs. Belle Fox Messenger, to draw said moneys; that none of said deposits or the interest thereon have ever been drawn out; that on December 20, 1909, when Mrs. Bobinson was about eighty-three years of age, she was adjudged insane by the County Court of Will County, and that on or about December 31,1909, John O’Connor, who had loaned her money for many years, was appointed conservator of her estate. On April 18, 1910, O’Connor, as such conservator, began this suit by filing a bill in equity against Mrs. Messenger and the Illinois Trust & Savings Bank (to which bill he did not make Mrs. Bobinson a party), in which he alleged the issuance of said pass book to Mrs. Bobinson, the deposit by her of said three sums of money in said bank, and that Mrs. Messenger had taken possession of said pass book and refused to deliver it to the conservator, and that she claims that, by way of gift, equitable assignment or otherwise, she is the owner of said several deposits and the accumulated interest thereon, and has the right to draw said fund and appropriate it to her individual use; and that she has applied to said bank for the payment thereof to her. The bill alleged that Mrs. Messenger was not the owner of any part of said fund, had no valid title thereto, and no right to the payment thereof from said bank, and that by reason of the claim set up by Mrs. Messenger the bank refused to pay the conservator the money. The bill asked a decree that Mrs. Messenger had no interest in the deposits or the interest thereon, and that the "bank pay the same to the conservator. Mrs. Messenger filed an answer and a cross-bill, in each of which she alleged with much fullness of detail that Miss Turner lived many years with the father and mother of Mrs. Messenger) when the latter was a child in Ohio, and afterwards removed to "Will county and married Mr. Eobinson, and after-wards invited her said niece, Belle Fox (now Messenger), to come and live with her at Lockport, and that she did come and live there several years, that Mrs. Eobinson was childless and had a large estate, and that, after cross complainant had resided as a member of Mrs. Eobinson’s family from time to time for many years, on or about March 16,1889, when Mrs. Eobinson was sixty-three years of age, an arrangement was made between them that her said niece should come and live with Mrs. Eobinson at her home in Lockport for the rest of her life, and should serve Mrs. Eobinson by being her companion and caring for her personal wants and for her household and property affairs and interests as might be needed and required, and that for such services and care Mrs. Messenger should be adequately compensated, and should have a permanent home in the dwelling house as long as she lived, and that Mrs. Eobinson should board and lodge Mrs. Messenger, provide her with means to procure proper and suitable clothing for her personal use, and provide her in addition, during the Continuance of such service, $200 per annum for her personal use, to be her own to do with as she should please, and besides that Mrs. Eobinson would otherwise help and do for Mrs. Messenger; and that, pursuant to the agreement then made, Mrs. Messenger did make her permanent home with Mrs. Eobinson in said dwelling house, and at the time of the commencement of this litigation had so served Mrs. Eobinson for over twenty-one years and had cared for Mrs. Eobinson’s personal health, household affairs and property interests, and that Mrs. Messenger’s services were of great value to Mrs. Bobinson ; and that, up to the adjudication of insanity, Mrs. Bobinson had provided Mrs. Messenger with lodging, board and household privileges, and had from time to time furnished her with money, but not sufficient to amount to the reasonable expense of her wearing apparel, and that the $200 per annum was left unpaid. The answer and the cross-bill each also set up the issuance of this pass book and the deposits by Mrs. Bobinson, except that it averred that the last deposit of $100 was made by Mrs. Messenger with money which was theretofore her own; and said answer and said cross-bill each set up the facts hereinafter mentioned about the changes made on April 18, 1906, and averred that it was intended by Mrs. Bobinson and by Mrs. Messenger that the acts then performed should transfer to and vest in Mrs. Messenger, the title to and ownership of said deposits of money and interest thereon, and that this was intended by Mrs. Bobinson and Mrs. Messenger to apply on the compensation to be paid by Mrs. Bobinson to Mrs. Messenger for services, and to be in addition to the said sum of $200 per year promised as aforesaid, and was intended by both to be an investment for the benefit of Mrs. Messenger. Mrs. Messenger therein averred that she left the money in the bank as a small investment for her future wants, and that if Mrs. Bobinson had remained sane her agreements would have been carried out, but that the conservator had notified the bank not to pay Mrs. Messenger any part of said deposit. The cross-bill, to which O’Connor and Mrs. Bobinson and the bank were made defendants, prayed that Mrs. Messenger be decreed to be the owner of said pass book and of said deposit and that the bank be decreed to pay the same to her with interest; and it also prayed that the conservator perform the other undertakings and promises of Mrs. Bobinson in favor of Mrs. Messenger, and pay and discharge the indebtedness due from Mrs. Robinson to Mrs. Messenger, and remaining unpaid, for services so rendered. The cross-bill was answered by the conservator and its chief material allegations were denied. The bank answered the bill and the cross-bill, admitting that it held the funds and asking that it be protected in paying them out. There was a hearing and a decree dismissing the original bill for want of equity, granting the prayer of the cross-bill as to the deposit in the bank, and denying the other relief prayed for in the cross-bill on the ground that it was not germane to the matters properly before the court, but without prejudice to the cross complainant. Prior to this hearing, Mrs. Robinson had died, testate, and O’Connor was the executor of her will, and had been ordered substituted as complainant in his capacity as executor. As such executor, he appeals from said decree.

In one respect the proceedings seem to us irrgular. Under the ease stated in the bill, O’Connor’s right to recover the personal estate of Mrs. Robinson was based upon his appointment as conservator of the estate. Her death terminated that right. So, too, he was defendant in the cross-bill because, as conservator, he represented her personal estate, and at her death he ceased to represent it. We conceive that there should have been a supplement or an amendment, both to the bill and to the cross-bill, setting up the death of Mrs. Robinson and the appointment and qualification of O’Connor as her executor and that he thereby became the representative of her personal estate. O’Connor did suggest the death of Mrs. Robinson and obtained an order that he, as executor of Mrs. Robinson’s will, be substituted as complainant in the bill of complaint. But no amendment was in fact made. At law, leave to amend does not constitute an amendment. Wisconsin Cent. R. Co. v. Wieczorek, 151 Ill. 579; Sinsheimer v. Skinner Mfg. Co., 165 Ill. 116; West Chicago St. R. Co. v. McCollum, 169 Ill. 240; Landt v. McCullough, 206 Ill. 214, 223. We conceive that the same rule must apply in equity. But the question was not raised in this court, and both the complainant and the cross complainant are equally at fault, and each has argued the case here as if O’Connor’s position as executor and representative of the personal estate had been prop-' erly pleaded, and we conclude the defect is waived.

Mrs. Messenger became a witness in her own behalf. Numerous objections were made to her testimony by counsel for the executor. Some of these objections were sustained, but as to most of them she was permitted to answer subject to objection or the ruling on the objection was reserved, and a motion to exclude certain parts of her testimony was made and the ruling on that motion was also reserved, and no ruling thereon was afterwards requested or made. It is contended that the court erred in not ruling upon these objections, and that, where the court did not rule, it must be assumed that the court considered the testimony as competent, and that this was reversible error. Mrs. Messenger was not competent as a general witness in her own behalf. She was competent as to several matters. O’Connor testified to conversations he had with her, both before and after he qualified as conservator, and she was competent to testify to the same conversations. Mrs. Messenger took the deposition of John W. Knight, assistant cashier of the bank and in charge of its savings department, and on cross-examination the conservator proved by him a conversation with Mrs. Messenger in which he testified that Mrs. Messenger told him that Mrs. Bobinson had given her this money. At the hearing the executor offered this deposition in evidence in his own behalf, evidently because his counsel intended to argue that if this pass book and fund was a gift to Mrs. Messenger she could not recover it under the allegations of her answer and her cross-bill because of variance. This made the deposition complainant’s proof, and authorized Mrs. Messenger to testify, giving her version of that conversation. But, in some respects, Mrs. Messenger gave testimony which was not competent, in answer to questions as to which the ruling was reserved, and upon which no ruling was subsequently made. By a long series of decisions it is held that errors which may have been committed in rulings upon the admission or exclusion of evidence on the hearing of a chancery case are unimportant, if there is competent evidence in the record sufficient to support the decree; and that the presumption is that the chancellor, in rendering a decree, will only regard that which is legal and competent and will disregard all that is immaterial and incompetent; and that if the competent evidence sustains the decree, it must be affirmed, whether the chancellor was right or wrong in his views as to the competency of the evidence at the hearing. Riehl v. Riehl, 247 Ill. 475; Kennard v. Curran, 239 Ill. 129; Oswald v. Nehls, 233 Ill. 438; Shedd v. Seefeld, 230 Ill. 118; Heintz v. Dennis, 216 Ill. 487; Griffeth v. Griffeth, 162 Ill. 368; Goelz v. Goelz, 157 Ill. 40. No error appears in the ruling or lack of ruling by the court upon the evidence of Mrs. Messenger.

The cross-bill alleged an indebtedness from Mrs. Bobinson to Mrs. Messenger for services for many years and asked an allowance therefor, and there was proof of the value of said services, but relief was denied on every subject except the ownership of the fund in the bank in Chicago, and no cross-errors have been assigned, and therefore those matters, and the evidence concerning them, are not before us for consideration, except as they may throw light upon the transactions relating to the pass book.

There was much proof introduced by Mrs. Messenger, by people who were at the house frequently and by others who were there occasionally and by relatives who visited there from time to time, to the effect that for many years Mrs. Messenger acted as the housekeeper and really managed the house in the old age of Mrs. Bohinson, that Mrs. Messenger often, when they could not get competent help, did all the housework; that she attended to the furnace in the basement; that she nursed Mrs. Bobinson when ill; that she acted as her agent and was frequently sent away by Mrs. Bobinson on business errands; that Mrs. Messenger attended to the repairing of the home and was seen house cleaning and that Mrs. Bobinson said that Mrs. Messenger was her housekeeper, and acted as her agent in her business affairs, and that she could not keep house without Mrs. Messenger. There was no contradiction to this proof, and it established that Mrs. Messenger rendered valuable services for Mrs. Bobinson during a long period of time and up to the time when Mrs. Bobinson was adjudged insane and a conservator was appointed, when apparently a controversy arose between Mrs. Messenger and a Mrs. Bartlett, whom Mrs. Bobinson had raised from the time when she was a little girl until she married and moved away, as to the control of the person of Mrs. Bobinson, in which Mrs. Bartlett seems to have been successful, and Mrs. Bobinson was taken to the home of Mrs. Bartlett in Cook county and died there on or about October 23, 1911. There was evidence or statements by Mrs. Bobinson to the different witnesses that she was going to do well by Mrs. Messenger; that she had already done something for her; that she would see that Mrs. Messenger was paid for this; that she could not expect Mrs. Messenger to give up her home and live with Mrs. Bobinson without some compensation; and that she gave her $200, or more than $200, each year to have and to hold for her own use to do as she pleased with, and that she would provide well for her. When all this evidence is considered, it would seem that it is clear that compensation was intended between Mrs. Bobinson and Mrs. Messenger, and that this intention covered many of the later years of Mrs. Bobinson’s life. This proof distinguishes this case from those relied upon by appellant, and brings it within the principles applied in Heffron v. Brown, 155 Ill. 322, and Neish v. Gannon, 198 Ill. 219. The pass book was issued on December 16, 1902, when Mrs. Robinson deposited $300 and signed the card agreeing to the bylaws and regulations of the bank. The second deposit was $800 on July 6, 1903. Under the date of April 18, 1906, a second card, known as a blue card, was signed by Mrs. Messenger, reading as follows, and being the same language used in the card signed by Mrs. Robinson, when she first opened the account: “I hereby agree to all the by-laws and regulations of the Illinois Trust & Savings Bank, as the same appear in the savings pass book this day issued to me by said bank, and I sign this card for the purpose of evidencing my assent thereto, with the same effect as though I had signed the signature book containing" said by-laws.” On the back of said blue card was the following, dated the same day and signed by Mrs. Robinson: “Illinois Trust & Savings Bank, Chicago. I hereby authorize Mrs. Belle F. Messenger to sign receipts or orders for payment on my savings account with you No. 328,976.” Mrs. Messenger testified that Mrs. Robinson and herself were present on that day, and that after these papers were signed Mrs. Robinson delivered the book to her to keep as her own; but she was not competent to testify on that subject. It appears, however, by the evidence of Knight, that the writing on both sides of this blue card, except the signatures, is in the hand of a certain young lady clerk of the bank. It is a fair inference from all the circumstances shown by the competent evidence that both sides of the blue card were filled up and were signed at the same time and in the bank, and that both Mrs. Robinson and Mrs. Messenger were present. The paper so signed by Mrs. Messenger speaks of the pass book as having been that day issued to her by the bank. It is obvious that any one of several things may have been intended by Mrs. Robinson and by Mrs. Messenger when the transaction was put in this form. It may have been intended to enable Mrs. Messenger to draw money as the agent of Mrs. Robinson at times when Mrs. Robinson was unable to go to Chicago to draw the money herself. It may have been intended merely to enable Mrs. Messenger to draw money for her own use if she néeded to and desired it. It may have been intended to transfer the entire fund and the title thereto to Mrs. Messenger, but leaving with Mrs. Eobinson the privilege of drawing the money if she desired. This proof is supplemented by two things: First, Mrs. Messenger was in possession of this pass book when this suit was begun, and had asserted title to it ever since the conservator was appointed, and this possession was evidence tending to show that it had been duly delivered to her and that she owned it. Ransom v. Jones, 2 Ill. (1 Scam.) 291; Curtiss v. Martin, 20 Ill. 557; Reed v. Douthit, 62 Ill. 348; Griffin v. Griffin, 125 Ill. 438; Martin v. Martin, 174 Ill. 371; Dunlop v. Lamb, 182 Ill. 319. While she may have taken it from her aunt without right or authority, or may have held it as her aunt’s agent and wrongfully appropriated it as her own when her aunt became insane, yet that will not be presumed in the absence of any evidence, and especially not when Mrs. Eobinson had caused the account to be placed in such a condition that Mrs. Messenger could draw it all-at any time, without making any claim of ownership, and Mrs. Eobinson did this at a time when she was in full possession of her mental faculties. If Mrs. Eobinson intended by what was done with the pass book, either to transfer the fund to Mrs. Messenger as partial compensation for her services or as a gift to her, the effect would be a complete transfer of the deposit. Martin v. Martin, 174 Ill. 371. We had occasion to discuss what amounts to a transfer of such a fund in Moore v. Brandenburg, 179 Ill. App. 253, in which case the Supreme Court denied a certiorari at its June Term, 1913. Second, James Fox, a brother of Mrs. Messenger, who lives in Ashtabula, Ohio, testified that he visited his aunt, Mrs. Robinson, at her home, in January and February, 1909, and that on one occasion Muring that visit, Mrs. Robinson said to Mrs. Messenger: “Now James is here, I want you to go down to the city and draw that money out of the bank and use it as you see fit. It is yours to do as you have a mind to do with;” and further said that she wanted the witness, James Fox, to know that the money was there in that bank for his sister to use, to do with as she was a mind to; and the witness further testified that the bank referred to was the Illinois Trust & Savings Bank. On cross-examination he gave the language of Mrs. Robinson as follows: “Now James is here, you go down to the city, to the Illinois Trust Bank, and draw that money out and just do with it as you see fit. It is yours to do as you are a mind to with;” and that she further said that she wanted the witness to know that the money was in the bank; and that Mrs. Messenger replied that she did not want to use the money, but wanted to save it. This testimony obviously referred to the money evidenced by this pass book, and is uncontradicted, except so far as it may have been weakened by the cross-examination. If the chancellor believed the witness, it is clear that this fund had been transferred by Mrs. Robinson to Mrs. Messenger.

The executor contends that inasmuch as the answer and cross-bill set up that this pass book and fund was delivered to Mrs. Messenger to apply upon her compensation for her services, under a contract made on or about a certain date in 1889, and as no such express contract was proved, and there was proof of language by Mrs. Messenger tending to indicate that it was a gift from Mrs. Robinson, therefore the decree cannot stand. The original bill by O’Connor raised the question whether Mrs. Messenger was entitled to the fund either by gift, equitable assignment or otherwise, and denied that she had any such title, and if the pass book and the fund was a mere gift the original bill was properly dismissed.

If Mrs. Bobinson had been restored to the right use of her mental faculties, Mrs. Messenger would have been a competent witness, and it is fair to assume that she would have testified to such a contract as the cross-bill alleged, but while Mrs. Bobinson was not of sound mind, Mrs. Messenger could not so testify, and when Mrs. Bobinson died the capacity of Mrs. Messenger to testify to such a contract was at an end. When the allegation was made in the pleading, it was possible that Mrs. Messenger might yet become a competent witness by the restoration of Mrs. Bobinson’s mental faculties. We do not think that because the exigencies of Mrs. Bobinson’s insanity and death destroyed Mrs. Messenger’s capacity to testify to the contract and she apparently had no other means of proving it by a witness testifying from positive knowledge, therefore she should fail in this suit. The proof is that she did render valuable services through a long series of years; that Mrs. Bobinson intended to compensate her and had been compensating her, and took such steps as to authorize Mrs. Messenger to draw this money, and that she intended Mrs. Messenger should draw it and wished her to draw it; and we think it fair to assume from all the circumstances that she placed Mrs. Messenger in possession of the pass book, evidencing the fund; and the proof is that Mrs. Bobinson directed Mrs. Messenger to draw the money for Mrs. Messenger’s own use. While it is true that there is testimony that Mrs. Messenger said her aunt had given the pass book to her, yet Mrs. Messenger denied that she used that word; but if she did, it is not to be presumed that she was specially choice in the use of language, and she might not distinguish between handing her the pass book as her own and giving it to her as her own, and might not distinguish between handing it to her as compensation and giving it to her as compensation. Indeed, O’Connor in his testimony use the word “give” in the sense of “hand over” or “deliver.” While the cross-bill sets up an express contract to compensate for services, which contract Mrs. Messenger did not prove by positive testimony, it also sets up that Mrs. Messenger owns the pass book and the fund, and we conclude that the allegations on that subject, and the proofs of the facts above stated, are sufficient to support the decree.

The bank asserts that it is not sufficiently protected by the decree. It could have filed a cross-bill of inter-pleader and asked and obtained an order to pay the money into court. It preferred the use of the fund. It has not assigned cross-errors.

It is in no position to complain of the decree.

The decree is therefore affirmed.

Affirmed.


text:
    L. C. Smith & Bros. Typewriter Company, Appellee, v. Herbert D. Blakemore, Appellant.
    Gen. No. 5,792.
    1. Trover, § 30

      —authority to make demand. A demand made by a person at the request of the plaintiff’s attorney.is sufficient.
    • 2. Trover, § 32*—when bill of sale by a foreign corporation cannot be questioned. Person in possession of property sold by a foreign corporation to another cannot, in an action of trover by the Purchaser be heard to refuse to turn" over the property to the purchaser on the ground that the foreign corporation has not complied with the laws of this State.
    3. Sales, § 16

      —description of property. Bill of sale of typewriters giving the names and the number of each machine separately and stating that they are in the possession of a third party of a certain city and State, held, to sufficiently describe the property.
    4. Sales, § 20

      —where hill of sale properly executed hy a corporation. Bill of sale by a corporation reciting that the company “has caused these presents to be signed by its president and its corporate seal to be affixed and attested by its secretary” and signed by the name of the president without designating him as president, and signed by the secretary, as secretary, with the corporate seal attached, held, sufficiently executed.
    5. Sales, § 14

      —when title to property in the possession of a third party may he conveyed. Owner of personal property may convey title thereof to another when the property is in the possession of a third party who does not claim to own it.
    6. Appeal and error, § 812

      —when arguments of counsel should not he included in hill of exceptions. Lengthy arguments of counsel have no proper place in the bill of exceptions, unless and .only so far as error is to be assigned upon or grows out of such remarks.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robebt W. Olmsted, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    J. T. & S. R. Kenworthy for appellant.
    Adair Pleasants, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

This record discloses that there are two corporations named L. C. Smith & Bros. Typewriter Company, one organized under the laws of New York and hereinafter called the New York Company, and the other organized under the laws of Illinois and hereinafter called the Illinois Company. On September 3, 1907, the Illinois Company began this suit in replevin in the Bock Island Circuit Court against Herbert D. Blakemore for four L. C. Smith & Bros, typewriters, Model No. 1 Nos. 1748, 1771, 2451, and 2470. The officer did not obtain the goods, and the action was turned into trover, and there were pleas of non cepit, non detinet, not guilty, property in defendant and not in plaintiff and property in the New York Company and not in plaintiff, on all which pleas issues were joined, and there was a verdict and a judgment for plaintiff for $328.43, from which defendant below prosecutes this appeal.

The proofs show that Blakemore was a stenographer and official reporter in Bock Island; that A. S. Hall was an agent for the New York Company at Davenport, Iowa; that Blakemore had two Densmore typewriters and wished to get rid of them and to get two others in their places; that Hall interested Blakemore in the typewriters made by the New York Company and took Blakemore’s order for two such machines, for which special type was to be made, and accepted upon the order his two Densmore machines at $32.50 each, and agreed to have the company loan him two old machines until the order could be filled; that Hall shipped the two Densmores away and delivered to Blake more two old 'Smith machines for temporary use, and forwarded the order for the new machines; that Blakemore soon thereafter became dissatisfied and sent a cancellation of the order to the New York Company and repeatedly persisted in the cancellation and has never claimed to own any of the machines and has never paid anything thereon. This transaction occurred in December, 1906. The new machines were forwarded to and delivered at the office of Blakemore, and at the time of this trial in the court below in December, 1912, he had disposed of two of the machines and had the other two in his possession. At first the New York Company told him they had disposed of the Densmore machines and could not return them and sought to induce or compel him to pay. After-wards they obtained the Densmore machines, abandoned their efforts to collect, acquiesced in his cancellation and sent on the Densmore machines. Hall testified that before the commencement of this suit he went to Blakemore’s office, carrying one of the Densmores and with an attendant carrying the other, and that Blakemore refused to receive them. He did not state what he then did with the machines, but testified that he afterwards saw the boxes which contained them in Blakemore’s office. Blakemore denied that the Dens-more machines were tendered to him at or before the date named by Hall, but he did not state that they never were tendered or that he never received them. The jury seem to have believed Hall and we think we may assume that Blakemore either has those machines or that they are where he can get them if he wants them. On a number of details the evidence of Hall and of Blakemore is in conflict, and the jury and the trial judge have believed Hall, and we do not feel authorized to disturb their conclusions in such matters of conflict. The New York Company afterwards sold the machines to the Illinois Company, and the latter afterwards instituted this suit after two demands for the possession of the machines. Appellant claims that there was no sufficient demand; that the hill of sale to the Hlinois Company was insufficiently executed; that said bill of sale did not pass the title to the Illinois Company because the property was in the possession of appellant; that the New York Company had not complied with the laws of Illinois and could not recover the machines in the courts of this State; and that the hill of sale is invalid because its object was to evade the Illinois laws. It was also argued that there were various errors in rulings on the evidence and the instructions.

The first demand was made by an undoubted agent of the Hlinois Company. The second demand was made by Hall and it is claimed that he was the agent of the New York Company only, and therefore the demand was insufficient. Hall testified that he was the agent of the Illinois Company from the time of its inception, and also that he made this demand at the request of the attorney for the plaintiff. If he had no other authority, the request of plaintiff’s attorney was sufficient.

In the bill of sale the New York Company is named as the one that is selling and transferring the title, and it recites that L. C. Smith & Bros. Typewriter Company has caused these presents to be signed by its president and its corporate seal to be affixed and attested by its secretary. It is signed “L. C. Smith,” without designating him as president. It also bears the attestation of M. C. Smith, Secretary,” and has the corporate seal of the New York Company attached. We hold that it was sufficiently executed. It is argued that it does not sufficiently describe the property. It not only names each machine separately but also gives the number of each separately, and then further says: “Said property being in the possession of H. D. Blake-more of Bock Island, Illinois.” We hold the bill of sale sufficient.

Appellant contends that the New York Company could not transfer the title to this property to the Illinois Company because the machines were in the possession of appellant, and relies upon McGoon v. Ankeny, 11 Ill. 558, and O’Keefe v. Kellogg, 15 Ill. 347, to sustain that contention. What is there held is that the owner of personal property cannot convey the title thereof to another when the property is in the adverse possession of a third party who claims to own it. Appellant was in possession of this property, but he did not claim to own it, but claimed that he had can-celled his order for sufficient cause before the new machines reached him, and he has persisted in repudiating any claim that he had bought the property. Under these circumstances, the New York Company had the power to sell those machines to the Illinois Company, and the distinction is pointed out in Hughes v. Stubblefield, 21 Ill. App. 216, and National Bank of Chambersburg v. Buckeye Iron & Brass Works, 46 Ill. App. 526, and in the authorities there cited.

We are of opinion that it was immaterial whether the New York Company had complied with the laws of this State or not, and that it could sell these typewriters to the Illinois Company regardless thereof, and that appellant could not be heard to refuse to turn over the machines on any such ground. Appellee had a meritorious cause of action and appellant had no defense. We find no errors in rulings on the evidence or instructions, which would require us to reverse the judgment, as the proof warranted the jury in finding the value of the property as they did.

There were but three witnesses, and one of those only on a matter of identification of papers, and yet a record of over two hundred and eighty-eight pages is presented. The bill of exceptions contains at length many arguments made by the attorney for the appellant. These speeches had no proper place in the bill of exceptions, unless and only so far as error was to be assigned upon or grew out of said remarks. People v. Chytraus, 183 Ill. 190; People v. Jones, 103 Ill. App. 189. They are also presented at length in the very voluminous abstract. If the trial judge had struck them out of the bill of exceptions, the record and the abstract would have been much briefer and our labors much less.

The judgment is affirmed.

Affirmed.


text:
    A. S. Hall, Appellee, v. Herbert D. Blakemore, Appellant.
    Gen. No. 5,791.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Rock Island, county; the Hon. Robert W. Olmsted, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Replevin by A. S. Hall against Herbert D. Blake-more to recover possession of a typewriter alleged to have been loaned defendant by plaintiff. The typewriter not having been found, the action was changed to trover. From a judgment in favor of plaintiff for forty dollars, defendant appeals.
    Abstract of the Decision.
    1. Troves, § 39

      —proof of plaintiff’s ownership. Plaintiff sufficiently proves his ownership by showing that he remitted the pricq thereof to the original owner, in the absence of proof that remittance had been returned or the transaction repudiated.
    2. Troves, § 38

      —when affidavit in former replevin^suit not competent. An affidavit for replevin in a former suit by a different party not competent on issue of ownership.
    3. Trover, § 38

      —when evidence of a prior suit inadmissible. Evidence offered by defendant of a prior replevin suit brought against him by a different party for different property, held, inadmissible.
    4. Appeal and error, § 1506

      —when exclusion of question on cross-examination, not reversible error. Refusal of court to allow certain questions to be answered by a witness on cross-examination cannot be complained of where the party afterwards has opportunity to question the witness with reference thereto on direct examination and fails to do so.
    J. T. & S. R. Kenworthy, for appellant.
    Adair Pleasants, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    C. A. Anderson, Appellee, v. H. P. Crane, Appellant.
    Gen. No. 5,794.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Account stated, § 5

      —effect of retention of statement rendered. Pact an account is rendered and retained without objection, after the expiration of a reasonable time within which to object to the correctness of the charges, tends to establish an admission by debtor of the correctness of the bill.
    2. Evidence, § 259

      —when totals instead, of items competent to prove account. A book containing totals, held competent evidence' to prove an account where the itemized account has been destroyed by fire.
    3. Appeal and error, § 472

      —what necessary to preserve objection to conduct of trial judge. Objection to conduct of trial judge in asking questions cannot be first urged on appeal.
    4. Appeal and error, § 511

      —when general objection to secondary evidence insufficient. General objection insufficient to reach improper admission of oral evidence to establish the contents of a statement of account sent to the debtor, where failure to notify debtor to produce the original is relied on to show such evidence was incompetent.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by C. A. Anderson against H. P. Crane to recover for labor performed for defendant by plaintiff’s employe. From a judgment in favor of plaintiff, defendant appeals.
    Charles B. Hazlehurst and George D. Carbary, for appellant.
    Harry G. Hempstead, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Peter Schoenhofen Brewing Company, Appellee, v. Daniel E. Pugh, Appellant.
    Gen. No. 5,802.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Forcible entry and detainee, § 24

      —when tenant cannot question landlord’s title. In. forcible detainer brought by landlord against tenant, title of the landlord cannot be questioned or investigated and tenant cannot show that landlord’s title has terminated before suit brought.
    2. Landlord and tenant, § 148

      —what essential to enable tenant to dispute his landlord’s title. Where a person enters under another, and thereby admits his title, he must restore the possession to the person from whom he received it before he can set up title in himself or in another.
    3. Landlord and tenant, § 142

      —when tenant cannot show landlord’s title has terminated. The exception to the general rule that tenant cannot dispute his landlord’s title, which permits tenant to show that landlord’s title has terminated, does not apply in forcible detainer proceedings.
    Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Rehearing denied October 9, 1913.
    Statement of the Case.
    Action by Peter Sehoenhofen Brewing Company against Daniel E. Pugh in forcible detainer to recover possession of premises leased to defendant by the plaintiff. From a judgment in favor of plaintiff, defendant appeals.
    George J. Jochem, for appellant.
    Covey, Campbell & Covey, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Elgin City Banking Company et al. (L. H. Grange, Appellant), v. Hugh E. Hancock et al., Appellees.
    Gen. No. 5,806.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mortgages, § 607

      —Who entitled to possession dwring period of redemption. The possession of the premises and rents, issues and profits thereof after a sale on foreclosure and until the time of redemption expires belong to the owner of the equity of redemption.
    2. Mortgages, § 514

      —object of a receiver for rents in foreclosure proceeding. The sole object of a receiver after foreclosure sale is to apply the rents to the payment of any deficiency left after the sale, if the mortgage or the trust deed creates a lien upon such rents.
    3. Mortgages, § 519

      —when necessity for a receiver in foreclosure proceeding ceases. Where the foreclosure sale satisfies the debt and costs, no further occasion for a receiver remains.
    Appeal from the Circuit Court of DuPage county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Bill by Elgin City Banking Company and others against Hugh E. Hancock and others to foreclose a trust deed. From an order entered after foreclosure sale awarding rents collected by the receiver to owners of the equity of redemption, L. H. Grange, one of the complainants, appeals.
    L. H. Grange, pro se.

    S. L. Rathje, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number,

   Mr. Justice Dibell

delivered the opinion of the court.

4. Mortgages, § 546 —who entitled to rents collected by receiver in foreclosure proceedings. Rents collected by a receiver and not needed to pay any deficiency after foreclosure sale belong exclusively to the owner of the equity of redemption though the mortgage or trust deed contains a provision that the rents or income accruing during the period of redemption shall go to the person entitled to a deed under the certificate of sale.

5. Mortgages, § 546 —when receiver cannot purchase outstanding title and claim rents. In a proceeding to foreclose a trust deed, a person occupying the position of receiver and agent for the owners cannot buy an outstanding title and set up a claim for rents as against his principals.

6. Mortgages, § 662 —who not entitled to solicitor’s fees. Trustee and complainant acting as solicitor in proceeding to foreclose trust deed, not entitled to an allowance for solicitor’s fees.

7. Landlord and tenant, § 123 —when conveyance of fee passes rents. Sale of the fee carries with it rents to fall due or that may subsequently accrue under any lease, unless reserved, but not rents already accrued.


text:
    Raymond W. Stevens, Appellee, v. Wilson Carey, Appellant.
    Gen. No. 5,807.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by Raymond W. Stevens against "William Carey in forcible detainer to recover possession of premises orally leased to defendant by plaintiff. From a judgment in favor of plaintiff, defendant appeals.
    Leslie A. Needham, John B. Dandridge and Charles H. King, for appellant.
    Allen G. Milles and J. D. Pope, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Forcible entry and detainer, § 94 —when judgment ihay be amended at subsequent term. Judgment may be amended to conform to the complaint at a- subsequent term.

2. Forcible entry and detainer, § 60 —when complaint sufficiently describes the premises. Complaint describing the premises as “a house occupied by, defendant, and such premises as are appurtenant thereto, located on the north one-third (except that part lying east of the road) of the south half, etc.,” held a sufficient description. —

3. Landlord and tenant, § 479 —notice to quit. Under an oral lease providing that tenant would quit at any time upon receiving thirty days’ notice, a notice to quit is not insufficient because served on the first day of the month.


text:
    L. R. Green, Appellant, v. Fred E. Streitmatter, Appellee.
    Gen. No. 5,810.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Statement of the Case.
    Action by L. B. Green against Fred E. Streitmatter to recover damages sustained by plaintiff resulting from the alleged negligence of defendant in driving his automobile so as to collide with a horse plaintiff was driving on the highway. From a judgment in favor of defendant for costs, plaintiff appeals.
    John B. King, for appellant.
    Dailey & Miller, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Automobiles and garages, § 3 —when evidence does not establish liability for collision. In an action for injuries sustained by the driver of a horse and surrey resulting from an automobile colliding with plaintiff’s horse, held that there was evidence that plaintiff was guilty of contributory negligence and that the verdict for defendant was sustained by the evidence.

2. Instructions, § 114 —conformity with issues. Instructions on issues not submitted by the declaration may be properly' refused.

3. Negligence, § 208 —when instruction on contributory negligence may be given. Instruction on question whether appellant was guilty of contributory negligence may be given notwithstanding the declaration contained no such averment.

4. Appeal and error, § 1566 —when refusal of instruction on measure of damages, harmless. Refusal of instruction on the measure of damages immaterial when the verdict was against appellant.

5. Appeal and error, § 581*—exception to overruling of motion for new trial unnecessary. Under the Practice Act, § 81, as amended by Act of 1911, J. & A. jf 8618, an exception’ to the overruling of a motion for a new trial is unnecessary and need not be contained in the bill of exceptions.


text:
    William D. Ackemann et al., Defendants in Error, v. John H. Stickling et al., Plaintiffs in Error.
    Gen. No. 5,815.
    1. Vendor and purchaser, § 40*—when owner bound by representations of agent. An owner who by his conduct knowingly leads his agent to represent to the purchaser that the description in the abstract furnished covered the property to be sold, held bound by such representations.
    2. Principal and agent, § 119*—when principal bound by representations of agent. An attorney, furnished by owner with abstracts of title to the property to be sold, and told by the owner that the description covers the property, is sufficiently the agent of the owner' to convey such information to the purchaser, and the owner is bound by such repetition of the statement to the purchaser.

      Error to the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed August 2, 1913.
    Walter E. Haly and G. R. Beverly, for plaintiffs in error.
    Shopen & Paulson, for defendants in error.
   Mr. Justice Dibell

delivered the opinion of the court.

Under date of January 28, 1911, John H. Stickling executed the following instrument:

“I, the undersigned, hereby agree to sell the property now owned by me and located at Nos. 160 and 162 Milwaukee Street in the City of Elgin, Kane County, Illinois, and being the Stone Building occupied by the Elgin Fruit and Produce Company and the cement block store building occupied by LaPook & Son, for the sum of twelve thousand ($12,000) Dollars; and out of said amount agree to pay the ordinary expenses of transferring, and also the sum of two hundred ($200) Dollars as commission for the closing of the deal. This said agreement however, to terminate on February 1st, 1911, if not accepted by any prospective purchaser on or before such date. After paying mortgage on. above property, surplus to be divided pro rata among all creditors” and delivered the same tp Arthur L. Paulson, of Shopen & Paulson, attorneys, who delivered the same to William Crote, president of a bank in Elgin; and Stickling testified that he intended thereby to authorize Giróte to make the sale therein mentioned. William D. Ackemann agreed to buy the premises therein described at the price therein named. Paulson obtained from Stickling abstracts of title which described the property, known as 160 and 162 Milwaukee street, by its legal description, and prepared a contract describing the premises in that manner, which was signed by 'Stickling and wife and afterwards by Ackemann, and Ackemann paid to Paulson one thousand dollars upon the contract. Shortly thereafter Paulson learned that the stone building described in said original memorandum not only covered the property known as 160 Milwaukee street, but also extended eight feet over upon land owned by a railroad company.

Ackemann then repudiated the contract on that account and demanded his one thousand dollars back from Paulson, and Paulson paid it to him. Stickling then sued Paulson at law to recover said one thousand dollars. Ackemann and Shopen and Paulson then filed a bill in equity against Stickling and wife to cancel said contract and to enjoin the prosecution of said suit at law. After answer, the master, pursuant to a reference, took and reported the proofs and his conclusions and, after exceptions thereto were overruled, the court granted complainants a decree, from which Sticking and wife prosecute this writ of error.

The contract only bounded and described that portion of the two stores which was also described as Nos. 160 and 162 Milwaukee street. It did not include that part of the stone building which projected eight feet over upon the railroad ground. Stickling knew that fact and was paying rent to the railroad company for the use of said eight feet. Paulson, Giróte and Ackemann did not know that any part of said building rested on land not owned by Stickling. Stickling was indebted to the bank of which Giróte was president and was also indebted to various other persons represented by Shopen and Paulson, and Paulson had been trying to induce Stickling to sell this real estate and pay these debts. After the premises had been orally sold to Ackemann, Paulson asked Stickling for the abstracts in order to prepare a written contract and also that the title might be examined. Stickling delivered to him, the abstract of one lot, and told bim where to get the other and Paulson procured it. Paul-son testified that he then asked Stickling if the descriptions of the premises in the abstracts covered the premises described in the original memorandum, and that Stickling' told him that they did. Paulson then prepared the contract with only these descriptions in it, and procured it to be signed by Stickling and wife. Paulson then."went with the contract to Grote and Ackemann, and Paulson started to read the contract. When he reached the descriptions, the proof shows that Ackemann said that those descriptions did not mean anything to him, and Grote asked Paul-son if that was the legal description for the two stores and Paulson replied that Stickling told him that it covered those two stores and thereupon Ackemann and Grote said that it was not necessary to read the descriptions, and Paulson jlien omitted the descriptions, and after the rest of the contract was read Ackemann signed it. Stickling testified that he did not tell Paulson that those"•'descriptions covered those two stores. It is also argued iñ his behalf that neither Paulson nor Grote were his agents and that they had no right to make sucfi. a statement to Ackemann and that if Ackemann had read or heard the description in the contract, as prepared, he could not fail to note that it did not cover all of the stone building, since Ackemann was in business in a building just beyond this" and had been for many years.

It does not necessarily follow, because Paulson testified one way and Stickling another, that therefore the evidence was evenly balanced. We must presume that the master and trial 'judge believed Paulson. His testimony was reasonable. He had drawn the original memorandum, in which he described the store buildings as well as the number of the premises. When he came to draw the more formal contract and to describe the premises by their legal description by metes and bounds and lot lines and found that that description only conveyed parts of certain lots, the natural caution of a lawyer would lead him to inquire if those descriptions covered the store buildings named in the original memorandum and which had been orally sold to Ackemann. If Stickling’ told Paulson that those descriptions covered those store buildings, the latter was sufficiently the agent of Stickling to authorize him to convey that information to Ackemann and Stickling would be bound by the repetition of that statement to Ackemann. Paulson and Grote were acting in a dual capacity. They were acting for 'Stickling to sell his lands and Stickling so understood it, for he testified that he understood that by signing the original memorandum he was authorizing Grote to sell the property. While Grote and Paulson could not make statements about the property outside of the contract and the written memorandum, yet we think they were authorized to say that the descriptions in the contract covered the same property described in the memorandum. But, if the evidence were .evenly balanced on the question whether Stickling told Paulson that the descriptions in the abstract covered the stores, yet even then Stickling was more than merely silent. He had authorized the sale- of the property covered by the- store building. He knew that it was‘that property for which Ackemann was offering twelve thousand dollars. When Paulson asked him for the abstracts of title, he knew that what was meant was the abstracts of the property upon which those stores rested. When he delivered one of the abstracts to Paulson and told him where to get the other, he was thereby representing to Paulson that those abstracts included all the property upon which the store buildings rested. On his own theory he was guilty of deception, and when his agents told Ackemann that these abstracts covered the store properties, they were saying that which his conduct authorized them to state. The bill states the conduct of Stickling in a dual aspect, namely that-he made a wilful misrepresentation and that he wilfully concealed a material fact. Obviously he knew that Ackemann, a merchant in an adjoining building, was not giving twelve thousand dollars for a part of a building, when he had in writing offered the sale of the entire building at that price. He could not fail to know that Ackemann was being deceived.

The decree is therefore affirmed.

Affirmed.

Mr. Justice Carnes, having tried the case in the court below took no part in this decision.


author: Mr. Justice Carnes

text:
    Celia M. Butterfield et al., Appellants, v. Ferdinand Munch, Executor, Appellee.
    Gen. No. 5,774.
    Executors and administrators, § 529

      —when executor cannot he charged with assets unaccounted for. On appeal from an order of the Circuit Court failing to charge an executor with an inventory of $2,300 claimed by beneficiaries under the will as having been invested by testator in city improvement bonds, evidence held .insufficient to show that the executor ever knew what disposition was made of bonds or that he ever appropriated the same to his own use.
    Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    D. R. Anderson, for appellants.
    Antram & Hutchinson, for appellee; Barr, McNaughton & Barr, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

This case began in the Probate Court of Will county by six objections filed by beneficiaries under the will of Xavier Munch alleging that the executor, Ferdinand Munch, had failed to inventory various items of personal assets of the deceased. There was an order of the 'Probate Court'that the executor be charged with and inventory $2,300 of Joliet City Improvement bonds, and a debt from himself to deceased of $50, two of said items, from which order the executor, only, appealed to the Circuit Court, expressly limiting his appeal in his bond filed to those two items. There was on a hearing in the Circuit Court an order that he be charged with, and inventory,, only said item of $50, and that all other objections to his inventory be overruled. The objectors only appeal from that order, therefore the only matter before us is whether the executor should have been charged with the item of city bonds. Bache v. Ward, 225 Ill. 320.

Xavier Munch died September 7, 1911; his will was executed in 1883; Ferdinand Munch, his oldest son, was then named as executor. Deceased was advanced in years and had left his farm in 1894, thereafter residing’ in the city of Joliet, retired from active business. The son Ferdinand also resided there and from time to time assisted his father, who was not well educated, in the transaction of the simple business incident to his life as a retired farmer and the care of thirty or forty thousand dollars of property. The father apparently during his lifetime continued to repose in his-son that confidence which he manifested so long before his death, in choosing him as the executor of his will. In February, 1906, deceased sold his farm for $36,000, of which he was to receive two-thirds and his wife one-third. The money was in part paid at the time of the purchase, and in part in instalments thereafter, and was in part divided by deceased among his thirteen children and two children of a deceased child, and in part invested in Joliet City Improvement bonds and in loans. This money was the principal subject of investigation at the trial. On the hearing in the Circuit Court great latitude was allowed in the introduction of evidence as to the acquisition and disposition of testator’s property for many years before his death, and the connection of Ferdinand Munch therewith. Testator’s bank account was in evidence and much testimony heard as to how and when he obtained various sums of money shown in the record of deposits, and what he did with various sums of money shown in the record of withdrawals by checks, and by memoranda on stubs of his check books'. The record of 562' pages is reduced in the abstract to 158 pages, mostly devoted to the evidence heard in the Circuit Court. It is not practicable to extend this opinion by an analysis of the evidence and an attempted explanation of the various computations made by counsel from the figures contained in the accounts and statements. It is sufficient to say that it cannot be determined what disposition the testator' made of all the money he received during the last years of his life; there is enough unaccounted for to eovér two thousand three hundred dollars of bonds. He had more than that amount of Joliet City Improvement bonds and it is not clear what became of them or their proceeds. They could have "been cashed at the bank and in its ordinary course of business no record kept of the transaction. 'The bonds were kept in a safety deposit box owned in common by testator and Ferdinand Munch; each of them had access to it, but so far as known, testator never visited it alone. . Ferdinand assisted his father in writing checks and in various other ways, and while not his agent was familiar with his business; it is natural to suppose that he would be able to state what became of the bonds. He was called as a witness by the objectors and very thoroughly examined concerning these bonds and many other matters touching testator’s property, and stated that he did not know what disposition was made of them, they were not in the safety deposit box at the time of his father’s death, and he denied that he' had- at any time taken them. This was competent evidence and bound the objectors unless it was shown by other evidence to be untrue. "We find nothing in the record to warrant the conclusion that Ferdinand Munch ever appropriated these bonds to his own use. Such an act cannot be presumed on suspicion and slight evidence. We see no ground for reasonable suspicion that Ferdinand Munch acted criminálly or in had faith in the matter, more than always would be, found where there is property lost or unaccounted for, and a clerk or trusted son, familiar with the business, could not explain the matter. The judgment of the trial court is affirmed.

Affirmed.


text:
    Louis Sabo, Appellee, v. Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 5,777.
    (Mot to be reported in full.)
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed with finding of facts.
    Opinion filed October 17, 1913.
    Statement of the Case.
    Action by Louis Sabo against Aurora, Elgin & Chicago Railroad Company to recover for injuries sustained by plaintiff resulting from a collision of defendant’s street car with plaintiff’s horse and wagon. From a judgment in favor of plaintiff for five hundred dollars, defendant appeals.
    Hopkins, Peffers & Hopkins, for appellant.
    Mighell, Gunsul & Allen for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Street railroads, § 86 —care required on approaching vehicles parallel with track. Prudence may or may not require that a signal should be given on approaching a vehicle from the rear.

2. Street railroads, § 86 —when not liable for collision. Street car company held not liable for injuries sustained by the driver of a horse and wagon resulting from a collision, where the driver of the wagon was going in the same direction as the street car and attempted to cross the track without looking back and the evidence showing that the street car was funning at slackened speed but could not have been stopped in time to avoid the collision.

3. Street railroads, § 86 —right of driver of street ear to assume that vehicle will not cross track. A driver of a street car is not bound, in the absence of anything to warn him, to assume that the driver of a vehicle will turn and cross the tracks ahead of him.


text:
    Nicholas G. Heinz, Appellant, v. Peoria Life Insurance Company, Appellee.
    Gen. No. 5,785.

    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    Statement of the Case.
    Action by Nicholas G. Heinz against Peoria Life Insurance Company to rescind contract of insurance and to recover premiums paid on the ground that the agent of defendant falsely represented to plaintiff the surrender value of the policy. From a judgment in favor of defendant, plaintiff appeals.
    Mansfield, Cowan & Boulware, for appellant.
    Wolfenbarger & May, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topite and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Insurance, § 202 —when statute prohibits misrepresentation of terms of policy. R S. oh. 73, § 208n, J. & A. If 6510, prohibiting agents and officers of life insurance companies from misrepresenting the terms of the policy, held not to include misrepresentations by oral statements.

2. Insurance, § 195 —when insured may rescind. To entitle insured to a rescission of the contract of insurance he must notify the company within a reasonable time of his election to disaffirm the contract, and when the facts are undisputed the question of reasonable time is one of law for the court.

3. Insurance, § 195 —when notice to rescind not given within a reasonable time. Insured failing to give notice of his intention to disaffirm the contract of insurance, on the ground that agent misrepresented the terms of the policy, until more than three months after reading the policy, held not to give notice within a reasonable time.

4. Insurance, § 195*—when misrepresentation of an agent no ground for rescission. A representation of an agent as to the value of the policy to be delivered is a mere expression of opinion or trade talk.

5. Appeal and error, § 1453*—when ruling requiring bill of particulars, harmless. Error of court in requiring appellant to file a hill of particulars cannot be complained of where he was not precluded from offering competent evidence by any restriction in such bill of particulars.