text:
    Fred J. Koch, Appellee, v. Sue B. Louden and Mildred Louden, Executrices, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Clinton county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Claim by Fred J. Koch against Sue B. Louden and Mildred Louden, executrices of the estate of Walter S. Louden, deceased, defendants, for the amount of an alleged loan to defendants’ testator. From a judgment in favor of the claimant for the full amount of. the claim, defendants appeal.
    This suit arose on the following claim filed in the County Court of Clinton county, Illinois, December 29, 1914:
    “Estate of Walter S. Louden, deceased to Fred J. Koch, debtor.
    “To loan of $1500 for which 15 shares of preferred stock and 15 shares of common stock of M. & O. Milk Company were given as security............................................................$1500.00

      “To interest on above from July 1,1913 to date at six per cent........................................... 81.25.
    “Total ...............................................................$1581.25”
    After the claim was filed in the County Court it was, by stipulation, transferred to the Circuit Court where it was tried before the court without a jury, resulting in a finding and judgment in favor of the claimant for the full amount of the claim.
    The proofs showed that in 1910, Walter S. Louden was president and manager of a corporation known as the M. & O. Milk Company, the principal place of business of which was at Waterloo, Illinois, and was also engaged in selling the stock of the company. In December of that year, he sold claimant fifteen shares of common stock and fifteen shares of preferred stock of the company. The stock was issued as of the date of July 1,1910, but the letter transmitting the same to claimant was dated December 29, 1910, and contained among other things the following:
    “As I told you in the office yesterday, if you should find this investment not to be profitable within two years, I will purchase the stock back from you at what you paid for it, plus six per cent, interest, less any dividends paid.” In payment for these shares of stock claimant sent Louden a note for $1,500 due in ninety days payable to the Union Trust and Savings Bank of East St. Louis. Louden delivered the note to the bank, and it was placed to the credit of the M. & O. Milk Company.
    The letter also stated: “You will find this to be a splendid investment and I am very much pleased to have you come into the company.”
    Two witnesses who claimed to have bought stock on similar terms were sworn in behalf of claimant. One of them, A. B. Michaels, testified that he had a conversation with Mr. Louden at the Illmo Hotel in East St. Louis, at which time Mr. Louden referred “to my stock and also Mr. Koch’s. He said that he would take care of us in a very short time; that he would pay that stock Mr. Koch holds and myself.” He also testified that on another occasion prior to that time he had spoken to Mr. Louden about his stock and he said: “Don’t be uneasy I will take care of both of you as soon as I can; ’ ’ that he referred to the stock held by witness and Mr. Koch. James Gray, another witness, testified for claimant that Mr. Louden told him in speaking of Mr. Michaels and Mr. Koch that, “He would take care of them as he took care of me and he was going to take care of me and he was not going to lose by it.” He said that he had about the same conversation with Mr. Louden at different times and that the last conversation was a month or six weeks prior to his death, but just what that date was did not appear. It appeared that claimant was elected a director of the company in January, 1914, and served on the reorganization committee of the company; that the company was reorganized on figures prepared by the committee; that claimant took an active part in the reorganization of the company, and signed a paper for a stockholders’ meeting and an agreement for reorganization, and that it was reorganized in accordance with such written agreement. On January 31, 1914, claimant wrote to Mr. Louden in reference to a meeting, and added: “Should opportunity present itself to dispose of my stock, I wish you would accommodate me.”
    Nolemah & Smith, for appellants.
    Murray & Lager, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 371 —when presumed that sale of corporate stock intended. Where an owner of stock in a corporation sends a certificate of stock to another person with expressions of satisfaction that such other person is to become a stockholder of the corporation; and such other person replies inclosing a promissory note for the amount requested in the letter transmitting the certificate, such other person is to be presumed to have acquiesced in such owner’s interpretation of the transaction.

2. Contracts, I 31*—when promise made to third person to extend time for repurchase of stock not binding. Where a person purchases stock under an agreement that the seller will repurchase on request made within two years, which option the purchaser did not take advantage of within the period named, a promise made to a third person to extend the time for repurchase is not binding on the seller in the absence of evidence that such third person had authority to receive such promise on behalf of the purchaser.

3. Sales, § 329*—when evidence insufficient to sustain finding that time 'for repurchase of stock had been extended. On trial of a claim against the estate of a deceased person for the amount paid for stock purchased on an agreement that the deceased would repurchase on request made within two years, which option was never taken advantage of by the claimant, but where the theory of the claim was that the time for the repurchase of the stock had been extended, evidence held insufficient to sustain a finding that the time for repurchase of the stock had been extended.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    In the Matter of the Estate of Martha Janett, Deceased. Petition of George A. A. Dieckmann, Executor.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 842

      —when hill of exceptions insufficient. A paper purporting to be a bill of exceptions which is not signed by the judge who tried the case, and in which both the date and the place where the signature of the judge should be are left blank, is not sufficient as a bill of exceptions.
    2. Appeal and error, § 804*—how evidence preserved. The only way in which the evidence can be preserved for the consideration of a reviewing court is by a bill of exceptions.
    3. Appeal and error, § 1303*—when finding and judgment of trial court presumed correct. In the absence of a proper bill of exceptions, the Appellate Court will not review the evidence on appeal in an action at law and will presume that the finding and judgment of the trial court based thereon are correct.
    Appeal from the Circuit Court of Fayette county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Petition by George A. A. Dieckmann, executor, for authority to carry out the provisions of a will, in reference to the burial of the testatrix, in the Circuit Court of Fayette county. From a judgment denying the petition, petitioner appeals.
    Arthur Bob, for appellant.
    John A. Bingham, for John Janett et al.

    Terry, Gueltig & Powell, for Louis Meyer et al.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

4. Appeal and ebbob, § 731 —what constitutes common-law record. The common-law record consists of the summons and return, the declaration, the pleadings subsequent thereto, and the verdict and judgment.

5. Appeal and ebbob, § 788*—what bill of exceptions must contain. Where an appellant in an action at law desires to preserve for review anything outside of the common-law record, it must be contained in a bill of exceptions.

6. Appeal and ebbob, § '804*—when question of sufficiency of evidence not considered on appeal. The question whether the finding of the trial court is in conformity with the evidence will not be inquired into on appeal where the evidence before the trial court is not preserved in a bill of exceptions.


text:
    Erwin Yeancey by Hosea Yeancey, Appellee, v. Taylor Coal Company, Appellant.
    1. Mines and Minerals, § 176*—when evidence sufficient to sustain finding that master negligently permitted accumulation of refuse. In an action by a miner to recover for personal injuries sustained by being caught between a car and a door in the mine, where it was alleged that defendant negligently permitted a quantity of coal, gob and refuse to accumulate so as to prevent the door being opened sufficiently to enable cars to pass through it without injuring plaintiff, evidence examined and held sufficient to prove the negligence alleged.
    2. Workmen’s Compensation Act, § 2*—when employer and employee within act. The failure of employer and employees to reject the provisions of the Workmen’s Compensation Act (J. & A. If 5449 et seq.) in the manner therein provided is of itself an adoption of the act, and causes both to come under the act automatically.
    3. Workmen’s Compensation Act, § 5*—when act controls remedy to obtain compensation. Where neither employee or employer has rejected the Workmen’s Compensation Act (J. & A. If 5449 et seq.) in the manner provided therein, the employee cannot maintain an action at law against the employer for personal injuries, and must proceed in the manner provided by the act in order to obtain compensation for his injuries.

      4. Workmen’s Compensation Act, § 12

      —when declaration in action by servant for damages for personal injuries fatally defective. A declaration in an action at law by an employee to recover for personal injuries sustained by reason of the alleged negligence of the employer, which does not allege the rejection by either plaintiff or defendant of the provisions of the Workmen’s Compensation Act (J. & A. If 5449 et seq.), cannot be cured by verdict, since such a declaration does not defectively state a good cause of action but states no cause of action.
    5. Pleading, § 466*—when verdict mil not aid declaration. A verdict will aid the defective statement of a good cause of action, but will not cure the statement of a defective cause of action.
    6. Pleading, § 50*—when declaration states no cause of action. A declaration which fails to allege a fact, without whose existence plaintiff is entitled to recover, does not state a cause of action.
    7. Pleading, § 466*—when defective declaration not cured by verdict. A declaration which omits to allege any substantial fact essential to a right of action, and which is not implied in or infer-able from the finding of those which are alleged, is not cured by verdict.
    8. Workmen’s Compensation Act, § 12*—when declaration must allege that employer not operating under Workmen’s Compensation Act. Since the passage of the Workmen’s Compensation Act (J. & A. 5449 et seq.), the fact that the employer is not operating under the act is a fact essential to be alleged in the declaration to enable an employee to maintain an action at law for personal injuries due to the employer’s negligence.
    9. Workmen’s Compensation Act, § 12*—when motion in arrest of judgment improperly denied. In an action at common law by an employee to recover for personal injuries sustained by reason of the alleged negligence of the employer, it is error to deny motion in arrest of judgment where the declaration does not allege that defendant was not operating under the provisions of the Workmen’s Compensation Act (J. & A. K 5449 et seq.).

    Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Denison & Spiller, for appellant.
    Neely, Q-allimore, Cook & Potter, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Erwin Yeancey, appellee, while working in appellant’s coal mine on October 16, 1913, received injuries on account of which he afterwards brought suit against appellant to recover damages. He was not of legal age and his suit was brought by Hosea Yeancey, his next friend. The declaration contained three counts in which it was charged that appellee was required to open and close a certain trap door between the third and fourth south entries off the main east entry in said mine; that appellant furnished him a dangerous place to work, in that it permitted a large quantity of coal, gob and refuse to accumulate in said third south entry and in the crosscut between said third and fourth entries, where said door was located, so that the door would not open sufficiently to permit cars to pass through without injuring him; that appellee was caught between the door and a moving car and injured; that appellant, by its servants, released a coal car at a point about forty fee.t north of said trap door and permitted it to run down a steep grade, and that appellant, while attempting to manipulate said door, was caught between the same and said coal car and crushed. Each count of the declaration quoted' at length section 1 of the Compensation Act [Cal. Ill. St. Supp. 1916, ¶ 5475 (a)]: “That any employer in this state may elect to provide and pay compensation for accidental injuries sustained by any employee, arising out of and in the course of the employment, according to the provisions of this act, and thereby relieve himself from any liability for the recovery of damages except as hereinafter provided.” Each count also quoted at length section (a) of subsection 1 of said law [Cal. Ill. St. Supp. 1916, [¶] 5475 (1), par. (a)], providing the manner in which the election might be made by the employer, to provide and pay compensation under the act, also subsection (b) of section 1 [Cal. Ill. St. Supp. 1916, ¶ 5475 (1)] and subsection (a) of section 3 [Cal. Ill. St. Supp. 1916, [¶] 5475 (3), subsec. (a)], providing that in an action to recover damages against an employer who has elected not to provide and pay compensation according to the provisions of the act, it shall not be a defense that the employee assumed the risk or that the injury was caused by the negligence of the fellow-servant or by the contributory negligence of the employee.

There was a plea of the general issue, a trial by jury, and a verdict in favor of appellee for two hundred dollars. Motions for a new trial and in arrest of judgment were overruled and judgment entered against appellant for the amount of the verdict. An examination of the record shows that the evidence tended to prove the negligence charged in the declaration, and we have failed to discover any reversible error committed by the court in its instructions to the jury. We are of opinion, however, that the court erred in failing to sustain the motion made by appellant in arrest of judgment for the reason that the declaration failed to state a good cause of action. Paragraph a of section 1 [Cal. Ill. St. Supp. 1916, ¶ 5475 (1), par. (a)] of the Compensation Act above referred to, provides that: “Election by an employer to provide and pay compensation according to the provisions of this act, shall be made by the employer filing notice of such election with the industrial board.” And section 2 [Cal. Ill. St.. Supp. 1916, ¶ 5475 (2)] of said Act provides: “Every employer enumerated in section 3, paragraph (b), shall be conclusively presumed to have filed notice of his election as provided in section 1, paragraph (a), and to have elected to provide and pay compensation according to the provisions of this act, unless and until notice in writing of his election to the contrary is filed with the industrial board and unless and until the employer shall either furnish to his employee personally or post at a conspicuous place in the plant, shop, office, room or place where such employee is to be employed, a copy of said notice of election not to provide and pay compensation according to the provisions of this act; which notice of non-election, if filed and posted as herein provided, shall be effective until withdrawn.” Paragraph (c) of section 1 [Cal. Ill. St. Supp. 1916, ¶ 5475 (1), par. (c)] of the Act provides that in case an employer elects to come under the act then ‘1 every employee of such employer as a part of his contract or hire or who may be employed at the time of the taking effect of this act, and the acceptance of its provisions by the employer, shall be deemed to have accepted all the provisions of this act and shall be bound thereby,” unless he shall give notice to the contrary in the manner provided by the act. It thus appears that all employers and employees come under the act automatically, unless they reject it in the manner described above; that their failure to so- reject the provisions of the act is of itself an adoption of the same. As there was no averment in the declaration that appellant had rejected the provisions of the Compensation Act, there was a legal presumption that appellant had accepted the terms of the act and it must be bound thereby, and this is so regardless of whether appellee desired to come under the act or not.

If appellant was operating under the Compensation Act at the time of the injury to appellee, then appellee would be unable to state a cause of action against it at law, such as this, and he must proceed if he desired to obtain compensation from appellant for his injuries in the manner provided for by said act. From the face of the declaration it appeared that appellee had no legal cause of action. It is contended by appellee that while appellant’s declaration may have been obnoxious to demurrer, had one been filed, and that while it may have stated a cause of action defectively, yet it would be cured by verdict. The fallacy of this position is that the declaration did not state a cause of action defectively but failed to state any cause of action, nor was the issue joined such as to require proof of the thing omitted, therefore the defect could not be cured by verdict. A verdict will not cure the statement of • a defective cause of action though it will aid the defective statement of a cause of action. Barnes v. Brookman, 107 Ill. 317; West Chicago St. R. Co. v. Marks, 82 Ill. App. 185. In the case of Walters v. City of Ottawa, 240 Ill. 259, wherein the declaration failed to state that the notice required to be given to certain officials of the city, as to the time •and place where the injury for which recovery was sought occurred, had been given, the court held the omission was fatal, and in the opinion it is stated: “A declaration which fails to allege a fact without whose existence the plaintiff is not entitled to recover does not state a cause of action.” Also: “If a declaration omits to allege any substantial fact which is essential to a right of action and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.” The declaration in this case failed to allege directly or indirectly that appellant was not operating under the provisions of the Compensation Act, which was a fact essential to appellee’s right of action, and such fact could not be implied or inferred from those which were alleged, consequently a verdict for appellee did not.cure the defect, and the court erred in not sustaining the motion of appellant in arrest of judgment. Smith v. Curry, 16 Ill. 147; Joliet Steel Co. v. Shields, 134 Ill. 209. For this error the judgment of the court below will be reversed and the cause remanded.

Reversed and remcmded.


text:
    Bertha McIntire, Appellee, v. Tony Morris and John W. Lindsey, Appellants. Ruth McIntire et al., Appellees, v. Tony Morris and John W. Lindsey, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon Enoch E. Newlin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Two actions consolidated by agreement, the first by Bertha Mclntire, plaintiff, against Tony Morris and John W. Lindsey, defendants, and the second by Ruth Mclntire et al., plaintiffs, against the same defendants, in the Circuit Court of Franklin county, to recover for injury to their means of support as the result of the death of J. E. Mclntire, the husband of the first plaintiff and the father of the others, who were minors, such death being alleged to be the result of decedent becoming intoxicated by drinking liquor sold to him by defendants. From a judgment for the first plaintiff for. $1,000 and from a similar judgment for the other plaintiffs, defendants appeal.
    The evidence in the case was not contradictory in character, and showed the following to have been the facts: J. E. Mclntire, the deceased, had been married eleven years and his family consisted of his wife, Bertha Mclntire and two small children, Ruth and Dean Mclntire. He was a miner, owned a home worth $1,000 subject to a $300 mortgage, and was making $4 a day when he worked. He and his family were dependent on his wages for support. About three weeks before his death he was hurt in the mine and was laid" off from work. He was a candidate for check-weigh-man and was electioneering for the position. About a week after he was injured he began to drink very heavily and slept and ate but little. He took large quantities of liquor home with him which he consumed during the night. He took his gun to bed with him and threatened to shoot his wife or to shoot through the floor at her feet, and acted in an irrational and dangerous manner. During this time he bought and drank liquor in the different saloons in Buckner, among others those of defendants. On Saturday previous to his death, which occurred the following Monday, he was arrested for disorderly conduct and locked up by the city marshal, Collins. Later in the day his wife came for him and took him home, his trial being set for Monday. He did not drink on Sunday, and on that day called on a neighbor, taking his gun with him and leaving it in the hall. He stated he was going to Benton to consult some attorney and see if he could not get satisfaction for his arrest and, if not, that he was going to shoot the “son of a gun”; that he had had trouble with Collins and made him “back down.” On the following Monday morning at about eight o’clock he went to the saloon of defendant Morris, where he bought two drinks of whisky, and also a half pint bottle of liquor which he put in his pocket. At about 8:30 a. m. he went to the saloon of defendant Lindsey, and drank three or four drinks of whisky and some beer. A little later he returned and got another drink of whisky and then started to take a train to Benton. Before leaving Buckner he called a man by the name of Bowman out of another saloon and asked him to go to his, Mclntire’s, house and get his revolver, and said he would get Collins or Collins would get him. He then went to Benton on the train that left at, 11:30 a. m. and returned on the 3:30 p. m. train. It was shown by the proofs that he was drinking in Benton and also on his return. About five o’clock he went to the city hall where his trial was to have been had, and after waiting twenty to twenty-five minutes, left there. A little later Ms wife found Mm in defendant Morris’ saloon. He had a glass of whisky in his hand, and his revolver was lying on the counter. He had taken about half of the whisky and after her arrival he drank the balance of the glass. Before leaving the saloon he drank still another glass and then he and his wife started down the street towards the city hall, where a horse and buggy was standing. His wife got into the buggy and while she was telling Mclntire to get in, Collins opened a door near by. Mclntire, who had been carrying his revolver in his hand, saw Collins and commenced shooting. He fired six shots, none of which took effect, but Collins fired at him in return and killed him. After Mclntire’s death a bottle was found in his pocket which appeared to contain whisky. No provocation was shown whatever for the attack and the coroner’s jury found that the marshal killed Mclntire in self-defense.
    Abstract of the Decision.
    1. Intoxicating liquors, § 225

      —when evidence sufficient to show that deceased was hilled by marshal in self-defense. In an action under section 9 of the Dramshop Act (J. & A. If 4609) to recover for loss of support by the death of a person while intoxicated as a result of drinking liquor sold to him by defendants, evidence held to show that deceased was killed by a city marshal in self-defense.
    2. Intoxicating liquors, § 228*—when proof as to death by intoxication sufficient. In order to recover in an action under section 9 of the Dramshop Act (J. & A. If 4609) for loss of support caused by the death of an intoxicated person, the intoxication need not be shown to be the immediate, direct or proximate cause of the death, it being sufficient if the intoxication be the cause either proximate or remote.

      M. C. Cook and Bose & Symmes, for appellants; Bobert J. Nordhold, of counsel.
    F. M. Guinn and G. A. Hickman, for appellees.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

3. Intoxicating liquors, § 228 —when evidence sufficient to sustain finding that deceased met his death as result of intoxication. In an action under section 9 of the Dramshop Act (J. & A. ft 4609) to recover for loss of support as a result of the death of a person while intoxicated, where deceased was shot in self-defense by a city marshal at whom deceased had fired while intoxicated, evidence held to warrant the jury in finding that deceased came to his death as a result of the intoxication.

4. Intoxicating liquors, § 228*—when evidence sufficient to sustain finding that intoxication of deceased caused by liquor sold by defendants. In an action under section 9 of the Dramshop Act (J. & A. ft 4609) to recover for loss of support as a result of the death of a person while intoxicated, evidence examined and held to warrant a.finding by the jury that the intoxication of deceased was caused in whole or in part by liquor sold to him by defendants.

5. Instructions, § 159*—consideration of series as a whole. A series of instructions must be considered as a whole.

6. . Intoxicating Liquors, § 261*—when instructions on cause of death not reversibly erroneous. In an action under section 9 of the Dramshop Act (J. & A. ft 4609) to recover for the loss of support as a result of the death of a person who, while intoxicated, fired at a city marshal and was killed by him in self-defense, instructions which do not in terms require that the intoxication should have been the cause of the attempt to shoot the marshal are not reversibly erroneous where the instructions, considered as a whole, plainly inform the jury that in order to entitle plaintiffs to recover it must appear that the intoxication caused the act which led to the death of deceased.

7. Appeal and error, § 1560*—when refusal of instructions harmless error. It is not reversible error to refuse instructions which are involved and somewhat misleading where the judgment is sustained by the evidence and substantial justice appears to have been done.


text:
    Town of Canteen, Appellant, v. Fred Weber and Martha Weber, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Roads and bridges, § 23

      —when evidence insufficient to'establish use of premises as highway. In an action by a town to recover a penalty for obstructing a highway under section 71 of the Roads and Bridges Act (J. & A. If 9700), where the principal question was whether the premises in question had been used as a highway for fifteen years, evidence examined and held that a verdict of a jury that such premises had not been so used for such period was manifestly against the weight of the evidence.
    2. Roads and bridges, § 200*—what is nature of proceeding to collect penalty for obstruction of highway. A proceeding to collect such a penalty as that provided by section 71 of the Roads and Bridges Act (J. & A. If 9700), for obstruction of a highway, is not a criminal action or criminal in its nature, but is an action of debt or assumpsit.

      Appeal from the City Court of East St. Louis; the Hon. Wm. Vandeventer, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    Statement of the Case.
    Action by the City of Canteen, plaintiff, against Fred Weber and Martha Weber, defendants, in the City Court of East St. Louis, to recover a penalty for the obstruction of a highway. From a judgment for defendants, plaintiff appeals.
    This case was before this court on a prior appeal (188 Ill. App. 405), where the evidence was substantially the same as in this appeal.
    N. C. Lyrla, for appellant.
    W. E. Knowles, for appellees.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

3. Roads and bridges, § 199 —when inclusion of obstructed highway within limits of milage no bar to action for obstruction of highway. A town which has become entitled to a penalty for obstructing a highway under section 71 of the Roads and Bridges Act (J. & A. If 9700) is not deprived thereof by reason of the fact that after the suit was brought the portion of its territory which includes the place where the highway was alleged to have been obstructed has been set off and incorporated as a village.

4. Roads and bridges, § 208*—when evidence that obstructed highway within territory of village incorporated since accrual of action for obstruction incompetent. In an action by a town to recover a penalty for obstructing a highway under section 71 of the Roads and Bridges Act (J. & A. T[ 9700), evidence that after the suit was brought the portion of the highway alleged to have been obstructed was within the territory of a village incorporated since the right of action accrued is incompetent, and it is error to admit such evidence.


text:
    Village of Carrier Mills, Appellant, v. Lou Pritchard, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A, W. Lewis, Judge, presiding. Heard in this court, at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Lou Pritchard, plaintiff, against the Village of Carrier Mills, defendant, in the Circuit Court of Saline county, to recover for personal injuries sustained by falling from a plank used as a means of crossing a ditch in defendant village. From a judgment fdr plaintiff for five hundred dollars, defendant appeals.
    Plaintiff in her declaration alleged that defendant was negligent in failing to keep the crossing in a reasonably safe condition. The evidence showed that Oak street, thirty-two feet wide, runs east and west through the business part of the Village of Carrier Mills and two blocks east of the business portion of the village is intersected by a thirty foot street running north and south which has no name. Along the west side of the unnamed street where it crosses Oak street is an open ditch eleven feet wide and across this ditch in the center of Oak street is a bridge sixteen feet in length from north to south. North of this bridge, some six to eight feet, a plank had been placed across the ditch, at the suggestion or order of the village board. Where the plank was placed the ditch was some three feet deep and eleven feet wide from bank to bank, and the plank was sixteen feet long, two inches thick and eight inches wide.
    It also appeared that on account of the want of a sidewalk on the other side of the street, it was the custom of pedestrians in muddy weather, to cross the street and after passing along the sidewalk to cross on the plank instead of on the bridge. This plank had been at the place in question for seven or eight months, and was used by plaintiff in going from her home to her husband’s place of business and in returning. It was shown to have been unsafe. Plaintiff testified that she went back and forth once or twice a week over the crossing and when she went upon the board it was springy and wobbly. Her husband testified it was slanting and tilty; that it sprang down when walked upon, and that there was a little tilt to the side and that a person sometimes had to jump. On the third of January, 1913, at about one o’clock in the afternoon, plaintiff, being a woman forty-five years of age, weighing 165 to 170 pounds, was returning to her home from the business part of the village, carrying three bundles. When she reached the crossing the ground, which had been frozen early in the day but had then thawed out on the surface, was quite muddy and sloppy. Her feet were also muddy and as she attempted to cross over the plank with her bundles, she slipped off and received the injuries complained of.
    Abstract of the Decision.
    1. Municipal corporations, § 1098

      —when evidence sufficient to show negligence of village in permitting use of plank over ditch. In an action against a village to recover for personal injuries sustained by a fall from a plank laid across a ditch alongside a bridge, and which the village authorities permitted pedestrians to use in wet weather as a means of crossing the ditch, but which was insecurely placed, evidence examined and held to show negligence on the part of such authorities in permitting its use while in an unsafe condition.
    2. Municipal corporations, § 1071*—when pedestrian using plamk across ditch guilty of contributory negligence. In an action against a village to recover for personal injuries sustained by a fall from a plank placed across a ditch by the village authorities, which plaintiff and others were accustomed to use as a means of crossing the ditch in wet weather, evidence held to show contributory negligence on the part of plaintiff,'it appearing that plaintiff knew that the plank was insecurely placed and unsafe, and it further appearing that plaintiff might have crossed on a bridge which was safe and substantially as convenient a method of crossing, although plaintiff would have had to walk through a muddy path to reach the bridge.
    Marsh, Stilwell & Finney, for appellant.
    Pillow & Stone and A. E. Somers, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Katherine Nietert et al., Appellees, v. Adela Blank et al., Appellants.
    1. Equity, § 185

      —what is office of cross-hill. The office of a cross-bill is to put the court in a position to grant affirmative relief in regard to the matters germane to the subject-matter of the original bill which could not be granted on the original bill and answer.
    2. Equity, § 479*—how decree should he based. A decree in chancery is to be based not only on the bill but on the answer and all the pleadings in the case and should properly respond to these as a whole.
    3. Equity, § 190*—when cross-hill improper. Where a defendant in a suit in chancery can make his answer sufficient to protect all his rights in the suit, he will not be allowed to usurp the functions of the bill by the use of a cross-bill.
    4. Equity, § 189*—when use of cross-hill proper. A cross-bill is a mode of defense, and is the proper method of bringing to the attention of the court the necessity of affording defendant relief concerning the subject-matter of the litigation different from that sought by the complainants, or where the defense desires a discovery, or where facts occurring subsequently to the filing of the answer are material to the defense.
    5. Appeal and ebbob, § 1258*—when defendants may not complain of decree allowing costs out of complainants’ share in partition action. In a suit in chancery for partition of an estate devised to seven children of testator, where four are complainants and three are defendants, the fact that in a decree granting the prayer of the bill a solicitor’s fee was allowed to a trustee under deeds of trust made by the complainants, which is also joined as defendant, but does not appeal, such fee to'be paid out of the shares of the complainants, is not a matter affecting the rights of defendants on their appeal, of which they can complain.
    6. Pabtition—when informalities in decree will not work a reversal. Informalities in a decree of partition which are not of a serious nature will not work a reversal where equity and the best interests of parties demand an affirmance.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.

      T. M. Webb and W. E. Knowles, for appellants.
    Keefe & Sullivan, for appellees.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Henry Ziegenhein was the owner of a large business block in East St. Louis, Illinois. He died March 17, 1910, intestate, leaving as his only heirs at law, Katherine Nietert, Anna L,. Walker, Emma Z. Jostes, Clara DeHaan and Adela Blank, his daughters, and two sons, Henry Ziegenhein and Fred W. Ziegenhein. The four sisters first above mentioned filed a bill to the March term, 1914, of the City Court of East St. Louis, to partition the property, making the other sister, two brothers, the Illinois State Trust Company, Harry Gr. Redmon, a tenant, and certain other tenants or subtenants, defendants to the bill. Adela Blank, Henry Ziegenhein and Fred W. Ziegenhein, the three heirs at law who are made defendants, answered the bill and also filed a cross-bill, making the complainants in the original bill, the Illinois Trust Company Bank, the tenants and subtenants, who were defendants in the original bill and certain other subtenants, parties defendant thereto. After the filing of the cross-bill, the case was referred to the master in chancery to take the proof and report his conclusions. A day was set in vacation after the March and prior to the May term of court and the master in chancery took the testimony of a number of witnesses, continuing to do so until the 12th day of May. The May term convened on May 10th and an order was then entered setting aside the order of reference and a rule entered against defendants in the cross-bill to answer. On May 15th, an order of default was entered against those not answering and the case again referred, and it was ordered that all testimony theretofore taken should stand as far as applicable and that the master report his conclusions and recommend a decree. In the original hill it was charged that all the heirs had deeded their interests to the Illinois State Trust Company as trustee; that the same was done only that the Trust Company should act as their financial agent and that the conveyance did not give the Trust Company title by purchase but only constituted an agency. Complainants in the cross-bill, in answering the original bill, denied they had so deeded their interests in trust, but alleged that Clara DeHaan had deeded her interest to said Trust Company and that it had delivered to her a declaration of trust setting out the purpose of such conveyance and stating it was to have one per cent, of the amount received from said property as compensation; that at any time the trust should be terminated at her request; that Katherine Nietert, Anna L. Walker and Emma Z. Jostes had made similar deeds of trust except that in their deeds the trustee was to receive two per cent, of the amount collected as compensation. The same matters were set out in the cross-bill, and said bill further alleged that the trusteeship of the Clara DeHaan in-, terest could only be terminated upon the written consent of the Illinois State Trust Company Bank, also that if the trustee had to bring legal proceedings, it should have reasonable compensation for its attorney. The cross-bill continuing stated, none of the parties holding such declarations of trust had filed a request to have the same terminated, and that to sell the property while said trusteeship existed would decrease the rights and interests of the cross-complainants therein. The cross-bill also named as defendants other parties having interests in the premises as tenants, who were not made defendants to the original bill. The master in chancery in his report found that the declarations of trust above referred to were delivered up for cancellation on April 23, 1915, and that afterwards on May 6, 1915, the same were canceled by the Illinois State Trust Company and that said Trust Company had no interest in the property; that said declaration of trust provided for a reasonable solicitor’s fee in case of the trustee being made a party to any proceedings in court and that it should be allowed two hundred and fifty dollars for such fee, to be paid out of the shares of those who held declarations of trust. He also found that those who were named as defendants in the cross-bill, who were not made parties to the original bill, were sublessees under Harry Gr. Redmon, who was a defendant to the original bill. Objections were filed to the report before the master and, upon being overruled, were filed as exceptions before the court. The court overruled the exceptions and entered a decree of partition following the findings of the master, and sustaining his report. It also determined the rights of Harry Gr. Redmon as lessee, found that certain persons were sublessees under him, that the property belonged to the said seven heirs at law subject to said leases and granted partition and appointed commissioners to make the same. Appellants claim that the court erred in granting relief on the prayer of the original bill instead of on the cross-bill, insisting that it was only under the allegations of the latter that the decree could be supported.

The office of a cross-bill is to put the court in position to grant affirmative relief in regard to the matters germane to the subject-matter of the original bill that could not be granted on the original bill and answer, for it is to be remembered that a decree is not based on the bill alone but also on the answer and all the pleadings in the case. The decree should properly respond to these as a whole. Where the answer can be made sufficient to protect all of a defendant’s rights in the suit, he should not be permitted to usurp the functions of the original bill by the use of a cross-bill. The complainants in the cross-bill in this suit asked for partition of the premises in question as did the complainants in the original bill. It is said in Roby v. South Park Com’rs, 252 Ill. 575: “A cross-bill is a mode of defense. Where it is necessary for a defendant to have relief concerning the subject-matter of the litigation different from that sought by the complainants, where it is necessary to the defense to obtain some discovery or where facts occurring subsequently to the filing of an answer are material to the defense, a cross-bill is the proper method of bringing these matters to the attention of the court. It is only where complete justice cannot be done on the original bill and answer that a cross-bill is proper. If the same matter is equally available by way of answer the cross-bill is unnecessary.” In Newberry v. Blatchford, 106 Ill. 584, where the Attorney General filed a cross-bill asking substantially the same relief as the original bill,' the*court said: “The cross-bill in this case was for no purpose the law permits such a bill to be used. No discovery was sought and no relief was asked that was not attainable, if at all, on his answer. This is stating no new rule of practice. It was decided by this court, as long ago as in Morgan v. Smith, 11 Ill. 194, a defendant will not be permitted to file a cross-bill when his rights are fully disclosed in his answer in response to the allegations of the bill, and might be fully protected by the court on the hearing of the original bill, and the cross-bill of defendant was held to have been properly stricken out of the record, because it was in violation of proper practice. * * * It is not understood the practice in chancery will permit a defendant to file a cross-bill praying the same thing may be done as is sought to be accomplished by the original bill.” Our Supreme Court held it to be the undoubted rule in Howe v. South Park Com’rs, 119 Ill. 101: “That on a bill for partition, where the defendants claim the same relief for themselves as is sought by the original bill, no cross-bill is necessary. Whatever relief the defendants may be entitled to, against the complainants, in a bill for partition, may be obtained by them on answer. ’ ’

We find on examination of the cross-bill that it asked for no relief which could not have been obtained under the original bill and answer thereto. It was substantially the same as the original bill except the complainants therein prayed that certain deeds of conveyance to and declarations of trust by the Illinois State Trust Company, trustee, and the Illinois State Bank, be declared a burden and cloud on the interests of the cross-complainants in said premises and that in case of a sale of said property, such interest be ascertained and that the declarations of trust be delivered up and canceled; and also made certain persons defendant, who were subtenants of Harry G-. Redmon, who was a lessee. It appeared from the proofs that the Illinois State Trust Company (Bank) was formerly the Illinois State Bank, and that this institution had released all of the interest which it is alleged to have acquired in the premises in question before there was any reference of the cause to the master in chancery, but even if this release had not been made, the heirs who executed the trust deed were parties to the original bill, and whatever order was necessary to define their rights or those of the trustee could properly be made under the original bill and the answer thereto. It also appeared that Redmon, who had the lease on the premises, answered the original bill; that the others entered their appearance and that Redmon paid rent for the entire building occupied by them, and his rights were fully defined and protected in the decree. The fact that a solicitor’s fee was allowed the Trust Company out of the shares of the original complainants who had constituted the trust does not affect the rights of appellants here, and they cannot be heard to complain. There were some informalities in the decree of partition, but they were not of such a serious nature as to call for a reversal of the decree, and we are of opinion that equity and the best interests of those interested in the property demand that the decree of partition be affirmed.

Decree affirmed.


text:
    William J. Weger et al., Appellees, v. Western Supply & Wrecking Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 325

      —when evidence sufficient to show superseding of contract by new one not entitling landlord to rent. In an action to recover for breach of a lease of land demised for the production of oil and gas, where it appeared that the lease contained a covenant to pay plaintiffs an agreed rental and to supply them with gas for domestic use without cost, “while the product of each well in which gas only is found shall be marketed from said premises;” that the lease was assigned and the assignee drilled a well which produced gas only, which was marketed for general consumption; that the lease was afterwards assigned to defendant; that the flow of gas becoming insufficient to supply plaintiffs if allowed to go into defendant’s commercial line, plaintiffs shut it off from the line, and for some time used the gas without cost; that later an arrangement was made whereby the owner of land on which there were strong gas wells which were owned by defendant secured the right to use gas from plaintiffs’ well without cost for domestic purposes so as to increase the pressure in defendant’s commercial line from the wells on such other person’s land, defendant agreeing not to take up the pipe from the well as intended, which would have prevented plaintiffs from using the gas, but to allow it to remain with the well shut off from defendant’s commercial line; and plaintiffs claimed that the gas used by such other person was “marketed” within the meaning of the lease, entitling them to rental, held that under the evidence the lease was superseded by the new arrangement, and that plaintiffs could not recover for rental.

      Appeal from the Circuit Court of Crawford county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by William J. Weger et al., plaintiffs, against the Western Supply and Wrecking Company, defendants, in the Circuit Court of Crawford county, to recover rentals on an oil and gas lease on plaintiffs’ farm. From a judgment for plaintiffs for one hundred and fifty dollars, defendant appeals.
    McCarty & Arnold, for appellant.
    Jones & Jones, for appellees.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Appeal Aim ebbob, § 1802 —when case reversed without remanding. Where the evidence shows that plaintiffs have no cause of action, the cause will not be remanded when reversed on appeal.


text:
    Frank Williams, Appellee, v. H. W. Moehlman, Appellant.
    (Not to he reported in full.)
    Appeal fom the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Frank Williams, plaintiff, against H. W. Moehlman,' defendant, in the Circuit Court of Marion county, to recover for breach of a contract by which plaintiff agreed to manufacture and defendant to purchase certain ironing boards. From a judgment for plaintiff for $22.50, defendant appeals.
    Abstract of the Decision.
    1. Trial, § 153

      —when weight of evidence for jury. It is the province of the jury, who see the witnesses and hear them testify, to weigh the evidence of the respective parties when the evidence is conflicting.
    2. Sales, § 329*—when evidence sufficient to sustain finding that contract was substantially complied with. In an action to recover the contract price of ironing boards manufactured by plaintiff at defendant’s request, where the defense was that the contract was not substantially complied with, and where the evidence was conflicting, evidence examined and held to warrant the jury in finding a verdict for plaintiff.
    3. Sales, § 330*—when instruction as to presumption of acceptance of goods correct. In an action to recover the contract price of ironing boards manufactured by plaintiff at defendant’s request, an instruction that if after the completion of the work defendant called and inspected it and accepted part of the goods and agreed to pay for all of it, he is presumed to have accepted all of the work, held correct.
    4. Appeal and error, § 1523*—when error in one of series of instructions harmless. The fact that in one of a series of instructions there exists a slight ambiguity is not ground of reversal where appellant’s rights were so fully covered by other instructions that the jury could not have been misled.
    5. Appeal and error, § 1474*—when stating of conclusion by witness harmless error. It is not reversible, error to permit a plaintiff to state his conclusion as to whether defendant had made an objection as to the character of goods deliveréd in performance of the contract sued on where such witness also testifies to all the conversation which took place at the time when the objection was alleged to have been made.

      Charles H. Holt, for appellant.
    W. A. Mills, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

6. Appeal and error, § 1498 -—when exclusion of evidence harmless error. It is not reversible error to sustain an objection to questions asked of witnesses where the same witnesses were after-wards permitted to answer similar questions so that the evidence sought to be brought out by the questions was properly presented to the jury.


text:
    Docia Barton, Appellee, v. Mattie Hayden, Administratrix, et al., Appellants.
    1. Witnesses, § 95*—where mortgagor not competent witness in suit to annul mortgage as cloud on title. In a suit in chancery to annul a mortgage as a cloud on title, where a cross-bill is filed by the administratrix of the mortgagee to foreclose the mortgage, the testimony of the mortgagor is not competent to prove a defense to the cross-bill, such mortgagor not being within any of the exceptions to section 2 of the Evidence Act (J. & A. jf 5519), relating to the competency of the testimony of interested witnesses in suits where the adverse party sues or defends as trustee, etc.
    2. Appeal and error, § 1301*—when presumed chancellor did not consider incompetent evidence. Where the competent evidence in a suit in chancery is sufficient to sustain the decree, such decree will not be reversed on account of the admission of incompetent evidence, the presumption being that the chancellor did not consider the incompetent evidence in arriving at his decision.
    3. Trial, § 286*—when chancellor may disregard evidence. In a suit in chancery it is the correct practice for the chancellor, who is the judge both of the law and evidence, to regard no portion of the evidence which is immaterial or illegal, and to decide the case on the legal evidence alone.
    4. Appeal and error, § 1772*—when case not reversed. Where several persons are made parties to a bill and all are served with process, while but one appeals, there must have been some error prejudicial to the rights of appellant in order to warrant a reversal, it being taken as granted that parties served with process and not appealing acquiesced in the action of the trial court.

      5. Bills and notes, § 109

      —what constitutes negotiable instrument. In order to be negotiable either at common law or under our statute, an instrument, draft, bill of exchange or promissory note must be payable unconditionally, and any condition attached to its payment destroys its negotiability.
    6. Assignment, § 22*—when assignment does not vest title in assignee. An assignment of an instrument promising the payment of money, which promise is burdened with a condition as to payment, does not vest title In the assignee so as to enable such assignee to maintain an action in his own name.
    7. Bills and notes, § 13*—what does not constitute bill or note. If an order or promise to pay money be payable provided terms mentioned are complied with, or provided a certain act be done, such instrument is not a bill or a note.
    8. Bills and notes, § 92*—when memorandum on bill or note part thereof. A memorandum on a bill or note either after the signatures indorsed on the back or written in the margin, if contemporaneous with the execution of the instrument and by agreement of the parties, is a part of the instrument, and binds parties as though introduced in the body of the instrument.
    9. Bills and notes, § 92*—when party may show purpose of memorandum on bill or note. It is competent for any party to a bill or note to show when and for what purpose a memorandum appearing on the instrument was made, as affecting its negotiability.
    10. Bills and notes, § 92*—when memorandum on note part thereof. A memorandum on a promissory note that the note is secured by mortgage and is payable out of a certain fund as therein provided is part of the note, although appearing after the signature of the maker.
    11. Bills and notes, § 92*—when note containing memorandum of mortgage construed with mortgage. Where a note contains a memorandum that the note is secured by mortgage and is payable out of a certain fund as provided therein, it is to he considered in connection with provisions of the mortgage.
    12. Witnesses, § 106*—when mortgagee competent witness in behalf of mortgagor in suit to annul mortgage. In a suit in equity to annul a mortgage as a cloud on title, where the administratrix of the assignee of the mortgagee files a cross-bill to foreclose the mortgage, the testimony of the mortgagee is competent evidence on behalf of the mortgagor under section 2 of the Evidence Act (J. & A. 1[ 5519), relating to the competency of the testimony of interested persons in suits where the adverse party sues or defends as trustee, etc.

      13. Bills and notes, § 440

      —when evidence sufficient to show non-negotiability of note. A note containing a memorandum that the note is secured by mortgage and payable out of a certain fund mentioned therein, which mortgage provides that the note shall be paid out of certain funds to be collected from a third person, is shown to be conditional and therefore not negotiable by evidence that the note was payable by the maker only in case the mortgagee failed to collect the fund from such other person.
    14. Mortgages, § 168*—when assignee of mortgage securing note may not maintain action on note. The assignee of a mortgage securing a note which is conditional as to the promise of payment does not take title to the note as negotiable paper, and no action can be maintained, either in his name or in the name of his legal representative, to collect the same.
    15. Mortgages, § 384*—when decree of foreclosure by assignee of mortgagee denied. Where.a bill is brought tó annul a mortgage as a cloud on title and the administratrix of the assignee of the mortgagee files a cross-bill to foreclose, the cross-bill is properly dismissed when it.appears that the note secured by the mortgage is conditional as to payment.
    16. Mortgages, § 169*—when mortgage lien enforceable by mortgagee for assignee of debt. Where a note secured by mortgage on an undivided interest in real estate is unenforceable in the hands of the administratrix of the assignee of the mortgagee because burdened with a condition as to payment, yet the mortgage is a lien on the property if rights in the property are given in the mortgage which, on compliance with conditions, the mortgagee may enforce.
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed in part, reversed in part and remanded.
    Opinion filed April 17, 1916.
    Charles H. Holt, for appellants.
    Samuel L. Dwight, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, Docia Barton, filed a bill in chancery against Daniel Hayden, W. W. Hyde and William Barton. The first part of her bill related to matters between William Barton, her former husband, from whom she had been divorced, and herself as to alimony, but he was not served with summons, so that those matters were not adjudicated and are not material here. The second part of the bill sought to cancel and set aside, as a cloud on her title, a mortgage given by appellee to W. W. Hyde on her undivided one-half of a certain lot in Centralia, Illinois, on the ground that there was no consideration for the same. Daniel Hayden died after the commencement of the suit, and Mattie Hayden, the administratrix of his estate, was substituted as a defendant in his stead. She filed an answer to the bill alleging the assignment of the note secured by the mortgage, without notice of defense before maturity by W. W. Hyde, the payee, to her intestate, Daniel Hayden. She also filed a cross-bill in the suit against appellee, seeking to foreclose the mortgage. Upon the hearing a decree was entered dismissing the cross-bill for want of equity, and it was further found and decreed that said mortgage was not a lien against appellee’s undivided interest in the lot in question but was as to the same null and void. Prom this decree said administratrix has prosecuted this appeal, insisting the decree should be reversed, because the court erred in permitting appellee to testify in the case, also in dismissing the cross-bill and in finding the mortgage was not a lien upon the property.

The only evidence introduced on the trial by appellee was her own testimony and three exhibits relating to the divorce proceedings. It is urged by appellant that under section 2 of the chapter in our statute on evidence and depositions (J. & A. 5519), appellee was not competent to testify against appellant, unless her testimony was included within one of the exceptions to said section. The record shows that her testimony was general in character and was introduced as a defense to the note and mortgage held by the administratrix who sued as an adverse party. We find no exception to the statute that would permit her, under these circumstances, to testify and must therefore hold that her testimony was incompetent. This holding is in line with Stevens v. Hay, 61 Ill. 399. In that case Stevens and wife had given a note secured by mortgage to procure a loan of money. The mortgagee assigned the note and mortgage and the assignee died. The administrator of the assignee filed a bill to foreclose the mortgage and it was there held that the mortgagors, Stevens and his wife, were not competent witnesses to prove a defense as against the administrator of the assignee. It is well settled, however, in chancery practice that where the competent evidence is sufficient to uphold the decree, the same will not be re. versed on account of the admission of incompetent evidence, as the presumption is that the chancellor did not consider the evidence which was incompetent in arriving at his decision.

In Swift v. Castle, 23 Ill. 209, it was said by our Supreme Court: ‘ ‘ The question presented upon the trial before the chancellor, as well as in the Appellate Cdurt, is, upon all the legitimate evidence in the cause, what decree should be rendered. The chancellor being the judge of both the law and evidence, the presumption is, that in rendering his decree he will only regard that which is legal and pertinent. * * * It is the correct practice for the chancellor, after the evidence is heard, to regard no portion of. it which is immaterial or illegal, and to decide the case alone on the legal evidence adduced.” It was also held in Treleaven v. Dixon, 119 Ill. 548, that “In chancery cases, the whole record, including all the evidence offered, is before us, and we are required to assume that all the incompetent evidence was rejected, and all the competent evidence was admitted and considered, on the final hearing. If there is competent evidence in the record sufficient to sustain the decree, it must be affirmed; if not, it must be reversed, and this without regard to whether the chancellor may have been right or wrong in his views as to the competency of the evidence at the hearing.” (See also, Goelz v. Goelz, 157 Ill. 33.) We must, therefore, consider how far and to what extent the decree in this case is sustained by the competent evidence.

The only evidence introduced in behalf of appellee other than her own testimony were a tax receipt for taxes paid by her in Centralia township, Marion county, Illinois, which covered the taxes on the property in question, a copy of the order for temporary alimony awarded her by the Circuit Court of Marion county, Indiana, in her suit for divorce against her husband, and a decree for divorce against her husband rendered by the same court, containing an order that he pay her $3 a week for the support of her minor children, whose care and custody were awarded to her, a certified copy of which was filed for record in Marion county, Illinois, prior to the commencement of this suit. On the part of appellant the note and mortgage were introduced, the former being as follows:

“$125.00. Centralia, Ill., December 18, 1912.

“Six months................after date, for value received I..........promise to pay to the order of William W. Hyde..............the sum of one hundred and twenty-five ................dollars, at Centralia, Ill.........with interest at the rate of............per cent, per annum from............until paid. Interest payable............annually. Mrs. D. Barton. This note secured by mortgage, and to be paid out of a certain fund as provided in said mortgage.”

The mortgage was in the usual form and by it appellee mortgaged an undivided one-half of Lot Ho. 2, Block 14, in Jones, Gregory and Stickney’s Addition to Centralia, Illinois, and contained the following condition: “A decree having been rendered against one William Barton (owner of the other half of said property) and which decree has been placed on record as a lien against said William Barton’s interest in said property, it is agreed that grantee herein shall collect the amounts due on said note out of the money arising from said decree, either by collecting the same from said William Barton or enforcing the same out of his half of said property, any rents realized from said property after payment of taxes, repairs and other necessary expenses, one-half of net remaining amounts shall be applied on said note. When note so paid in full, same and this mortgage shall be canceled, surrendered and released by said grantee.” Both the note and mortgage were assigned by W. W. Hyde, the payee, to Daniel Hayden before maturity. Hyde testified on behalf of appellants that appellee agreed to pay him $150 for his services as her solicitor; that he filed the bill for divorce, obtained an order for temporary alimony and the decree for divorce; that at her request he obtained a restraining order to keep her husband from in any way interfering with her; that he caused the husband to be cited to appear in court to compel the payment of the amounts he was ordered to pay, but that he claimed to be out of employment and the court refused to make an order compelling him to pay the same; that $25 solicitor’s fees were allowed him by the court in the divorce proceedings, which he never got, and that the note and mortgage in question here were for the balance of his fees; that he sold and transferred the same to Hayden for $110 ip money. While W. W. Hyde was made a defendant and served with process, as well as Daniel Hayden, yet the administratrix alone appeals from this decree, and therefore before the same could be disturbed here, it must be found that some error was committed prejudicial to the rights of such appellant, and it is to be taken as granted that any party to the suit served with process and not appealing, acquiesced in the action of the trial court'. Schwartz v. Ritter, 186 Ill. 209; Press v. Woodley, 160 Ill. 433.

Before appellant can be heard to complain concerning the dismissal of her cross-bill, it must appear that the contract which she held was a negotiable instrument, which could be legally transferred by indorsement and delivery. “The rule governing negotiable instruments, to make them assignable under our statute or at common law, is that the instrument, draft, bill of exchange or promissory note must be payable unconditionally, and that • any condition attached to payment destroys negotiability, and an assignment of an instrument so burdened does not vest title in the assignee so as to enable such assignee to maintain an action in his own name. Kingsbury v. Wall, 68 Ill. 311. Daniels on Negotiable Instruments states the rule thus, vol. 1, p. 34: ‘The instrument must be payable unconditionally and at all events in order to be negotiable. If the order or promise be payable, provided terms mentioned are complied with, it is not a bill or note, and likewise if payable provided a certain act be done.’ ” Knights & Ladies of Security v. Hibernian Banking Ass’n, 137 Ill. App. 175. While it is true the note in question is in its terms certain as to amount and time of payment in its general terms, yet there is attached to it the statement, “this note secured by mortgage, and to be paid out of a certain fund as provided in said mortgage, ’ ’ and this notation is shown to have been put on the note by the parties when it was executed.. In VanZandt v. Hopkins, 151 Ill. 248, it is stated: “There seems to be no substantial conflict in the authorities that a memorandum, either after the signatures to a bill or note endorsed on the back or written on the margin ‘contemporaneously with the execution of the instrument, and by agreement of the parties, will form a part of their contract, and bind them the same as if introduced into the body of the instrument.’ ” In that case the instrument sued on was written and signed as a promissory note, but after the signatures there was a statement showing that the note was given for the purchase of a certificate of stock in a manufacturing company, to be delivered simultaneously with the payment of the money named in the note, and it was held that as the money was to be paid upon the contingency of the readiness and ability of the payee to deliver the stock, that affected and destroyed the negotiability of the instrument; and it is also held that it was competent for either party to show by parol when and for what purpose the memorandum was made. It therefore appears that the memorandum upon the note in question was a part of the contract and its purpose was subject to parol explanation. The provision in the mortgage to which the note referred to should also be considered in connection with the condition named in the note. The provision in the mortgage concerning the collection of the note was that the “grantee herein shall Collect the amounts due on said note out of the money arising from said decree, either by collecting the same from said William Barton or enforcing the same out of his half of said property, any rents realized from said property after payment of taxes, repairs and other necessary expenses, one-half of net remaining amounts shall be applied on said note.”

W. W. Hyde, whose testimony was competent evidence, also stated when explaining the condition attached to the note: “If Barton paid she was to be relieved, if he did not pay she was to pay.” The negotiability of this instrument was therefore destroyed as the promise of payment was conditional and not certain as required in negotiable instruments. Daniel Hayden therefore could not take title to the note as negotiable paper, and suit could not be sustained to collect the same, either in his name or that of his legal representative. It follows that the court below properly dismissed the cross-bill of appellant, and its action in so doing must be affirmed. It does not follow, however, that the court was right in granting the relief prayed for by appellee and in holding that the mortgage was not a lien against appellee’s undivided interest in the lot in question but as to the same was null and void. While the note in question was not negotiable, as we have above held, yet it and the mortgage given to secure it on their face gave Hyde, the payee and mortgagee, certain rights which, all conditions being complied with, he was entitled to enforce. And this especially applies to that portion of the condition in the mortgage which provides that, “Any rents realized from said property after payment of taxes, repairs and other necessary expenses, one half of net remaining amounts shall be applied on said note.” The testimony of appellee being incompetent as against appellant, there was no proof which sustained her claim that the note was without consideration.

That portion of the decree which grants the relief prayed for in the original bill and declares that the mortgage in question is no lien against the undivided interest of appellee in the lot referred to, and holds such mortgage null and void, is reversed and the cause remanded for such further proceedings as the parties may desire to take in conformity with the views herein expressed. We direct that each of the parties here pay one-half of the costs of this appeal.

Affirmed in part, reversed in part and remanded.


text:
    Idel Diddea, Executrix, Appellant, v. W. T. Page, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trial, § 195

      —when verdict erroneously directed. In an action for damages for fraud and deceit in falsely representing that a note secured by mortgage and given on an exchange for land was good and that the maker was solvent, where there was evidence tending to show that defendant had no title when he sold the land, that the land was worth only about one-tenth of the face of the note, and there was improperly excluded evidence that defendant had at one time traded the note to a third person who, upon finding that the note and mortgage were worthless, compelled defendant to take them back upon threat of a criminal prosecution, held that the court erroneously refused to direct a verdict.
    Appeal from the Circuit Court of Fayette county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Idel Diddea, executrix of the estate of Frank Diddea, deceased, plaintiff, against W. T. Page, defendant, in the Circuit Court of Fayette county, to recover damages for deceit in a transaction in which plaintiff’s testator exchanged property for an alleged worthless note and certain cash. From a judgment for defendant, plaintiff appeals.
    F. M. Guinn, for appellant.
    Albert & Adbert, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Fraud, § 100 —when evidence as to worthlessness of note improperly excluded. In an action for damages for fraudulently representing that a note and mortgage accepted by plaintiff on an exchange were good and that the maker was solvent, held that evidence that defendant had, prior to the exchange, traded the note to a third person who, upon finding that the note was worthless, compelled defendant to take it back upon threat of a criminal prosecution, was improperly excluded.


text:
    George J. Stein, Administrator, Appellee, v. Chicago & Eastern Illinois Railroad Company et al., Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by George J. Stein, administrator of the estate of Elizabeth Stein, deceased, plaintiff, against the Chicago & Eastern Illinois Railroad Company and William J. Jackson and Edwin W. Winter, receivers, defendants, in the Circuit Court of Franklin county, to recover for the death of plaintiff’s intestate as a result of the alleged negligence of defendants ’ servants in operating one of its passenger trains in Benton, Illinois. From a judgment for plaintiff for $2,500, defendant railroad company appeals.
    The action was brought by plaintiff under the statute to recover damages to the next of kin on account of the death of Elizabeth Stein. It appeared from the evidence that on Decoration Day, May 30, 1914, at a little after eight o’clock in the morning, when the air was quiet and there were no noises, plaintiff with his wife, Elizabeth Stein, were going south on South Main street and had reached the north side of the railroad crossing. She was a woman sixty-seven years of age, weighing 190 to 195 pounds, with no unusual infirmities. She was walking four or five feet in the lead of her husband, carrying a basket of flowers while he followed with a bucket of water. She started to cross the track and while about to step from the south side was struck by an engine attached to one of defendant’s passenger trains going southwest. She was thrown from 75 to 100 feet by the impact and received injuries which caused her immediate death.
    Emory Ligón testified: “I think that at the crossing you could see a train approaching as the cut is not very deep. * * * I know there is a cut there because you have to go down a slant to cross the railroad. From that point south to the east on the railroad crossing I do not think there is anything to hinder a person from seeing an approaching train if he looks.” Philip Schrade testified: “A person walking along South Main street just north of the C. & E. I. crossing could see an approaching train; at times you could see it 200 or 300 yards.” These witnesses were-all called on behalf of- plaintiff, who himself testified: “When we first observed the train, Mrs. Stein was just a few feet from the right-hand rail of the C. & E. I. Bail-road, three or four or five feet, something like that. When I first saw the train I hollered to her not to try to cross. * * * I saw the train coming. I suppose at that time she could have seen the train if she had looked, but guess she thought she could get across.”
    On the part of defendant two witnesses, Jacob and Anna Horine, who were up the street behind Mrs. Stein and' are in no ways interested in the event of the suit, swore she stopped and looked at the train and then started to run across the track and beat the train.
    Holmes & Dillon, for appellants.

      Abstract of the Decision.
    1. Negligence, § 157

      —what plaintiff must prove in action for negligent death of intestate. In an action to recover for the death of plaintiff’s intestate as the result of the alleged negligence of defendant, it is necessary, in order to warrant a verdict of guilty that plaintiff prove not only that defendant was negligent, but also that plaintiff’s intestate was in the exercise of due care.
    2. Railroads, § 678*—when person approaching railroad_ crossing guilty of contributory negligence. One who approaches a railroad crossing without seeing an approaching train when the surroundings are such that she would have seen it had she looked, or who seeing the train attempts to cross in front of it, in either event fails to exercise reasonable care in approaching and going on the crossing.
    W. P. Seeber and T. M. Webb, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.