text:
    Chicago & Alton R. R. Co. v. John Stites.
    1. Master and servant—Defective machinery.—To justify a recovery for an injury arising from a defect or insufficiency in the machinery, or implements furnished by the master to the servant, knowledge of the defect must he brought home to the master, or proof given that he was ignorant of the same through his own negligence or want of care.
    2. Verdict not sustained by evidence.—The verdict for plaintiff was not justified by the evidence, which failed to establish the material Ret alleged in the declaration, that defendant carelessly and negligently permitted its switch to be and remain in defective repair and condition.
    Appeal from the City Court of East St. Louis; the Hon. William P. Launtz, Judge, presiding.
    Opinion filed January 8, 1887.
    Mr. L. H. Hite, for appellant.
    Messrs. Flannigen & Canby, for appellee.
   Green, J.

This was an action in ease, brought in the court below by appellee against appellant, to recover damages for injuries alleged to have resulted from the negligence of appellant. A verdict for §3,550 was rendered, appellant’s motion for a new trial overruled, and judgment on the verdict was entered for appellee, to reverse which this appeal was taken. The declaration of two counts averred substantially, “ defendant negligently and carelessly permitted a switch to he and remain in bad and defective repair and condition, so (hat it did not hold rails true and in proper shape to allow wheels of engine to pass safely over the same, and by reason of such defective repair and condition the engine on which plaintiff was riding was thrown from the main track to and upon the side track, and plaintiff was thereby thrown to the ground and injured, and (in second count) was compelled to jump from the engine to avoid the danger of being crushed by collision of ongine with cars on side track, and in so doing struck the ground with great force and violence, and was injured. Plaintiff was in the employ of defendant as yard switchman at the time of the injury, and had been in such employment during five or six years prior to that time. His duties required him to pass up and down over defendant’s road past the switch alleged to have been in bad repair and condition, upon engines, daily, attend to switching trains in the yard where the switch in question was located, to handle it when required in the performance of his duty as yard switchman, and was familiar with the tracks and switches in the yard. The engine on which he was riding at the time of the accident was proceeding on its way down to East St. Louis upon the main track in this yard, appellee standing upon the foot board in front, and at a point where a side track could be joined to the main track by the use of said switch. The engine left the main track and ran onto the side track ; this, as appellee testified, caused the engine to jump, and finding he was thereby about to be thrown off, he pushed himself off on one side to avoid falling in front of the engine. In another part of his testimony he says, “When the engine was jumping it threw me, and I lit on one foot; ” and he also described his in-j uries. One sufficient reason of those urged on behalf of the appellant for reversing this judgment, is, the verdict was not justified by the evidence, which failed to establish the material fact, as alleged in the declaration, that defendant carelessly and negligently permitted the switch to be and remain in defective repair and condition; the proof shows appellant kept in its employ up to and at the time of the accident, a sufficient force of men, whose duty was every day, including Sunday, to inspect and keep in repair tracks and switches of appellant’s road in this yard, and that they were diligent in performing their duty; that at an early hour of the Sunday on which the accident occurred, appellee returned on a train from his work at East St. Louis safely over the main track past this switch; about nine o’clock the same morning the yard master in charge of this yard, rode on a train down to East St. Louis on the main track past this switch, and observed nothing out of order there, and Appellee testifies a switch engine with trains was running over the main track up and down past this switch during the afternoon of same day as late as five o’clock, and no accident or interruption was observed; it was about twenty minutes after six o’clock the accident happened. The foregoing facts show, quite satisfactorily, the switch in question to have been in good working order and repair up to a time little more than an hour before the engine reached the switch and ran off upon the side track, and moreover, as the engine was approaching and within a short distance of the place where it left the main track, the switch and rails all appeared to the persons on the engine to be in good order, with the switch set for the engine to pass along on the main track. Applying the law to these facts in evidence, and defendant’s liability, by reason of negligence as alleged in the declaration, does not appear. It can not be justly claimed, the facts proven show, or tend to show, appellant, its officers or employes knew this switch was out of repair or in a defective condition at or immediately before the accident, or that negligence should be imputed to them because they failed to obtain such knowledge (if the switch had been in that condition) in the short interval elapsing between five o’clock, when the safe passage of trains by this switch indicated its safe condition, and the time the engine ran off. “To justify a recovery for an'injury arising from a defect or insufficiency in the machinery or implements furnished by the master to the servant, knowledge of the defect must be brought home to the master, or proof given he was ignorant of the same through his own negligence or want of care.” C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 546; C. & A. R. R. Co. v. Platt, 89 Ill. 140 ; E. St. Louis P. & P. Oo. v. Hightower, 92 Ill. 140.

The evidence, we think, also fails to satisfactorily show the switch to have been out of repair immediately before and at the time the engine ran onto the side track. From the evidence it appears, just after the accident the switch was examined, and the target, pin in the switch, and switch rods, were found to be all right, but the sliding rail of the switch lapped over, and was out of line about half an inch, and appellee attributed the accident to this cause. Witnesses also testify if the switch had been in perfect order this sliding rail would have been held true and not out of line. This evidence does not show the condition of this switch before the accident or that it was then in bad repair, but we must look to the testimony of those who saw its condition immediately before the engine ran off upon the side track, for information. Appellee, engineer and fireman were the only witnesses who knew the condition of the switch just before the accident, and their testimony shows that they were riding on the engine upon the main track and approached within two car lengths of this switch, in clear daylight, all looking ahead and observing the switch, and the switch, switch rails, and track appeared all right and in perfect order. Taking all this testimony together it can hardly be said, the material allegation that the switch was out of repair immediately before and at the time of accident, was proved by a preponderance of the evidence. We shall not discuss other questions presented by counsel for appellant touching the motion for continuance, instructions and contributory negligence, deeming it unnecessary so to do. The court below erred in overruling the motion for a new trial and in rendering judgment upon the verdict. The judgment is reversed and cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FIRST district.
    No. 83—2353.
    Abbott v. Morris.
    The court is fully satisfied that the verdict in this case was not only just, but supported by the evidence, and that there was no error of law.
    Affirmed.
    Opinion filed June 23, 1886.
   Opinion

Per Curiam.

Judge below, Elliott Anthony. Attorneys, for appellant, Mr. Geo. W. Cass ; for appellee, Messrs. Frank J. Smith & Helmer.


text:
    No. 115—2385.
    Stanwood v. Pratt.
    Judgment was rendered by the court below in favor of appellee and against appellant, for the value of certain shares of telephone stock. There is evidence in the record which clearly supports the finding, and from an examination of the whole evidence, this court is unable to say that it so preponderates against the finding as to justify a reversal.
    Judgment affirmed.
    Opinion filed July 21, 1886.
   Opinion

Per Curiam.

Judge below, Joseph E. Gary. Attorneys, for appellant, Mr. C. C. Bonney and Mr. Lyman M. Paine ; for appellee, Mr. E. F. Runyan.


text:
    No. 98—2368.
    Graves v. Graves.
    This was a bill for a divorce on the ground of extreme and repeated cruelty, brought by appellant, the wife, against appellee, the husband. The defendant below answered denying the several charges of cruelty and by way of bar to the relief sought by the plaintiff, charged her with adultery. The court below found that the charges of extreme and repeated cruelty were sustained by the evidence, but dismissed the plaintiff’s bill, on the ground that the charge of adultery made by the defendant against her was sufficiently made out or sustained to defeat her right to a decree for a divorce. Under the circumstances, the pilaintiff having established the husband’s guilt in the clearest manner, if the latter would deprive her of her remedy, he" was subject to the burden of proving her guilt by evidence that admits of no dispute. This he fell entirely short of doing. Aside from his cruel and brutal treatment of his wife, the defendant was shown to be a man of bad character. He testified to circumstances calculated to create a suspicion of guilt on her part, and called a witness to corroborate him, whose testimony when, critically examined is very unsatisfactory, and entitled to little or no weight. Her explanation of all the alleged criminating circumstances seems reasonable, and is sufficient to dispose of the defense, so poorly supported as it was by evidence bn his behalf.
    Reversed and remanded with directions to enter a decree for a divorce in favor of plaintiff.
    Opinion filed July 21, 1886.
   Opinion

Per Curiam.

Judge below, Gwynn Garnett. Attorneys, for appellant, Mr. Geo. H. Pullman and Mr. W. P. Black.


text:
    No. 117—2387.
    Wilson v. Roots.
    In this case Roots filed his bill in chancery against Wilson, praying for the rescission of a certain contract for the assignment and transfer by Wilson to him, upon certain conditions, of §11,500 of the capital stock of the Wilson Sewing Machine Company, of Walling-ford, Connecticut, in exchange for $10,000 of the bonds of said company. Wilson thereupon filed his answer and his cross-bill, praying for a specific performance of said contract; and on the final hearing, on pleadings and proofs, the court below dismissed the cross-bill for want of equity, and entered a decree in accordance with the prayer of the original bill. The court is of opinion that the contract in question is shown by the evidence to have been brought about to such a degree by misrepresentations and concealments on the part of Wilson as to material facts, as well by a sort of moral coercion on his part, as to render it unconscionable and therefore not a proper subject for specific performance. It also appears that Wilson failed to perform the contract on his part in various respects, and that his defaults were of such a character as of themselves warranted the decree of the court below, both upon the bill and cross-bill.
    Affirmed.
    Opinion filed July 21, 1886.
   Opinion

Per Curiam.

Judge below, Thomas A. Moran (who took no part in the decision of this case). Attorneys, for appellant, Messrs. Leaming & Thompson ; for appellee, Messrs. Peckham & Brown and Mt. Thomas H. Pease.


text:
    No. 111—2381.
    In re John Mullin et al.
    Charles Spangenberg recovered a judgment for §5,000 against John Mullin and Peter McHugh, in the Superior Court of Cook county, in an action of trespass for an assault and battery, said judgment-being afterward affirmed on appeal by this court and the Supreme Court: Mullin et al. v. Spangenberg, 112 Ill. 140. The defendants, having been committed to the custody of the sheriff of Cook county on a writ of capias ad satisfaciendum issued on said judgment, a petition was presented by them to the county court praying to be released from said imprisonment on' delivering up their property. Their petition was denied by the county court, and on appeal to the circuit court a hearing was had with the same result. The material questions raised at the hearing were, whether malice was the gist of the action .in which said judgment was rendered within the meaning of section 2, chapter 72 of the Bevised Statutes, and whether that question is to be determined solely by the record of said action. Both of thgse questions were determined in the affirmative, and the court is of the opinion that under the principles established by the Supreme Court in First National Bank of Flora v. Burkett, 101 Ill. 391, and In re Murphy, 109 Id. 31, they were decided correctly.
    Affirmed.
    Opinion filed July 28, 1886.
   Opinion

Per Curiam.

Judge below, Kirk Hawes. Attorneys, for appellants, Mr. H. O. McDaid and Mr. C. A. Knight ; for appellee, Mr. George W. Brandt.


author: Bailey P. J.

text:
    No. 105—2375.
    O’Neill v. O’Neill.
    The court is of opinion that the preponderance of the evidence in this case clearly warrants the conclusion that the note in suit was in fact' executed by defendants for certain indebtedness due from them jointly to the plaintiff’s testator ; that said note was lost, and that it had never been negotiated or indorsed by the payee or her executors, and therefore the verdict for the balance due on the note computing interest at the rate of six per cent. per annum, was warranted by the evidence. The motion for a new trial was properly refused.
    Affirmed.
   Opinion by

Bailey P. J.

Judge below, Kirk Hawes. Attorneys, for appellant, Mr. J. N. Jemison; for appellee, Mr. M. J. Dunne.


author: Bailey, P. J.

text:
    No. 114—2384.
    Chicago West Division Ry. Co. v. Lambert.
    This was an action on the ease, brought by Mary Louisa Lambert against the Chicago West Division Bail way Company, to recover damages for a personal injury suffered by the plaintiff while alighting from one of the defendant’s cars. The defendant pleaded not guilty, and at the trial the jury found the defendant guilty and assessed the plaintiff’s damages at §6,000, and for this sum and costs the plaintiff had judgment. The evidence shows that on the 13th day of August, 1882, the plaintiff was a passenger on one of the defendant’s cars running on Halsted street, Chicago, and that, on alighting from said ear at the corner of Harrison street, she fell and received the injury complained of. The evidence as to the circumstances of the injury is very conflicting. The car in question was one of the open cars used by the defendant in summer, having a foot board running the whole length of each side. The plaintiff’s evidence tends to show that she was riding in company with her husband and having a small child in her arms j that the car stopped at Harrison street for passengers to alight; that her husband got off first, and that as she was stepping from the foot board down to the ground, the car was suddenly started, whereby she was violently thrown down and injured. The defendant’s witnesses, on the other hand, testified that the car was standing still all the time the plaintiff was endeavoring to alight, and until a considerable time after she had fallen: that the car came to a halt before she left her seat, and was not started or moved again until after the plaintiff had been taken from the ground and carried into a neighboring drug store. Where evidence is thus conflicting, it is peculiarly the province of the jury to decide the conflict and find the facts at issue. Appellate courts may reform the abuses and sometimes correct the errors of the jury, but it should not undertake to perform them functions. Finding no material error in the rulings of the court in the instructions to the jury, or in relation to the admission or exclusion of evidence, the judgment is affirmed.
    Opinion filed July 28, 1886.
   Opinion by

Bailey, P. J.

Judge below, John G. Rogers. Attorneys, for appellant, Messrs. Wm. H. & J. H. Moore ; for appellee, Messrs. Brandt & Hoffman.


text:
    No. 116—2386.
    Hagans v. Devries, Adm’x, etc.
    This was a bill by appellant Hagans against the administratrix of the estate of Stephon W. Devries, deceased, for the specific performance of an alleged oral contract, whereby Devries, in his lifetime, agreed to sell, and Hagans to purchase, ten shares of the stock of the Hand, McNally & Co. corporation; Hagans alleging that the price to be paid by him was at the rate of three hundred dollars per share, or three thousand dollars in all. Said corporation and its secretary were also made parties defendant. Answers and a replication were filed, and the only evidence adduced as to the terms of the contract as respects price, was Hagans’ own testimony, which was taken subject to objection by the administratrix. On the final hearing the court below denied the relief, for want of competent evidence, as to the terms of the alleged contract, and Hagans prosecutes this appeal. Hagans was not a competent witness in his own behalf against the representative of the estate of Stephen W. Devries, deceased. Cassel v. Cassel, 104 Ill. 361. Excluding Hagans’ evidence, there is no competent evidence in the case which tended to establish the contract as set out, because there was none to show what was the agreed price. It is the established doctrine in this State, that before a court of ecpiity will enforce the specific performance of a contract not in writing, it must c1 early appear that a contract of sale was made, and its terms must he clearly proved. Allen v. Welb, 64 Ill. 342 ; Bowman v. Cunningham, 78 Ill. 48.
    Affirmed.
    Opinion filed July 28, 1886.
   Opinion

Per Curiam.

Judge below, Murray E. Tuley. Attorneys, for appellant, Mr. John Burton Payne; for appellee, Messrs. Swett, Grosscup & Swett.


text:
    No. 112—2382.
    Megill v. Megill.
    This was a bill by appellant, the wife, against appellee, the husband, for a divorce upon the grounds of extreme and repeated cruelty and adultery. Upon issues formed by answer and replication a hearing was had, at which the principal witnesses appeared and gave their testimony orally before the chancellor, who dismissed the bill for the reason that the said charges were neither of them sustained by a preponderance of the evidence. After full consideration of the evidence preserved in the record, this court is unable to say that the conclusion arrived at below was erroneous.
    Affirmed.
   Opinion

Per Curiam.

Judge below, Thomas A. Moran (who took no part in the decision of this case). Attorneys, for appellant, Messrs. Knickerbocker & Holdom; for appellee, Hr. A. B. Baldwin.

Opinion filed July 28, 1886.


text:
    No. 121—2391.
    Chicago, St. Louis & Pittsburg Ry. Co. v. Welsh, by her next friend.
    This was an action on the case to recover damages for a personal injury. It appears that at the time of said injury, the plaintiff, a child then about seven years old, was playing with a companion of about the same age, in the vicinity of two or three of the defendant’s freight cars, which were then standing on and near the termination of one of the defendant’s side-tracks. Said side-track ran in a direction at right angles to May street, Chicago, and terminated about three feet from the line of said street, there being, as it seems, no post or other contrivance to prevent cars from running or being driven off from' the side-track and onto the street. While said cars were standing as above stated, certain servants of the defendant caused four other of the defendant’s cars to be driven onto said side-track at such rate of speed as to cause them to collide with those already there and drive them off from the side-track onto the street. One of said cars, while thus in motion, ran over the plaintiff, crushing and mntilat’ng one of her legs in such manner as to require its amputation. The jury at the trial found the issues for the plaintiff and assessed'her damages at §5,000, and for that sum and costs the plaintiff had judgment. The evidence for the plaintiff tended to show that at and immediately prior to the injury, she was sitting with her playmate on the sidewalk in the street, while the defendant gave evidence tending to show that she was at the time a considerable distance from the street on the defendant’s right of way, engaged in picking up small pieces of coal under one of the cars. This conflict the jury have settled in favor of the plaintiff, and the court is of opinion that their finding is in accordance with the preponderance of the evidence. In determining the question of the plaintiff’s contributory negligence, the jury were at liberty and it was their duty to consider her tender years and the circumstances and situation of her parents, who, as the evidence shows, were poor people, compelled to devote their time to hard labor, which rendered it impossible for them to maintain a constant personal supervision over their children. Assuming that the injury occurred while the plaintiff was on the public street where she had a legal right to be, this court cun not say that the evidence established negligence either on her part or on the part of her parents.
    Affirmed.
    Opinion filed July 28, 1886.
   Opinion by

Bailey, P. J.

Judge below, Elliott Anthony. Attorneys, for appellant, Mr. FrankLoesoh and Messrs. Willard & Briggs ; for appellee, Mr. Simon P. Douthart.


text:
    No. 104—2374.
    Kuhl v. Illinois Staats Zeitung Co.
    An action of debt upon an appeal bond. Upon the trial the jury found the issues for the plaintiff, and judgment was rendered accordingly. The order giving plaintiff leave to supply the lost declaration and the denying defendant’s motion for a continuance after the trial had begun, were matters within the discretion of the court, and the case fails to show any abuse of such discretion. The motion to suppress the deposition of a witness because the title of the case was not correctly given in the notice of plaintiff to defendants,- of the taking it, was not made until after the trial had begun, and the deposition had been used in evidence without objection. That was manifestly too late.
    Affirmed.
    Opinion filed July 28, 1886.
   Opinion

Per Curiam.

Judge below, Rollin S. Williamson. Attorneys, for appellant, Mr. J. Burnham ; for appellee, Mr. Arnold Heap and Mr. Lorenzo C. Brooks.


author: McAllister, J.

text:
    No. 110—2380.
    Lake Shore & Michigan Southern Ry. Co. v. Pauly.
    This is an appeal by the railway company from a judgment of one hundred and eighty dollars recovered by appellee in an action on the case, to recover damages for an injury to appellee’s horses and harness, alleged to have been occasioned through the negligence of the appellant, its agents and servants, while appellee’s team was being driven across appellant’s tracks on 55th street, Chicago. On the trial, the plaintiff offered evidence tending to prove some negligence on the part of the defendant, but which was contested by the latter, as was the matter of the exercise of ordinary care by the driver of plaintiff’s team, having the same in charge at the time of the accident. There was no decided preponderance of evidence in favor of the plaintiff, upon the question of the negligence of ' defendant, of of the exercise of due care on the part of the plaintiff. The court, at the instance of plaintiff’s counsel, gave the jury this instruction: “1. The court instructs the jury that if they believe from the evidence that the place where the damages complained of were sustained was at a point on a public street, and that the defendant regularly kept a flagman to warn passers of approaching trains during all hours of the day, and at the hour when the damages complained of were sustained, and that flagging by such flagman at said point was a necessary precaution for the proper and safe operation of the road there, and that such flagman was absent or neglected and failed to give timely warning, and that by due attention to his duties he could have done so, and that the damages complained of were occasioned by such absence or neglect of his duties, then you must find for the plaintiff and assess his damages at such sum as he is shown by the evidence to have sustained by reason of the injuries complained of.” jHeld, that such instruction is fatally defective, in that it wholly fails to submit to the jury the question whether or not the driver of plaintiff’s team was in the exercise of ordinary or due care to avoid the injury.
    Reversed and remanded.
    Opinion filed July 28, 1886.
   Opinion by

McAllister, J.

Judge below, Richard Prendergast. Attorneys, for appellant, Mr. Pliny B. Smith ; for appellee, Mr. S. Mason Meek.


text:
    No. 106—2376.
    U. S. Express Co. v. Wright.
    This was an action brought to recover from appellant for an injury received by appellee, from being struck by a runaway team of horses belonging to appellant. The case was twice before a jury, and each trial resulted in a similar verdict in favor of plaintiff. The single ground alleged for reversal is, that the verdict is contrary to the evidence. There was a sharp conflict of evidence on the most important point in the case as to whether the driver was guilty of negligence. It may be admitted that if the weight of evidence depended wholly on the number of witnesses, appellant would have the preponderance ; but such is not the case; and where there is a conflict, the jury and the court below have a much better opportunity of. determining where the truth lies than % reviewing court. In such cases, unless the court on review of the whole record can say that the verdict is clearly and manifestly against the weight of the evidence, the judgment of. the court below will not be disturbed.
    Affirmed.
    Opinion filed July 28, 1886.
   Opinion

Per Curiam.

Judge below,Kirk Hawes. Attorneys, for appellant, Mr. Egeert Jamieson ; for appellee, Walter M. Howland.


text:
    No. 122—2392.
    Frost v. Harzfield.
    A replevin suit was brought by appellants against appellees, and goods taken on the replevin writ. Afterward appellants dismissed their replevin suit, and thereupon the court ordered a retorno habendo, and entered judgment in favor of Edward Harzfield, Albert Harzfield and Samuel Friend, for the sum of $86, as damages for the detention of the goods. At the time this judgment was entered there had been no service on the three defendants, in whose favor it was rendered, and no appearance had been entered for them. The court had no authority to enter such a judgment. A supplementary record has been filed in this court, showing that at a subsequent term, and so far as appears from the record, without notice, the court entered an order directing that the judgment order originally entered in said cause should read so as to show the judgment to have been entered in favor of defendant Hanehett, instead of the other defendants. The court was without power to make such an amendment of the record at a subsequent term. Baragwanath v. Wilson, 4 Bradwell, 80; Trautman v. Hills, 5 Bradwell, 396.
    Reversed and remanded.
    Opinion filed Aug. 6, 1886.
   Opinion

Per Curiam.

Judge below, John G. Rogers. Attorneys, for appellant, Messrs. Saunders & Grant; for appellee, Messrs. Flower, Remy & Gregory.


text:
    No. 30—2426.
    Powell v. McCord.
    This was an action of assumpsit brought by appellee against appellant, to recover the amount of four promissory notes executed by the defendant. At the trial, the verdict and judgment was for plaintilf for the amount of the notes. It appears that said notes were given by the defendant in consideration of commissions, and also of moneys paid or liabilities incurred by John C. McCord, in certain dealings on the Board of Trade of Chicago, carried on by him as the agent or broker of the defendant. The defense set up in the pleadings and urged at the trial was, that said dealings were mere gambling transactions, within the prohibition of the statute, and that said notes were therefore void. The evidence bearing upon this defense was conflicting, and the rules of law applicable to it were given to the jury very fully, and with substantial accuracy, by the court in the instructions.
    Affirmed.
    Opinion filed Oct. 27, 1886.
   Opinion

Per Curiam.

Judge below, Hollín S. Williamson. Attorneys, for appellant, Mr. I. 3L Boyesen ; for appellee, Messrs. Bisbee, Ahrens & Decker.


text:
    No. 32—2428.
    In re Talmadge E. Spaids v. Hanna.
    Talmadge E. Spaids, an insolvent, took an appeal to the Circuit Court of Cook county from an order of the county court, finding that he had not made a full, fair and complete schedule of his estate and debts, and remanding to custody. On the hearing in the circuit court, the following judgment was entered: “ This day come again the said parties by their respective attorneys ; thereupon the court after hearing further and concluding evidence adduced, and being fully advised in the premises, finds the record not showing the property that the county court found should be scheduled, and therefore presenting no issue for this court to try; it is therefore ordered that the judgment of said county court be, and the same is hereby reversed, wherefore it is considered that the said Talmadge E. Spaids recover from said Helen L. Hanna his costs in this behalf expended to be taxed and have execution therefor.” An appeal was allowed by the circuit court to this court, and twenty days allowed- to appellant to file a bill of exceptions. No bill of exceptions appears to have been filed, and in the absence of such a bill this court can not examine into the correctness of the judgment appealed from. Beasons stated in the order can not be regarded. It is immaterial whether they are good reasons or bad ones. The conclusive presumption in such cases is in favor of the judgment of the court below, and it must therefore be affirmed.
    Opinion filed Oct. 27, 1886.
   Opinion

Per Curiam.

Judge below, Lorin C. Collins. Attorney, for appellant, Mr. John Barton Payne.


text:
    No. 22—2418.
    Galloway v. Lewis.
    On October 30, 1883, appellant, James B. Galloway, as the agent of one Mrs. Phillips, filled out and signed a distress warrant in her name against Edward L. Day and delivered it to appellant, John McLinderi, a constable, to take Day’s goods. The same day McLinden went to the house where Day was stopping and demanded from Mrs. Day payment for the rent mentioned in the warrant. He then commenced to take the furniture of appellee. Appellee told him it was her furniture, and he laughed and said he knew all about those tricks, and kept on taking the furniture. She hung on to his arm and wanted to show him the bills, and he pushed her to one side. She told him if he would wait, she would get the bill and show him, but he would not listen. McLinden said that Galloway would see about it, and the following day she went to the office of Galloway and handed him the following letter: “James B. Galloway—Dear Sir: On Tuesday, Oct. 80th, one John McLinden, claiming to act for you, came to my room, 352 Park avenue, Chicago, and by force seized and carried away five hair-cloth upholstered chairs and one upholstered sofa belonging to me. I desire to know if his acts are authorized by you ? If so, I notify you that you must return said goods at once, and I shall hold you responsible for such acts. Mrs. Mary J. Lewis.” After reading the letter, Galloway said to appellee: “ I did not authorize him to take your furniture.” The furniture was not returned to appellee, but was afterward sold by the constable under direction of Galloway, who bought it in and shipped it to Milwaukee. The furniture taken was worth fifty or sixty dollars. An action of trespass was brought by appellee against appellants the day after the furniture was taken, but it was afterward dismissed, and on Dec. 18, 1884, this suit was brought. The case was tried and there was a verdict against the appellants for §300 damages, and from the judgment entered on such verdict ajopellants appeal to this court. Galloway proceeded at his peril after he was informed that the goods were appellee’s, and the legal consequence of his act was to ratify and approve all that the officer had done in taking the goods. There was a basis in the evidence for the assessment of punitive damages, and an appellate court can not interfere with the verdict unless it is so excessive as to show passion or prejudice on the part of the jury.
    Affirmed.
    Opinion filed Oct. 27, 1886.
   Opinion

Per Curiam.

Judge below, Richard Peendergast. Attorneys, for appellants, Mr. James B. Galloway ; for appellee, Mr. E. A. Sherburne.


text:
    No. 34—2430.
    Weber v. Mueller.
    This was an action of assumpsit, brought by the appellant against the appellee, upon an account for goods sold and delivered, and money lent and advanced by the plaintiff to the defendant. The defense set up was that of payment, and the trial before the court and a jury resulted in a verdict and judgment for the defendant. Mo question of law is raised, the only complaint being that the verdict is against the preponderance of the evidence. While the evidence was conflicting, the court is unable to say that there is any such preponderance in favor of the plaintiff as would warrant a reversal of the judgment.
    Affirmed.
    Opinion filed Oct. 27, 1886.
   Opinion

Per Curiam.

Judge below, Joseph E. Gary. Attorneys, for appellant, Mr. Theodore H. Schintz; for appellee, Messrs. Frank J. Smith & Helmer.


text:
    No. 20—2416.
    Forsythe v. Merrick.
    The court decides: 1. That from the restricted nature of its jurisdiction as respects some of the matters involved, and the obvious propriety of having the Supreme Court pass upon the case, it will sub-serve no useful purpose for it to enter upon a statement of the case, or a discussion in detail of the questions presented by this record. 2. That the demurrer of plaintiffs in error to the plea in abatement filed in this court by defendants in error, should be sustained for insufficiency of said plea. 3. That the decree of the chancellor is, in view of the reasons and authorities shown and cited in the printed brief and argument of counsel for defendants in error, and under the pleadings and proofs in the cause, in accordance with law and equity.
    Opinion filed Oct. 27, 1886.
   Opinion

Per Curiam.

(Moran, J., took no part in the decision of this case.) Judge below, Thomas A. Moran. Attorneys, for plaintiffs in error, Mr. James E. Munroe ; for defendants in error, Mr. Edward Roby and Messrs. Boutell & Waterman.


text:
    No 31—2427.
    Kaufman v. Lindell.
    This was an action of assumpsit brought by appellant to recover against appellee as indorser on a promissory note of which the following is a copy: “Chicago, Ill., Aug. 29, 1884. $600. Thirty days after date I promise to pay to the order of Alfred Lind ell & Co. six hundred dollars at the office of Hangan & Lindgren, Chicago, value received, with eight per cent, interest, until paid. L. P. Melson. Indorsed, Alfred Lindell & Co.” It appeared from the evidence that the note in suit was given to Hangan & Lindgren to take up a prior note which was due. The prior note was made by Nelson to Lindell & Co. as payees, and given in payment of a debt due from Nelson to said firm, and was taken by Lindell & Co. to Hangan & Lindgren for the purpose of being discounted. Hangan & Lindgren refused to discount the note on Lindell & Co.’s indorsement alone and thereupon Lindell & Co. procured one Veeder to indorse the note with them and it was then discounted, the proceeds being placed to Lindell & Co.’s credit. When said first note became due, Nelson made the note in suit, and it was indorsed by Lin-dell & Co., and taken to the bankers, Hangan & Lindgren, to take up the prior note. The bankers would not give up the old note unless another indorser was obtained and Veeder was applied to again, and refused to indorse the note as he had the prior one, but gave his own note to guaranty the payment of it. Plaintiff paid the bankers the amount of the note in suit, and it was delivered to him together with the note which Veeder gave as security. On the trial Lindell swore in his own behalf that at the time he indorsed the note in suit, he understood that Veeder was to indorse it as hehad the former note. It appeared that Nelson was insolvent, and that nothing could be made by suing him. There was a verdict for the defendant and judgment, and the case is appealed to this court, and the error assigned is that the verdict is against the law and the evidence. The court finds the verdict not warranted by the facts and reverses the judgment.
    Opinion filed Nov. 8, 1886.
   Opinion

Per Curiam.

Judge below, Rollin S. Williamson. Attorneys, for appellant, Messrs. Blanke & Chytræcs; for appellee, Messrs. Clifford, Anthony & Smith.


text:
    No. 33—2429.
    Proctor v. Einstein.
    This was an action by appellee, as payee of a check upon a bank, against appellant, as the drawer of such check. The plaintiff below had judgment for the amount of check and interest, and the defendant prosecutes this appeal. The bill of exceptions expressly states that it contains all the evidence given at the trial. It is well settled in this State, that if it appear in such case that the verdict or finding was wholly unsupported as to any essential element of a cause of action, the judgment must be reversed. It was essential that the plaintiff prove upon the trial, either the presentment of the check at the bank within a reasonable time, and notice of payment being refused, to the drawer, or show, by facts and circumstances, that the latter was not injured by failure to so present it. Stevens v. Park, 73 Ill. 387. There was no evidence, at the trial, upon either point; for that reason no cause of action was shown, and the judgment below must* be reversed and cause remanded.
    Opinion filed Nov. 8, 1886.
   Opinion

Per Curiam.

Judge below, Elliott Anthony. Attorneys, for appellant, Mr. )$. J. Whitehead ; for appellee, Mr. B. M. Shaffner.


author: McAllister, P. J.

text:
    No. 48—2444.
    Chicago, Danville & Vincennes R. R. Co. v. City of Chicago.
    This cause having been heard before, and the decree appealed from entered by Judge Moran sitting as circuit judge in the court below, and the two remaining members of this court being divided in opinion, so that no judgment of reversal can be entered, the decree below is necessarily affirmed.
    Opinion filed Dec. 8, 1886.
   Opinion by

McAllister, P. J.

Judge below, Thomas A. Moran (who took no part in the decision of this case). Attorneys, for appellant, Mr. Arthur Eyerson ; for appellee, Mr. H. O. McDaid and Mr. C. A. Knight.


text:
    No. 68—2464.
    George Babel et al. v. Adam Babel et al.
    In this case, Lord, Stoutenburg & Co. brought suit by attachment against George Babel and Catherine Beauchamp, to recover an indebtedness of $475.95, and caused Adam Babel and Freeman E. Pettit to be summoned as garnishees. Judgment having been rendered in favor of the plaintiffs for the amount of their claim and costs, and the cause afterward coming on for trial before the court without a jury, upon the issues taken upon the answers of the garnishees, judgment was rendered in favor of the garnishees. The fund sought to be reached by the writ of attachment was the sum of $687.93 in the hands of Pettit, being the proceeds of the sale of certain warehouse receipts for forty barrels of whisky, placed in Pettit’s hands by Adam Babel for sale, and the controversy in the case was as to the ownership of said warehouse receipts. On the part of the attachment creditors, it was claimed that the receipts were placed by George Babel and Catherine Beauchamp in the hands of Adam Babel, as their agent, the real ownership remaining in them. It was claimed by Adam Babel, on the other hand, that he purchased said receipts from George Babel and Catherine Beauchamp, in good faith for value, and that the receipts as well as the money realized therefrom belonged to him. The evidence bearing upon the foregoing issue was very conflicting. The court sees no reason in this case for departing from the usual rule that where the evidence is conflicting the decision of the trial court should be held to be conclusive.
    Affirmed.
   Opinion

Per Curiam.

Judge below, Elliott Anthony. Attorneys, for appellant, Messrs. Hamline & Scott ; for appellee, Messrs. Hiram H. Cody & Son.


author: Moran, J.

text:
    No. 7—2333.
    Village of Hyde Park v. Corwith.
    This was an action of debt brought by appellee against appellant upon a condemnation judgment rendered in favor of appellee, on Dec. 29, 1873, for the sum of $1,017.45, for land of appellee condemned for the purpose of opening a certain street, in pursuance of an ordinance of the village of Hyde Park ordering the opening of said street, and providing that the cost of said improvement be paid wholly by means of special assessment. The right of the appellee to recover under the allegations contained in his declaration, was determined in his favor by this court in Corwith v. Village of Hyde Park, 14 Bradwell, 635. The decision then made on the questions of law arising on the record and discussed by the court, controls most of the questions now presented. It is urged, however, that the proof introduced does not sustain the allegation of the declaration, that after the rendering of the condemnation judgment, the village took possession of the portion of appellee’s lot condemned, with appellee’s consent. The evidence conclusively establishes that the village took possession of the land and improved it in connection with adjacent property as a street, and that the public entered upon its use as such street. Appellee testifies that he knew the village went upon the lot, and built a sidewalk thereon, and were using it as a street, and that he did not object. This was evidence from which consent to possession by the village might well. be implied, and there being no contrary evidence on the record, the question of the possession of the village having been taken by appellee’s consent was properly treated, by the court below, as a fact wholly uncontroverted, so far as to any issue made by the evidence. The refusal of the court below to instruct the jury, at appellant’s request, that the special assessment proceedings for the purpose of raising the amount necessary to pay the damages awarded appellee for the land taken were still pending, and that the jury should find the debt upon the judgment sued on to be the amount of such judgment, less the amount assessed as benefits against the portion of appellee’s lot not taken, as appeared from the assessment roll introduced in evidence, was not error.
    Affirmed.
    Opinion filed Dec. 8, 1886.
   Opinion by

Moran, J.

Judge below, Sidney Smith. Attorneys, for appellant, Mr. Henry V. Freeman ; for appellee, Mr. Consider H. Willett.


text:
    No. 37—2433.
    Call v. Phelps.
    Upon full consideration of the evidence in this case, the court is of opinion that it supports the decree rendered from which this appeal was taken.
    Affirmed.
    Opinion filed Dec. 8, 1886.
   Opinion

Per Curiam.

Judge below, Henry M. Shepard. Attorneys, for appellant, Messrs. Smith & Burgett ; for appellee, Messrs. Comstock & Hess.


text:
    No. 69—2455.
    Capital City Mut. Fire Ins. Co. v. Detwiler.
    This was a suit brought by appellee to recover an amount claimed to be due to him from appellant, under the terms of a written contract by which appellee was appointed the general agent of appellant in and for the territory embraced in a number of States, and the conditions and remuneration of his services were fixed. Appellant terminated the contract and appellee, claiming such termination was without justification, brought. this action to recover damages for the breach. The case was submitted to the court without a jury, and no propositions of law were submitted to the court. The evidence is voluminous and on several points conflicting, and the accounts investigated more or less complicated. The court has examined the record with care, and finds that the conclusions of the court, both as to the right of the appellee to a judgment and as to the amount of the finding in his favor, are supported by the evidence.
    Affirmed.
    Opinion filed Dec. 8, 1886.
   Opinion

Per Curiam.

Judge below, Elliott Anthony. Attorneys, for appellant, Messrs. Campbell, Hamilton & Custer ; for appellee, Mr. L. A. McDonald, Messrs. Wilber & Eldridge and Mr. C. B. Wood.


text:
    No. 53—2449.
    Brewer v. Almini.
    This was an action by appellee against appellant to recover a balance alleged to be due for work and labor performed by the former for the latter in painting and decorating his dwelling house, then in the process of erection. A jury was waived and the case tried by the court, resulting in a finding for plaintiff and judgment for §76.50 against defendant, who prosecutes this appeal. Ho question of law was raised on the trial. Held, that the judgment was supported by the evidence.
    Opinion filed Dec. 8, 1886.
   Opinion

Per Curiam.

Judge below, Richard Peendeegast. Attorneys, for appellant, Mr. W. W. Richardson : for appellee, Messrs. Gardner. McFadon & Gardner.


text:
    No. 63—2459.
    Bloom v. The People.
    This was a bastardy proceeding tried in the Criminal Court of Cook county, before the court without the intervention of a jury. The principal witnesses were the relator, Josie Hovak, and the appellant, Jacob Bloom. There were some other witnesses who weie called in behalf of appellant, but their testimony had no direct bearing upon the issue, and no fact was proved which affected the credibility of the relator. There was a direct conflict between these two witnesses on the vital issue in the case.
    The finding of the trial judge is affirmed.
    Opinion filed Dec. 8, 1886.
   Opinion

Per Curiam.

Judge below, Rollin S. Williamson. Attorneys, for appellant, Mr. D. T. Duncombe ; for appellee, Mr. David Sullivan.


text:
    No. 65—2461.
    Reich v. Berdel.
    This was a bill in chancery, brought by appellee against appellant and others, praying for an assignment of dower in certain lands in Cook county. It was claimed that appellee had relinquished her dow'er in said premises by joining with her husband in the execution of a certain trust deed August 11, 1862. The record of said deed of trust, if it ever existed, was destroyed by the fire of Oct. 9, 1871, and the deed itself was not produced at the trial. An 'attempt was accordingly made to prove its execution and contents by secondary evidence. It was objected on behalf of the complainant, that no sufficient foundation had been laid for the introduction of evidence of that character, and the court is of the opinion that the objection was well taken. The loss or destruction of the deed are not satisfactorily shown. The evidence traces it into the hands of Elias Grecnebaum, and it does not appear that any search was made for it, Grcenebauin testifying merely that he does not know what has become of it; that if he retained it, it must have been burned up in the fire of 1871. Waiving that point, however, the court is of the opinion that there was a failure to prove the execution of said deed by the complainant, and especially to prove its contents sufficiently to show that it operated as a relinquishment by the complainant of her dower.
    The decree in favor of appellee is therefore affirmed.
    Opinion filed Dec. 8, 1886.
   Opinion

Per Curiam.

Judge below, Jesse J. Phillips. Attorneys, for appellant, Hr. Chas. S. Thornton and Mr. Wm. M. Stanley; for appellee, Messrs. Blum & Blum.


text:
    No. 36—2432.
    Cothran v. Ellis.
    This was an action in assumpsit upon a promissory note for §10,000, made by plaintiff in error, payable to the order of Smith, McCormick & Co., and by them indorsed to the defendants in error. On the trial the general issue was withdrawn, and the case was tried upon the issues presented by several special pleas filed by the plaintiff in error, which set up that the only cause of action was the consideration of the note sued on, and that said note was given to the payees named therein for an amount won by said payees at gaming, and by trading in differences on the Board of Trade of the city of Chicago; that the note was given for losses that were sustained as a result of trades that were to be settled on differences alone, etc. There was a direct conflict of evidence on the issues thus presented, and it can not be said that the verdict rendered for defendants in error is not fairly supported by the evidence.
    There being no error in the record, judgment is affirmed.
    Opinion filed Dec. 8, 1886.
   Opinion

Per Curiam.

Judge below, Elliott Anthony. Attorneys, for plaintiff in error, Mr. Francis A. Riddle ; for defendants in error, Messrs. Trumbull, Washbuene & Robbins and Mr. S. S. Gregory.


text:
    No. 64—2460.
    Andrews v. Board of Trade of Chicago.
    This is an appeal by the plaintiff' below, from a judgment against him, in accordance with a verdict of a jury. The plaintiff failed to make out a cause of action, and the judgment below must, for that reason, be affirmed.
   Opinion

Per Curiam.

Judge below, Rollin S. Williamson. Attorneys, for appellant, Messrs. Beam & Cooke; for appellee, Mr. Sidney Smith.


text:
    No. 89—2485.
    Green v. Quackenboss.
    Appellee brought this action against appellants to recover for services as an architect, rendered by the former for the latter, at their special instance and request, and for commissions. There was a trial by jury, under the plea of non-assumpsit, a finding for the plaintiff, with damages assessed at §505, for which the court, overruling the defendants’ motion for new trial, gave judgment, and the latter bring this appeal. The evidence upon some essential points was conflicting, but it'was clearly sufficient to support the verdict.
    Affirmed.
    Opinion filed Dec. 22, 1886.
   Opinion

Per Curiam.

Judge below, Rollin S. Williamson. Attorneys, for appellants, Messrs. Cratty Bros. & Aldrich ; for appellee, Mr. John M. Gartside.


text:
    No. 86—2482.
    Gray v. Fuller Electrical Co.
    This was an action of assumpsit, brought by Isaac II. Gray against the Fuller Electrical Company, to recover certain commissions upon a sale of electrical apparatus, alleged to have been made by the plaintiff as agent for the defendant. The trial was had before the court without a jury, resulting in a finding and judgment for the defendant. The bill of exceptions fails to show that any exception was taken to the finding or judgment, and therefore, upon well recognized rules of law, said finding can not be assigned for error, nor can the court look into the record to determine whether it is supported by the evidence or not. Martin v. Foulke, 114 Ill. 206 ; David M. Force Manufacturing Co. v. Horton, 74 Id. 310; Sherman v. Skinner, 83 Id. 584; Parsons v. Evans, 17 Id. 238; Nimmo v. Kuykendall, 85 Id. 476; Bills v. Stanton, 69 Id. 51; Village of Hyde Park v. Cornell, 4 Bradwell, 602 ; Duncan v. Chandler, 5 Id. 499.
    Affirmed.
    Opinion filed Dec. 22, 1886.
   Opinion

Per Curiam.

Judge below, Joseph E. Gary. Attorneys, for appellant, Mr Sidney C. Eastman ; for appellee, Messrs. Dow & Burnham.


author: Green, J.

text:
    FOURTH DISTRICT.
    No. 51.
    St. Louis & Terre Haute R. R. Co. v. Rose.
    An action of trover against a railroad company to recover the value of a car load of hoops wrongfully delivered to a person other than the consignee. Held, that it is the duty of a common carrier to deliver goods, received as freight, to the consignee at the place of destination named in the bill of lading, and for a wrongful delivery the carrier is liable in trover.
    Judgment of court below in favor of consignee, affirmed.
    Opinion filed Nov. 24, 1886.
   Opinion by

Green, J.

Judge below, David J. Baker. Attorneys, for appellant, Mr. F. M. Youngblood ; for appellee, Messrs. Parish & Parish.


author: Pillsbury, J.

text:
    No. 13.
    Minneapolis Harvester Works v. Becherer.
    On September 1, 1882, the appellees bought a twine-binder reaper from one Hartman, appellant’s agent at Belleville, in St. Clair county, and gave their note for the amount of §140, due in one year, with seven per cent, interest for the purchase money unpaid at time of the sale. This note was guaranteed by-Hartman, April 28, 1883; the appellees paid to Hartman §141.25 on the note ánd took his receipt. This money he never paid to the appellant, and when the note matured it brought this suit and was defeated in the court below and then appealed to this court. The evidence introduced upon the trial, showing the course of the dealings between appellant and its agent, Hartman, relating to the collection of notes taken by him, the court regards as sufficient to justify the finding of the jury, that he was authorized to receive the money upon the note in suit. It also sufficiently appears from the evidence that in this particular instance, the appellant ratified the act of Hartman in receiving the money before it was due. The judgment, however, is reversed for an error appearing in the record. The amount paid to Hartman was §141.25, and was received by him as shown by his receipt on the note and interest. At this time the note, with the interest accrued, amounted to more than §146. The appellants were entitled to recover the difference between the sum paid and the amount due upon the note according to its terms. The record is barren of any evidence that Hartman was. authorized to receive less than the amount due upon any note in full payment of it, or that the appellant was ever informed that, in this instance, he had done so and approved his action.
    Opinion filed Nov. 24, 1886.
   Opinion by

Pillsbury, J.

Judge below, Amos Watts. Attorneys, for appellant, Messrs. Dill & Schaefer ; for appellees, Mr. Henry Challenor.


text:
    No. 10.
    Garner v. Stinnett.
    Appellee and one Parker met Benjamin Garner for the purpose of paying off two notes appellants held against them. One half of the amount due thereon Parker then paid, and appellee claimed he also paid the other half, and thereupon said notes were given up to him by Garner. Appellants deny this, and claim appellee paid enough only on his half to reduce the same to §±00, and that sum was to be paid by appellee in a few days, or it was to be secured by appellee’s note and mortgage to be given appellants, in case the money was not paid by appellee, and with this understanding and agreement the two notes were given up to Stinnett, who neither paid the balance nor gave the note and mortgage, as agreed, and this suit was brought by appellants against appellee to recover said balance of §±00 and interest; a trial was had in the court below; the jury found for appellee ; the court rendered judgment upon the verdict, to reverse which judgment this appeal was taken. The evidence was conflicting, but this court can not say the verdict was not justified by the evidence.
    Finding no error in the record the judgment is affirmed.
    Opinion filed Nov. 24, 1886.
   Opinion by

Green, J.

Judge below, J. R. Williams. Attorneys, for appellants, Mr. J. M. Crebs and Mr. J. I. McClintock; for appellee, Mr. N. Holderby and Mr. P. A. Pearce.


author: Wilkin, J.

text:
    No. 33.
    Esterly & Son v. Nichols.
    On the 22d of April 1884, a contractbetween.appellants, of the first part, and appellee and one Dickerson, as Dickerson & Nichols, of the second part, was entered into, whereby the parties of the second part were appointed the special sales agents of the parties of the first part for the sale of twine binders for the season ending Sept. 1, 1884. In that contract it is stipulated that appellants “ agree to use their best efforts to complete and ship all machines herein and hereafter ordered,” etc. The contract contains a blank order for machines, etc., and it was filled out for one Esterly Twine-binding Harvester, 6½ ft. cut, when the contract was made. It also contains a clause whereby “ the party of the second part agrees to keep all machines, twine, and extras fully insured and guarantees the party of the first part against loss by fire.” Three machines were furnished Dickerson & Nichols during the season, one on the order made in the contract, and two about the 20th of June, 1884. The first and one of the last were sold and settled for. The third was burned at Dickerson & Nichols’ place of business on the 10th of July, 1884, and this suit is to recover its value. In the circuit court appellee had judgment for costs, and appellants appeal. The court is of opinion that the evidence clearly shows the machines received on the 20th of June were obtained under the contract of agency, and were held by appellee’s firm subject to its terms and conditions, and they were therefore bound to insure it or take the risk of its loss.
    Reversed and remanded.
    Opinion filed Nov. 24, 1886.
   Opinion by

Wilkin, J.

Judge below, Jesse J. Phillips. Attorneys, for appellants, Mr. F. M. Guinn and Messrs. Casey & Dwight ; for appellee, Messrs. Ashcroft & Stillman.


text:
    No. 34.
    Bryan v. Reeves.
    This was an action of replevin instituted by the appellant against the appellee to recover the possession of a horse alleged to have been wrongfully taken by him. The appellee justified the taking as a constable, under an execution issued by a justice of the peace of Clay county, in favor of Cockrell & Monroe, for the use of one E. D. Vickrey, dated Feb. 6, 1886, and against J. R. Bryan, the husband of the appellant. The evidence clearly establishes that the wife loaned her husband $300, which she had received from her father’s estate, and that she took a chattel mortgage on the property in question to secure the repayment of her money. There is no proof of fraud in'the transaction, arid the judgment for appellee is therefore reversed. But without considering the question of the Iona fides of the transaction, the judgment must be reversed because there is no evidence whatever that the defendant below was a constable, a fact necessary to establish in a case like this. Outhouse v. Allen, 72 Ill. 529.
    Opinion filed Nov. 24, 1886.
   Opinion by

Pillsbury, J.

Judge below, G. A. Hoff. Attorneys, for appellant, Mr. H. H. Cheslet ; for appellee, Messrs. Cockrell & Monroe.


text:
    No. 7.
    Rabberman v. Conrad.
    The parties to this suit own adjoining lands with a public road running on the line between them. In this road, by consent of one of the commissioners of highways of the town in which it was situated, defendant in error dug a ditch close to his fence, and threw the dirt out into the road. Afterward plaintiff in error had his land surveyed, and a part of defendant’s fence, and the greater portion of the ditch proved to be on plaintiff’s land. He thereupon brought this suit before a justice of the peace, and failing to recover there, appealed to the County Court of Madison county, where there was a trial by jury, and judgment again rendered for defendant for costs of suit, from which this appeal is prosecuted. It appears from the evidence that plaintiff objected to the digging of the ditch at the time it was being done. After the survey of plaintiff’s land, upon notice by the commissioners, defendant moved his fence back and filled up the ditch. This suit is not brought for an injury to plaintiff’s land. The claim made in the summons issued by the justice of the peace, is “ for obstructing the public road near his house.” It also appears from the transcript from the justice of the peace, that the claim or account filed before him was for the same cause. The only question here is, does plaintiff make such a case as entitles him in law to recover damages for an injury resulting to him from an obstruction of the road. The only evidence of damage to plaintiff is his own testimony, and he fixes the amount at but ten or fifteen dollars ; but whether he estimates the damages at that amount from'an injury resulting to him from the alleged obstruction in the public road, or from an injury to his land, it is impossible to tell from his evidence. Several witnesses testify that the ditch was no obstruction, and that it improved rather than injured the road. In this case substantial justice has been done.
    Affirmed.
    Opinion filed Nov. 24, 1886.
   Opinion by

Wilkin, J.

Judge below, M. G. Dole. Attorneys, for appellant, Messrs. Burroughs & Warnock ; for appellee, Mr. Wm. P. Bradshaw.


text:
    No. 57.
    Lechner v. Surrells.
    Appellee recovered a judgment against appellants (husband and wife) before a justice of the peace; an appeal therefrom was taken to the county court, and on the first day of the June term, 1886, thereof, the appeal was dismissed, and a procedendo awarded on the 12th day of the same term. Appellants entered a motion to set aside the default, which motion, by order of the court, was overruled, and this appeal was taken to reverse said order. In support of the motion the affidavits of appellants were read to the court, and show, the husband, before the convening of the county court, sent a letter to the attorney for plamtiff, informing him that by reason of sickness said husband would not be able to attend court at said June term, and requesting the attorney to hand the letter to a firm of attorneys, who had appeared for appellants before the justice, so that said attorneys might have the cause continued until the husband was able to come. That appellants relied, on said firm of attorneys to continue the cause, but by neglect of plaintiff’s attorney, the letter was not shown them, that said husband was so sick during said first week of the June term as to be unable to attend court; the affidavits failed also to set forth sufficiently a meritorious defense. Held, that the court properly denied the motion to set aside the default.
   Opinion by

Green, J.

Judge below, S. F. Giimobe. Attorneys, for appellants, Mr. B. F. Kagay ; for appellee, Mr. John C. White.


text:
    No. 12.
    Davis v. Mitchell.
    This was a distraint proceeding begun before a justice of the peace, and appealed to the circuit court, where, on trial by jury, defendant in error, as landlord, recovered judgment for $18.90 and costs, and plaintiff in error brings the case to this court by writ of error. But one ground is urged for a reversal, which was raised in the court below by a motion to exclude plaintiff’s evidence from the jury. It was insisted there, and is urged here, that the evidence fails to show the relation of landlord and tenant between the parties. The only evidence in the case is that of plaintiff, who testified, “I let John Davis have eighteen acres to tend in corn. I furnished seed, team, feed and farming implements. He was to plant, cultivate and gather the crop and give me one half, and ten bushels on the hundred in the crib. * * * * The land he cultivated was on the same farm I lived on. * * * He lived in the house in the field where the corn grew. Davis had control of the land he cultivated, and house he lived in.” Under this state of facts the relation of landlord and tenant did not necessarily exist, and yet it might, depending upon the intention of the parties. There was certainly evidence tending to prove the relation of landlord and tenant, and therefore the court did right in refusing to take the case from the jury. Plaintiff failing to introduce any evidence showing a different intention, the jury found correctly for plaintiff. Two instructions, given on behalf of the plaintiff below, are criticised by plaintiff in error, because they leave the question of the relationship of the parties to the jury. This, it is said, is a question of law for the court, and not of fact for the jury. In Atwood v. Buckman, 21 Ill. 201, C., J. Caton says: “Whether the letting be of one kind or the other, must, in general, as in most other contracts, depend upon the intention of the parties, although this intention must in most cases be inferred from the circumstances which attend the ease. In general the question of possession will determine the matter.” The court sees no valid objection to the instructions under the .evidence.
    Affirmed.
   Opinion by

Wilkin, J.

Judge below, C. C. Boggs. Attorneys, for plaintiff in error, Mr. W. F. Foster ; for defendants in error, Mr. H. J. Strawn and Mr. J. M. Campbell.


author: Mr. Justice O’Connor

text:
    William F. Hobbs, trading as William F. Hobbs & Company, Appellee, v. Monarch Refrigerating Company, Appellant.
    Gen. No. 21,271.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Bill for an accounting by William F. Hobbs, trading as William F. Hobbs '& Company, complainant, against Monarch Refrigerating Company, a corporation, defendant. From a decree awarding the complainant $4,328.70, defendant prosecutes this appeal.
    The allegations of the bill were in part that defendant represented that all of complainant’s poultry had been destroyed by the fire and this was discovered only after the settlement; that it adjusted the loss with the insurance companies for more than $15,000 and deducted from this sum the amount due defendant and paid complainant the balance; that these representations were false and fraudulent and that defendant sold and disposed of complainant’s merchandise for more than $24,000 and retained the proceeds thereof.
    Defendant contended that the proof did not sustain the material allegations of the bill; that there was a variance between allegations of the bill on the one hand and the findings of the master and decree of the court on the other, and that this variance violated the elementary rule that the allegations of the bill, the proof and the decree must correspond, and therefore constituted reversible error. It was argued that the principal material allegation of the bill was the fraudulent representation made by defendant to complainant that his poultry was wholly destroyed and that he discovered this after the settlement hereinafter mentioned, and that there was no proof to sustain this allegation, and no such finding in the master’s report or in the decree.
    It appeared that defendant was engaged in the public warehouse and cold storage business, and complainant in the wholesale produce and commission business, dealing principally in poultry. Prior to March 19, 1911, complainant delivered to defendant, for storage, merchandise consisting chiefly of poultry, of the value of more than $21,000. When the poultry was delivered to defendant it issued its warehouse receipts to complainant, also an insurance certificate wherein the defendant agreed to insure the poultry for the full amount of such insurance certificate, the policy to be payable to defendant as trustee for complainant; and in case of loss by fire, defendant was to act as agent for complainant in the collection of the insurance. On said date, defendant had issued to complainant insurance certificates amounting to $18,600. Defendant paid the premiums and debited complainant with the same. Complainant was indebted to defendant on various notes secured by the poultry stored in the warehouse, the notes aggregating $12,133, and there was a further indebtedness of $1,175.41. On March 19, 1911, a fire started on the fifth floor of the warehouse, which was a seven story and basement building. At the time there was stored in the warehouse 2,250,410 pounds of butter and 1,033,960 pounds of poultry, belonging to different persons, including complainant. All of the poultry and butter was destroyed or damaged by fire and water, and defendant adjusted the loss with the insurance companies. Complainant was dissatisfied with the proposed adjustment and employed an insurance adjuster; defendant also employed an adjuster. The adjustment was carried on and an agreement reached with the insurance companies by defendant alone. The insurance collected on complainant’s property amounted to $11,231.63. Complainant objected to the amount of the settlement, but was informed by defendant that a settlement had been made, and on August 16, 1911, after deducting the amount due and owing from complainant, defendant paid complainant the balance, amounting to $2,110.53, and took a receipt'which was “in full of all claims and demands against the Monarch Refrigerating Company growing out of the fire of March 19,1911. ’ ’ After the fire, complainant received from defendant certain of the damaged poultry but was unable to dispose of all of it and returned the balance. Defendant then disposed of all of the salvage, selling 497,861 pounds of damaged poultry for $45,899.26, or an average of 9.2 cents per pound. No record was kept by defendant from which could be ascertained the prices and amount received for complainant’s damaged poultry, 91,691 pounds of which was included in the above salvage.
    The master found that defendant was liable for complainant’s poultry unaccounted for at the average price of 9.2 cents per pound, or "$8,435.57. This amount added to the insurance collected made a total amount due and owing from defendant to complainant of $19,-667.20. Complainant had received $15,418.94, which left a balance of $4,248.26, with interest from August 16, 1911, for which amount the decree was entered.
    Abstract of the Decision.
    1. Account, § 35

      —when evidence sufficient to support master’s findings. On a bill for an accounting, evidence examined and held to support master’s findings.
    Defendant contended that as complainant was experienced in handling poultry and was represented by an able fire insurance adjuster, the settlement made August 16, 1911, was conclusive and binding. The master found that at the time of the execution of the receipt by complainant as above mentioned, he knew that all of Ms property had not been destroyed by fire; that defendant had been selling damaged poultry and had sold some of complainant’s; that complainant did not know the amount of money received by defendant from the insurance compames on complainant’s property, and did not know the prices at wMch defendant was selling the damaged poultry nor the amount of money it realized from the sale of the same; that defendant never rendered complainant any statement showing the amount of insurance or the amount of money received from the sale of the damaged poultry.
    Mancha Bruggemeyer, for appellant.
    Shepard, McCormick, Thomason, Kirkland & Patterson, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Appeal and ebbob, § 1458 —when variance immaterial. On a bill for an accounting, variance between allegations of bill on the one hand and the findings of the master and the decree of the court on the other, examined and held not so material as to warrant a reversal.

3. Pbincipal and agent, § 28*—what degree of good faith required in transactions between. In dealing with the property of the principal on his own behalf, the utmost good faith is required of the agent, and the burden is upon him to show that such good faith was exercised.

4. Conteacts, § 268*—what evidence sufficient to set aside contract where fiduciary relation exists. Where a fiduciary relation exists, it is not necessary to establish intentional or actual fraud in order to set aside a contract.

5. Principal and agent, § 55*—when settlement between principal and agent set aside. Where a warehouseman, in whose warehouse property of plaintiff had been damaged by fire, effected a settlement with insurers with whom it had insured the property for plaintiff’s benefit, and thereafter had a settlement with plaintiff without informing him of the amount it received for insurance and salvage, there is such a breach of the fiduciary relation between it and plaintiff as to warrant the court in setting aside the settlement between them in an action for an accounting.

6. Account, § 35*—when burden of proof on agent on bill by principal for an accounting. On a bill for an accounting by the owner of property agaipst a warehouseman to recover the amount received by defendant as salvage on injury to complainant’s property by fire, the burden of showing the number of pounds of salvage and the price received therefor held, under the facts of the case, to be upon defendant.


text:
    Esther F. Falkenan, Appellee, v. Dr. N, J. Smedley, Appellant.
    Gen. No. 21,213.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon.- James C. Mastín, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Esther F. Falkenau, plaintiff, against Dr. NT. J. Smedley, defendant, on a promissory note. From judgment for $531.02 in favor of plaintiff, defendant appeals.
    It appeared from the evidence that plaintiff was the owner of a series of notes aggregating $8,800, which were secured by a mortgage on certain lands in the State of Michigan. The statement' of claim set up a written contract between the parties whereby the defendant, in consideration of the extension of the time of payment on one of the notes, assumed and agreed to pay said note, the interest on all of the notes outstanding and the taxes for the year 1913 on the mortgaged lands.
    The defendant filed an affidavit of merits, and a statement of set-off for $1,110. The plaintiff then filed an affidavit of merits to the defendant’s statement of set-off. Afterwards, on motion of the plaintiff, the defendant’s affidavit of merits and statement of set-off were stricken from the files, and the defendant was given leave to file an amended affidavit of merits and statement of set-off within ten days. The defendant afterwards filed an amended affidavit of merits, which was also stricken from the files on motion of the plaintiff. At the same time the court denied the motion of the defendant for leave to file an amended statement of set-off, and judgment by default was entered against the defendant for the amount of plaintiff’s claim.
    Abstract of the Decision.
    1. Appeal and error, § 800

      —when questions not properly preserved for review. A contention that the trial court erred in striking a statement of set-off from the files is not properly preserved for review where the motion to strike the statement from the files and the order of court entered thereon are not contained in the bill of exceptions.
    The items set forth in the amended statement of set-off were as follows: Keep, care and feed of one horse on farm six months, $30 per month, $180; care and feed of one collie dog on farm six months, $15 per month, $90; storage of wine, eight months, $50 per month, $240; use of part of house and storage of furniture, six months, $100 per month, $600; total $1,110.
    Defendant contended that his amended affidavit of merits alleged facts which constituted a defense to plaintiff’s claim. It set up that defendant was a mere guarantor of the payment of the several sums specified in the contract sued on, and that the plaintiff had made no effort to collect from the principal debtors, or realize the amounts due out of the security, which was more than sufficient to pay the amount remaining unpaid. The contract stated that “Dr. N. J. Smedley hereby assumes and agrees to pay” the several sums therein mentioned.
    Arthur L. Dallas, for appellant.
    Jesse Lowenhaupt and Charles Levitón, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Appeal and ebbob, § 1687 —when error in striking statement of set-off from files waived. Where, after defendant’s statement of set-off is stricken from the files on plaintiff’s motion, defendant does not elect to stand by his statement, but asks for and is given leave to file an amended statement, any error in striking the statement is waived.

3. Appeal and ebbob, § 1362*—when refusal to allow filing of amended pleading not abuse of discretion. Where leave was given to file an amended statement of set-off within ten days and it was not filed until the sixteenth day and no excuse offered for failure to file it in the time set, the refusal of the court to grant a motion to file it instanter is not an abuse of discretion.

4. Set-off and recoupment, § 8*—what proper matter for set-off. In order for a claim to he proper matter for set-off, it must have arisen out of the contract sued upon by the plaintiff or if it arises out of a separate transaction, it must he for liquidated damages.

5. Set-off and becootment, § 8*—when claim not proper one for set-off. Statement of set-off examined and held not to set up a claim arising out of the contract sued upon by the plaintiff nor to be for liquidated damages.

6. Set-off and becootment, § 6*—when claim for services under implied contract not ground for set-off. A claim for services rendered under an implied contract is not proper to be allowed as set-off, where it does not arise out- of the claim sued on by plaintiff.

7. Pleading, § 153*—when defense not set up by affidavit of merits. Affidavit of merits examined and held not to allege facts constituting a defense to plaintiff’s claim.


text:
    Alfred Parker, Appellee, v. Chicago Railways Company and Chicago City Railway Company (Impleaded with Rittenhouse & Embree Company), Appellants.
    Gen. No. 21,380.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Daniel W. Maddox, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action on the case by Alfred Parker, plaintiff, against Chicago Railways Company and Chicago City Railway Company, impleaded with Rittenhouse & Embree Company, defendants, to recover for personal injuries. A judgment was entered for $3,000 in favor of plaintiff against Chicago Railways Company and Chicago City Railway Company. The jury returned a verdict of not guilty as to the defendant Rittenhouse & Embree Company.
    The defendants contended that the argument of counsel for plaintiff to the jury was improper. In his opening argument to the jury counsel for plaintiff said:
    “Of course, I cannot prove, and there is no evidence in here, of what he lost in his business, and I cannot give you that, for it would be improper.
    “Mr. Rosenthal: I object.
    .“The Court: Objection sustained; if it is not here don’t argue about it.
    “Mr. Ranes: It is not here and I am not arguing about it.
    “The Court: Then don’t argue, don’t mention it.”
    And continuing, counsel argued that the jury had a.right to assume that since the plaintiff was still suffering, more than two years after the accident, he would continue to suffer, and that while plaintiff testified that he hoped and believed he would ultimately recover, such statement by plaintiff was not final or conclusive, but that the jury had a right to take the evidence in the case into consideration in determining the question whether the plaintiff would ultimately recover, such statement by plaintiff was not final or will recover.” The court overruled an objection to this argument and said: “Counsel has a right to draw reasonable conclusions from the evidence; but the jury know what the evidence is.”
    In his closing argument counsel for plaintiff said:
    “Now there is some excuse for the man they ran into on the lumber wagon not being here, and we are not surprised after hearing this evidence to know that he is where he is.
    “Mr. Eosenthal: Just a moment—
    “Mr. Banes: Ton are not surprised at that information—
    “Mr. Eosenthal: Just a moment—
    “Mr. Banes: The force of that collision under the evidence here would explain very likely why he is where he is.
    “Mr. Eosenthal: That statement—it can mean but one thing—that the man died as a result of the injury, and I object to it.
    “Mr. Banes: I didn’t say anything of the kind.
    “The Court: Wait until the objection gets into the record.
    “Mr. Eosenthal: That statement and the inference resulting therefrom not being based on the evidence in this case, I respectfully object to.
    ‘/The Court: Objection sustained, and the jury will disregard it.”
    Philip Eosenthal and Prank L. Kriete, for appellants ; J. B. Guilliams and W. W. Gurley, of counsel.
    A H. Banes and Hiram Blaisdell, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Cabbebbs, § 476 —when evidence sufficient to support verdict in action for injury to passenger on street car. In an action by a passenger against a street railroad company to recover for personal injuries alleged to have been caused by being thrown against parts of the car on which he was riding by its collision with a wagon at a street crossing, evidence examined and held sufficient to support the verdict.

2. Damages, § 110 —when damages in action for injury to passenger not excessive. In an action by a passenger against a street railroad company to recover for injuries caused by the collision of the car with a wagon, where the evidence shows that at the time of the accident plaintiff was about sixty years old, was healthy and active, was, and had been for about forty years, a stair builder, maintaining a shop, and tends to show that he was unable to attend to his business ds a result of his injuries and had to employ additional help, that following the accident he suffered great pain and continued to suffer more or less pain from the accident to the date of the trial, and is sufficient to warrant a finding that his injuries are permanent, a verdict of $3,000 is not excessive.

3. Appeal and ebbob, § 1514*—when statement of belief by counsel harmless error. An expression of belief by counsel, in the course of argument, which is based wholly on the evidence, if erroneous, is harmless.

4. Appeal and ebbob, § 1514*—when statement by counsel in argument harmless error. Where the only ill effect of an argument of counsel to which objection is made would be unduly to increase the amount of the verdict, and the Appellate Court has found that the verdict was not excessive, such argument is not ground for reversal.

5. Trial, § 123a*—when argument of counsel improper. Argument of counsel in an action for personal injuries, examined and held improper.

6. Appeal and ebbob, § 1514*—when argument of counsel not ground for reversal. Even though the argument of counsel was improper, where the court promptly sustained an objection thereto and directed the jury to disregard it, such argument is not ground for reversal.

7. Instbuctions, § 88*—when instruction as to preponderance improper. An instruction that the preponderance of the evidence is not to be determined alone by the number of witnesses testifying, that in determining the question, the jury may take into consideration the number of witnesses, their conduct and demeanor while testifying, their apparent intelligence or lack of intelligence, their interest or lack of interest in the result of the suit, if any, their opportunities for knowing the matters about which they testify, and from all these circumstances determine on which side the preponderance of the evidence lies, is objectionable in that it limits the jury, in determining the question of preponderance, to a consideration of the elements enumerated.

8. Instructions, § 88 —what may be considered by jury in determining question of preponderance of evidence. In determining the question of the preponderance of the evidence, the jury should be left free to consider all the evidence and all the facts and cir--. cumstances in evidence, determining where the "preponderance or greater weight of the evidence lies.

9. Instructions, § 89*—when instruction as to preponderance of evidence objectionable. An' instruction which, after enumerating certain things that the jury should take into consideration in determining upon which side the preponderance or greater weight of the evidence lies, tells the jury that they should consider these in view of all the other evidence, facts and circumstances proven on the trial, is objectionable in that it omits the element of the number of witnesses.

10. Instructions, § 88*—when instructions as to preponderance not misleading. Instructions as to preponderance of the evidence, examined and held not misleading, though not strictly accurate.


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error v. Louis Rosenberg, Plaintiff in Error.
    Gen. No. 22,169.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 26, 1916.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Lonis Rosenberg, defendant, charging him with the crime of obtaining money by false pretenses. Defendant was found guilty and sentenced to imprisonment and fined. By writ of error he seeks to have the judgment of the court reversed.
    The information charged that the defendant on a certain day, in Chicago, “did with intent to cheat and defraud and to obtain money by false pretenses, did obtain from the affiant the sum of one hundred and fifty dollars ($150) by falsely representing to this affiant that,”—followed by averments in detail of a number of representations made by the defendant as to services performed by him and expenses incurred and correlative averments denying that defendant had done each one of the things which he represented to have been done by him.
    E. M. Seymour, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

   Mr. Presiding Justice McSurely

Abstract of the Decision.

1. False pretenses, § 27 —when information for obtaining money by false pretenses sufficient. An information charging the obtaining of money by false pretenses is not rendered insufficient by the omission of the statutory word “designedly,” where it avers, with particularity, representations of things done, with a negative averment as to their performance, as knowledge and design will be implied under such conditions.

2. False peetenses, § 27*—when information for obtaining money by false pretenses sufficient. Where an information charging the obtaining of money by false pretenses is sworn to by a named person, an averment that the money was obtained from “this affiant” is sufficient.

3. Criminal law, § 502*—when word “money” in information presumed lawful money. On an information for obtaining money by false pretenses, it will be presumed that the money was genuine money of the United States, unless the information is challenged by motion to quash.

4. Indictment and ineoemation, § 59*—when objection must be raised by motion to quash. On an indictment for obtaining money by false pretenses, failure of the information to specify the kind and value of the money must be raised by a motion to quash.

5. False peetenses, § 27*—nohen information for obtaining money by false pretenses sufficient. On an information for obtaining money by false pretenses, held that it sufficiently appeared that the person defrauded was the person filing the information and that such person relied upon the representations made to her.

6. False peetenses, § 13*—when person making false representation charged with knowledge of its falsity. On an information for obtaining money by false pretenses, if defendant made representations as to things done by him, while the fact was that he did not do them, it follows that he knew such representations were false.

7. False pretenses', § 33*—when ownership of property presumed. On an information for obtaining money by false pretenses, it will be presumed that the person filing the information owned the money which was obtained from her.

8. Criminal law, § 366*—when defects in substance of information not reached by motion in arrest of judgment. Defects going to the substance of an information cannot be reached by a motion in arrest of judgment but by a motion to quash.

9. Criminal law, § 497*-—what effect of failure to preserve proceedings in bill of exceptions. In the absence of a complete bill of exceptions showing all of the proceedings before the trial court, every presumption is in favor of the regularity and sufficiency of such proceedings.


text:
    Abram Feldman, Defendant in Error, v. Abram Polishuck and Sarah Polishuck, Plaintiffs in Error.
    Gen. No. 22,216.
    Pleading, § 69

      -—when filing of demurrer not pleading to declaration. After judgment by confession against defendant, leave was given him, on his motion, to plead to plaintiff’s declaration, whereupon defendant filed a general demurrer .to the declaration, which was overruled, and defendant was required to plead instanter and, upon his declining to do so, he was defaulted for failure to comply with the rule to plead. Held,, that judgment against defendant was proper.
    Error to the Circuit Court of Cook county; the Hon. Oscab M. Tobrison, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 26, 1916.
    M. A. Zelensky, for plaintiffs in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

In this case judgment for $1,025 was entered against defendants upon a declaration and cognovit by virtue of a power of attorney contained in a judgment note authorizing any attorney of record to appear and confess judgment in favor of the holder of the note. Upon motion of the defendants, leave was given by the court to defendants “to plead to the plaintiff’s declaration within ten days.” The judgment was ordered to stand as security. Thereupon defendants filed a general demurrer to plaintiff’s declaration. The court overruled this demurrer and required defendants to plead instanter. Defendants declining to do this, they were defaulted for failure to comply with the rule to plead, and it was ordered that the judgment stand in full force and effect.

Did the defendants by filing a general demurrer comply with the order of the court giving leave to plead to the declaration? We hold that they did not. It has many times been held that the motion for leave to plead to a declaration, where a judgment has- already been entered by confession, is addressed to the equitable discretion of the court. This would imply that there should be brought to the attention of the court facts or matters constituting a meritorious defense, that is, facts which if proven would induce the court-to be of the opinion that it would work an injustice to permit the judgment to stand. When, therefore, the court, in the exercise of its equitable discretion, has entered an order giving leave to defendant “to plead to the declaration,” we are of the opinion that the use of the word “plead” must be confined to the original and technical sense in which the word is used. Chitty makes the statement that pleas “go to the merits of, the case,” as distinguished from a demurrer, which means that a defendant “will go no further because the other has not shown sufficient matter against him that he is bound to answer.” Or, as Stephen on Pleading puts it (p. 46): “If the defendant does not demur, his only alternative method of defense is to oppose or answer the declaration by matter of fact. In so doing, he is said to plead (by way of distinction from demurring) and the answer of fact so made, is called the plea.” It must be in this sense that leave was given to defendants “to .plead,” and defendants failing to do so were rightly adjudged to be in default. This view is entirely consisent with what is said in Borchsenius v. Canutson, 100 Ill. 82.

The judgment was proper and is affirmed.

Affirmed.


text:
    United States Lithograph Company, Plaintiff in Error v. American Ironing Machine Company, Defendant in Error.
    Gen. No. 22,243.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and judgment here.
    Opinion filed June 26, 1916.
    Statement of the Case.
    Action by the United States Lithograph Company, a corporation, plaintiff, against American Ironing Machine Company, a corporation, defendant, to recover a balance due for goods, wares and merchandise sold to defendant under a certain contract. Defendant by its affidavit of defense denied the making of the contract as alleged by plaintiff, alleged the making of another contract covering the same subject-matter, in which plaintiff was in default and consequently indebted to defendant, for which it claimed a set-off for the amount of $190.10. Upon trial by the court, the issues were found for the defendant as to plaintiff’s statement of claim and for the plaintiff as to defendant’s set-off. To reverse the judgment, plaintiff prosecutes this writ of error and defendant files cross-errors as to its claim of set-off.
    The evidence showed that plaintiff was engaged in the lithographing business at Norwood, Ohio, and that the defendant was located in Chicago. In the fall of 1913, Mr. F. L. Wilke, a Chicago salesman for the plaintiff, called several times upon the defendant and solicited ah order for a quantity of lithograph displays, known to the trade as “cutouts.” After negotiations defendant placed with Mr. Wilke an order written on one of the printed forms of the defendant. This order was not accepted by plaintiff, which made out an order on one of its own printed blanks, and through its salesman, Mr. Wilke, this latter order was presented to defendant and signed by it. This order, which contained a number of specifications and details, was for 2,000 cutouts at a price of 65 cents each, totaling $1,300. At the bottom of the order, which was printed in part and partly typewritten, was the clause: “Subject to acceptance in City of Norwood, Ohio, by the United States Printing & Lithographing Company, sole sales agent.” In reply to this order plaintiff sent to defendant a purported acceptance which in several particulars was not in accord with the terms of the order. Immediately upon receipt of this, defendant wrote to plaintiff noting the variances and asking plaintiff to acknowledge receipt of the latter, “as the order is somewhat at variance with your acknowledgment.” To this plaintiff replied, saying: “We did not reply to yours of January 3rd, having referred same to our Chicago office to take up with you. ” Subsequently Mr. Wilke, of the Chicago office of the plaintiff, called upon defendant to settle the matters raised in the above correspondence. At this and a subsequent interview the defendant, acting through its president, Mr. G-rosse, and Mr. Wilke, representing the plaintiff, entered into an oral contract as follows: The defendant agreed to purchase from plaintiff 1,000 cutouts, defendant to pay plaintiff $900 therefor, the whole 1,000 cutouts to be billed and paid for immediately, the cutouts to be kept in storage by the plaintiff and shipped to the defendant in lots of about 250 at such times as the defendant should call' for them. Subsequently 511 of these cutouts were shipped to and accepted by the defendant, and a bill for 1,000 cutouts was rendered the defendant in March, 1914, for $650, which was paid. Under the oral contract for 1,000 cutouts, 489 more were due to the defendant. Plaintiff did not ship this number but shipped 1,600 cutouts in a single shipment, and insisted upon the defendant accepting the same. No opportunity was given defendant to accept the balance due on its contract for 1,000 cutouts, that is, 489. The defendant refused to accept this shipment from the railroad company.
    Abstract of the Decision.
    1. Contracts, § 385

      —when evidence insufficient to establish. In. an action to recover a balance claimed to be due for goods sold, evidence examined and held insufficient to establish the contract sued upon.
    2. Contracts, § 44*—when acceptance insufficient. An acceptance which varies from the terms of the proffered contract does not constitute a valid acceptance of such contract.
    3. Principal and agent, §,165*—when principal estopped to repudiate authority of agent. One who refers another to a third person as authorized to act for him is estopped to deny the latter’s authority to enter into a contract on his behalf.

      Plaintiff claimed the existence of a contract of purchase for 2,000 cutouts. Defendant maintained that the only contract made between the parties was the oral contract for 1,000 cutouts, and that as it has advanced payment for cutouts not delivered, it was entitled to recover on its set-off.
    Culver, Andrews, King & Cook, for plaintiff in error.
    Fyffe, Ryner & Dale, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

4. Contracts, § 387*—when evidence sufficient to show breach. Evidence examined and held sufficient to show a breach of contract.