text:
    M. E. Grove, Plaintiff in Error, v. John Link and Charles Meiner, Defendants in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action in case by M. E. Grove, plaintiff, against John Link and Charles Meiner, defendants, to recover damages for injury to the plaintiff’s means of support under the Dramshop Act, sec. 9 (J. & A. ¶ 4609). To review a judgment for defendants, plaintiff prosecutes a writ of error.
    The declaration averred, in substance, that the defendants, who were keepers of dramshops, sold intoxicating liquor to plaintiff’s husband from February 1, 1908, until the beginning of this suit in February, 1912, causing him to become habitually intoxicated, and as a result of such intoxication he squandered his money, wasted his time, neglected his business and failed to support plaintiff, and in consequence of such intoxication plaintiff was made to suffer for the necessaries of life.
    The evidence showed that the Groves were married in 1873, that the husband had followed various vocations, among others that of a clerk, a laborer, a constable, a dealer in poultry, and a keeper of a restaurant, but had never accumulated much wealth. In 1908 he borrowed five hundred dollars and bought a small restaurant in Carlinville.
    He had for many years been in the habit of using intoxicating liquor, but appeared to have used it to greater excess from 1909 to 1912. In 1911, plaintiff caused written notices to be served on the defendants forbidding them to sell intoxicating liquor to her husband. The defendants admitted that after the service of these notices they continued to furnish her husband with liquor. The evidence tended to show that the husband, because of constant intoxication, became a nervous and physical wreck, so that for a year he was unable to do anything, and while intoxicated he sold his restaurant for twenty-five dollars.
    The evidence also tended to show that for the last two years that the husband was running his restaurant, he spent in the saloons of defendants an average of about ninety cents per day. The defendants did not deny that they frequently sold liquor to the husband of plaintiff, but they said he was a shiftless, good-for-nothing person at the best, and never furnished his wife a good living and therefore she was not injured in her means of support by their sales of liquor to him, which caused him to become intoxicated. The great preponderance of the evidence showed that the husband of plaintiff got liquor almost daily at the saloons of defendants and was frequently intoxicated to such an extent that he could not attend to his business.
    The following instructions were given at the request of the defendants: ‘ ‘ The court instructs the jury that you should not permit yourselves to be to any extent influenced or prejudiced against the defendants because or on account of the fact, if the evidence shows such fact, that they were engaged in running and keeping saloons.”
    “The court instructs the jury that if you believe from the evidence in this case that the husband of the plaintiff, during the period of time covered by the declaration, was not an habitual drunkard you should find the defendants not guilty.”
    Another instruction told the jury, that if they believed that the husband failed and omitted to attend to his business and by reason thereof plaintiff was injured in her means of support, yet if the jury “believe from the evidence that such failure and omission to properly attend to his business, or such inability to properly attend to his business was for other reasons than that of habitual intoxication, then the jury should find the defendants not guilty. ’ ’
    Abstract of. the Decision.
    1. Intoxicating liquors, § 172

      —xohen question whether means of support of wife suitable to her condition in life immaterial. In an action by a wife against saloon keepers under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), to recover damages for injury to her means of support, held that if the income of the husband which should have been applied to the support of himself and his wife was reduced and used in the purchase of intoxicating liquor which caused his intoxication, the wife thereby sustaining injury to her means of support, the question whether her means of support was suitable to her condition in life was immaterial.

      “The court instructs the jury that in this case the plaintiff claims that she has been injured by sales of intoxicating liquor made to her husband by the defendants, which materially assisted in causing him to be and become habitually intoxicated. You are further instructed that even though you should believe from the evidence that the defendants did sell to the husband of the plaintiff intoxicating liquors during the period covered by the declaration, and that such intoxicating liquors materially assisted in causing the husband of the plaintiff to be and become habitually intoxicated; yet if the jury further believe from the evidence that during all the time the husband of the plaintiff maintained and supported her, according to their station, situation and condition in life, then in that state of the proof, if the proof so shows, you should return a verdict finding the defendants not guilty.”
    F. M. Guinn and. James B. Searcy, for plaintiff in error.
    W. H. Nelms, E. P. Drennan and E. C. Knotts, for defendants in error.

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

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Intoxicating liquors, § 225*—when evidence insufficient to sustain verdict for defendants in action by wife for loss of support. In an action by a wife against saloon keepers under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), to recover damages for injury to her means of support, held that a verdict and judgment for the defendants were against the preponderance of the evidence.

3. Intoxicating liquobs, § 249*—when cautionary instruction improper. In an action by a wife against saloon keepers under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), to recover damages for injury to her means of support, held that an instruction that the jury should not permit themselves to be influenced or prejudiced against the defendants because of the fact, if the evidence showed that fact, that they were engaged in keeping saloons, should not have been given, where they admitted that they were saloon keepers and had sold liquor to the husband.

4. Intoxicating liquors, § 251*—when instruction in action by wife for injury to means of support erroneous. In an action by a wife against saloon keepers under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), to recover damages for injury to her means of support, held that an instruction that there could be no recovery if the jury believed that the husband was not an habitual drunkard, during a certain period as alleged in the declaration, was erroneous, since a recovery could be had on proof of the fact as alleged that, as a result, of intoxication caused by the defendants, the husband squandered his money and the plaintiff was injured as a result thereof.

5. - Tobts, § 29*—what does not constitute variance. In tort the plaintiff may prove a part of the charge if the averment is divisible, and proof of a part of the allegation if sufficient to sustain a case will be sufficient to sustain a recovery.

6. Intoxicating liquors, § 251*—when instruction in action by wife for injury to means of support erroneous. In an action by a wife against saloon keepers under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), to recover damages fot injury to her means of support, an instruction that if the jury believed that the husband’s failure to' properly attend to his business and inability to do so was for other reasons than that of habitual intoxication as alleged in the declaration, they should find for the defendants, held argumentative and erroneous, inasmuch as, if by reason of the intoxication, the husband did not attend to his business and the plaintiff was injured thereby in her means of support, she was entitled to a recovery.

7. Intoxicating Liquors, § 251 —when instruction in action by wife for injury to means of support erroneous. In an action by a wife against saloon keepers under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), to recover damages for injury to her means of support, an instruction that though the jury believed that intoxicating liquor sold by the defendants to the plaintiff’s husband materially assisted in causing him to become habitually intoxicated, yet if they believed that during such time the husband maintained and supported the plaintiff according to their situation and condition in life there could be no recovery, held erroneous, as the question whether her means of support were suitable to her position in life was immaterial.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Columbia Graphophone Company, Plaintiff in Error, v. Fred W. Niergarth and J. R. Brown, Partners, as the Brown Piano Company, Defendants in
    (Not to be reported in full.)
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action by the Columbia Graphophone Company, plaintiff, against Fred W. Niergarth and J. R. Brown, partners, as. the Brown Piano Company, defendants, for balance alleged to be due in payment of goods shipped to the Brown Piano Company. To review a judgment for defendants, plaintiff prosecutes a writ of error.

      Abstract of. the Decision.
    Guaranty, § 12

      —when guarantor not liable on guaranty. A seller held not entitled to recover from one of the defendants for goods shipped to a party, with whom such defendant was associated in business, after the receipt by the seller of a letter from such defendant directing that no more shipments should be made without such defendant’s signature being attached to the order, such defendant having been regarded by the seller, in connection with previous shipments, merely as guarantor for the payment thereof.
    The proof showed that previous to November, 1912, J. R. Brown, under the name and style of the “Brown Piano Company” had been engaged in selling pianos in a building owned by Niergarth. In November, 1912, Brown and Niergarth made an agreement by which Niergarth was to assist Brown in a side' line known as the Graphophone department.
    On November 19, 1912, Niergarth wrote .to the plaintiff that he and Brown were equally responsible for the goods that might be purchased. “It is understood, however, that all orders placed will bear the O. K. or signature of Mr. F. W. Niergarth.” On October 3, 1913, Niergarth again wrote to plaintiff: “Kindly ship goods ordered by Brown Piano Company per J. R. Brown until further notice.” On November 5,1913, Niergarth again wrote to the plaintiff: “Do not ship any more orders to Brown Piano Company unless signed by me, hereby countermanding my order of October 3rd, 1913.”
    Rayburn & Buck, for plaintiff in error.
    M. A. Brennan, for defendant in error Frederick W. Niergarth.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Nora Edwards, Appellant, v. Ruth Prust, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Clark county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action by Nora Edwards, plaintiff, against Ruth Prust, defendant, to recover for injuries to the. plaintiff’s horse which had been loaned the defendant. From a judgment for defendant in the Circuit Court on appeal from a judgment in favor of the plaintiff in a Justice’s Court, the plaintiff appeals. The horse was loaned to the defendant by the plaintiff’s son during the absence of the plaintiff from home. While the defendant was riding on the horse in company with her companions she met the son of the plaintiff who, after defendant dismounted, adjusted the blanket for one of the other girls who mounted the horse and was riding it at the time of its injury. The court gave the following instruction at the request of the defendant :
    “The court instructs the jury that if you believe from the evidence in this case that the horse in question was loaned to the defendant by Clayborn Edwards, the son of the plaintiff, and while said horse was in possession of the said defendant was injured, then you are instructed to find for the defendant herein, unless you further believe from the evidence, that she was guilty of gross carelessness or negligence in the care which she took of said horse while she held possession thereof.”
    Everett Connelly, for appellant.

      Abstract of the Decision.
    1. Bailment, § 26

      —when instruction on nonliability of bailee erroneous. In an action to recover for injuries to a horse against one to whom it had been loaned and in whose possession it was when injured, held that an instruction to find for the defendant unless the jury believed that she was guilty of gross carelessness or negligence in the care she took of the horse while it was in her possession, was erroneous.
    2. Bailment, § 10*—what care required where bailment is for sole benefit of bailee. When a bailment is for the sole benefit of the bailee, the bailee is required to use extraordinary care over the subject of the bailment, and is responsible for slight neglect.
    3. Bailment, § 27*—when burden of proof is on bailee to show freedom from negligence. In an action to recover for injuries" to a horse against one to whom it had been loaned and in whose possession it was when injured, held that on it being shown that the horse was sound when loaned and was returned in an injured condition, the burden of proof was on the defendant to show that she used the highest degree of care while the horse was in her custody, or in that of one to whom she had loaned it.
    4. Principal and agent, § 234*—how agency proved. While an agency cannot be proved by the statement of the agent, he is a competent witness to prove the agency.
    Samuel M. Scholfield and John J. Arney, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Nellie Elgin, Appellee, v. Thomas Elgin, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Husband and wife, § 264

      —when evidence insufficient to justify decree for complainant. Evidence in a suit for separate maintenance, held not to justify a decree for the complainant.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Bill by Nellie Elgin, complainant, against Thomas Elgin, defendant, for separate maintenance. From a decree for complainant, defendant appeals.
    Whitley & Fitzgerald, for appellant.
    Redmon, Hogan & Redmon, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    William E. Handel, Appellant, v. Christian County, Appellee.
    1. Justices of the peace, § 18*—when county liable for payment of statutory fees of justices. A resolution passed by a board of county supervisors recommending that the county pay the full amount of all statutory fees in all preliminary hearings and in all criminal cases where uncollectible from the defendant, the costs not to exceed $2 for justices and police magistrates, held not a contract with the officers to pay such fees and not to change their rights, liabilities and obligations as prescribed by the statutes, hut that it still rested in the discretion of the county whether persons mentioned in the statute should receive such payment
    2. Justices of the peace, § 18

      —when fees of justices may be paid hy county. Before county funds can be used to pay the fees of a justice of the peace for a case tried before him, it must he shown either that the prosecution has failed or that the accused has been convicted and that the costs cannot be collected from him.
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed June 10, 1916.
    R. C. Neff, for appellant.
    Harry B. Hershey, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The only question involved in this case is the right of appellant, a justice of the peace, to recover fees from Christian county, which he had earned in cases where a preliminary examination was had before him to determine whether or not the parties accused should be held to await the action of the grand jury, and in other cases where he as a justice had jurisdiction to render final judgments. The case was begun before a justice of the peace, from whose judgment an appeal was taken to the Circuit Court, where, on a trial without a jury, judgment was rendered in favor of the county.

At the October, 1912, meeting of the Board of Supervisors of Christian County the board adopted the following resolution: “We would further recommend that the county pay the full amount of all statutory fees in all preliminary hearings, and in all criminal cases where the same is uncollectible from the defendant. Said costs not to exceed $2.00 for Justices and Police Magistrates.” The authority of a board of supervisors to pay any costs in criminal cases is derived from section 40 of chapter 53 (J. & A. ¶ 5641) of the Statute: “The Fees and Salaries Act.” It provides “* * * in all criminal cases where the fees cannot be collected of the party convicted, or where the prosecution fails, the county board may, in its discretion, direct that the costs of the prosecution, or so much thereof as it shall deem just and equitable shall be paid out of the county treasury. ’ ’ The record also shows that the county paid fees under this resolution until July, 1915. The appellant in July, 1915, presented a bill to the county board for his costs in four eases, the amounts claimed by bim varying in each case from $8.60 to $2.60. The board of supervisors allowed $4 on one bill and refused to allow the remainder of the claim, to recover which this suit was brought. The controversy in this case is whether the county, by the passage of the resolution, deprived itself of its discretionary power, so as to render it unconditionally liable for all claims coming within the terms of the statute and resolution while the resolution remained in force. The resolution was only a recommendation for the guidance of the county board and created no contract with the officers, whose fees are referred to in the resolution.. The duties of the officers are prescribed by the statute and cannot be changed by a resolution of the board. Their rights, liabilities and obligations remained unchanged whether the resolution remained in force or not. Locke v. Davison, 111 Ill. 19. The statute provides for the payment of costs of the prosecution in the discretion of the board in criminal cases, or so much thereof as shall seem just and equitable, where the fees cannot be collected of the party convicted or where the prosecution fails. Before the county funds can be used to pay such costs, the accused must have been tried in a court having jurisdiction to finally dispose of the case and be found not guilty, or as the statute expresses it, “where the prosecution fails” or “where the fees cannot be collected of the party convicted.”

There is neither anything in the stipulation nor any evidence bringing the claims of appellant within the provisions of the statute, whereby the county board is authorized to pay costs. It was not shown that the prosecution in any of the cases had failed or that the accused had been found guilty, and the costs could not be collected from them. The county board has no authority in the matter unless it is given by the statute. The resolution itself is only a recommendation and does not bind the county to the payment of costs. The payment was still discretionary with the board, even if the claim had been shown to be within the classes that the statutes gives the county board discretion to pay.

The appellant has no legal claim against the county. Moore v. People, 37 Ill. App. 642. The judgment is affirmed.

Affirmed.


text:
    Ivalee Todd, Plaintiff in Error, v. Prudential Insurance Company, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Morgan county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action by Ivalee Todd, plaintiff, against the Prudential Insurance Company, defendant, on a policy of insurance. To review a judgment for defendant, plaintiff prosecutes a writ of error.
    An agent of the defendant, after having taken the application of the deceased for the policy, told her that it would be in full force and effect as soon as he received it from the company and that he would pay the premium later, and while the insured was in good health the agent told her that the policy had been received O. K. Before the policy had been actually received by the insured she suffered an attack of appendicitis and died from the effects of an operation after her father had received the policy. The defendant in its answer averred that the policy was not delivered nor the first premium paid during the lifetime and good health of the insured as the policy required.
    H. P. Samuell and P. P. Thompson, for plaintiff in error.
    Bellatti, Bellatti & Moriarty, for defendant in error.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Insurance, § 328 —when conditions of policy waived by agent. Where an agent of a life insurance company told the insured that the policy would he in full force and effect from the time he received it from the company, although the first premium was not paid as required by its terms, and that he would pay the premium and hold the policy for her, held that a recovery could be had thereon, the agent having received it while the health of the insured was the same as when her application was taken.

2. Insurance, § 684*—when verdict for defendant erroneously directed. Evidence in an action on a life insurance policy that the policy was received by the agent of the insurance company for the insured while the latter was in good health and that the agent had agreed that the policy should be in full force and effect from such receipt, held sufficient to go to the jury and that a peremptory instruction for the defendant was erroneous.

3. Insurance, § 323*—when agent power to waive conditions in policy. A general agent clothed with power to solicit insurance, receive the application, forward it to the company, receive and deliver the policy and collect the premium, has power to waive a condition in the policy notwithstanding that power is negatived by a provision in the policy.


author: Mr. Presiding Justice.Thompson

text:
    Vail Crosier, Appellee, v. Arthur Crosier, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Schuyler county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action in assumpsit by Vail Crosier, plaintiff, against Arthur Crosier, defendant, on a contract alleged to have been signed by the parties. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Contracts, § 389

      —when existence of question for jury. In an action on a contract, copies of which, after being signed by the parties, were handed to the plaintiff and defendant by the attorney who drew it, held that the question whether it was intended by the parties that the contract should take effect on such delivery was for the jury.
    2. Contracts, § 372*—when burden of proving execution of is on plaintiff. Where, in an action on a contract, the defendant filed a verified general issue, held that the burden of proving the execution of the instrument by a preponderance of evidence was on the plaintiff.
    3. Contracts—what constitutes execution of. The execution of an instrument includes the signing and delivery of it with the intention that it shall take effect.
    4. Appeal and error, § 1247*—when remarks of counsel may not be complained of. Counsel may not complain of remarks to the jury by opposing counsel' which are provoked by his own act and based upon evidence introduced by him, though they have no relation to the matters in issue.
    5. Contracts, § 393*—when instruction in action on contract not misleading. In an action on a contract, an instruction that the plaintiff could recover if the jury believed from a preponderance of the evidence that the plaintiff and defendant entered into the contract sued upon, etc., held not misleading where other instructions informed the jury that, to be binding, the contract must have been signed and delivered with the intent of the parties that it should take effect.
    B. O. Willard, for appellant.
    D. L. Mourning and J. M. Boring, for appellee.

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

   Mr. Presiding Justice.Thompson

delivered the opinion of the court.


text:
    The Tribune Company, Appellee, v. The Dunlap Manufacturing Company, Appellant.
    1. Judgment, § 208

      —when judgment non obstante veredicto may not be entered. A judgment non obstante veredicto cannot be entered in favor of a defendant but can only be entered in favor of a plaintiff on a plea of confession and avoidance, setting up matters not constituting a defense to the action.
    2. Appeal and error, § 817*—when question of variance not reviewable. The question whether a special verdict was at variance with a general verdict rendered, held not open for review where the bill of exceptions did not show that a special verdict was rendered.
    3. Judgment, § 208*—how motion for judgment non obstante veredicto decided. The evidence cannot be looked to in deciding a motion for a judgment non obstante veredicto.

    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed June 10, 1916.
    Rehearing denied October 5, 1916.
    Sterling & Whitmore, for appellant.
    Shepard, McCormick, Thomason, Kirkland & Patterson, for appellee; F. J. Lammers, of counsel.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The Tribune Company, a Chicago corporation, brought suit in assumpsit against the Dunlap Manufacturing Company, a Bloomington corporation, to recover $1,638.48, claimed to be due the plaintiff for advertising in the Chicago Tribune during the week commencing November 8, 1914. The declaration contains the common counts and a special count declaring upon a written contract, which is set out at length and which is averred to have been fully performed by the plaintiff. In the common counts is the usual one, ‘ ‘ and in the like sum for work and services before that time done and bestowed and materials for the same work furnished by the plaintiff for the defendant at his request;” and one in “the like sum for money found to be due from the defendant to the plaintiff, on account then and there stated between them.” The defendant pleaded the general issue and a special plea denying that the advertising was done under the contract declared upon and averring that it was done under another and different contract. On a trial before a jury, a verdict was returned in favor of plaintiff for $800.

The defendant did not enter any motion for a new trial or motion in arrest of judgment. The only motion entered by the defendant is a motion for a judgment in.its favor “non obstante veredicto’’ and, for grounds of said motion, shows, etc. The court denied the motion of the defendant and rendered judgment in favor of plaintiff on the verdict. The defendant' appeals.

Appellant only presents and argues to the court the following propositions: “(1) that under the pleadings in the case no judgment at law for any amount can be sustained on the record, and (2) that appellant’s motion for judgment non obstante veredicto should have been sustained in the trial court, and that under the law it must ultimately prevail.”

At common law, a judgment non obstante veredicto could only be entered when the plea confessed the cause of action and set up matters in avoidance of the cause of action which were, even if true, immaterial and did not constitute a defense to the action. In such a case the plaintiff is entitled to judgment notwithstanding a verdict for the defendant on the immaterial issue. It is a judgment for the plaintiff on the pleading because the pleas of the defendant do not present a defense. At common law, such a judgment can only be rendered on the application of the plaintiff, and was never allowed on motion of the defendant, no matter how defective the plaintiff’s pleadings might be. 11 Encyc. of Pl. & Pr. 912; 1 Black on Judgments 76; Teehan v. Union Bridge Co., 84 Ill. App. 532; Chicago City Ry. Co. v. White, 110 Ill. App. 23. The motion to be made by the defendant for a judgment because of the insufficiency of plaintiff’s pleadings is a motion in arrest of judgment. The declaration of the appellee states a good cause of action in legal form, and the evidence offered by it sustains the verdict and judgment.

The argument of the appellant that “under the pleadings” no judgment can be sustained for plaintiff for any amount is based solely on the claim that the jury made a special finding at variance with the general verdict. The bill of exceptions does not show that there was any special finding by the jury, hence the fact, if it be a fact, that there is a variance between a special finding and the general verdict is not preserved for review. The only question presented for review by the motion made after verdict and under the assignments of error is a question of pleading and the overruling of appellant’s motion for a judgment non obstante. The appellant has misconceived the effect of its motion. The evidence cannot be looked to in determining a motion for such a judgment. 11 Encyc. of Pl. & Pr. 917. The questions argued have not been preserved for review; the judgment is affirmed.

Affirmed.


text:
    The Russell & Company, Appellant, v. Charles Dunbar, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 800

      —what hill of exceptions must contain. The question whether the trial court erred in not permitting the plaintiff to file counter-affidavits on a motion to open a judgment entered by confession and for leave to plead, held not saved for review where neither the motion nor the ruling thereon was preserved for review in the bill of exceptions.
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action by The Russell & Company, plaintiff, against Charles Dunbar, defendant, on promissory notes executed by the defendant. From a judgment for defendant, plaintiff appeals.
    After entry of a judgment by confession on the notes the defendant made a motion to vacate the judgment and for leave to plead on an affidavit setting up failure of consideration. Without allowing the plaintiff to file counter-affidavits the execution was stayed and leave granted to the defendant to plead. A jury trial resulted in a verdict for the defendant.
    George T. Wallace, for appellant.
    Taylor & Taylor, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Judgment, § 82*—when leave to file counter-affidavits denied. Where an affidavit filed by a defendant on a motion to open a judgment by confession and for leave to plead shows a prima facie defense to the merits, it is not error to deny a motion by the plaintiff for leave to file counter-affidavits.

3. Sales, § 282*—when evidence as to parol warranties admissible. In an action on a promissory note given in payment for machinery, held that oral warranties, made by the seller’s agent after the buyer had signed the contract for the purchase and before the seller had approved it, were competent to show that the written contract as signed had been changed.

4. Sales, § 401*—when evidence sufficient to show breach of warranty. In an action on a promissory note given in payment for machinery, evidence held to show a breach of warranty of the age and capacity of the machine.


text:
    In the Matter of the Estate of James C. Hodson, Deceased. Josephine Hodson, Appellant. Zachariah Hodson, Appellee.
    1. Executors and administrators, § 193

      —what are powers of Probate Court in passing on allowance of widow’s award. The only purpose of the amendment of 1909 of section 75 of the Administration Act (J. & A. ¶ 124), giving the Probate Court' the right to hear evidence and substitute its judgment for that of the appraisers concerning a widow’s award, was to broaden the powers of the court in that particular before any order or judgment had been entered, but not to leave the question open indefinitely so that any heir, devisee or creditor might contest the award at any time after the approval and before the estate was closed.
    2. Executors and administrators, § 194*—-when order of approval of allowance of widow’s award by Probate Court conclusive. When a widow’s award has been approved by the Probate Court and the time for an appeal from the order of approval has expired and there is no fraud or mistake in its allowance, it is conclusive against the world so far as the personal estate is concerned.

      Appeal from the Circuit Court of Shelby county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded with directions.
    Opinion filed June 10, 1916.
    Truman E. Ames and Brown & Burnside, for appellant.
    W. C. & W. L. Kelley and W. C. & T. M. Headen, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

James C. Hodson, a resident of Shelby county, died testate. His will was admitted to probate at the February term, 1914, of the County Court, and his widow, Josephine Hodson, who was nominated executrix without bond, qualified. He left over $25,000, in personal estate, and four hundred and forty acres of land inventoried at $28,000 but worth about $100 an acre. He left no children. The legatees in his will are his widow and two half brothers, John and Zachariah Hodson, and Fred Poland, a nephew of his wife. The will devises and bequeaths all his estate, except a legacy of $2,000 given to Fred Poland, to his wife Josephine for her use during her life. After the death of his wife a legacy of $1,000 is to be paid to his brother John Hodson; two hundred acres of the land is devised to Fred Poland and the remainder of his property is given to his brother Zachariah.

A warrant of appraisal was issued March 7, 1914, and the appraisers on March 28th fixed the amount of the widow’s award at $5,000. The warrant with the appraisement and the award was filed April 14th, and the widow filed her election to take the award in money. On April 16th, the County Court entered an order approving the appraisement and the award and rendered judgment in favor of the widow for $5,000 against the estate on the award. On December 31, 1914, the widow filed her renunciation of the provisions of the will and her election to take under the statute. At the death of the testator, he had on hand $4,944.88 in cash and $4,200 on deposit in two banks. After the award was approved the amount was by the executrix paid over to her private account.

On August 11, 1915, Zachariah Hodson, one of the legatees, filed a petition in said County Court, then presided over by a different judge than the one who made the order approving the award, alleging that the appraisement hill was approved without the knowledge or consent of petitioner, and stating that the award is unreasonable and unjust and praying that it be reviewed and diminished. The widow answered the petition denying that the allowance was unjust, and alleging that the appraisers were regularly appointed and qualified; that they made the award and that the allowance had been approved and judgment entered' thereon and that she had accepted the same, and that fifteen months had passed since the rendition of said judgment approving the award, and that all said matters had been adjudicated at the April term, 1914, and that petitioner is barred by laches from questioning said judgment.

The County Court on a hearing upon the petition heard evidence and entered an order reducing the award to $2,000. The widow appealed to the Circuit Court where a similar judgment was rendered. The widow prosecutes this further appeal.

The only question in this cause is whether, after an award to a widow has been made against an estate and has been approved by the County Court, and the time for taking an appeal to the Circuit Court has expired, the judgment is final and cannot be directly assailed, when there is sufficient personal estate to pay .the award and all debts of the deceased.

Counsel for the estate contend that under section 75 of the Administration Act as amended in 1909 (J. & A. ¶ 124), a widow’s award is subject to review by the, County Court on its own motion, or on a petition filed by the widow or any heir, legatee, devisee or creditor and, if unreasonable, the court may at any time increase or diminish the award.

Under section 74 of the Act prior to 1909, the widow’s award was made up of twelve different items, some of which are subject to certain limitations. Section 75 of said Act required the appraisers to estimate the value of said several items.

It was uniformly held under that section that the County Court had power to set aside the award and direct a reconsideration, or for cause shown could remove the appraisers and appoint others, but that the court had no authority or right to modify the award. It was also the rule that the judgment of the County Court approving the award was a final order and appealable to the Circuit Court, and the judgment rendered on approving the award was conclusive against the heirs, legatees and creditors so far as the personal estate was concerned. The judgment on the award placed it in the same position as that of a claim allowed against the estate. (Lane v. Thorn, 103 Ill. App. 217; Kenton v. Hager, 150 Ill. App. 347; Wood v. Johnson, 13 Ill. App. 548.) A judgment of the County Court allowing a claim was conclusive against the estate with respect to the personal estate unless an appeal was taken to the Circuit Court, within the time allowed by the statute, or there was fraud, collusion, accident or mistake connected with the report of the appraisers or its approval by the court. When fraud or mistake had intervened, the County Court had ample authority to set aside the allowance of a claim at a subsequent term on a proper petition or motion. (Schlink v. Maxton, 153 Ill. 447; Sherman v. Whiteside, 190 Ill. 576; Strauss v. Phillips, 189 Ill. 9 ; Whittemore v, Coleman, 239 Ill. 450; Ward v. Durham, 134 Ill. 195; St. Rose of Lima Congregation v. Hopkins’ Estate, 201 Ill. App. 316.)

The statute was amended in 1909. In place of the last eleven items to be estimated under the former act it now provides: “Second—Such sum of money as the appraisers may deem reasonable for the proper support of herself and his minor children for the period of one year after the death of the testator or intestate, in a manner suited to her condition in life, taking into account the condition of the estate of the testator or intestate.

Such allowance in no case to be less than $500 together with an additional sum not exceeding $200 for each minor child,”—the amount for the support of minors to be paid quarterly to the widow, or if she dies or abandons such minor then the amount allowed for such minor and remaining unpaid to become the property of the minor.

The statute, prior to 1909, did not contain any specific provision whatever concerning the duties of the County Court with reference to a widow’s award further than it should be classified and entered by the court as a second-class claim. Section 75 of the Act, prior to 1909, concerns the duties of the appraisers and the duty of the executor or administrator to notify the widow of the award as soon as it had been made by the appraisers, and her duty to elect whether she would take it in property at its appraised value, or in cash, and required the representative of the estate, within thirty days after demand made, to turn over to the widow the property selected by her. The County Court, under its general powers in the administration of estates, made and entered judgments concerning the reports of appraisers and widows’ awards beyond classifying them. It rendered judgment on the award which drew interest after approval and demand therefor. Browm v. Burley, 168 Ill. App. 114.

The section as amended in 1909 provides: “The allowance made as aforesaid by the appraisers shall be subject to review by the court and if unreasonable or unjust the court may refer the same back to the same appraisers or may appoint other appraisers to fix such widow’s award; or, on the petition of the widow, the executor or administrator, heir, legatee or devisee, or creditor of the estate, may hear evidence, and upon such hearing may increase or diminish such award as justice may require. The costs of such hearing shall be taxed by order of the court in such manner as to equity shall appertain.”

This section of the statute does not fix any time within which the allowance made by the appraisers may be reviewed, neither does it state that the court may review a judgment already entered by the court approving the award. While, under the former statute, the County Court, under its equitable powers in the administration of estates, had the right for cause shown to set aside an appraisement bill and the report of appraisers certifying an estimate oh the value of items mentioned in the statute as a widow’s award, and to order another made, or to remove the appraisers and appoint others, it had no power to substitute its judgment for that of the appraisers. Miller v. Miller, 82 Ill. 463; Marshall v. Rose, 86 Ill. 374; In re Scoville’s Estate, 20 Ill. App. 426; Field v. Field, 117 Ill. App. 307.

The. statute, as amended in 1909, gives the court the same right that it theretofore had under its equitable powers in such matters to set aside the report of the appraisers certifying the amount of the award, and to require them to make a new report or to remove the appraisers and substitute others. It also gives the court the additional right, which it did not have before, to hear evidence and substitute the judgment of the court for that of the appraisers. We think it was only the purpose of this statute to broaden the powers of the County Court before any order or judgment has been entered approving the report of the appraisers concerning the award, but not to leave the question open indefinitely, so that any heir, devisee or creditor might contest the award, at any time after its approval, before the estate is closed.

An award, to the widow and children of a decedent, is made “for the proper support of the widow and his minor children for the period of one year after his death.” (Section 74 of the Administration Act, J. & A. ¶ 123.) The statute provides that the part allowed for the support of the children is to be paid “in quarterly payments due and payable at the end of each quarter of the year for which the allowance is made.” The widow is required to make her selection within thirty days after the notice of its allowance. If any heir or creditor can contest the allowance at any time before the estate is closed, an executor or administrator could not with safety pay the award or deliver the property selected by the widow, until a final report and order of distribution had been made, unless the widow and children had sufficient interest remaining in the personal estate to reimburse such representative in the event of the award being thereafter reduced. Such a construction of the statute in favor of heirs and creditors against the widow and minor children would defeat the very purpose of the award. The statute does not provide for a review of tile award after it has been approved, and it should not be given such an unreasonable construction as is contended for by the petitioner. In this particular case fourteen months had elapsed after the court had approved the award before the legatee, who had notice of the application to probate the will, made any move to set aside the judgment.

The petition to have the award diminished does not allege or pretend that there was any fraud, collusion, accident or mistake in the allowance of the award. The only claim made is that it is excessive. The statute as amended authorizes the court to hear evidence and reduce it, hut it does not provide that it may do this after it has been once approved. We are constrained to hold that when the award has been approved and the time for an appeal from the order of approval has expired and there is no fraud or mistake in its allowance, it is conclusive against the world as far as the personal estate is concerned.' The Circuit and County Courts erred in assuming jurisdiction on a petition filed in August, 1915, to set aside and reduce the judgment of the County Court entered at the April term, 1914. The cause is reversed and remanded to the Circuit Court with instructions to dismiss, at the costs of petitioner, the petition of Zachariah Hod-son, filed August 11, 1915. The costs of this appeal will also be taxed to petitioner.

Reversed and remanded with directions.


text:
      J. E. Frink, Appellee, v. H. Amstadt and Maud Amstadt, Appellants.
    1. Appeal and error, § 1411

      —when judgment not disturbed. Where there is no clear preponderance of the evidence either way, a reviewing court will not review the evidence or set aside the judgment unless for errors of law.
    2. Trial, § 79*—when exclusion of evidence on surrebutted proper. In an action on a promissory note given in payment for an automobile, admission of evidence cumulative of that offered in support of a plea of breach of warranty, when offered on surrebuttal, held discretionary with the court and its exclusion not error.
    3. Witnesses, § 224*—when cross-examination proper. In an action on a promissory note given in payment for an automobile, where the defense was a breach of guaranty by the seller to keep it in repair for one year, a question asked on cross-examination of one of the defendants, who had testified that he had asked the seller to guaranty against all kinds of breakage and usage, as to who should pay the repair bills if the defendant ran into anything and broke the machine up, held proper.
    4. Appeal and error, § 1521

      —when submission of modified interrogatory to jury without inspection by opposing counsel is harmless error. Submission to the jury of an interrogatory, as modified by the court so as to make it conform more closely to the issues made by the pleadings, without submitting it as modified to counsel not offering it, held not reversible error where such counsel had knowledge of its substance.
    5. Bills and notes, § 462*—when instruction not erroneous. In an action on a promissory note given in payment for an automobile, where the defendant admitted that a certain amount was due the plaintiff but set up as a defense a partial failure of consideration, held that an instruction directing the jury to insert in the- form of verdict given them the amount they should find for the plaintiff, under the evidence and instructions, was not erroneous, though they were not told that there was a partial failure of consideration.
    6. Appeal and error, § 479*—when instructions not reviewed. Errors in instructions cannot be urged on appeal in the absence of objection thereto in the trial court.
    7. Bills and notes, § 462*—when instruction on burden of proof properly modified. In an action on a promissory note given in payment for an automobile, where the defense was a partial failure of consideration, held that an instruction that the burden of proof was on the plaintiff to establish his case by a preponderance of the evidence was properly modified by inserting after the word “establish” the words “the execution and delivery of the note in question,” as the burden was on the defendant to prove the partial failure of consideration.
    8. Appeal and error, § 864*—necessity that alleged errors be indicated. A court of review will not on its own motion seek for reasons to reverse a case where counsel fail to indicate alleged errors permitted at the trial court.
    9. Sales, § 402*—when instruction on breach of warranty properly modified. An instruction as to what would constitute a breach of warranty of an automobile sold the defendant, held properly modified by the court so as to make it more nearly conform with the wording of the plea.
    10. Appeal and error, § 1523*—when giving of erroneous instruction on damages harmless error. Where, in- an action on a promissory note given in payment for an automobile, the jury found that there was no breach of warranty as claimed by the defendant, held that the defendant could not have been prejudiced by an instruction on the measure of damages for the breach, if there had been error therein.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Wf.lty, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed June 10, 1916.
    Dwight E. Real and Homer English, for appellants.
    Sterling & Whitmore and Leslie J. Owen, for appellee.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

At the February term, 1915, of the Circuit Court of McLean county, a judgment by confession, upon a promissory note for $650, dated June 8, 1914, with a warrant of attorney, was entered for $761.10 in favor of J. E. Frink against H. Amstadt and Maud Amstadt. The defendants during that term entered a motion, supported by affidavits, to open the judgment and for leave to plead. The motion was allowed and the defendants filed the general issue and also three special pleas averring, in substance, that the note was given for part of the purchase price of an automobile, which was warranted to be free from defects in workmanship and material and in good running order, and that appellee guarantied that he would keep the machine in running order for a year; that the machine was defective and that the consideration for the note, except as to $350, had failed. Replications were filed denying the warranty. A jury returned a verdict in favor of plaintiff for $761.10, on which judgment was rendered; the defendants appeal.

The appellants’ contention is that appellee sold them an automobile with an oral warranty and an agreement to keep it in running order for a year, while the appellee insists that he only sold them the machine and turned over to them the guaranty of the manufacturers.

It is argued on behalf of appellants “that the record presents a very close question of fact upon the turning points in the case and, this being the case, the trial court below should have been more considerate in ruling upon a motion for a new trial, and should have allowed the new trial and given another jury an opportunity to decide the issues of fact.” This statement shows that there is no clear preponderance of the evidence either way, and there is no reason why this court should review the evidence or set aside the judgment unless there is some error of law in the case.

It is insisted that the court erred in excluding the testimony of a witness, Harry Boy, offered in contradiction of appellee concerning a conversation between appellant, H. Amstadt, and appellee in August, 1914, in which it is claimed appellee said he had guaranteed the car and would make it good. This evidence should have been offered by appellants in support of their pleas. It was not proper to reserve evidence that was cumulative of that offered in support of the defense and present it in surrebuttal. It was in the sound discretion of the court to determine whether this evidence, which was admissible in support of the pleas and also by way of impeachment, should be admitted or rejected. 10 Encyc. of Ev. 655; City of Sandwich v. Dolan, 141 Ill. 430; Wenger v. Strobel Steel Const. Co., 170 Ill. App. 383.

On the cross-examination of appellant, H. Amstadt, an objection was overruled to the question: “Was there anything said, if you should run into anything and smash it up, as to who was to pay the repair bill?” He answered, “No, sir.” It is argued that this ruling was erroneous. It was cross-examination of said appellant as to what was said at the time of the alleged warranty concerning which he had testified. The witnesses, who testified for appellants concerning the warranty, did not agree and Amstadt testified other things might have been said beyond what he had testified to, and he had testified that he asked appellee to guaranty it against all kinds of breakage and usage. There was no error in the rulings on evidence.

Counsel for appellee submitted three special interrogatories to be answered by the jury. The first and third were given as requested.

The second interrogatory as asked is: “(2) Was the generating and ignition system upon the car in question in good working order at the time plaintiff delivered the car to the defendants under the sale in question.” This was rewritten by the court and submitted to the jury as follows: “(2) Were there any defects in workmanship or materials in the generating and ignition system upon the car in question at the time plaintiff delivered the car to the defendants under the sale in question.” This the jury answered “No.” It is argued that the court erred in modifying this interrogatory and giving it to the jury without having submitted it to counsel as modified, before the beginning of the arguments. The statute provides that a jury may be required by the court, and must be so required on request of any party to the'action, to find specially upon any material question of fact, which may be submitted to them in writing, “which question of fact shall be submitted by the party requesting the sanie to the adverse party, before the commencement of the argument to the jury.” While the statute only requires interrogatories to be answered by the jury that are requested by a party to be submitted to the adverse party, it has been held that a question submitted to the jury by the court, not at the request of either party, should be submitted to both parties to the suit the same as if it had been submitted at the request of one of the parties. The rule on that question, however, is that the failure to submit interrogatories prepared by the court, to counsel before they are given to the jury, does not necessarily constitute reversible error. Chicago City Ry. Co. v. Nelson, 215 Ill. 436. Courts have the right to modify interrogatories asked to be submitted to a jury to make them conform to the issues made by the pleadings. Chicago & A. Ry. Co. v. Pearson, 184 Ill. 386. "While the modification made by the court should have been submitted to counsel, they had notice of the substance of the interrogatory. The giving of this interrogatory was not reversible error.

It is also insisted that the court erred in giving the first instruction as requested by appellee: “We the jury find the issue for the plaintiff and assess his damages in the sum of $-. (Here you will insert the amount of damages you find the plaintiff is entitled to under the evidence and instructions in the case.) ” It is argued that the instruction is misleading in not informing the jury that there was a partial failure of consideration and in telling them that they should find for appellee. Appellants, by their pleas, admitted that there was $350 due appellee, so that no other verdict than one for appellee could be sustained, there was therefore no error in the instruction. The court also, before reading the instructions to the jury, excluded the jury from the court room, and asked counsel what objections, if any, they had to the instructions submitted by the opposite party. Counsel made no objection to this instruction at that time and should not be permitted to urge, as error in this court, what was not urged in the trial court.

The appellants requested an instruction that' the burden was on the plaintiff to establish his case by a preponderance of the evidence. The court inserted the words, “the execution and delivery of the note in question” after the word “establish.” There was no error in the modification. Without the modification the instruction was misleading, since the appellants admitted the making of the note and the burden was on them to prove partial failure of consideration.

Counsel also contend that the court erred in modifying three instructions and in refusing to give instructions, Gr, J, B, I and K. Neither the record nor the abstract contains any instructions distinguished by letters. There are more than five instructions refused and it is not pointed out, in any way, in what the error in refusing instructions consisted. All that is said is appellants had the right to have these instructions given as asked. When counsel do not aid the court by indicating the alleged errors of the court below, this court does not on its own motion seek for reasons to reverse a case. Duggan v. Ryan, 211 Ill. 133; Barth v. Hanna, 158 Ill. App. 20. Upon an examination of the record it appears that the court gave several instructions asked by appellants without any modification, which substantially cover the legal questions applicable to the case. Appellants have omitted these from the abstract entirely. Five instructions requested by appellants were given after being modified by the court. Appellants ’ abstract only contains three of the five instructions given after being modified.

The second instruction asked was: “The court instructs the jury if you believe from the evidence that the plaintiff warranted the automobile in question for a year, and that the defendants relied on that warranty when they purchased the same, and if you further believe from the evidence that there was a breach of warranty within one year, then and in that case you should allow the defendants by way of recoupment as much as they have been shown by the evidence to have been damaged by reason of such breach.” This the court modified by inserting after the word “year” the words, “against defects in workmanship and materials ’ ’ and added to it “ said damages to be only such damages as are defined in the instructions herein.”

It is said that the modification limits the warranty and is erroneous in not giving the proper measure of damages. The first special plea of appellants sets out the warranty as “that said automobile was warranted to be then sound and made in good workmanlike manner and in good working order and free from defective materials.” The first instruction given for appellants was given as asked and informs the jury that if they believe from the evidence “that plaintiff warranted the car in question and that there was a breach of said warranty, then in making up your verdict you should allow the defendants by way of set off or recoupment the expense defendants incurred in repairing said defects, if any, and in case any of said parts were so defective that they could not be repaired, the cost of such new parts, as shown by the evidence in this case. ’ ’ The third instruction is similar to the preceding, except it fixes the time of the warranty “against defects in workmanship and materials” “for a year.” It is clear that appellants have no reason to complain of error in the modification of their requested instructions.

The first interrogatory asked the jury was: “Did the plaintiff warrant the car in question at the time of the sale to the defendants, and if so, what were the terms of said warranty?” This the jury answered “No.” This finding of fact by the jury shows that the appellants could not be prejudiced by any instructions given concerning the measure of damages if there had been error in that regard. There is no reversible error in the case. The judgment is aErmed.

Affirmed.


text:
    Burrell Engineering & Construction Company, Appellant, v. Pekin Farmers’ Grain Company, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    Architects and engineers—when instruction on burden of proof erroneous. Where, in an action to recover compensation for the preparation of architectural plans for a building, the defendant set up that the plaintiff had agreed to release its claim in consideration that it be allowed to bid on the building to be erected- under other plans and that it had so bid, held that an instruction that if the evidence bearing on the case was evenly balanced or preponderated in favor of the defendant the plaintiff could not recover, was reversible error, as the burden of proof of the release was on the defendant.
    Appeal from the Circuit Court of Tazewell county; the Hon. John M. Niehaus, , Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action by Burrell Engineering and Construction Company, plaintiff, against Pekin Farmers’ Grain Company, defendant, to recover compensation for architectural plans prepared by the plaintiff for the defendant. From a judgment for defendant, plaintiff appeals.
    Curran & Dempsey, for appellant.
    Frank J. Wilkins, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Gardner W. Bradshaw, Appellee, v. Sny Island Levee Drainage District, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Drainage, § 112

      —when drainage district liable for damages from overflow. Where plans and specifications for the construction of a drainage ditch were filed by the drainage commissioners with their petition for special assessment of land within the district to cover the cost thereof, and proceedings, at which a landowner in the district appeared, were had thereon, and in the construction of the work a dam was built across an existing ditch, which caused water to back on the landowner’s property, held that he could recover from the district damages resulting therefrom though the construction of the dam was deemed necessary in the construction work, since the plan filed did not show that the dam was a part of the improvement, and the petition made no reference thereto, so that the landowner had no opportunity to make objections on the hearing of the petition.
    Appeal from the Circuit Court of Pike county; the Hon. Habby Higbee, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action by Gardner W. Bradshaw, plaintiff, against the Sny Island Levee Drainage District, defendant, for damages caused by overflow from a drainage ditch. After sustaining demurrers to the defendant’s pleas of justification, judgment was rendered in favor of the plaintiff, from which the defendant appeals.
    Anderson & Matthews, for appellant.
    Williams & Williams, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Board of Education of District No. 7, Greene County, Appellant, v. School Directors of District No. 66, Macoupin County, Appellee.
    1. Schools and school districts, § 184

      —when school directors not liable for tuition of pupils attending high school in another district. School directors of a school district having no high school are not liable for the tuition of pupils residing within their district who have attended a high school in another district without their approval being obtained in accordance with Hurd’s Rev. St. 1913, ch. 122, sec. 470 (J. & A. ¶ 10143).
    2. Schools and school districts, § 145*—when board of education not liable for costs. On an unsuccessful appeal by a board of education of a school district to recover for tuition of pupils of another district in a high school under its jurisdiction, costs may not be taxed against it.
    Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed in part and affirmed in part.
    Opinion filed June 10, 1916.
    Peebles & Peebles, for appellant.
    Thomas Rinaker, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

School District No. 66, County of Macoupin, and State of Illinois, is a country school district that has not a high school. The Board of Education of District No. 7, Greene County, has a high school. In 1913, six pupils residing in District No. 66 had finished the eighth grade work in the public school of that district. Five of these pupils, beginning in the fall of 1913, attended the high school in District No. 7, in Greene County until the close of the school year in May, 1914. A sixth pupil residing in District No. 66 attended the high school of plaintiff a part of the year 1914. The Board of Education of District No. 7, Greene County, Illinois, began this suit before a justice of the peace against the School Directors of District No. 66, Macoupin County, Illinois, to recover from the defendant $138.75 for tuition for the six pupils for the time they attended the high school of District No. 7, Greene County. The tuition claimed is at the rate of $3 per month and is $1.25 less than the per capita cost of maintaining the high school of plaintiff.

An appeal was taken from the judgment before the justice of the peace to the Circuit Court, where, on a trial before the court without a jury, a judgment was rendered in favor of the defendant and for costs against the plaintiff. The plaintiff prosecutes this appeal.

The appellant insists that the trial court erred in adjudging that it was not entitled to recover against appellee for the tuition to recover which this suit was begun. That is the only question argued by counsel, and presented to this court for review.

In 1913, the Legislature of Blinois enacted a statute which provides: '' That graduates of the eighth grade residing in a school district in which no public high school is maintained, shall be admitted, upon the payment of tuition,- to any public high school, with the consent of the school board of the district in which such high school is situated. The tuition of such pupils shall be paid by the district in which they reside, from any funds not otherwise appropriated, but in no case shall the tuition per pupil exceed the per capita cost of maintaining the high school selected. The parent, or guardian, shall select the high school to be attended, subject to the approval of the school directors of the home district: Provided, however, that the high school selected offers a program of studies extending through four school years. The application of this act shall not relate to districts that provide work in the ninth and tenth grades, except to pupils that have completed the work of such grades.” (Section 470, chapter 122, Hurd’s Rev. St. 1913, J. & A. ¶ 10143.) This statute was passed to take the place of section 122 of the School Law as found in Hurd’s Rev. St. 1907; which had been declared invalid, for the reason that it discriminated against parents who were able to pay the tuition of their children. People v. Moore, 240 Ill. 409.

The statute provides that the parent of the pupil may select the high school to be attended subject to the approval of the school directors of the home district. The evidence shows that the matter of the attendance at the high school of appellant was not brought to the attention of the school directors of the appellee, although one of the pupils was the child of a director of appellee. It was after the end of the school year, when the parents had learned of the provision of the statute that took effect July 1, 1913, that the appellant sent a bill to the appellee that brought-to the attention of the appellee that pupils from its district had attended the high school of appellant, whose tuition it was requested to pay. Some, if not all, of the pupils who attended the full year, attended the appellant’s high school for the year 1913-1914 as a matter of course from having attended the preceding year, when the tuition was paid by the parents. While school directors must act reasonably, and may not arbitrarily refuse to approve the requests of parents that their children, properly qualified, may attend a certain high school, yet the statute states that the selection of the high school to be attended is subject to the approval of the directors of the home district. “It is a cardinal rule in the construction of statutes that effect is to be given, if possible, to every word, clause and sentence. It is the duty of the court, so far as practicable, to reconcile the different provisions, so as to make them consistent and harmonious, and to give a sensible and intelligent effect to each.” 36 Cyc. 1128; Jones v. Grieser, 238 Ill. 183; People v. Sholem, 238 Ill. 203; Thompson v. Bulson, 78 Ill. 277; McReynolds v. People, 230 Ill. 623. If the Legislature had not intended that the school directors of the home district should have some voice in the selection of the school to be attended, the act would not have contained the statement that the selection of the school should be subject to their approval.

In 1915, the Legislature changed the Act of 1913, by making the selection of the school by the parents subject to the approval of the county superintendent of schools. (Section 470, chapter 122, Hurd’s Rev. St. 1915, Cal. Ill. St. Supp. 1916, ¶ 10143 [1].) The Legislature never intended that the question of what school pupils might attend, when their home school district does not furnish the requisite facilities for their education, should be agreed upon arbitrarily by the parents and the directors of the school they desire to attend, without the approval of the home school board, when it is expected to pay the tuition.

The directors of appellant high school and the parents of the pupils deliberately ignored the directors of the appellee district. The statute only makes a school district liable for the tuition of pupils attending a high school in another district after the directors of the resident district have been requested to approve the selection by the parents of the high school that the parents desire their children shall attend.

The appellee is not liable for the tuition of pupils at a high school, when the directors of appellee were not requested to approve the selection of appellant high school for the attendance of such pupils.

The trial court rendered judgment against appellant for costs. The appellant has assigned error on that part of the judgment but has made no argument or citation of authorities on that question. Section 267 of chapter 122 of the Statute, which has been in force since 1857 (J. & A. ¶ 10305), provides that no costs shall be charged by any officer against school officers when an officer or school corporation brings a suit to recover any school fund. This is a suit to recover a judgment which would have been paid from the school funds of District No. 66, if appellant had obtained judgment. This section of the statute has been given a very liberal construction. People v. Yeazel, 84 Ill. 539; Cassady v. Trustees of Schools, 94 Ill. 589; Board of Education v. Trustees of Schools, 74 Ill. App. 401, affirmed in 174 Ill. 510; People v. Helt, 116 Ill. App. 391.

The school funds raised for educational purposes may not be used for the payment of costs. The court erred in adjudging costs against appellant. The judgment will be reversed as to so much thereof as adjudges that appellee recover its costs of appellant, and as to the remainder of the judgment it is affirmed.

Reversed in part and affirmed in part.


text:
    Cecil Horrigths, Appellee, v. Peter Troesch et al., Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action by Cecil Horrigths, plaintiff, against Peter Troesch, George Reisch, Joseph Reisch and Annie Reisch, defendants, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for injury to her means of support. From a judgment for plaintiff, defendants appeal. The defendants were saloon keepers, alleged to have sold liquor which caused intoxication of the plaintiff’s husband and of one Young who, while intoxicated, killed her husband. The owners of the premises on which such liquor was sold were also joined as defendants.
    Abstract of the Decision.
    1. Intoxicating liquors, § 227

      —how knowledge of owner of building of traffic in liquor shoion. In an action by a wife under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), against a saloon keeper and owners of premises where the intoxicants were sold, it may be shown by facts and circumstances that the owners knew that the occupant was engaged in the sale of intoxicating liquor.
    2. Intoxicating liquors, § 227

      —when evidence sufficient to show knowledge by owner of building of sale of. In an action by a wife under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), against a saloon keeper and. owners of premises whereon the intoxicants were sold, held that the fact that the saloon keeper had conducted a dramshop on the premises for several years was a circumstance from which the jury could reasonably infer that the owner knew that intoxicating liquor was being sold there. 3. Intoxicating liquors, § 172*—when degree of intoxication immaterial. In an action by a wife under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for injury to her means of support,, held that if the intoxication caused by the defendant saloon keeper was such that in consequence thereof the plaintiff' suffered damage to her means of support, the degree of intoxication was immaterial.

      The evidence showed that Young and Horrigths were coal miners. They received their pay the morning of April 30th, and spent the afternoon of that .day in and about Troesch’s saloon, drinking, and both got very drunk. They lived in the same house and went home drunk. While in that condition Horrigths quarreled with his wife. Mrs. Young interfered and Young and Horrigths also got into a quarrel, after which Young, while still intoxicated, shot and- killed Horrigths.
    W. H. Nelms and F. P. Drennan, for appellants.
    S. H. Cummins, for appellee.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

4. Intoxicating liquors, § 247*—when death of person due to intoxication of another is question for jury. In an action by a wife under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for injury to her means of support, resulting from her husband having been killed by one to whom the defendant saloon keeper had sold intoxicating liquor, held that the question - whether the intoxication was the proximate cause of the killing was for the jury.


author: Mr. Presiding Justice Barnes

text:
    Albert R. Krum, Appellee, v. Union Casualty Insurance Company, Appellant.
    Gen. No. 21,231.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hakry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed October 10, 1916.
    Rehearing denied October 23, 1916.
    Statement of the Case.
    Action by Albert R. Krum, plaintiff, against the Union Casualty Insurance Company, a corporation, defendant, on a policy of insurance against damage to the plaintiff’s automobile. To review a judgment for plaintiff, defendant appeals.
    John T. Byrnes, for appellant.
    George D. Wellington and Francis X. Busch, for appellee.

      Abstract of the Decision.
    Damages, § 190

      —when evidence insufficient to sustain verdict. In an action on an insurance policy for damages to an automobile where both parties conceded that the machine was capable of repair and the highest estimated cost of repairs was $1,500, and it was neither contended that it was not capable of complete repair nor was there any evidence of the difference of value of the machine before the collision and after repair, nor any damages claimed for loss of use or otherwise, held that a verdict for the plaintiff for $1,550 could not be sustained.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Roscoe Wilson, Defendant in Error, v. Samuel Menagh, Plaintiff in Error.
    Gen. No. 21,276.

      (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Roscoe Wilson, plaintiff, against Samuel Menagh, defendant, on a promissory note signed by the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Daniel S. Wentworth, David B. Maloney and M. A. Natanson, for plaintiff in error.
    Harry A. Biossat, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Pleading, § 320 —who may sign affidavit of merits denying indorsement of note. In an action against tlie maker of a promissory note, the indorsement of the note cannot be put in issue by an affidavit of merits signed by an agent of the defendant, but can only be done so by an affidavit signed by a party to the action as provided by the Practice Act, sec. 52 (J. & A. ¶ 8589).

2. Bills and notes, § 422*—when note'may be read in evidence. Where in an action on a promissory note against the maker thereof the indorsement of the note is not put in issue, the note may be read in evidence.

3. Bills and notes, § 351*—when authority to make assignment of note may not be questioned. In an action by an assignee on a promissory note against the maker thereof, the authority to make the assignment cannot be questioned in the absence of an affidavit of merits by a party to the action, putting the assignment in issue.

4. Municipal Court of Chicago, § 13a*—what does not constitute variance between statement of claim and proof. Where a promissory note, offered in evidence, was made a part of the statement of claim sued on, held that the fact it was indorsed “Lyon, Taylor & Company by M. H. Taylor,” though made payable to the order of “Lyon-Taylor Company,” did not constitute a variance, as the statement could be treated as averring that the payee, by the name employed in the indorsement, assigned the note.

5. Municipal Court of Chicago, § 14*—when statement of claim not proof that substituted plaintiff not entitled to sue. Where a party was substituted as plaintiff and filed a new statement of claim on which the issues were tried, held that the statement of claim filed by the original plaintiff was properly excluded from the evidence as not constituting proof that the substituted plaintiff was not the party entitled to sue.

6. Bills and notes, § 428*—when letter by attorney of payee to maker inadmissible. In an action by an assignee on a promissory note against the maker, who claimed that the plaintiff was not a bona fide holder before maturity, a letter written to the defendant after maturity of the note by an attorney, stating that the attorney had the note in his possession for collection for the payee, held inadmissible in the absence of proof that the payee or the attorney actually had possession of the note at that time, and that the latter was then in the exercise of authority to collect it for the payee, or that the declarations in the letter were made in the presence of or with the knowledge of the plaintiff.


text:
    Frank N. Wood, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 21,349.
    1. Carriers, § 476

      —when evidence insufficient to show negligence of defendant. Where a passenger on a railway train in the nighttime stepped on the platform of the car after the hrakeman had announced the station at which he wished to alight and, seeing a train running on a parallel track in the same direction and at the same speed as his own, supposed that both trains had reached the station and were standing still, and stepped off the train into the darkness at a point where there were no lights, 800 feet from the station, held, in an action for an injury thereby sustained, that the evidence presented a question for the jury as to the defendant’s negligence, and justified a verdict for the defendant.
    2. Carriers, § 476*—when evidence sufficient to show contributory negligence of passenger alighting from train. Evidence that a passenger on a train at nighttime who, from the fact that another train on a parallel track was moving at the same rate of speed and in the same direction as the one on which he was riding, supposed that he had reached the station and that the. trains were standing still, stepped off into the darkness at a point 800 feet from the station without looking for the usual sign of a station and relying on his absence of sense of motion of the train, held sufficient to support a finding that he was not in the exercise of reasonable care for his own safety.

      3. Carriers—what does not constitute invitation to alight from train. In an action by a passenger on a railway train for injuries resulting from his alighting from the train before reaching his station, held that the mere announcement of the station by the hrakeman was not an invitation to alight.
    4. Carriers, § 362*—when duty to maintain lights does not exist. A railway company held under no obligation to maintain lights at a distance 800 feet from its passenger station.
    Appeal from the Superior Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915. Petition for certiorari dismissed.
    Afiirmed.
    Opinion filed October 10, 1916.
    Rehearing denied October 23, 1916.

      Francis W. Walker and Harry S. Mecartney, for appellant.
    Calhoun, Lyford & Sheean, for appellee; Vernon W. Foster and John Gr. Drennan, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This case comes to this court for the third time [167 Ill. App. 644; 185 Ill. App. 180], each time with a verdict for defendant, once on the court’s instruction, and twice after submission to a jury. It is unnecessary to refer to our previous decisions in passing upon the questions now presented. The principal contentions of appellant are that there should have been a directed verdict for the plaintiff, and that the verdict is against the manifest weight of the evidence.

Wood, the plaintiff and appellant, was injured while endeavoring to alight on a dark night from a moving passenger train "of the Michigan Central Bail-road at one of defendant’s stations in Chicago, at which both defendant’s local or suburban trains and its through- trains, as well as the through trains of said Michigan Central, customarily stopped, a fact with which plaintiff was familiar.

The negligence charged is failure under the circumstances to warn or assist the plaintiff in alighting, and to maintain the alighting places with a platform, and to have the place sufficiently lighted for passengers to alight in safety.

We think the evidence bearing on the issues taken on these charges required submission of the case to the jury and that its verdict was not against the weight of the evidence.

The evidence shows that on approaching the station the brakeman passed through the car as usual and announced the station; that shortly afterwards plaintiff went to the rear platform of his car and saw one of defendant’s suburban trains, which was going north on parallel tracks in the same direction as his train and slowing down preparatory to stopping so as to permit the passengers alighting from the Michigan Central train to pass to the station in front of the suburban train. From the fact that at that particular juncture the two trains were moving at the same speed plaintiff supposed that his train had come to a stop and stepped off into darkness receiving the injury complained of. He testified: “When I saw the suburban train standing still, I did not think about it not being at the suburban station. I was impressed with the fact that the train was at a standstill * * * and did not stop to analyze the situation. * * * I had lost all sense of motion of the train and stepped out onto the platform, when I concluded the train had stopped. * * * I saw the Illinois suburban train, I assumed at a standstill, opposite our train * * * it was apparently at the same place; then I stepped off. I could not see the ground at all * * * I think I did not look up along the line of the train, up in the air, to any extent, because I was so sure the train had stopped.”

There was some controversy as to the precise point at which plaintiff stepped off, but the evidence pretty conclusively shows' that it was fully 800 feet south of where he would have alighted had he remained on the car until it stopped, and 300 feet south of where the rear car of his train of nine cars stopped or usually stopped, and that immediately about the station and the platform where the trains stopped there was adequate light furnished from the station and street electric lamps, some of which plaintiff could have seen had he looked in the direction his train was going. There was sufficient controversy as to the precise point at which plaintiff stepped off to warrant submission of the fact to the jury as bearing on the main issues. The evidence amply supports a finding of the distance above stated, and that there was no negligence in a failure either to maintain lights or platforms at such a distance from the usual stopping places at that station, or to give any special warning in such circumstances, and that the plaintiff in stepping off into darkness without taking the precaution to look for the usual signs of the station instead of relying on the absence of the sense of motion and his observation of another train, did not exercise reasonable care for his own safety.

The coincident arrival of trains at stations in a great city like Chicago is a common, if not an every day, incident with which plaintiff was familiar. In a similar case where there was a mistaken supposition by a passenger that the cars had stopped and that she should therefore get out, the court said: ‘ ‘ Passengers must take the responsibility of informing themselves concerning the everyday incidents of railway traveling, and the company could not do business on any other basis.” (Mitchell v. Chicago & G. T. Ry. Co., 51 Mich. 236.) The court also said what is applicable to the facts here: “It is also well settled that negligence cannot be presumed where nothing is done out of the usual course of business, unless that course itself is improper. There must be some special circumstances calling for more particular care or caution, in order to make a liability.” (See also, Hooker v. Blair [Mich.] 155 N. W. Rep. 364.)

There was nothing unusual in the circumstances of the case at bar. The mere announcement of the station was not an invitation to alight either from the train while it was moving or into darkness several hundred feet away from the station or the point where the trains stopped (Mearns v. Central R. Co., 163 N. Y. 108; 139 Fed. 543, 71 C. C. A. 331), and the circumstances did not seem to call for anything more than the mere announcement of the station. We know of no legal obligation on the part of the defendant company to maintain lights at such a distance from the place where trains stopped for passengers to alight, nor to apprise passengers of usual conditions in the absence of anything said or done to induce them to believe to the contrary. We cannot, therefore, disturb the jury’s findings of fact.

Nor do we find reversible error in the given instructions, the criticisms of which seem to us more technical than substantial. Some of them have been approved by our Supreme Court, as pointed out in appellee’s brief, and were not inapplicable to the peculiar facts and circumstances of this case on which two juries have twice passed adversely to appellant’s claims. Under such circumstances, especially when the verdict cannot reasonably be deemed contrary to. the evidence, we would be reluctant to remand the case for a fourth trial unless the instructions were manifestly prejudicial or misleading, and we do not think they were.

Affirmed.


author: Mr. Presiding Justice Barnes delivered

text:
    Jacob Cohn, trading as Chicago Bonnet & Hat Frame Company, Appellee, v. Carlowitz & Company, Appellants.
    Gen. No. 21,367.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed with finding of fact.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Jacob Cohn, trading as Chicago Bonnet & Hat Frame Company, plaintiff, against Carlowitz & Company, a copartnership, defendants, to recover damages for nondelivery of goods under an alleged contract of sale. From a judgment for plaintiff, defendants appeal.
    Abstract of the Decision.
    Sales, § 1

      —when evidence insufficient to show contract of sale. In an action for damages for nondelivery of goods to the plaintiff under an alleged contract of sale executed by the defendants, evidence held to show that the plaintiff’s order was not accepted by the defendants and the defendants’ counter proposition was not accepted by the plaintiff, and that no contract existed between the parties.
    Ernest R. Finer, for appellants; Jennings & Finer, of counsel.
    Pines & Newmann, for appellee; Robert S. Kolliner, of counsel.

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

   Mr. Presiding Justice Barnes delivered

the opinion of the court.