text:
    Jacob E. Hansen, Appellee, v. Sarah J. Cole et al., on appeal of Michael Salter, Appellant.
    Gen. No. 18,916.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 7, 1914.
    Rehearing denied October 19, 1914.
    Statement of the Case.
    Action by Jacob E. Hansen to foreclose a trust deed given by Sarah J. Cole and F. E. Cole, her husband, to secure the payment of certain obligations held by Hansen. Eben F. Runyan, the trustee named in the conveyance, and also Michael Salter, Elizabeth Salter and Libbie Salter, subsequent mortgagees, were made defendants. The Hansen trust deed was subject to a prior one given to secure other substantial obligations of the Coles, but neither the trustee named in the first trust deed nor the holders of the obligations secured thereby were made parties to this proceeding. The rents and profits of the premises were conveyed by the Hansen trust deed as part of the security, but they were not so conveyed by the Salter mortgage. On the day following the filing of the bill a receiver was appointed by the court, under and solely because of the provisions of the Hansen trust deed, to collect the rents and profits of the premises described therein. There was no finding that the Coles were insolvent. The Salters were nonresidents and notice to them of the pendency of this suit was published. They did not appear and were defaulted. On February 18,1904, a decree of foreclosure and sale was entered. On February 29, 1904, Sarah. J. Cole, the owner of the equity of redemption, conveyed the premises to Elsie K. Hansen, wife of complainant. On March 17, 1904, the premises were sold by the master to the complainant, Hansen, for the amount found due him, together with interest thereon and costs of court and the expenses of sale. The amount found due the complainant included interest paid by him on the obligation secured by the first trust deed. Later, by leave of court, the Salters filed answers to the bill of complaint and also filed a petition asking that the receiver be required to report his acts and doings as such and that the receivership “be extended to and include the answers” of the Salters, and their claims set up in said answers. They also, on December 30, 1904, filed a cross-bill in which they seek a decree directing an accounting of rents and profits of said premises due from Jacob E. Hansen and collected as rents by the receiver, and that the amount found due on such accounting be turned over to them to the extent of their claims under their, mortgage. Sarah J. Cole, F. E. Cole, Jacob E. Hansen and Elsie K. Hansen all answered,the cross-bill. On March 25, 1905, the receiver, pursuant to an order of court, filed his reports of moneys received from September 22, 1903, the date of his appointment, to March 17, 1904, the date when the premises were sold under the decree of foreclosure, and of moneys paid out by him from the said date of his appointment to March 23, 1905, the date of his report. The Salters objected to this report and the same, together with the objections thereto, were on April 3, 1905, referred to a master in chancery, to whom the cause had already been referred, to take proofs and report his conclusions thereon. On May 27, 1907, the master filed a report to which Jacob E. Hansen and the two Coles had filed objections before the master, which had been overruled. On September 22, 1911, the Salters filed, without leave of court, some amendments to their cross-bill by which amendments they undertook to change it to one for leave to redeem from the sale of March 17, 1904. This amendment was stricken from the files because presented too late and without leave of court. On April 24, 1912, the master filed another report, finding that the receiver still had in his hands six hundred dollars of funds collected by him and not expended; that it belonged to Sarah J. Cole as the owner of the equity of redemption, and recommended that a decree be entered directing the receiver to pay that sum to her. The master further found that the Salters were not entitled to any portion of that fund or to any claim against the receiver, and recommended that their cross-bill be dismissed for want of equity. To this report the Salters filed no objections or exceptions. The exceptions of the Coles to the first report of the master were ordered to stand as their exceptions to the last report. On June 19, 1912, a decree was entered in which all .exceptions to the master’s report were overruled, and the court found that there was six hundred dollars in the receiver’s hands undistributed; that Sarah J. Cole, was entitled to it; that the Salters were not entitled to any of it; or to any claim against the receiver, and that there jvas no equity in their cross-bill and ordered that the réceiver pay to Sarah J. Cole the six hundred dollars found to be in his hands; that the receiver’s report be approved, except as modified by the decree; that the cross-bill of the receiver be dismissed for want of equity and that the decree of foreclosure entered February 18, 1904, and all proceedings thereunder be confirmed. From the decree, Michael Salter appeals.
    Abstract of the Decision.
    1. Appeal and error, § 1206

      —parties not entitled to reversal. A judgment or decree will never be reversed at the instance of a party whose rights are in no way injuriously affected thereby.
    2. Mortgages, § 738

      —right to rents during period of redemption. The rents of mortgaged premises when not pledged as additional security belong to the owner of the equity of redemption until the expiration of the period of redemption, provided that where the debtor is the owner of the equity of redemption and there is a deficiency decree, or it is otherwise made to appear that the pledged premises are scant security, and there is a finding that the obligors are insolvent, a receiver may be appointed to collect the rents during the period of redemption, to be applied in payment of the deficiency decree that has been or may be entered.
    3. Mortgages, § 546

      —when junior mortgagee not entitled to rents during period of redemption. A junior mortgagee made .a party defendant in a foreclosure proceeding, held not entitled on his cross-bill to a decree awarding him the rents of the premises during the period of redemption, where it appeared that his mortgage did not convey the rents as additional security, and the allegations of his cross-bill that the premises were scant security and the mortgagors were insolvent were not supported by any evidence, and there was no finding in the decree concerning them, and it also appeared the cross-bill was not filed until after the owner of the equity of redemption had conveyed his interest to another for a valuable consideration without assuming such junior mortgage.

      The appellant assigned several errors, but the only injury he claimed to have suffered by reason of. the decree appealed from was that he was thereby deprived from having the rents derived from the mortgaged premises during the pendency of the foreclosure proceedings and until the expiration of the equity of redemption applied to the obligation held by him against the mortgagor.
    William Slack and John C. Wilson, for appellant.
    Cyrus Heren, for appellee Hansen.
    Rosenthal & Hamill, for Cole et al.; Nicholas R. Jones, of counsel.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

4. Receivers, § 20 —powers of. A receiver is an officer of the court and holds the funds in his hands for the benefit of the persons the court shall find are entitled thereto.

5. Process, § 74 —when party cannot complain of defective service by publication. Objection by a party defendant that service by publication upon him was defective comes too late, where after a default decree was entered against him he filed his general appearance and obtained leave to file an answer and cross-bill and he was fully heard on the issues made by them, and it also appearing that the default decree was not confirmed until after seven years of litigation.

6. Mortgages, § 716 —when cross-bill to redeem properly stricken. An amended cross-bill by a junior mortgagee to redeem from a foreclosure sale, held properly stricken from the files for the reason the right to redeem was barred by limitations, where it was filed without leave of court nearly seven years after he had entered his appearance in the case and filed his original cross-bill and more than seven years after the foreclosure sale.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Nellie Carlin, Administratrix, Appellee, v. Michigan Central Railroad Company et al., on appeal of Illinois Central Railroad Company, Appellant.
    Gen. No. 18,958.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by Nellie Carlin, administratrix of the estate of Joseph Doskofsky, deceased, against Michigan Central Railroad Company and Illinois Central Railroad Company to recover damages for the wrongful death of plaintiff’s intestate. Before final judgment the suit was dismissed as to the Michigan Central Railroad Company. From a judgment entered on a verdict against the Illinois Central Railroad Company for ten thousand dollars, that company appeals.
    Abstract of the Decision.
    1. Dismissal, nonsuit and continuance, § 25

      —when dismissal as to one defendant does not render declaration insufficient against other. In an action against two railroad companies for the wrongful death of plaintiff’s intestate caused by being struck by a train of one of the defendants using the tracks of the other at a street crossing, where the latter maintained gates which were alleged to be up at the time deceased approached the crossing, held that a dismissal of the suit as to the defendant which operated the train amounted to an amendment of the declaration so as to state a cause of action against the other defendant alone, it being contended that the declaration did not charge any act of the defendant which owned the tracks as being alone sufficient to cause the injury.
    2. Appeal and error, § 1241

      —when error in instructions cannot he complained of. It is not reversible error to give a faulty instruction when other instructions given at the instance of the complaining party are faulty for the same reason.
    3. Appeal and error, § 1241

      —when instructions given for co-defendant cannot he complained of. One defendant cannot complain of an error in an instruction given at the instance of his codefendant.
    4. Instructions, § 48

      —when properly refused for characterizing testimony as certain and uncertain. A requested instruction characterizing the testimony of defendant’s witnesses as “positive and certain evidence” and that of the plaintiff’s witnesses as “uncertain,” held properly refused.
    5. Railroads, § 772

      —when requested instruction properly re

      fused as ignoring facts. In an action against a railroad company to recover for the death of plaintiff’s intestate by being struck by a train at a street crossing where gates were maintained, a requested instruction undertaking to define the duty of the deceased in regard to looking for the approaching train and entirely ignoring the fact that the gates were up, held properly refused.

      Calhoun, Lyford & Sheean, for appellant; John G. Drennan, of counsel.
    Darrow & Baily, 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. Justice Graves

delivered the opinion of the court.

6. Railroads, § 772 —when requested instruction on question of due care properly refused. A requested instruction announcing as law that if the deceased by the exercise of ordinary care for his own safety could have seen the approaching train “in time to have prevented the accident” then the plaintiff could not recover, held properly refused, since the instruction improperly required the deceased exercise more than ordinary care to prevent the accident.

7. Railroads, § 681 —right to cross tracks when gates are up. When crossing gates are maintained at the intersection of railway tracks and streets, particularly where large numbers of persons are in the habit of passing, the fact that the gates are left up amounts to an invitation to cross the tracks and to notice that no train is approaching and that it is safe to cross.

8. Railroads, § 631 —when negligence of gateman at crossing not excused. Negligence of gateman at a highway crossing in leaving gates up when train was approaching, held not excused by the fact that he left his post to assist ladies over the crossing.

9. Appeal and error, § 1713 —when errors assigned are waived. An assignment for error that a verdict and judgment are excessive will not be considered when not mentioned in the argument.


text:
    City of Chicago, Defendant in Error, v. Daniel Baranov, Plaintiff in Error.
    Gen. No. 19,036.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by the city of Chicago against Daniel Baranov to recover a penalty for the violation of a city ordinance. No summons, capias or warrant was ever issued in this case against this defendant. He was brought into court on October 17, 1912, without a warrant. On complaint in writing being presented to the court charging him with the violation of a city ordinance he entered his appearance, filed a waiver of trial by jury and moved the court for a postponement of his trial until. October 30, 1912, which motion was allowed, and the cause was adjourned to that date. On that date the parties appeared, the cause was tried and the defendant found guilty, and fined twenty-five dollars and also ordered to pay the costs assessed at six dollars. To reverse the judgment, defendant prosecutes a writ of error.
    Abstract of the Decision.
    1. Municipal corporations, § 860

      —nature of suit to recover penalty for violation of ordinance. A suit to recover a penalty for the violation of a city ordinance is a civil suit, and the rules applicable to criminal proceedings do not apply.
    Defendant seeks a reversal on alleged errors in the common-law record alone. He argues three questions only: First, that the judgment is void for want of jurisdiction of the person of the defendant; second, that to warrant the issue of mesne process for the arrest of a defendant, the complaint upon which such process is based must definitely set forth the offense which is the basis of the complaint; third, that the judgment is void.
    Benjamin E. Cohen, for plaintiff in error; H. J. Rosenberg, of counsel.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Municipal corporations, § 863 —when service of process in suit for violation of ordinance waived. In a suit to recover a penalty for violation of an ordinance, the defendant by entering his appearance in the case and participating in the trial of the merits of the charge waives the issuance and service of summons or other process upon him.

3. Municipal Court of Chicago, § 13 —statement of claim in suit to recover penalty for violation of ordinance. In a suit in the Municipal Court to recover a penalty for violation of a city ordinance, the complaint, if one has been made, may stand as a statement of plaintiff’s claim, and if it is not sufficiently definite the defendant may move for a rule on plaintiff to file a more specific statement, as in other cases of the fourth and fifth class under the Municipal Court Act.

4. Municipal corporations, § 863 —sufficiency of complaint charging violation of ordinance. A complaint charging defendant with violating a city ordinance held to sufficiently describe the offense and the ordinance violated, where the ordinance was described by the number of the section of the Municipal Code, and the acts he was charged with doing were also specifically set forth.


text:
    Fitz G. H. Kreamer, Plaintiff in Error, v. C. M. Hewitt, Defendant in Error.
    Gen. No. 19,088.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by Fitz G. H. Kreamer against C. M. Hewitt to recover for work and materials alleged to have been furnished to defendant upon his acceptance of a written offer to furnish the same. Plaintiff’s statement of claim did not state whether his written proposal was accepted by an instrument in writing or by word of mouth, in person, or through an agent. Defendant in his affidavit of merits denied be made any contract with plaintiff as alleged, denied that the work and materials were furnished by him and denied he owed plaintiff the sum claimed. From a judgment in favor of defendant, plaintiff appeals.
    Abstract of the Decision.
    Evidence, § 304

      —when letter properly excluded for want of proof of identification. In an action to recover for work and materials alleged to have been furnished by plaintiff to defendant upon his acceptance of a written offer to furnish the same, a letter written by defendant to a third party offered in evidence to prove that he accepted the offer, held properly excluded for not being properly identified as defendant’s letter, there being no proof offered that defendant wrote or authorized the writing of it or that he knew of its existence.
    Fred H. Atwood, Frank B. Pease, Charles O. Loucks, and Vernon R. Loucks, for plaintiff in error; Geary V. Stibgen, of counsel.
    Walter F. Olds and Smietanka, Johnson, Molthrop & Polkey, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    William Downs, Defendant in Error, v. Leopold Zeman and Isaac D. Zeman, Plaintiffs in Error.
    Gen. No. 19,175.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 28

      —necessity that rules be preserved in the record. The Appellate Court, on a writ of error to review a judgment of the Municipal Court, cannot take judicial notice of the rules of that court, and where they are not preserved in the record and the only errors complained of involve a consideration of such rules, the judgment will be affirmed.
    2. Municipal Court of Chicago, § 7

      —constitutionality of statute requiring judicial notice of rules. Section 20 of the Municipal Court Act, J. & A. ¶ 3332, in so far as it requires the Supreme Court and the Appellate Court to take judicial notice of the rules of the Municipal Court on review of judgments of that court, has been declared unconstitutional (citing Sixty v. Chicago City Ry. Co., 260 Ill. 478).
    Statement of the Case.
    Action by William Downs against Leopold Zeman and Isaac D. Zeman. To reverse a- judgment in favor of plaintiff, defendants prosecute a writ of error.
    The only errors argued as ground for reversal involved the construction and application of the rules of the Municipal Court, which were riot preserved in the record.
    E. C. Mapledoram, for plaintiffs in error.
    William S. Corbin, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Anna Betsching, Appellee, v. Philip Waibel, Appellant.
    Gen. No. 19,351.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bastards, § 25

      —when restriction of cross-examination of prosecuting witness not error. In a bastardy proceeding, refusal to permit the prosecuting witness to be asked on cross-examination whether she remembered any conversation she had with defendant prior to the time she claimed the first act of intercourse took place, held not error for the reason it prevented a cross-examination of her regarding any acts she may have committed prior to that time and still be within the usual period of gestation.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Bastardy proceeding by the People of the State of Illinois ex rel. Anna Betsching against Phillip Waibel. Defendant was found guilty by a jury of being the father of the bastard child. Upon the verdict a judgment was duly entered against defendant in conformity with section 8, ch. 17 of Hurd’s R. S., J. & A. ¶ 710. To reverse the judgment, defendant appeals.
    Defendant urged as grounds for reversal that he was unduly restricted in the cross-examination of the prosecuting witness and that the judgment was against the weight of the evidence for two reasons: First, that the child was born before the expiration of the full period of. gestation, counting from the first act of intercourse; and second, that defendant at the time of the alleged acts of intercourse withdrew before emission.
    Bert D. Wing, for appellant.
    No appearance 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.

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Bastards, § 25 —when restriction of cross-examination of prosecuting witness not error. In a bastardy proceeding, refusal to permit defendant’s counsel to ask the prosecuting witness on cross-examination whether he had not visited her and she had not made certain answers to questions asked of her relative to the time she expected the child to be born and when the first act of intercourse took place, held not error for the reason it prevented defendant from laying a foundation for impeachment, it not being suggested how any answer could have been made that would have opened the door for impeachment, and it also appearing that the questions claimed to have been asked her were through an interpreter so that it was impossible for her to know of her own knowledge what questions were asked by counsel.

3. Bastards, § 62 —when finding of guilty will not he disturbed for variation in gestation period. A finding of a jury in a bastardy proceeding that defendant is the father of a bastard child will not be disturbed by reason of the fact that the birth of the child was seventeen days before the expiration of the usual period of gestation, especially where the uncontradicted evidence shows that the mother never had intercourse with any other person than defendant.

4. Bastards, § 62 —when verdict of guilty will not he disturbed. A verdict finding defendant guilty in a bastardy proceeding will not be disturbed for the reason that defendant testified that in performing the alleged act of intercourse he succeeded in withdrawing before emission, there being uncontradicted testimony that the mother of the child never had intercourse with any other man.

5. Bastards, § 64 —when giving of improper instruction harmless. Error of court in a bastardy proceeding in instructing the jury regarding the amount of money the defendant would be compelled to pay the mother of the child if they found him guilty, held not to have harmed defendant.

6. Bastards, § 64 —when statement made by court harmless. Where in a bastardy proceeding, after the court had concluded the giving of its oral instructions, the defendant’s counsel asked the court for an instruction to show whether “the child was born alive or is alive,” and the court apparently in response to such request stated that, “under the law if at any time after the child is born the child dies before the $550 is paid, the defendant can then come into court and show that fact by proper certificate, and as soon as he so shows, the payments stop,” held, regardless of the questions whether the subject was a proper one for the jury and whether what was said by the court was intended as an instruction to the jury or a reply to the request of counsel, the statement was called out by such request did not misstate the law and could not have harmed defendant.

7. Municipal Court of Chicago, § 17 —when written requested instructions may he refused. Where a judge of the Municipal Court instructs the jury orally he may refuse to give written requested instructions.


author: Mr. Presiding Justice Fitch

text:
    Margaret C. B. Johnson, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 19,438.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by Margaret C. B. Johnson against the City of Chicago to recover damages for personal injuries alleged to have been caused by stepping into a hole in the pavement of a public street. A jury returned a verdict of not guilty; a motion for a new trial was overruled and judgment was entered against plaintiff for costs. To reverse the judgment, plaintiff prosecutes a writ of error.
    The only errors complained of were errors in the giving and refusing of instructions, and in placing a limit on the number of witnesses called to testify to plaintiff’s good reputation for truth and veracity.
    Harry W. Standidge, for plaintiff in error.

      Abstract of the Decision.
    1. Appeal and error, § 1524

      -—necessity of preserving all the evidence for application of doctrine of harmless error. Where legal questions alone, such as the giving or refusal of instructions, are raised on appeal or writ of error, the doctrine of “harmless error” cannot be applied where the bill of exceptions does not purport to contain all the evidence, since in such case the Appellate Court is unable to determine whether the jury could not have reached a different conclusion, and it must assume that the error was prejudicial, if the instruction or ruling is manifestly wrong.
    2. Appeal and error, § 805—duty of defendant in error to insist on bill of exceptions containing all the evidence. It is the duty of a defendant in error to insist upon the bill of exceptions containing all the evidence, when he desires the court of review to examine the same for the purpose of ascertaining whether the errors complained of were harmless under the facts of the case.
    3. Municipal corporations, § 1104

      —when instruction misleading. In an action against a city for personal injuries alleged to have been caused by stepping into a hole in a public street, an instruction given for defendant telling the jury that there is no presumption of negligence against the defendant from the simple fact that the plaintiff was injured upon a public street, if they believe from the evidence that plaintiff was injured on a public street, held, improper as being calculated to mislead and confuse the jury, in that it selected one fact disclosed by the evidence, and stated that a certain conclusion did not follow therefrom, as a matter of law.
    4. Trial, § 69

      —discretion of court to limit number of witnesses. The trial court has a reasonable discretion in fixing a limit upon the number of witnesses who are called for the purposes of impeachment.
    5. Trial, § 69

      —when limiting number of witnesses not an abuse of discretion. Action of court in limiting plaintiff to thirty-two witnesses for testifying in rebuttal to the good reputation of plaintiff for truth and veracity after twenty-four witnesses called for defendant had testified to the contrary, held not an abuse of discretion.
    William H. Sexton and N. L. Piotrowski, for defendant in error; David R. Levy, of connsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Samuel Wolfort, Defendant in Error, v. David Lipsey Company et al., Plaintiffs in Error.
    Gen. No. 19,455.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by Samuel Wolfort against David Lipsey Company, David Lipsey and Ethel Lipsey in the Municipal Court of Chicago. The plaintiff’s statement of claim is “for the sum of $125 laid out and expended for said defendants at their request as follows, on, to-wit: August 14, 1912, plaintiff paid to the firm of Sabath, Levinson & Stafford for and on account of said defendants the sum of $25.00 and on, to-wit: September 30th, 1912, plaintiff paid to said Sabath, Levinson & Stafford the further sum of $100.00 for said defendants, in all $125.00, which plaintiff paid said firm for said defendants at their special request and for their benefit, which said sums said defendants promised to return to plaintiff and there is due to him from them the sum of $125.0(1 with interest at 5%, in all the sum of $127,25.” To this statement was appended an affidavit stating “that the nature of plaintiff’s demand is as above set forth.” To plaintiff’s statement of claims defendants filed an affidavit of one Cohen, stating “that he is the agent for the defendants;” that “he verily believes that said defendants, and each of them, have a good defense to the whole of the plaintiff’s claim, and that the nature of such defense is as follows: "* * *
    “5. That these defendants, or either of them, have never promised to pay to the plaintiff any part' of said $125.00.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 29

      —judicial notice of rules of court. The Appellate Court on writ of error to review a judgment of the Municipal Court cannot take judicial notice of the rules of that court.
    2. Municipal Court op Chicago, § 29

      —when Appellate Court will determine sufficiency of affidavit of merits under section 55 of Practice Act. On writ of error to review a judgment of the Municipal Court, where the error assigned involves the construction of a rule of that court regarding the sufficiency of an affidavit of merits, hut such rule is not incorporated in the transcript of the record, the Appellate Court will assume that section 55 of the Practice Act, J. & A. ¶ 8592, controls.
    3. Pleading, § 153

      —section 55 of Practice Act construed. The requirement of section 55 of the Practice Act, J. & A. ¶ 8592, that a plaintiff shall file with his declaration an affidavit showing the nature of his demand in order to be entitled to a judgment by default for want of a sufficient affidavit of merits, is as broad as the requirement that the defendant’s affidavit of merits shall specify the nature of his defense.
    4. Pleading, § 153

      —when affidavit of merits sufficient under section 55 of Practice Act. Under section 55 of the Practice Act, J. & A. ¶ 8592, where plaintiff’s affidavit showing the nature of his demand consists merely of the common count in assumpsit for moneys laid out and expended by plaintiff for the use of defendants at their request and a promise to repay the same on demand, an affidavit of merits, which specifically asserts that no moneys were so laid out and expended and that no such promise was ever made, states a complete defense on the merits and also “the nature of such defense,” and it is error to strike such affidavit from the files.

      “6. That said sum of $125.00 was never laid out or expended for these defendants, or either of them, at their, or either of their, request. ’ ’
    This affidavit was stricken from the files, as well as several others to the same effect, filed later, and a judgment was entered against the defendants by default for want of a sufficient affidavit of merits. To reverse the judgment, defendants prosecute a writ of error.
    Benjamin E. Cohen, for plaintiffs in error; H. J. Rosenberg, of counsel.
    P. J. O’Shea, for defendant in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

5. Municipal Court of Chicago, § 13 —when rule of court as to sufficiency of affidavit of merits inapplicable. A rule of the Municipal Court that a mere denial will not he regarded as a sufficient affidavit of merits can have no reasonable application to a case in which the nature of the defense shown by the affidavit of merits is a complete and specific denial of all the facts alleged in plaintiff’s affidavit of claim.


text:
    Hugo Fritsch, Defendant in Error, v. Henry Junius et al., Plaintiffs in Error.
    Gen. No. 19,489.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action brought in the Municipal Court by Hugo Fritsch against Henry Junius, Otto Kleker and Mrs. Otto Kleker to recover for labor and materials furnished by plaintiff at the request of the defendant Junius on a building owned by the Klekers. The statement of claim averred that plaintiff furnished materials and labor of the reasonable value of two hundred and fifty dollars, that the owners of the building never paid Junius for the same “nor received from him any affidavit in regard to subcontractors as provided by law.” Defendants denied under oath all liability either joint or several. Upon a trial by the court without a jury a judgment was entered in favor of plaintiff against the defendants for two hundred and fifty dollars. To reverse the judgment, defendants prosecute a writ of error.
    Abstract of the Decision.
    1. Assumpsit, action of, § 89

      —when evidence insufficient to sustain joint judgment for labor and materials furnished. In an action against three defendants for work and materials alleged to have .been furnished at the request of one of the defendants on a building owned by the two other defendants, held that a judgment against all the defendants could not be sustained for the reason there was no evidence to show a joint contract or to show any joint liability under the Mechanic’s Lien Act, J. & A. ¶¶ 7139 et seq., it appearing that the defendant alleged to have requested the work was an employee of a construction company and that he merely requested the plaintiff to submit an estimate of the work to the company.
    2. Judgment, § 190

      —effect when erroneous as to one joint defendant. A judgment against three defendants which is erroneous as to one is erroneous in toto.

    3. Municipal Court of Chicago, § 26

      —when statement of facts or stenographic report sufficient. A statement of facts or stenographic report held to substantially comply with paragraph 6 of section 23 of the Municipal Court Act, J. & A. ¶ 3335, where the certificate of the trial judge stated over his signature that it was “a full, true and correct statement of all the facts and evidence introduced or offered by either or any of the parties in the above entitled cause, and all questions of law involved in the case, and of all the proceedings had before me in said cause,” and the document to which the certificate was appended was in the form of a stenographic report of the proceedings at the trial, was certified to contain all the evidence and showed oh its face the objections made and the rulings of the court therein, and to such document was attached a statement of the rulings of the court upon the several motions made before and after the finding, and the propositions of law marked “held” and “refused.”

      Charles F. Vogel, for plaintiffs in error.
    Lewis F. Jacobson, for defendant in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

4. Municipal, Court of Chicago, § 26 —judge authorised to extend time for presenting statement of facts. Under paragraph 6 of section 23 of the Municipal Court Act, J. & A. ¶ 3335, any judge of that court may, within -the thirty days allowed for presenting a statement of facts or stenographic report, enter an order extending the time for presenting the same to the trial judge.


text:
    Anheuser-Busch Brewing Association, Plaintiff in Error, v. Frederick Kalthoff, Defendant in Error.
    Gen. No. 19,561.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Rehearing denied October 20, 1914.
    Statement of the Case.
    ■ Action by Anheuser-Busch Brewing Association, a corporation, against Frederick Kalthoff to recover a certain amount alleged tó be due under the terms of a written contract between the parties.
    By the terms of the contract the -Brewing Association agrees to sell and deliver to Kalthoff and Kalthoff agrees to purchase from the Brewing Association “all the domestic draught beer needed and required” by him “for use and sale upon the premises known as 162 East Adams Street, Chicago, Illinois,” during the period of five years from and after May 1, 1909, and Kalthoif agrees to pay for the same in cash upon delivery, at the current market price of the Association for such beer at the time of such delivery; that the Brewing Association shall pay three specified bills of Kalthoff’s aggregating $1,325, one for painting and decorating the premises, another for beer and plumbing supplies, and the third for saloon fixtures; that if at any time during the specified term, Kalthoff “shall sell, assign, transfer or convey his interest in the business carried on upon said premises,” he shall repay to the Brewing Association a pro rata share of said $1,325; and that he ‘ ‘ shall have the right at any time after November 1, A. D. 1910, to terminate this agreement” by giving a written notice to that effect “and repaying to said second party such a pro rata share of said sum of One thousand three hundred and twenty-five ($1,325) Dollars as the then unexpired term of this agreement shall bear to the entire term.”
    At the time this agreement was made, Kalthoff was in possession of certain premises under a lease from a third party to him, for a term of five years, beginning March 1, 1909, and ending April 30, 1914, in which lease there was a clause reserving to the lessor the right to cancel the same on May 1, 1911, or any time thereafter, by giving the lessee six months’ written notice of its intention so to do, and paying him, if so terminated between November 1, 1911, and November 1, 1912, the sum of $2,000. It was admitted upon the trial that the contract sued upon was drawn by the plaintiff’s attorneys, with full knowledge, on their part, of the existence and terms of this lease. It was also admitted that the lessor served notice on November 16, 1911, of its intention to cancel the lease, and that on May 18, 1912, Kalthoff “surrendered and delivered up possession of said saloon to the lessor who thereupon tore down and removed the building within which the saloon in question was situate.”
    This suit was brought to recover back so much of the $1,325 paid by the plaintiff as the unexpired term of the contract bears to the whole term of five years. The defendant claimed that there is no provision in the contract which expressly requires him to refund any part of the money thus advanced in case of a destruction of the premises, and that it was the duty of the plaintiff, under the circumstances, to have inserted a clause in the contract to cover that contingency, if it so desired. The court sitting without a jury found in favor of the defendant and entered judgment on the finding. To reverse the judgment, plaintiff prosecutes a writ of error.
    Abstract of the Decision.
    1. Sales, § 64

      —provision as to termination of contract to supply needs of buyer construed. Where a brewing company and a liquor dealer entered into a contract wherein the former agreed to furnish all of a certain kind of beer needed by the latter at certain leased premises for a specified time, and it was also agreed that the dealer should have the right to terminate the agreement after a certain time by giving notice and refunding to the company a pro rata part of the money advanced to the dealer as a bonus with which to fit up the premises, held that under a proper construction of the contract the dealer was required to make such refund though he was required to vacate the premises under his lease.
    2. Sales, § 41

      —when contract not mere option. Where a contract expressly provides that one party agrees to sell and deliver and that the other agrees to buy and pay for all of a certain kind of beer that may be needed by him for use and sale in his business at certain premises named for a specified period, such agreement is not a mere option, but is a binding and enforceable contract.
    Goldzier, Rodgers & Froehlich, for plaintiff in error.
    Thomas W. Prindeville, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Western Pine Lumber Company, Defendant in Error, v. Martin E. Nelson, Plaintiff in Error.
    Gen. No. 19,588.
    Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action in the Municipal Court of “Chicago by the Western Pine Lumber Company against Martin E. Nelson on a contract of guaranty to recover the unpaid balance due on certain notes. The facts showed that the defendant was president of a certain milling company which was indebted to the plaintiff upon an open account for materials sold and delivered; that the milling company ordered a carload of lumber from the plaintiff, but the plaintiff refused to fill the order before the old account was straightened up; that the defendant called at the plaintiff’s office and an arrangement was made whereby the defendant, as its president, agreed to execute certain notes for the milling company, and also to personally guaranty their payment by letter if the plaintiff “would ship the carload of lumber or establish a credit to the milling company again as they were.”
    This proposition was consented to and the defendant so executed the notes and guaranty. A part of the notes were not fully paid at maturity and the plaintiff never performed its promises as agreed, and this suit was brought against defendant on his guaranty for the unpaid balance due on the notes.
    The defendant filed an affidavit of merits stating that the guaranty was signed upon the representation that plaintiff would extend further credit to the maker of the notes, and would ship the lumber which had been ordered, but that after defendant had signed the guaranty ‘ ‘ the . plaintiff wholly refused to perform , and carry out its said agreement,” whereby the consideration for the guaranty had‘ wholly failed. ” No counterclaim or set-off for damages arising out of a breach of plaintiff’s promise was set up by defendant. Upon a trial by jury, the court directed a verdict in favor of plaintiff for $460.17. To reverse the judgment entered on the verdict, defendant prosecutes error.
    Abstract of the Decision.
    1. Guaranty, § 7

      —when breach of agreement which induced making of not failure of consideration. Where a person guaranties the payment of promissory notes upon a promise of the payee to perform certain acts, the failure of the payee to perform such acts as promised does not constitute a total failure of consideration, since in such case the promise of the payee constitutes the consideration for the guaranty.
    _ 2. Guaranty, § 331

      —when defense of failure of consideration improper. Where a person guarantied the payment of promissory notes upo.n a certain promise of the payee, and when sued upon' his guaranty set up as his only defense that there was a total failure of consideration because the payee failed to perform his promise, without setting up a counterclaim for breach of plaintiff’s promise, held that a direction of a verdict for plaintiff was proper; for the reason that the failure of the plaintiff to perform its promises did not constitute a failure of consideration.
    Smietanka, Johnson, Molthrop & Polkey, for plaintiff in error.
    William S. Corbin, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    E. F. Staff, Defendant in Error, v. A. Steiger, Plaintiff in Error.
    Gen. No. 19,611.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 90

      —sufficiency of evidence to show plaintiff was procuring cause. In an action for broker’s commissions for finding a tenant for defendant where a verdict on conflicting evidence was returned for plaintiff, held that the verdict would not be disturbed on the ground the evidence did not show plaintiff was the procuring cause of the demise, there being a legitimate inference from the evidence that the prospective tenant’s attention was first called to the property by plaintiff and that the lease which was actually made was the result, and it also appearing that the tenant who would have been the best witness was not called, from which the jury may have drawn an inference unfavorable to the defendant.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Rehearing denied October 20, 1914.
    Statement of the Case.
    Action by E. F. Staff against A. Steiger to recover broker’s commissions alleged to have been earned in securing for defendant a tenant for certain premises on State street in Chicago. Upon a trial before a jury a verdict was returned in favor of plaintiff for $766.30. To reverse a judgment entered on the verdict, defendant prosecutes a writ of error.
    Weinberg & Grollman, for plaintiff in error; Frank & Lurie, of counsel.
    George H. Mason, for defendant in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court..

2. Brokers, § 84 —admissibility of evidence. In an action" to recover broker’s commissions for finding a tenant for defendant, refusal to permit defendant to testify to the amount of rental -he was paying held not error, for the reason the fact sought to be elicited had little bearing on the issues involved.


text:
    Central Iron & Metal Company, Appellant, v. Sebastian Krug and National Surety Company, Appellees.
    Gen. No. 19,644.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Bill in equity filed by Central Iron & Metal Company, a corporation, against Sebastian Krug and National Surety Company. The defendant, filed a general and special demurrer to the bill, which were sustained by the court. Upon complainant electing to stand by its bill, the bill was dismissed for want of equity. To reverse the decree, complainant appeals.
    The bill recites that complainant is an Illinois corporation engaged in buying and selling iron and other metals; that defendant Krug is engaged in the business of wrecking buildings; that in May, 1912, complainant and said defendant entered into a written contract, by which Krug sold to complainant all the iron, metals, machinery and plumbing goods in certain buildings in Chicago then being wrecked by Krug. By the terms of the contract, Krug agreed to load the materials into complainant’s wagons and to use reasonable care “consistent with wrecking operations” to see that such materials “shall not.be unnecessarily damaged”; that if complainant failed to furnish enough wagons to carry away the materials as the same should be taken down, Krug should have the right to furnish teams, wagons and men, at the rate of “not to exceed $6.00 for a nine-hour day per double team”; but, in such cases, at least four tons of material should be placed on each of such wagons. It was further agreed that complainant should keep a watchman on the premises, both day and night, “and take care of said goods”; that all “property belonging to tenants occupying any part of said premises is expressly excepted from this contract”; that complainant should pay $70,750 for said materials, payable $15,000 down and the remainder in instalments of $5,000 each as the work progressed; that if less than 5,000 tons of material were taken out of the buildings, complainant should be entitled to a rebate at the rate of $14.15 a ton, while if more than 5,000 tons were taken out, complainant should pay for the excess at a different specified rate per ton. The bill then alleges that complainant fully complied with all the terms and conditions of the contract, but that Krug did not; that he “negligently tore away part of the material and dropped it from a great height, whereby it was twisted, bent and broken, ’ ’ and its value materially lessened; that he “improperly and maliciously” and with intent to defraud complainant, loaded less than four tons weight upon some of the wagons, “thereby materially increasing the number of loads”; that he refused to permit complainant to remove any material from one of the buildings, but permitted others to do so; that complainant protested because of these matters, and thereupon each of the parties executed and delivered to the other a bond for the faithful performance of the contract; that, notwithstanding such bond, Krug continued to violate the contract “by interfering with the teams of orator and preventing orator’s teams from entering said premises for the purpose of hauling away metal and material described in the contract”; that he “removed metal and material in quantities and qualities and to places to your orator unknown,” and sold and delivered the same to other parties; that complainant made the payments as stipulated in the contract, and thereby paid for more material than it received from Krug, who (it is-said) “by the terms of said contract became a trustee to deliver to orator the metal and material therein referred to”; that “by fraudulently and improperly refusing to deliver to orator metal and material taken from said building, and by removing metal and material from said building and delivering same to other parties, said Krug violated said contract and said trust” and became liable'for the market value of the material so removed and delivered to others; that the materials thus “fraudulently and improperly removed and delivered to other parties were, as orator is informed and believes, of different qualities, quantities, kinds, character, weights, values and conditions of repairs”; that complainant has no means of ascertaining the quantity and character of the materials so removed, and that Krug is the only person who has knowledge thereof; that Krug has refused to give to complainant a correct statement of these matters, and that a discovery is necessary to compel him to disclose the same; that complainant has requested and Krug has refused an accounting; that “the items of account and various charges and acts and doings of the different parties in connection with the performance and execution of said contract, are of a complicated and intricate character such as cannot be fairly or intelligently determined in an action at law”; and that Krug has begun two suits, one against complainant, claiming $50,000 damages for breach of contract, and the other against the surety on complainant’s bond. The bill prays for an accounting and discovery, not under oath, and for an injunction to restrain the further prosecution of Krug’s lawsuits.

      Abstract of the Decision.
    1. Account, § 26

      —sufficiency of bill. A bill seeking equitable relief against defendant by way of an accounting as to matters arising out of a breach of contract, held not to allege facts creating a trust or establishing a fiduciary relation between the parties; and the alleged conduct of defendant held to amount to a mere breach of contract, for which the remedy at law is fully adequate.
    2. Discovery, § 7

      —sufficiency of MU. A bill seeking equitable relief as to matters arising out of a breach of contract for the sale of materials taken from buildings being wrecked by defendant, and charging defendant with wrongfully disposing of a portion of the materials to other parties, the character and quantity of which complainant had no knowledge, held not maintainable as a bill for discovery, it appearing from the allegations of the bill that complainant at the time of making the contract had, or ought to have had, knowledge of the character and quantity of the materials, and the bill containing no averment showing that anything was concealed at that time, and it not appearing from the bill that defendant had any fuller knowledge of the shortage than the complainant.
    3. Account, § 26

      —when averment in MU mere conclusion. An averment in a bill, praying for an accounting, that the account is “of a complicated and intricate character,” held to be a mere conclusion.
    4. Account, § 19

      —when account not complicated or intricate. The mere fact that some or even all of the items of an account are not admitted to be correct does not make the account complicated or intricate so as to give a court of equity jurisdiction.
    5. Account, § 26

      —when matter alleged in bill sufficient to oust equity of jurisdiction. ]£aets averred in a bill showing that a part of complainant’s claim is based upon the certain alleged negligence of defendant giving rise to an unliquidated claim for damages, held sufficient in itself to oust a court of equity of jurisdiction.
    Sabath, Levinson & Stafford, for appellant; Leo W. Hoffman, of counsel.
    Richards, Voigt & Darby and Adams, Follansbee, Hawley & Shorey, for appellees; John T. Richards, Mitchell D. Follansbee and Fred Barth, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Frederick Mensinger, Plaintiff in Error, v. Leonard D. O’Hara and Patrick Kehoe, copartners as O’Hara & Kehoe, Defendants in Error.
    Gen. No. 19,689.
    1. Negligence, § 121

      —when words in declaration sufficient to charge wilful misconduct. Although the words “wrongfully and unlawfully” in a declaration, standing alone, do not necessarily charge wilful misconduct, yet where they were followed by the words “procured, assisted, aided and abetted,” and the act charged was in the nature of a deliberate trespass, it was held that the declaration was sufficient to support a cause of action for wilful misconduct and not mere negligence, especially in the absence of an averment of negligence.
    2. Dead bodies, § 1

      —who entitled to possession and control While a dead body is not "property” in the ordinary, technical meaning of that term, the law recognizes a right, in the nature of a property right, arising out of the duty of the nearest relatives to bury their dead, to take possession of the remains. This is an -exclusive right that, in the absence of any testamentary disposition, belongs to the surviving spouse, if any, and if none, to the next of kin.
    3. Dead bodies—when declaration states cause of action for wilful and wanton trespass. In a suit brought by a surviving husband for the mutilation of the body of his deceased wife by the undertakers, the declaration alleged the defendants “wrongfully and unlawfully procured, assisted, aided and abetted in cutting off and removing the hair from the head of the said dead body and otherwise mutilating the same,” in consequence whereof the remains “were rendered unfit to be viewed by the plaintiff and his relatives and friends,” whereby “the plaintiff suffered greatly, both in mind and in body, and great, indignity, insult and humiliation were put upon him.” Held, that the declaration stated a cause of action for wilful and wanton trespass and not mere negligence.
    4. Dead bodies—right of action for intentional mutilation. The intentional mutilation of a dead body will support an action on the case against the wrongdoer on behalf of the person entitled to the exclusive custody and possession of the corpse for purposes of burial.
    5. Damages, § 28

      —when recoverable for mental suffering. In an action by the husband for the wilful mutilation of the dead body' of his wife, damages are recoverable for mental suffering proximately resulting from the wrongful act, even though no actual pecuniary loss is alleged or proved.
    Error to the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 8, 1914.
    Rehearing denied October 20, 1914.
    Arthur A. House, for plaintiff in error; Lynn, Baumer & House and Nathan E. Utt, of counsel.
    West & Eckhart, for defendants in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

The Circuit Court sustained a general demurrer to the amended declaration of the plaintiff in this case. The plaintiff stood by his declaration and a judgment was rendered against him for costs, whereupon he sued out this writ of error.

The declaration, as amended, states that on April 5, 1909, the plaintiff was the devoted husband of Maude S. Mensinger, with whom he had lived for a long time; that on that day she died, and the plaintiff, “being under the duty and obligation to bury her, and having the right to bury her remains in the same condition as when death occurred,” placed the remains in the hands of the defendants, O’Hara and Kehoe, who were undertakers, and of the defendant Maxon, their servant, for the purpose of preparing the same for burial, and the defendants took possession of the dead body for that purpose; that at the time of her death, the plaintiff’s wife was possessed of a beautiful head of hair, very thick and of great length; that without the knowledge or consent of the plaintiff, the defendants “wrongfully and unlawfully procured, assisted, aided and abetted in cutting off and removing the hair from the head of the said dead body and otherwise mutilating the same;” that in consequence thereof, the remains “were rendered unfit to be viewed by the plaintiff and his relatives and friends,” and that thereby “the plaintiff suffered greatly, both in mind and in body, and great indignity, insult and humiliation were put upon him;” wherefore, “the plaintiff says he is injured and has sustained damage,” etc.

It will be noted that this declaration contains no specific averment charging, in terms, that the wrongful act complained of was wilfully or wantonly committed. The words “wrongfully and unlawfully,” standing alone, do not ordinarily convey the impression that a wilful or wanton act is intended to be charged. Neither of these words means the same thing as the word “wilfully.” “Unlawfully doing a thing is not synonymous with wilfully doing it. A man may do many things wilfully, which are not unlawful, and he may do things unlawfully which are not wilfully done.” State of Maine v. Hussey, 60 Me. 410. The same observation is true as to a statement that an act is “wrongfully” done. Jeffersonville, M. & I. R. Co. v. Riley, 39 Ind. 568, 587; Creen v. Eden, 24 Ind. App. 583. It does not follow, therefore, from the mere averment that the act complained of was done wrongfully and unlawfully, that it may not have been ignorantly, thoughtlessly or negligently done. But these words in the declaration are followed immediately by the words “procured, assisted, aided and abetted in cutting off and removing the hair,” etc. The word “procured” •imports design or intention. It means “to bring about by care and pains.” (Century Dictionary.) The words “wrongfully procured” import “an initial, active and wrongful effort.” Nash v. Douglass, 12 Abb. Pr. (N. S.) 187, 190. The words “assisted, aided and abetted” import either active participation or cooperation, or intentional encouragement. Furthermore, there is no averment in the declaration that the act complained of was negligently done, and the act described is not a mere omission of duty. It is an affirmative act, in the nature of a deliberate trespass. A large and heavy head of hair cannot be “cut off and removed ’ ’ from a dead body by mere neglect. Such an- act necessarily requires a physical effort, intentionally performed. It could not happen by chance. It could only be accomplished by design. The declaration does not charge that the defendants personally performed the act, unless the word “assisted” may be construed to have that meaning. The fact that all four of the words “procured, assisted, aided and abetted” are used by the pleader indicates an intention to charge that the defendants directed or caused the act to be done by some person other than themselves. In any event, however, whether they directed it to be done by others and thus “procured” it to be done, or personally “assisted” in doing it, they must have done so knowingly and intentionally. If an injurious act is knowingly and intentionally done, it is wilfully done. “The word ‘wilfully’ is synonymous with ‘knowingly.’ The two words are equivalents.” Peebles v. O’Gara Coal Co., 239 Ill. 370, 374. In Catlett v. Young, 143 Ill. 74, 81, it was said: “We think it was not error to instruct the jury that by a wilful violation of the law is meant a violation of its provisions, knowingly and deliberately committed.” If the declaration had specifically charged that the defendants wilfully cut off and removed the hair from the dead body, it would not be necessary to prove, in order to sustain that averment, that the act was committed with any evil intent. It would only be necessary to show that it was intentionally committed, with knowledge of what they were doing, and not from mere inadvertanee. Odin Coal Co. v. Denman, 185 Ill. 413; Illinois Cent. R. Co. v. Leiner, 202 Ill. 624, 630.

We conclude, therefore, that in view of the nature of the wrongful act complained of, and the words employed in the declaration to describe the act and to characterize the manner in which the act was done, the averments of the declaration amount to a charge of wilful misconduct on the part of the defendants.

Upon the assumption that the declaration contains no allegation of wilful or wanton misconduct and that negligence only is charged, counsel for defendants in error cite many authorities both for and against the proposition that “the negligent causing of mental anguish alone is not an actionable wrong. ’ ’ In their argument on this point, they contend that the great weight of authority favors the view that damages for mental suffering may be recovered only in two classes of cases: First, when the mental suffering is the inseparable accompaniment and result of some physical injury and bodily pain proximately caused by'the negligent act complained of; and "second, “when the wrongful act producing the injury is done wilfully or maliciously, and the injury is one'for which substantial damages are recoverable irrespective of mental anguish.” After a careful examination of the authorities on this question, in the light of the able and scholarly presentation of the subject by counsel, we are of the opinion that the italicized portion of counsel’s contention is not well supported, either by reason or authority. It is true that in some of thé cases cited by counsel, as well as in others referred to in such cases, the right to recover damages for mental suffering, even in case of a wilful wrong, is placed upon the ground that some slight pecuniary loss, as well as mental anguish, was alleged to have resulted from the wrongful act. For example, in an early case in Massachusetts, where the defendant entered upon the plaintiff’s land and dug up and removed the dead body of his child, the court, in holding that, the plaintiff might recover compensation for the mental suffering caused thereby, grounded his right of recovery upon the trespass to the plaintiff’s land. Meagher v. Driscoll, 99 Mass. 281. But, as is most pertinently and truly said by the Supreme Court of Minnesota, in Larson v. Chase, 47 Minn. 307: “It would be a reproach to the law if a plaintiff’s right to recover for mental anguish, resulting from a mutilation or other disturbance of the remains of his dead, should be made to depend upon whether, in committing the act, the defendant also committed a technical trespass upon plaintiff’s premises, while everybody’s common sense would tell him that the real and substantial wrong was not the trespass on the land, but the indignity to the dead.”

The mind instinctively revolts at the mere suggestion that any well ordered system of jurisprudence should find it necessary to resort to so flimsy a subterfuge in order to sustain a recovery of substantial damages for such a tort, when wilfully or wantonly committed. We are reminded, however, that the common law is still in force in this State, except as changed by statute, that the common law protects only “the person and the purse.” (Chapman v. Western U. Tel. Co., 88 Ga. 763, 772), that the common law did not recognize any right of property in the dead body of a human being, and that as yet we have no statute in this State which changes the common-law rule in that respect. If it were necessary in this case for us to point out the fallacy in this reasoning, we apprehend that it would not be very difficult to find good reasons for holding that the right of a surviving husband to the undisturbed possession and control of his wife’s remains may well be included in the category of personal rights, as now recognized by the law of this State. It is unnecessary, however, to go that far in this case. The decided weight of authority in this country supports the proposition that while a dead body is not considered as property, in the ordinary, technical sense in which that word is usually employed, yet the law does recognize a right, somewhat akin, perhaps, to a property right, arising out of the duty of the nearest relatives of the deceased to bury their dead, which authorizes and requires them to take possession and control of the dead body for the purpose of giving it a decent burial. This right is an exclusive right to the custody and possession of the remains, and in the absence of any testamentary disposition, belongs to the surviving husband or wife, if any, or if there lie none, then to the next of kin. The greater weight of authority also holds that any wilful or wanton infringement of this recognized legal right, by the intentional mutilation of the body of the deceased, will subject the wrongdoer to an action on the case for damages, and that in such action damages will be allowed for any mental suffering proximately resulting from the wrongful act, even though no actual pecuniary loss be alleged or proved. Larson v. Chase, 47 Minn. 307; Lindh v. Great Northern Ry. Co., 99 Minn. 408; Beaulieu v. Great Northern Ry. Co., 103 Minn. 47; Burney v. Children’s Hospital, 169 Mass. 57; Darcy v. Presbyterian Hospital, 202 N. Y. 259; Hassard v. Lehane, 143 App. Div. (N. Y.) 424; Louisville & N. R. Co. v. Wilson, 123 Ga. 62; Renihan v. Wright, 125 Ind. 536; Koerber v. Patek, 123 Wis. 453; Wilson v. St. Louis & S. F. R. Co., 160 Mo. App. 649; Birmingham Transfer & Traffic Co. v. Still, 7 Ala. App. 556; Palenzke v. Bruning, 98 Ill. App. 644.

In all but one of the cases last cited, the facts, as recited in the opinions, show that the wrong complained of was wilfully or wantonly committed; and in the single exception (that of Larson v. Chase, supra) the facts in this respect are not fully set forth in the opinion. In several of the cases, a doubt is expressed as to whether a recovery may be had for mental suffering, alone, in the absence of any allegation or proof of wilful or wanton misconduct. For example, in Koerber v. Patek, supra, while affirming the right to recover substantial damages for mental suffering under a complaint which alleged that the defendant had wilfully and maliciously cut out, removed and carried away the stomach from the dead body of the plaintiff’s mother, the Supreme Court of Wisconsin takes occasion to say (p. 463):

“We recognize the difficulties in the way of sustaining any action for mere negligence resulting in no pecuniary damage. In such case the injury to feelings of survivors not being legal damage, at least in Wisconsin, no recoverable damage results from mere negligence in such cases. That situation, however, is not here presented, for. the defendant’s act is alleged-to have been wilful.” (Italics ours)

The leading ease on this subject is that of Larson v. Chase, supra, which was an action brought by a widow to recover damages for the unlawful" dissection of the body of her dead husband. The only damages alleged in the complaint were mental suffering and nervous shock. In that case the Court, after holding that the widow had the legal right to the custody of the dead body of her husband for the purposes of preservation and burial, discusses at length the nature of that right. On page 310 of the opinion it is said:

“But this whole subject is only obscured and confused by discussing the question whether a corpse is property in the ordinary commercial sense, or whether it has any value as an article of traffic. The important fact is that the custodian of it has a legal right to its possession for the purposes of preservation and burial, and that any interference with that right, by mutilating or otherwise disturbing the body, is an actionable wrong. And we think it may be safely laid down as a general rule that an injury to any right recognized and protected by the common law will, if the direct and proximate consequence of an actionable wrong, be a subject for compensation.”

Further on in the same opinion, the Court reaches the following conclusion (p. 412):

“Wherever the act complained of constitutes a violation of some legal right of the plaintiff, which always, in contemplation of law, causes injury, he is entitled to recover all damages which are the proximate and natural consequence of the wrongful act. That mental suffering and injury to the feelings would be ordinarily the natural and proximate result of knowledge that the remains of a deceased husband had been mutilated, is too plain to admit of argument.”

In a later case before the same court, the doctrine so clearly and logically expressed seems to be qualified* by the apparent recognition of a limitation upon the right to recover damages for mental suffering in such cases by confining that right to cases in which a wilful or wanton act is alleged and proved. Beaulieu v. Great Northern Ry. Co., supra. In that case the Court said (p. 51):

“Though the common law recognizes no property in the bodies of deceased persons * * * a right of possession and' preservation for burial purposes is conceded by nearly all the authorities, which the law will protect” (citing authorities). “And any wilful or wrongful interference with that right by the intentional mutilation or secretion of the body subjects the wrongdoer to an action on the case, in the determination of which mental anguish is a proper element for consideration in assessing damages.” (Italics ours.)

The Court adhered, however, to the general principle of the Larson case, supra, by stating further on in the same opinion (p. 52) :

“There being no property in dead bodies, and the wrong complained of being only the invasion of an intangible legal right, no actual damages for the wrongful mutilation of the body can be recovered, and the courts award solatium for the bereavement of the next of kin as the only appropriate relief. Without the element of mental distress, the action would be impotent of results and of no significance or value as a remedy for the tortious violation of the legal right of possession and preservation.”

There is another class of cases, beginning with the case of So Relle v. Western U. Tel. Co., 55 Tex. 308, and followed by decisions in Alabama, Kentucky, North Carolina, Tennessee and Iowa,, in which the right to recover damages for mental suffering, resulting from the failure of a telegraph company to promptly deliver a message relating to a death or a funeral, was sustained. So far as we are advised, this doctrine has not been recognized in this State, arid it has been repudiated in many of the other States and by the Federal Courts. See Wilson v. St. Louis & S. F. R. Co., supra, and Chapman v. Western U. Tel. Co., supra, where many of such cases are cited. Whether the so-called “Texas doctrine” is supported by the better reason and the weight of authority, we need not stop to inquire. That doctrine has no necessary or controlling application to the facts of this case, where the wrongful act is alleged to have been intentionally committed.

The only case in Illinois to which our attention has been directed, which is at all similar to the present case, is that of Palenzke v. Bruning, supra. In that case a father sued the coroner for damages for mental suffering caused by the alleged wanton, malicious and wrongful mutilation of the body of the plaintiff’s minor son. The court held the action could be maintained for the wilful violation of the plaintiff’s right to the possession of the remains. We are of the opinion that the decision in that case is fully supported by the great weight of authority, and that the present case is one which, upon the pleadings before us, is governed by the same legal principles announced in that case.

For the reasons stated, the judgment of the Circuit Court will be reversed and the cause remanded,- with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Lillian Eggert, Administratrix, Appellee, v. Pennsylvania Company and Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, Appellants.
    Gen. No. 19,738.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 666

      —when failure to look and listen for trains not negligence as matter of law. It cannot be said as a matter of law that a person approaching a railroad crossing is in fault in failing to look and listen, if misled without his fault or where the surroundings excuse such failure.
    2. Negligence, § 228

      —when instruction defining ordinary care not objectionable. An instruction defining “ordinary care” as that degree of care and caution which a reasonably prudent and cautious person would have exercised “under like circumstances,” held not objectionable as confining the question of plaintiff’s due care to a consideration of his situation at the precise moment of the injury.

      Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding. Heard, in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action commenced by F. C. Eggert against the Pennsylvania Company and Pittsburgh, Cincinnati, Chicago & St. Louis Railway. Company to recover damages to plaintiff’s automobile caused by a collision between it and one of defendants’ engines at a railroad crossing in the city of Chicago. Subsequent to the commencement of the suit F. C. Eggert died, and Lillian Eggert, his administratrix, was substituted as plaintiff. From a judgment in favor of plaintiff, defendants appeal.
    Loesch, Scofield & Loesch, for appellants.
    Guerin, Gallagher & Barrett, 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 Fitch

delivered the opinion of the court.

3. Automobiles and garages, § 932 —when amount of verdict for injury to automobile warranted by the evidence. In an action for damages to plaintiff’s automobile resulting from a collision between it and a railroad engine at a street crossing, the amount of the verdict in favor of plaintiff held supported by the evidence, where there was evidence that the reasonable value of the use of plaintiff’s automobile was a certain sum per week, which when added to the cost of the repairs necessitated by the collision equaled practically the amount of the verdict.


text:
    Louis Kushner, Defendant in Error, v. Louis Perlman, Plaintiff in Error.
    Gen. No. 19,753.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by Louis Kushner, against Louis Perlman to recover a sum of money loaned to defendant.
    The facts showed that plaintiff had been employed as a salesman in defendant’s shoe store for a number of years and that he had at various times during such period loaned the defendant money, until the amount totaled six hundred dollars. Defendant in borrowing the money had promised to pay it back at any time on demand, but when plaintiff asked him for it defendant asked for more time, promising to repay it on a certain day. When that day arrived, defendant, instead of repaying the loan, charged the plaintiff with theft, and refused to pay. At that time defendant had a lawyer present who asked plaintiff to explain two small discrepancies upon one of the cash register slips for that day. The lawyer called a policeman, and upon plaintiff begging not to be locked up the defendant replied he would let it go until Monday.
    Abstract of the Decision.
    1. Accord and satisfaction, § 3

      —when agreement to accept less than sum due invalid. An agreement to accept three hundred dollars in full settlement of six hundred dollars due on a loan, held not binding for want of a consideration therefor. '
    2. Appeal and error, § 1512

      —when remarks of court not reversible error. Strong language of a trial judge in deciding a case, held not in itself sufficient to reverse a judgment which is clearly right upon the merits.
    The next day plaintiff and defendant went to the lawyer’s office where plaintiff signed a document purporting to be an admission of "the charge of withholding funds, and an agreement on plaintiff’s part to accept three hundred dollars .from defendant in full settlement of the six hundred dollars due from defendant. Thereupon the defendant’s lawyer gave the plaintiff his (the lawyer’s) -check for three hundred dollars. This check was never used.
    The plaintiff sued for the full amount due him and defendant relied on the plaintiff’s agreement as an accord and satisfaction. From a finding and judgment in favor of plaintiff for the full amount of six hundred dollars, defendant prosecutes a writ of error.
    Max Krauss, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    John Hulla and E. Bloomer, Defendants in Error, v. Louis Kaplan, Plaintiff in Error.
    Gen. No. 19,785.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 132

      —discretion of court in ruling on motion to vacate. Motions to vacate a judgment are addressed to the sound judicial discretion of the court, and unless there has been an abuse of such discretion the ruling of the trial court will not be disturbed.
    2. Judgment, § 146

      —-when affidavit in support of motion to vacate insufficient to show diligence. An affidavit by defendant’s attorney filed in support of a motion to vacate a judgment, stating that the reason he was not in court at the time the case was called was that he had mislaid his calendar and was unable to procure another, and that the case was called for trial on the first day after the summer vacation was ended, and that he was not in the city until the day before the trial, held not to constitute a showing of due diligence.

      Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Motion filed in the Municipal Court by Louis Kaplan to vacate a judgment entered against him in favor of John Hulla and E. Bloomer on defendant’s failure to appear when case was called for trial upon the regular call of the jury calendar. One motion was filed three days after the judgment was entered and was heard and denied and a second motion of the same character was filed five days thereafter which was also denied. Defendant prosecutes a writ of error.
    Edward J. Kelley and Meyer Shapiro, for plaintiff in error.
    Francis E. Croarkin, 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.

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Judgment, § 145 —when affidavits insufficient to show defense on motion to vacate default. On motion to vacate default judgment for work and materials furnished in constructing a building for defendant, affidavits setting up that plaintiffs failed to furnish defendant with “lien waivers,” as required by the contract, held insufficient to show a defense, where one of the affidavits stated that it was -understood at the time defendant made a certain payment that the waivers were to be delivered when the balance due was paid or signed notes for that amount were delivered, and it did not appear that defendant delivered or offered to deliver the signed notes, or ever paid or offered to pay the balance due.


text:
    Abe Tubor and Sam Velick, Defendants in Error, v. Timothy Crimmings, Plaintiff in Error.
    Gen. No. 19,808.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by Abe Tubor and Sam Velick against Timothy Crimmings to recover rent due under a written lease. To reverse a judgment in favor of plaintiffs, defendant prosecutes a writ of error.
    Defendant urged as ground for reversal that the evidence showed he did not sign the lease and also that the lease was surrendered “by an executed agreement between the parties.”
    Beauregard F. Moseley, for plaintiff in error.
    Cline C. Brosius, for defendants in error.
   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 325*—when finding as to execution of lease will not be disturbed. A finding in favor of plaintiff in a suit for rent on a written lease will not be disturbed on the ground that the evidence shows that defendant did not sign the lease, where it appears that his name was signed to the lease by his brother and that he ratified his brother’s act by taking possession of and occupying the premises and paying rent under it for several months, and it also appears that the affidavit of merits does not deny the execution of the lease.

2. Landlord and tenant, § 325*—sufficiency of evidence to show surrender of lease. In an action for rent where the defense was that there had been a surrender of the lease by agreement, a finding in favor of plaintiffs on conflicting evidence held sustained by the evidence.