author: Per Curiam.

text:
    Henry V. Williams, Appellee, v. Frank Parmelee Transfer Company, Appellant.
    Gen. No. 19,309.
    (Not to Tbe reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brbntano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by Henry V. Williams against the Frank Parmelee Transfer Company, a corporation, to recover damages for personal injuries sustained as the result of a team of defendant’s running away and causing a trunk to fall from defendant’s wagon upon plaintiff while engaged in work in a ditch in a street. From a judgment for plaintiff, defendant appeals.
    Plaintiff was at work in a ditch or trench on the east side of Milwaukee avenue, opposite Evergreen avenue, in the city of Chicago. Milwaukee avenue runs in a northwesterly and southeasterly direction, and Evergreen avenue intersects Milwaukee avenue at its west side at right angles, but does not extend east of Milwaukee avenue.
    As to the manner in which the accident happened, plaintiff testified that he and other men were working in the ditch when he “heard a holler,” which caused him to look around; that he saw the men near him start to run and so he tried to get out of the ditch as quick as he could; that before he could do so the team was in the ditch and the wagon turned over on its side; that one trunk fell on top of him and another trunk hit him on the leg, and that he was severely and permanently injured. Plaintiff further testified that his position in the ditch at the time of the accident was about on a line with the south building line of Evergreen avenue; that about “five or eight or ten minutes” before the accident he saw the same team and wagon “on the south side of Evergreen' opposite a three story building,” about “80 or 90 feet” away from the ditch; that the team was “standing there;” that he “didn’t see them tied to anything,” and that he “didn’t see no one around them.”
    John Cronin, a witness for plaintiff, testified that the team and wagon came from Evergreen avenue and into Milwaukee avenue. Lynaugh, another witness for plaintiff, testified that when he first saw the team, “it was coming on a run out of Evergreen, across Milwaukee avenue” and that no one was on the wagon. Fitzgerald, another witness for plaintiff, testified that when he first saw the team it was “coming down Evergreen avenue, * * * about 100 feet from Milwaukee avenue.”
    Edward Witto, a witness for defendant, testified that on the morning of the accident he was sitting in a park west of Milwaukee avenue and north of Evergreen avenue; that when he first saw the team and wagon they were on Evergreen avenue, “about two blocks west of Milwaukee avenue,” that the horses were “going pretty fast” towards Milwaukee avenue, and that “nobody was driving them.”
    Abstract of the Decision.
    1. Roads and bridges, § 238

      —when negligence not presumed. Negligence will not ordinarily be presumed from the mere fact that a horse runs away.
    2. New trial, § 52

      —when duty to grant. It is the duty of the trial judge to set aside a verdict which is manifestly against the weight of evidence and grant a new trial, and the failure to do so is reversible error.
    3. Pleading, § 395

      —what must he proved under allegations. Under a count in a declaration alleging that the defendant negligently permitted his team to be and remain “unhitched and unattended" so that it was “free to run away” and that, because of such negligence, the team did run away and plaintiff was thereby injured, it is necessary to prove not only that the team ran away and injured plaintiff, but also that the defendant permitted such team to be and remain unhitched and unattended.

      In the first count of plaintiff’s declaration it was averred that the defendant negligently permitted said team to be and remain “unhitched and unattended” so that it was “free to run away,” and that because of that negligence the team did run away and plaintiff was thereby injured. The second count set forth ordinance No. 1424 of the city of Chicago, which prohibited persons from leaving any horse, or other animal, attached to any wagon or other vehicle in any public street of the city, “without securely fastening such horse or other animal,” and it was averred that the defendant “negligently and in violation of said ordinance,” left its horses attached to its wagon “without securely fastening said horses,” whereby they “were left free to run away and did run away,” and plaintiff was thereby injured.
    Willis G. Shockey, Wiley W. Mills and William H. Holly, for appellant.
    C. Helmer Johnson and Daniel Belasoo, for appellee; W. D. Elmer, 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.

   Per Curiam.

4. Pleading, § 395*—what must he proved under allegations. Under a count in a declaration set,ting forth a city ordinance prohibiting persons from leaving any horse, or other animal, attached to any wagon or other vehicle in any public street of the city, “without securely fastening such horse or other animal,” and averring that defendant negligently left its horses attached to its wagon, “without securely fastening said horses,” whereby “they were left free to run away” and plaintiff was thereby injured, it is necessary to prove that defendant left the horses without securely fastening them, in addition to proof of injury.

5. Roads and bridges, § 239*—when evidence fails to sustain finding of negligence. Evidence, in an action by a laborer against the owner of a team for damages for injuries sustained as a result of the team running away and causing a trunk to fall upon the laborer while at work in a ditch in a street of the city of Chicago, held not to sustain a finding that defendant negligently permitted such team to be and remain unhitched and unattended, and that defendant negligently left such horses without securely fastening them.

Pam, J., dissenting.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Stephen Androczycyn, Plaintiff in Error, v. Spaulding & Merrick, Defendant in Error.
    Glen. No. 19,711.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action "by Stephen Androczycyn, a minor, "by next friend, against Spaulding & Merrick, a corporation, in the Circuit Court of Cook county. The action was for personal injuries received by plaintiff, who was employed by defendant, from the revolving knife of a tobacco cutting machine, by which plaintiff’s hand was cut off. The direct cause of the accident was the unexpected movement of the knife blade, and the crucial question concerned the cause of this movement. It appeared that just before the accident plaintiff shifted the belt on his machine from the tight to the loose pulley, and stopped the revolving knife; tightened the shifting device so as to hold the belt on the loose pulley; changed the knife blade, replacing the dull knife with a sharp one. He was then called to assist in putting into service an idle belt on a neighboring machine. At this time the power was off the overhead shaft, which served the various machines through belts. To put the idle belt into commission, this shaft was turned slightly by pulling by hand on the belts. Plaintiff and another workman pulled down on the belt of plaintiff’s machine. Plaintiff then resumed his work of tightening his new knife blade, his machine being still at rest. Almost immediately thereafter, as he says; the knife suddenly commenced to revolve, striking and severing his hand. There was also testimony, including that of the plaintiff, that when the operation of pulling down on the belt ended, it was still wholly on the loose pulley; also that there was attached a mechanical device which would prevent the belt from slipping from one pulley to another, except as operated and controlled by plaintiff. Also evidence as to the character of the revolving knife and arms, with special reference to their size and weight, and the fact that they could be revolved easily from a position of rest by a touch of the hand, without the application of mechanical power.
    At the trial the court admitted in evidence certain photographs showing the physical situation. The jury found a verdict for the defendant, and plaintiff brings error.

      Abstract of the Decision.
    1. Master and servant, § 699

      —when evidence shows contributory negligence. Where an accident is caused by the unexpected movement of the revolving knives of a tobacco cutting machine operated by the plaintiff, a servant, evidence held to warrant the jury in finding that the accident was caused by the contributory negligence of the plaintiff, and not by the negligence of the defendant, the master.
    2. Evidence, § 277

      —when photographs admissible. Photographs helpful to an understanding of the physical situation at the time when, an accident occurs held admissible, and to have no tendency to mislead the jury, where any differences between the photographs and the exact situation at the time of the accident are pointed out and explained by the witnesses.
    3. Appeal and error, § 1530

      —when errors in instructions harmless. Irregularities and informalities in instructions, where there is little controversy about the salient facts of the case, will not have sufficient weight to cause a reversal, though "some of the objections have weight, and under different circumstances might necessitate a reversal.
    Vincent G. Gallagher and Ernest Messner, for plaintiff in error.
    Frank M. Cox, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Dora Holtzman, Defendant in Error, v. Louis Israel, Plaintiff in Error.
    Gen. No. 20,193.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Geoegb J. Cowing, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    1. Contracts, § 385*—when evidence shows. In an action to recover back money paid under an alleged contract providing that defendant should return the money paid if unsuccessful in the undertaking, evidence held to warrant the jury in finding that the contract was made.
    2. Contbacts, § 130*—when evidence does not show guilty knowledge of illegal purpose. In an action for the return of money paid by plaintiff to defendant to procure the discharge of persons then about to be tried on a criminal charge, under a contract whereby defendant agreed to return the money if unsuccessful in procuring the discharge of the persons in question, evidence held to warrant the jury in finding that plaintiff did not have guilty knowledge of defendant’s intention to use the money for an illegal purpose.

      Statement of the Case.
    Action by Dora Holtzman, plaintiff, against Louis Israel, defendant, in the Municipal Court of Chicago, to recover on a contract by which plaintiff paid defendant four hundred dollars, to be returned in case defendant failed to procure the discharge of persons about to be tried on a criminal charge. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Louis Greenberg and Martin Connor for plaintiff in error.
    McMahon & Cheney, for defendant in error; E. C. Reniff, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Contracts, § 161 —when illegal purpose of one party does not invalidate. In an action to recover back money paid by plaintiff to defendant under a contract providing that the money should be returned under certain conditions, it is not a defense to the action that defendant had a private purpose to use the money unlawfully, unless plaintiff knew of such purpose.


text:
    Boyle Ice Company, Appellee, v. California Ice Company, Appellant.
    Gen. No. 20,318.
    1. Appeal and error, § 1836

      —duty to follow opinion on remand. An instruction in a second trial of a cause, as the result of a remand, which ignores the opinion of the Appellate Court, granting the new trial, construing the contract sued upon, and laying down rules to control the new trial, held error, for the reason that expediency, if not a rule of law, requires that such rules be held to be the law of the case whenever it may come up, either at nisi prius or in the Appellate Court notwithstanding arguments in favor of reconsidering the rules laid down.
    2. Sales, § 326

      —what evidence admissible. In an action on a contract for the sale of ice, where plaintiff could not recover the full contract price of ice owned prior to the expiration of the contract, and which it continued to own after that time, evidence is competent as to the amount of such ice, if any, and the difference, if any, between its market value and its contract value.
    3. Appeal and error, § 1837

      —when question is for jury under opinion of Appellate Court on remand. Where the Appellate Court, in an opinion granting a new trial in an action for the sale of ice, rules that defendant has the right to show whether the ice was merchantable before, at or after a named time, a peremptory instruction held erroneous, for the reason that a question oí fact for the jury is involved.

      Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding.
    Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Miller, Gorham & Wales, for appellant.
    McArdle & McArdle, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is the second time this case has' been before this court. Upon the prior appeal the judgment for plaintiff was reversed and the cause remanded for another trial. A full statement of the issues and facts and the opinion by Branch B of this court appear in volume 160 Ill. App., page 130. In that opinion the court undertook to construe the contract which is the basis of the suit and to state rules which should control the second trial. Upon the second trial the court instructed the jury to find for the plaintiff and judgment was accordingly entered. Defendant, now appealing, says that in so doing the trial court disregarded the opinion of the Appellate Court, and this seems to be true, whatever opinion we might have as to the correctness of the trial court’s rulings if this appeal were the first. Plaintiff argues, among other things that the prior judgment of this court “is still open for reconsideration here,” and we are requested “to reconsider and set it aside. ” As to this, we adopt as expressing aptly our views what was said in the opinion in Wilson v. Carlinville Nat. Bank, 87 Ill. App. 364:

“The previous opinion filed in this cause is of binding authority herein, and however much disposed we might be to reconsider the reasons of the court for its decision expressed in that opinion, we have no right to do so. Such a practice would produce judicial chaos. ’ ’

On motives of expediency, even were it not a rule of law, rules laid. down by one Appellate Court in a case should be held as the law for that case at any subsequent time it may come up, either in the nisi prius or Appellate Court, notwithstanding plausible or even convincing arguments made against them.

The record on the second trial is essentially the same as on the first trial. In the opinion above referred to, the Appellate Court said that “the plaintiff could not recover the full contract price of the ice which it owned prior to and continued to own after the expiration of the time fixed in the contract.” This makes competent evidence as to such amount of ice, if any, and calls for evidence as to the difference, if any, between the market value of such ice on December 1, 1907, and the contract value. The Appellate Court also ruled that defendant was entitled to show whether or not the ice was merchantable before, at and after December 1,1907, and that plaintiff could recover damages only for a failure to take merchantable ice. This involves a question of fact upon which the jury should be allowed to pass without the interposition of the court.

The peremptory instruction by the court was erroneous, and the judgment is reversed and the cause remanded for another trial, to be controlled by the rulings of this court in its former opinion and which we have restated.

Reversed and remanded.


text:
    Edwin Palm, Defendant in Error, v. John Johnson and Axel Johnson, trading as Johnson Brothers, Plaintiffs in Error.
    Gen. No. 20,530.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    Contracts, § 323

      —when judgment erroneous on proof of nonperformance. Where in an action to recover on contracts for painting and decorating defendants’ buildings, the court found for plaintiff for the amount alleged in the statement of claim to be due,, but in so doing ignored undisputed evidence that the contracts were not fully performed, held that the judgment, was erroneous, for the reason that the finding gave no credit to defendant for work not done according to the contracts.
    Statement of the Case.
    Action by Edwin Palm, plaintiff, against John Johnson and Axel Johnson, trading as Johnson Brothers, defendants, in the Municipal Court of Chicago, to recover on contracts for painting and decorating defendants’ buildings. To reverse a judgment for plaintiff for $376, defendants prosecute this writ of error.
    Ragnar Oberg, for plaintiffs in error.
    Sophus Dabelstein, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    George J. Williams, Defendant in Error, v. Edward E. Short, Plaintiff in Error.
    Gen. No. 20,581.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed upon remittitur; otherwise reversed and remanded.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    Landlord and tenant, § 284

      -—when re-entry by lessor does not bar action for rent. A lease which provides that a re-entry by the landlord for default shall not have the eSect of terminating the lease, or operate to prevent its continuing in force, is valid, and under such a lease the tenant is liable for rent to the end of the term.
    Statement of the Case.
    Action by George J. Williams, plaintiff, against Edward E. Short, defendant, in the Municipal Court of Chicago, to recover rent under the terms of a lease. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Donald McEachern, for plaintiff in error.
    George J. Williams, fro se.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Edward H. S. Martin, Appellant, v. Chicago, Duluth & Georgian Bay Transit Company, Appellee.
    Gen. No. 20,652.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    1. Cabbiebs, § 263

      —when prospectus not part of contract with passenger. The contract between a common carrier and a passenger is the ticket purchased by the passenger, which shows on its face that such is the intention of the parties; and a prospectus regarding the trip for which the ticket was purchased is no part of the contract, where no reference is made to it in the ticket, though alluring promises were made in the prospectus, which induced plaintiff to purchase the ticket, which were not performed by defendant.
    2. Cabbiebs, § 276

      —when duty to furnish wholesome food implied from tichet. A clause in a ticket sold by a common carrier to a passenger, “meals and berth included,” is to be construed to raise an implied contract that the food should be wholesome and fit for consumption.

      Statement of the Case.
    Action by Edward H. S. Martin, plaintiff, against the Chicago, Duluth & Georgian Bay Transit Company, a corporation, defendant, in the County Court of Coolc county, to recover on a contract for transportation in one of defendant’s steamships from Chicago to Duluth and return. From a judgment for defendant, plaintiff appeals.
    A. W. Martin, for appellant.
    Gardner, Foote & Burns, for appellee; Orville J. Taylor, Jr., 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. Presiding Justice McSurely

delivered the opinion of the court.

3. Pleading, § 434 —what is effect of allegation under a videlicet. Where an allegation in a declaration is made under a videlicet, the date is immaterial.

4. Appeal and errob, § 1526 —when instruction harmless. An instruction which inaccurately states the date when the contract sued upon was made, as a result of a similarly inaccurate allegation in the declaration, under a videlicet, though ordinarily reversible error, becomes harmless where the evidence will sustain no other verdict.


text:
    D. H. Gilbert, Defendant in Error, v. Chicago & Alton Railroad Company, Plaintiff in Error.
    Gen. No. 20,691.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed October 5, 1915.
    Rehearing denied October 13, 1915.
    Statement of the Case.
    Action by D. H. Gilbert, plaintiff, against the Chicago & Alton Railroad Company, defendant, in the Municipal Court of Chicago, to recover for loss due to the’nondelivery of a consignment of watermelons. To reverse a judgment for plaintiff for one hundred and fifty dollars, which disallowed defendant’s claim of set-off, defendant prosecutes this writ of error.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; Silas H. Strawn and Frank H. Towner, of counsel.
    Stewart Reed Brown, for defendant in error.

      Abstract of the Decision.
    1. Carriers, § 81

      —when notice of arrival of goods sent in apt time. Evidence that a carrier on July 6th mailed a notice to plaintiff, informing him of the arrival at 10 p. m. on July 4th of a carload of watermelons consigned to him, which notice was followed by another, of similar purport, mailed July 8th, and that both notices were sent to the address given in the bill of lading, as that of consignee, held such evidence of reasonable diligence on the part of defendant as to rebut an inference of negligence, it appearing that July 5th was a holiday, in consequence of which defendant’s office was closed all day.
    2. Carriers, § 160

      —when limitations in hill 'of lading control. In an action by a consignee against a carrier to recover for loss due to the nondelivery of a shipment, where it appears that defendant used due diligence to notify plaintiff of the arrival of the shipment, limitations upon the carrier’s liability contained in the bill of lading govern the transaction, for the reason that in such case the loss is due to the failure of plaintiff to furnish defendant with a proper address, or failure of plaintiff to respond to the notices received, and not to the negligence of defendant.
    3. Carriers, § 210

      —when sale of goods proper. Where defendant, a common carrier, received at Kansas City, Missouri, at 10 p. m. on July 4th, a shipment of watermelons consigned to plaintiff at that place, under a bill of lading providing that the carrier may, at any time during shipment, or after tender of delivery, sell the shipment to protect the interest of the owner or the transportation charges, held that a sale on July 12th, under the circumstances, was warranted by the bill of lading, it appearing that defendant had used due diligence in making tender of delivery prior to the sale, and that the temperature during the period from July 5th to July 12th ranged from 63 to 93 degrees.
    4. Carriers, § 210

      —application of proceeds of sale. In an action against a carrier by a consignee to recover for loss due to the nondelivery of a consignment, where, under the circumstances, the bill of lading justifies a sale of the shipment by the carrier, and such sale is made, the carrier may apply the net amount received from such sale to the payment of its freight and demurrage charges, and if the net amount received from such sale is insufficient to pay such charges, defendant may recover in set-off the amount of the deficiency.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Erminie Montgomery, Plaintiff in Error.
    Gen. No. 20,814.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    1. Druggists, § 6

      —who has burden of proving legality of sale of cocaine. In a proceeding wherein defendant was charged with unlawfully selling cocaine “without the written prescription of a physician,” as required by statute, held that the burden of proof is on defendant to bring the sale within the exception.
    2. Appeal and error, § 1487

      —when admission of evidence harmless. Where the issues are clearly proven without the evidence objected to, error in admitting such evidence held harmless.
    Statement of the Case.
    Action by the People of the State of Illinois, plaintiff, against Erminie Montgomery, defendant, in the Municipal Court of Chicago, in which defendant was charged with unlawful sale of cocaine. To reverse a judgment for" plaintiff, defendant prosecutes this writ of error.
    Edward H. Morris, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Julia Shaughnessy, Appellant, v. William Rothmann et al., Appellees.
    Gen. No. 20,843.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 13, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Julia Shaughnessy against William Bothmann and others, in the Superior Court of Cook county, to compel the release of a trust deed on premises belonging to complainant, on payment of the amount alleged to be unpaid on the mortgage- debt, and cross-bill by Louise C. Zweifel, the owner and holder of the notes and trust deed, for a foreclosure of the trust deed. From a decree dismissing the bill for want of equity, and from a decree in favor of the cross-complainant ordering a sale of the property, and from a finding in favor of the latter that there was due her, for principal, interest, expenses and fees the sum of $1,666.88, complainant appeals.
    The controverted point in the case is the difference of $1,000 in the respective claims of parties as to the amdunt paid on the notes. The facts were, substantially, that complainant purchased the land in question through the office of Watson & Bartlett, real estate dealers in Chicago. She later applied to them for a loan with which to build, and through one Arthur Luehr, a clerk in the office, complainant received a loan of $1,700. A principal note for that amount, dated May 24, 1904, due in five years, together with ten interest notes or coupons, were signed, providing that interest should be paid at such place as the legal holder might from time to time appoint, otherwise at the office of Watson & Bartlett. All notes were made payable to the order of “myself,” and indorsed in blank. The trust deed in question was executed and delivered, which after reciting the facts, conveyed the real estate therein described to Oliver L. Watson as trustee, to secure the indebtedness. Said Luehr was named as successor in trust.
    Said Luehr paid out the money as the work progressed, the last payment being about August 1, 1904. Prior to the last payment, Luehr left the office, and complainant followed him to a new office in Chicago, and transacted business with him in regard to the loan. It did not appear who was the lender of the money, though Watson testified that in making the loan, his firm loaned the money of his client. He further testified that though during the whole of the time in question, he was doing business in Chicago, and was accessible, complainant never made any effort to pay money to him as trustee.
    On or about July 11, 1904, Luehr transferred the notes, trust deed and an insurance policy to defendant Zweifel, through her attorney, defendant Bothmann, for $1,700 and accrued interest. Defendant Zweifel resided in Wisconsin, where defendant Bothmann forwarded her the papers. Complainant paid the amount of the interest notes to Luehr, who remitted it to Bothmann, whose client sent him the notes for collection. Bothmann testified that such notes were always retained by him until the receipt of the money from Luehr.
    In pursuance of a notice from Luehr, dated April 29,1909, that the principal note, of $1,700 and interest, would be payable at his office May 24th, complainant called on him on that date and paid him $1,400 on account of the principal note, together with the amount of the interest note then due. As neither interest or principal notes were in Luehr’s possession, no indorsement of the payments were made on them.

      ¡When complainant paid Luehr the $1,400, he gave her a receipt for the amount, stating that the payment was to apply on the principal note due May 24, 1909,' with a receipt for the amount of the interest note, and prepared an agreement purporting to extend for two years the time of payment of the unpaid balance of the principal note. The agreement recited that defendant Eothmann was the owner and holder of the notes and trust deed described, and the agreement was executed by complainant and purported to be executed by “William Eothmann by Arthur Luehr, his agent.” Luehr had no authority from either defendants Eothmann or Zweifel to execute the agreement, of which neither had. knowledge until it was offered in evidence at the trial.
    About the time of this agreement, Luehr asked defendant Eothmann to consent to wait for the principal sum until complainant received money with which she expected to take up the note, and which she expected to have shortly, and until such payment, she would pay seven per cent, on the note. Defendant Eothmann was informed that complainant did not wish an extension for a definite time, and consented to what was asked. About a year later, Luehr informed defendant Eothmann that $400 had been paid by complainant on the principal note, but as she had not then received the money she expected, she asked another indefinite extension until she should receive it, and that defendant Eothmann would accept six per cent, until the balance was paid. Defendant Eothmann assented, and Luehr paid him $400 and interest.
    About May 24, 1911, Luehr informed defendant Eothmann that complainant desired an extension of the time of payment on the balance of the principal note for two or three years, which was agreed to, and Luehr prepared in duplicate, agreements which recited* the facts as to the original transaction, and the fact that the principal note had matured, the payment of $400 on account of it, and the fact that complainant desired the extension. The agreement then extended the time of payment of the balance of the note to May 24, 1914, with interest at six per cent, as evidenced by six interest notes of even date for $39 each. This agreement was executed by both complainant and defendant Zweifel.
    Abstract of the Decision.
    1. Bills and notes, § 293

      —when maker put on notice as to ownership. An agreement executed by the maker of notes, purporting to extend the time of payment after the maturity of the notes, which sets out the name of the owner thereof as being other than a person to whom the maker has made payment on account of the notes, is sufficient to put such maker on notice that the person to whom she made such payments is not the owner of the notes, and that such payments to him are at her own risk, even though the agreement does not correctly state the name of the real owner.

      Complainant received a letter from defendant Bothmann dated October 10, 1911, notifying her that thereafter all payments were to be made on the notes to him, at his office, as the representative of the holder, to which complainant did not reply until seven months later, having consulted Luehr meantime, who advised her to ignore the notice and continue to pay interest to him, which she did.
    Defendant Bothmann testified that he first heard of complainant’s claim to have paid Luehr more than $400 when complainant called on him in response to a letter dated June 4, 1912.
    Luehr was joined as a defendant in the bill, but was not served, as he had apparently left Chicago, and before the trial commenced the bill was dismissed as to him.
    Julius Limbach, for appellant; George F. Ort, of counsel.
    West & Eckhart, for appellees.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Bills and notes, § 293 —when payment not binding on holder. Payments on the principal of a note secured by trust deed, to the person named therein as successor in trust, who did not have possession of the notes, and whose office was not the place of payment fixed in the trust deed, held not binding upon the owner of the notes where such person failed to turn over the sum so paid, although previous interest payments made to him had been turned over to the owner through his attorney, especially where, after! making the payment, an extension agreement was signed by the parties acknowledging that a sum was due in excess of the amount which would be due if the payment so made had been deducted, and the interest notes made at the same time called for an amount which showed that interest was being charged on such excess.


text:
    Annie Lifschitz, Appellee, v. City of Chicago, Appellant.
    Gen. No. 20,856.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county;.the Hon. William Fenimobe Coopeb, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Annie LifscMtz, plaintiff, against the City of Chicago, defendant, in the Superior Court of Cook county, to recover for personal injuries due to a defective sidewalk. From a judgment for plaintiff for $4,000, defendant appeals.
    John W. Beckwith and N. L. Piotrowski, for appellant; David R. Levy, of counsel.

      Abstract of the Decision.
    1. Municipal corporations, § 1098

      —when city liable for injury from, defective sidewalk. In an action to recover for personal injuries, caused by a defective sidewalk, evidence held to warrant the jury in finding defendant liable, it appearing that defendant knew or should have known of the defect, and that plaintiff did not.
    2. Damaoes, § 114

      —when verdict not excessive. In an action to recover for personal injuries, caused by a rotten board in a sidewalk, which gave way under plaintiff, allowing her right leg to slip through the hoard in such manner as to cause a severe strain to the muscles and ligaments on the left side of the abdomen, as well as contusions and abrasions of the leg, and where there was evidence that the strain caused a stricture of the left ureter, or tube connecting the kidney with the bladder, a verdict of $4,000 held under the circumstances not manifestly unreasonable, there being evidence that the stricture would prevent plaintiff, a married woman, from bearing children, and that the stricture did not exist prior to the accident.
    3. Husband and wife, § 194

      —when evidence of medical services proper in action by wife for injury. In assessing damages in an action to recover for personal injuries, evidence of the value of medical services rendered to plaintiff in connection with the injury is competent, although plaintiff is a married woman living with her husband, for the reason that medical attendance is a family expense within the meaning of the Illinois Statutes, ch. 68, sec. 15 (J. & A. H 6152), which provides that family expenses shall be a charge on the property of both husband and wife, for which they may be sued jointly or severally.
    Moses, Rosenthal & Kennedy, for appellee; Joseph W. Moses and Walter Bachrach, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Strawn Farmers’ Elevator Company, Appellant, v. Edward P. McKenna and John A. Rodgers, trading as McKenna & Rodgers, Appellees.
    Gen. No. 20,925.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    Corporations, § 255

      —when not hound hy speculation of manager. The mere fact that speculative orders to be executed on the Chicago Board of Trade were sent in the name of a corporation hy one having a written contract with such córporation to act as its manager, does not bind the principal on such contracts, where such dealing is not within the general scope of the agency of such manager.
    Statement of the Case.
    Action by the Strawn Farmers’ Elevator Company, a corporation, plaintiff, against Edward P. McKenna and John A. Eodgers, trading as McKenna & Eodgers, defendants, in the Municipal Court of Chicago, to recover for grain sold and delivered to defendants. Defendants filed a claim of set-off, based on contracts for the future delivery of grain, made in the name of plaintiff by one who had a written contract with it to act as its manager. From a judgment favorable to defendants, plaintiff appeals.
    Norton & Ortman and Thomas J. Lawless, for appellant; Kraus, Alschuler & Holden, of counsel.
    Winston, Payne, Strawn & Shaw, for appellees; Walter H. Jacobs, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    James B. Wilson, Appellee, v. Baltimore & Ohio Railroad Company, Appellant.
    Gen. No. 20,956.
    1. Master and servant, § 150

      —when insufficient clearance between tracks cause of injury to employee. Plaintiff, conductor of a freight train standing on the main line of a railroad, in order to shift a car of the train to an adjacent side track, caused an engine attached to the train to back slowly down the side track, plaintiff standing on the footboard of the tender. Stepping off the footboard while the engine was in motion, when about opposite the car to be shifted, plaintiff was injured in some manner. The side track was so constructed as to leave a clearance of but about two feet between cars standing on it and any cars which might be standing on the main line. Held, where plaintiff after the accident was found lying in front of the engine, the obvious cause of the accident was the faulty construction of the side track, in being laid too close to the main line, causing plaintiff,- as he stepped off the footboard, to be struck by one of the cars of the train, and either thrown under the engine, or squeezed between it and one of the cars of the train.
    2. Master and servant, § 438

      —when employee excused from failure to notice conditions. Where plaintiff, an experienced freight conductor, was injured at night when he stepped off the footboard of an engine which was slowly backing down a side track adjacent to the main line, on which stood plaintiff’s freight train, where the cause of the injury was the faulty construction of the side track, in being built so close to the main line as not to afford a safe clearance when there were cars standing on both tracks, and which caused plaintiff to be hit by a car of the train as he stepped off the footboard, held that the facts showed a reasonable excuse for the failure of plaintiff to notice the conditions, though he carried a lantern, for the reason that plaintiff had no reason to anticipate the conditions, which were unusual, and because the darkness prevented his observing them.
    3. Master and servant, § 150

      —when failure to allow sufficient clearance between tracks is negligence. In an action against a railroad company to recover for personal injuries, where the cause of the injury was the construction of a side track so close to the main line that a clearance of but two feet was afforded between cars standing on the side track and others standing on the main line, evidence held to warrant the jury in finding defendant liable, for the reason that in constructing said tracks so as not to afford a clearance sufficient to enable employees to pass with reasonable safety between cars on the adjacent tracks, defendant was negligent.
    4. Master and servant, § 693

      —when evidence sufficient to show excessive continuous service. In an action by a freight conductor to recover for personal injuries, claimed by him to have been caused in part by exhaustion due to continuous service for seventeen hours and twenty-five minutes, in violation of the Federal statute, where the evidence as to the extent of such continuous service was conflicting, and where plaintiff’s testimony was sufficient to prove a violation of the statute, held that the jury were warranted in believing plaintiff’s testimony, there being sufficient evidence that the continuous service testified to would produce the exhaustion claimed.
    5. Damages, § 111

      —when verdict not excessive. Where an experienced freight conductor, twenty-nine years of age, in good health and strength, earning on an average $125 a month prior to an injury, is permanently injured, so as to make him a helpless cripple, and to cause him to suffer constant and intense pain, a verdict of $45,000, though larger than usual, held not excessive, there being no convincing reason for such holding, and it appearing that the verdict was the result of serious and fair-minded consideration by the jury, whose sympathies were not unduly moved by appeals of counsel.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 14, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Calhoun, Lyford & Sheean, for appellant; Charles D. Clark, of counsel.
    Morse Ives, Weymouth Kirkland and C. E. Stenning, 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 McSurely

delivered the opinion of the court.

Plaintiff, a conductor of one of defendant’s freight trains, was severely injured while in the discharge of his duties. Upon suit alleging negligence of the defendant, he had judgment for $45,000, from which defendant has appealed.

Two grounds of liability are presented: (1) Negligent construction of defendant’s tracks, the main and side tracks being placed unusually close to each other; and (2) defendant, engaged in interstate commerce, violated the Federal statute by requiring plaintiff to be on duty for a longer period than sixteen consecutive hours.

Defendant has a line running southerly and easterly from Cleveland, Ohio, through Akron, where it joins what may be called the “through line” from Chicago to Pittsburg. Some distance westerly of Akron on this through line is Chicago Junction, and easterly of Akron is Newcastle Junction, and the division between these points is called the Newcastle division. The line from Akron north to Cleveland is called the Cleveland division. Plaintiff usually worked on the Newcastle division. The accident occurred at Peninsula, a station on the Cleveland division a few miles north of Akron. On the Newcastle division, plaintiff says, the usual distance between cars standing on parallel tracks was about' four feet or more, and that he had never noticed this space to be less than three and one-half feet in width. At Peninsula, on the Cleveland division, is a single main track and two sidings east of it. The Ohio floods in the spring of 1913 had washed out the ballast from these tracks and they had been relaid, but so close together that there would be a clearance of only one or two feet between cars on parallel tracks. A brakeman testified that to pass between an engine on one track and a car on the other it-was necessary to turn sideways. Plaintiff had not noticed the distance between cars on any division other than the Newcastle division. He had run as conductor on a train through Peninsula on only one trip, but had not been there after the flood and did not know anything about the nearness of the tracks to each other at Peninsula.

About two o’clock in the morning of August 23,1913, plaintiff was in charge of a train of forty cars arriving in Peninsula. There was a “hot box” on the east side of the eighth car from the caboose, and plaintiff undertook to set this car out of the train, and for that purpose ordered one of the engines hauling the train to back north on the side track parallel to the main line and along the east side of his train. He stood upon the footboard ¿t the rear of the engine’s tender and rode on the end of the footboard next to his train as the engine backed northerly on the siding towards the car with the “hot box.” He carried a lantern, but on account of the darkness did not observe any unusual distance or lack of space between the engine and the train. Before the engine reached the car the power had been shut off and it was “drifting,” that is, going about five or six miles an hour, or what is described as an ordinary walk. As the engine came opposite the car with the. “hot box,” plaintiff stepped off the foot-board, apparently with the intention of uncoupling this car. The engineer saw plaintiff’s lantern strike the car of the adjacent train and go out. Thinking there was something wrong he stopped the engine, and plaintiff was found lying just in front of the engine. Plaintiff has no recollection, of what happened after he stepped from the footboard and did not regain consciousness for nearly three days.

The conclusion is not only reasonable but obvious, that when plaintiff stepped off his engine he was struck by the nearby car and either thrown under the engine or squeezed between it and the car. The faulty construction of the main line and the siding, with reference to the distance between them, was clearly the cause of the accident. A similar situation was characterized in the opinion .in Voorhees v. Lake Shore & M. S. Ry. Co., 193 Pa. St. 115, as a “dangerous mantrap.” The defendant was negligent in permitting its tracks to be so close together that employees could not with reasonable safety pass between cars on adjacent tracks. Plaintiff was experienced and knew that the usual clearance between cars was sufficient for him to step off in safety. He had no reason to think that the space at this point was any less than the usual distance, and the darkness furnished a reasonable excuse for his failure to notice the unusual conditions.,. The evidence as to negligent construction justified the verdict of the jury as to liability.

As we view this case it is hardly necessary to discuss at any length the evidence touching the question of the number of consecutive hours plaintiff was on duty prior to the accident. Whatever may be said as to the period of time commencing at 3:40 p. m. on August 19th, with reference to determining whether plaintiff was “on duty” while traveling “deadhead” to meet the train of which he was to take charge, and as to the period commencing at 3:15 p. m. on August 20th, there was submitted to the jury the question of fact as to the duration of the period of duty commencing at 4:35 p. m. August 21st. The trial court by instructions limited to this period any liability of defendant for violation of the Federal statute. There is disagreement among the witnesses as to when this period of employment ended. Plaintiff says it was at 10 a. m. on August 22nd; this would make the period of duty seventeen hours and twenty-five minutes. The defendant introduced evidence tending to show that the period ended at 8:45 a. m. We cannot say that the jury should not have believed plaintiff’s version of the matter. Plaintiff sufficiently proved the violation of the statute as to this period, and there was sufficient evidence that this produced a condition of exhaustion that contributed to the accident.

There are no reversible errors in the instructions or rulings on evidence.

Are the damages excessive? Plaintiff was a young man twenty-nine years of age, in good health and of great strength and vigor. He was injured Saturday morning and was unconscious until the following Tuesday. His brain was injured, right arm amputated, back broken, vertebrae ont of alignment, cartilage between the vertebrae destroyed; ribs, left clavicle and nose were broken; muscles of the entire right side have since become atrophied; right side of body partially paralyzed; both legs paralyzed; and many other injuries. Plaintiff testified that he constantly suffers excruciating pains. His average earnings as a conductor before the injury were $125 per month. The verdict was for $45,000, which is for an amount larger than is usual in our courts. It cannot be said that it is excessive solely because it is large. The real question is, is it too great compensation to a young, strong man for the experience of being transformed violently into a permanent, helpless physical wreck, with the attendant pain and suffering, past, present and future; also his loss of earnings because of permanent disability? We do not find in the record any appeal by counsel which might have unduly moved the sympathies of the jury. The amount seems to have been arrived at as the result of serious and fair minded consideration. We are not disposed to say in this instance that our judgment is better as to the amount of compensation than is that of the jury. No convincing reason appears to warrant a conclusion that the amount is excessive.

For the reasons above indicated the judgment is affirmed.

'Affirmed.


author: Mr. Justice Baker

text:
    Roy O. West et al., Appellees, v. Albert Mohr, Appellant.
    Gen. No. 19,971.
    Attorney and client, § 106

      —when relation not antagonistic. Where an attorney at law represents two parties whose interests in some degree conflict, hut with the knowledge and at the request oí both, and where his duties are mainly that oí affording a ch'annel oí communication between them, hut which does not impose upon the attorney any conflicting duties, or contemplate litigation, there is not such impropriety or inconsistence in the conduct of the attorney as to amount to a defense to a promise by one of the parties to pay the attorney for his services.
    Appeal from the Superior Court of Co oh county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 5, 1915.
    Frank Foster, for appellant.
    West & Eckhart, for appellees.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

In 1913, appellees West, Eckhart, Bothmann & Deering were practicing law in Chicago as copartners under the firm name of West & Eckhart. This appeal brings before us for review a judgment recovered by appellees, plaintiffs, against appellant Mohr, defendant, for $500, June 25, 1913.

The evidence in the case other than the opinion evidence as to the value of plaintiffs ’ services, consists of the testimony of plaintiff Eckhart, defendant Mohr, and Charles Warren, called as a witness by defendant. The testimony is conflicting, but from it we think the jury might properly find the following facts: Mrs. Geary called at the office of the plaintiffs January 6, 1913, and there saw Eckhart, one of the plaintiffs, and told him that she had "a claim against defendant. Eckhart called defendant Mohr on the telephone, told him that Mrs. Geary had been at his office, and told him of the claim she said she had against him, and asked him to come to his office about it. January 10th, Mohr and Warren came to plaintiffs’ office and there saw Eckhart. Mohr asked what Mrs. Geary wanted. Eckhart told him she wanted money from the story she told, and Mohr replied, “I am not going to pay her anything. I do not owe her any money.” Eckhart said, “Mr. Mohr, she said you had heen paying her for many years and been supporting her all this time; she says that you have been acquainted with her and supporting her in this city and giving her all the money she had, and she also claims you promised to support her the rest of her life; she says you cannot stop now.” Eckhart further told Mohr that the plaintiffs would not sue or take the case into court or make any claim; that it was a nasty thing to have in the office, and that it was only because Mrs. Geary begged them to call up Mr. Mohr and said that was all that would be necessary, that he took the matter; that if she insisted on pressing the claim and making trouble, as she said she could, she would have to get another lawyer; that when he said that, Mohr said, “I will pay your fee.” Eckhart replied “All right,” and Mohr said, “I want you to stay in the case;” that Mohr said, “I will pay her $500, but I want a release and have no more trouble after this,” and Eckhart told him that he was not going to advise him on the matter; that a release would not prevent her from making, a claim in the future; that she wanted $2,000 at once and assurance that the $200 a month he had been sending her would be sent regularly. Mohr said, “Well, you talk with the woman and offer her $500, and if she is satisfied with that I will pay her $500. ’ ’ Eckhart said, ‘ ‘I will tell her what you offer, and if she consents to my negotiating with you under the circumstances, I will communicate with you later; ’ ’ that he thought he also told Mohr that she said he was responsible for her ill condition of health, and that she suffered from a miscarriage some years ago, for which he was responsible; that Mr. Mohr said he wanted Eckhart to act in the capacity of a sort of peacemaker and negotiator between the parties and get Mrs. Geary out of town,.and did not want a criminal lawyer in the case; that a few days later Eckhart telephoned defendant that he had seen Mrs. Geary, told her what Mohr said about his staying in the case and his offer to pay his fee, and that Mrs. Geary was agreeable to that arrangement, and wanted Eckhart to stay in the case, but said she would not accept $500; that the least she would take was $2,000, and that Mohr said he would call and see Eckhart. He did not do so, but sent Mrs. Geary $100, and a few days later sent her $1,000, and about January 20th, Mrs. Geary left the city. Eckhart then asked him to send a check for $500 for his services, and Mohr said, “That is too much.” In fact he did not pay anything, and this suit was brought.

Whatever may have been Mrs. Geary’s intention when she first went to plaintiffs office, she was promptly informed by Eckhart that plaintiffs would have nothing to do with any suit against Mohr. She then asked him to tell Mohr of her claim, and said that would be all that would be necessary. Eckhart told Mohr of Mrs. Geary’s claim, and it is clear that Mohr desired to avoid litigation and desired the services of Eckhart as a peacemaker and negotiator, and offered to pay him for such services. Eckhart consented to act in that capacity only in case Mrs: Geary consented to his doing so. She consented to the arrangement and expressed her desire that Eckhart remain in the case.

We have, then, a case where litigation was not desired by either party, where each party desired Eckhart to conduct the negotiations, and Mohr promised to pay him for his services. Eckhart communicated to Mohr the counter-proposition made by Mrs. Geary, and Mohr, after promising to call on Eckhart, took the matter into his own hands, for he testified that he paid Mrs. Geary $1,100, not on any one’s advice, but of his own accord. The arrangement arrived at seems to have been satisfactory to both parties. On receiving the $1,100 from Mohr, Mrs. Geary left Chicago.

Eckhart, it is true, represented two parties whose interests were conflicting. Mrs. Geary desired to get a comparatively large sum of money from Mohr, and Mohr desired to be relieved from her demands by paying her a comparatively small sum; but no conflicting duties were imposed on Eckhart. His chief duty was to furnish a channel of communication between the parties. He disclosed to each party his relation to the other and acted with the consent of both.

We see no impropriety or inconsistency in his acting for both parties under the circumstances, nor any just ground for the refusal of Mohr to fulfil his promise to pay him for his services, and the judgment is affirmed.

Affirmed.


text:
    Emory J. Smith and Morris G. Leonard, trading as Smith & Leonard, Defendants in Error, v. American Bridge Company, Plaintiff in Error.
    Gen. No. 20,146.
    1. Attobney and client, § 150

      —when Lien Act complied with as to notice. The Attorneys’ Lien Act, requiring personal notice to the debtor of a claim for lien, is complied with where notice is actually received by the debtor.
    2. Attobney and client, § 150

      —when action under Lien Act not affected by place of injury. In an action under the Attorneys’ Lien Act, the question at issue is not affected by the fact that the injury was suffered in Indiana, and the contract between the parties was signed in this State.
    3. Attobney and client, § 146

      —how Lien Act construed as to liability. The Attorneys’ Lien Act merely affects the distribution of the sum paid to plaintiffs’ client by the defendant, and does not increase or diminish the liability of the defendant.
    4. Attorney and client, § 150

      —when allowance of interest under Lien■ Act erroneous. The allowance of interest on a claim of attorneys under the Attorneys’ Lien Act held error, as payment of the full amount claimed, to plaintiff’s client was not the liquidation of an account between plaintiff and defendant, under the statute which provides that creditors shall be allowed interest “from the day of liquidating accounts.” (J. & A. If 6691.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in this court at the March term, 1914.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 5, 1915.
    Rehearing denied October 18, 1915.
    Knapp & Campbell, for plaintiff in error; William Beye and Frank A. Reid, of counsel.
    Harry H. Felgar, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings in review a judgment for $84.73 recovered by plaintiffs Smith and Leonard against the American Bridge Company, defendant, for attorneys ’ fees under, the Attorneys ’ Lien Act of Illinois. One Garton, an employe of defendant, was injured at Gary, Indiana, December 26, 1912, and employed plaintiffs as his attorneys to prosecute his suit against the bridge company to recover damages for such injury, and for their services agreed to give his attorneys fifty per cent, of the gross amount received by him through suit or settlement. The written instrument by which Garton made such promise was signed by him at Gary, Indiana, January 5, 1913. January 15th, Garton came to the office of plaintiffs in Chicago, and the instrument was translated to him and he acknowledged and reaffirmed the same as his contract. On the same day plaintiffs sent to defendant at its office in Chicago a written notice of their employment by Garton and a copy of their contract with Garton. January 27th, Thomas E. Joy, division casualty manager of defendant, wrote plaintiffs, acknowledging the receipt of their letter of January 15th, and stating: ‘ I note you have been retained by the injured man on a contract of or 50 per cent, of the amount collected by you through suit or settlement. ’ ’ As the notice was actually received by defendant, we regard the statute requiring personal notice as having been complied with. Kinkade v. Gibson, 209 Ill. 246. April 21, 1915, the defendant paid to Carton $164 in settlement of his claim, in consideration of which he released the defendant from any claim arising out of his injury. Plaintiffs recovered $84.73, $82 of which was for one-half of the amount paid by defendant to Carton, and. $2.73 interest on the same. We do not think that the question in issue in this case is affected by the fact that the injury was suffered in Indiana and the contract between plaintiffs and Carton was signed in that State by Carton. The Attorneys’ Lien Act does not increase or diminish the liability of defendant. It only affects the distribution of the sum agreed upon between defendant and Carton in settlement of his claim for damages.

Defendants in error have assigned by way of cross-error, that the judgment should have been for $164 and interest; but the decision in Emerson-Brantingham Co. v. Donnelly, in this court, opinion filed December 21, 1914, petition for certiorari denied June 24, 1915, by the Supreme Court, is conclusive against this contention; and under the rule stated in .that case, plaintiffs were entitled to recover $82, not $164.

We think the court erred in allowing interest. The statute provides that: “Creditors shall be allowed interest at the rate of five per cent, on money due on the settlement of account from the day of liquidating accounts between the parties. ” (J. & A. ¶ 6691.) The payment of $164 by defendant to Carton was not the liquidation of an account between plaintiffs and defendant.

If the defendants in error shall within ten days remit from the judgment $2.73, the judgment will be affirmed for the remainder; otherwise it will be reversed and the cause remanded. The costs in this court will be paid by the defendants in error.

Affirmed on remittitur; othenoise reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. William Yario, Plaintiff in Error.
    Gen. Nos. 20,148, 20,149.
    1. Criminal law, § 457

      —when hill of exceptions improperly signed. A bill of exceptions, signed after the expiration both of the time allowed for filing exceptions and the time to which such filing time has bepn properly extended, which signing was by a judge other than the one presiding at the trial, to whom the exceptions were presented in the first instance, and who is, at the time of signing, no longer a judge, is not legally signed, and will be stricken from the record, where the record does not show an order that the bill of exceptions be signed nunc pro tunc.

    2. Jury, § 7

      —when trial may he waived. A written waiver of the constitutional right to a trial by jury may be made by a defendant, who is charged in an information with a misdemeanor, and such waiver is binding.
    3. Indictment and information, § 1

      —when- indictment not essential to trial for misdemeanor. The plain meaning of séction 8 of article II of the Constitution of 1870, providing that criminal trials shall be on indictment “except in cases where the punishment is by fine, or by imprisonment otherwise than in the penitentiary,” is that a person may be held to answer for a misdemeanor without indictment.
    4. Jury, § 3

      —right to trial hy. The right to a jury trial as at common law is protected by the Constitutions of 1818, 1848 and 1870, and the provisions of all three constitutions in relation thereto are without substantial difference.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding.
    Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement by the Court. The judgment sought to be reversed in No. 20,148 is a conviction of plaintiff in error, William Yario, on an information filed in the Municipal Court, charging him with an assault with a deadly weapon, etc., on Pete Pacelli, with intent to inflict on him a bodily injury. That sought to be reversed in No. 20,149 is a conviction of the same defendant on a similar charge, except that the assault is charged to have been committed on Boceo Bulo. The causes were by agreement tried together. In each case the defendant executed a formal waiver in writing, waiving a jury trial, and submitting the cause to the court for trial without a jury. In both cases the defendant was. found guilty. In case No. 20,148 he was sentenced to imprisonment in the House of Correction for a term of three months and to pay a fine of $1,000 and costs. In case No. 20,149 he was sentenced to be imprisoned in the House of Correction for one year and to pay a fine of $1,000 and costs.
    Charles E. Erbstein, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

A motion to strike the bill of exceptions from the record was reserved to the hearing. The judgment in each case was entered January 8, 1914. March 9, 1914, the time for filing bill of exceptions was extended thirty days. The time for filing the bill of exceptions under the statute and order of extension expired April 8, 1914. In February, 1914, Judge Frederick L. Fake, before whom the case was tried, tendered to the Governor of the State of Illinois his resignation as judge of the Municipal Court of Chicago, the same to take effect on the last day of April, 1914. The resignation was accepted by the Governor, and after April 30, 1914, Judge Fake was no longer judge of the Municipal Court of Chicago. The bill of exceptions in the transcript contains the following memoranda: “This bill of exceptions was tendered to me this 8th day of April, 1914. Frederick L. Fake, Judge. This was presented to me to sign this 8th day of December, 1914. Frederick L. Fake.” “The Honorable Frederick L. Fake, who presided at the trial, having resigned and being unable to sign this bill of exceptions because no longer a Judge of the Municipal Court of Chicago, and the undersigned being satisfied that this bill of exceptions is correct, the same is signed in open court this 15th day of January, A. D. 1915, as of April 8, 1914, and ordered filed accordingly. Harry Olson, Chief Justice of the Municipal Court of Chicago.”

No other entry in the record was made which bears in any way on the question of the time when the bill of exceptions was presented or signed, nor was any order that the bill was signed nunc pro tunc entered on the common law record. The bill of exceptions was tendered to Judge Fake twenty-two days prior to the time his resignation took effect. No effort appears to have been made to' have the bill of exceptions signed until December 8, 1914, when the bill was presented to Frederick L. Fake for his signature. We think it appears from the memoranda on the bill that it was not in the hands of Judge Fake from April 8 to December 8, 1914, because it was presented to bim by somebody, presumably for the plaintiff in error, for signing December 8,1914. We do not think that Chief Justice Olson was authorized to sign the bill of exceptions on January 15, 1915,. and the bill of exceptions will be stricken from the record.

The only assignment of error that can be considered by us in the absence of a bill of exceptions, is the 5th, that the court erred in trying the case without a jury.

Section 8 of article II of the Constitution of 1870 provides that: “No person shall be held to answer for a criminal offense unless on an indictment of a grand jury, except in cases where the punishment is by fine or imprisonment otherwise than in the penitentiary.”

In Brewster v. People, 183 Ill. 143, it was held competent, under the Act of 1893 (J. & A. ¶ 4145), for parties indicted for a misdemeanor to make a written waiver of the right to trial by jury where the punishment is the imposition of a fine and imprisonment otherwise than in a penitentiary. In the same case it was said: “No jury trial in criminal cases was ever known to the common law but such as followed upon indictment in a common law court, after the accused was in custody, had been arraigned, and had pleaded guilty to the indictment. * * * Section 8 of article II of the Constitution, by the use of the words,' ‘in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary,’ evidently refers to misdemeanors; and its plain meaning is that a person may be held to answer for a misdemeanor without indictment by a grand jury. ’ ’

In George v. People, 167 Ill. 447, the provisions of the Constitutions of 1818, 1848 and 1870 were considered with reference to the right of trial by jury, and it was said: “We do not think there is any substantial difference between the provisions incorporated in the three constitutions. The right of trial by jury was the same under one constitution as under the other. The right protected by each constitution was the right to trial by jury as it existed at common law.”

Darst v. People, 51 Ill. 286, was an indictment for riot, and a jury was waived. The punishment by statute was a fine and imprisonment not exceeding six months, and it was held that the defendant could waive a trial by jury.

Brewster v. People, 183 Ill. 143, was an indictment for false imprisonment, and the punishment provided by statute was a fine not exceeding $500, or imprisonment not exceeding one year in the county jail; and it was held competent for the defendant to waive the right to trial by jury;

The punishment in the cases under review was by fine and imprisonment otherwise than in the penitentiary, and it was competent for the defendant to make a written waiver of the right to trial by jury.

The record in each case is free from error and the judgment in each case is affirmed.

Affirmed.


text:
    Alcazar Amusement Company, Plaintiff in Error, v. Paul Pereira, Defendant in Error.
    Gen. No. 20,188.
    (Not to foe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prin-Divm-B, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    1. Contracts, § 53

      —when invalid. A written contract signed by one who is not named in the body of the instrument as one of the contracting parties is invalid.
    Statement of the Case.
    Action by the Alcazar Amusement Company, a corporation, plaintiff, against Paul Pereira, defendant, to recover on a written contract which did not, in the body of the instrument, name the defendant as a party, though he signed it. The defendant entered an appearance, and his motion to dismiss for want of jurisdiction was allowed.
    To reverse a judgment for defendant for costs, plaintiff prosecutes this writ of error.
    George C. Otto and Frank P. Leffingwell, for plaintiff in error.
    Adolph Marks, 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. Justice Baker

delivered the opinion of the court.

2. Contracts, § 351 —when action may he maintained on invalid writing. An action on an invalid written contract may be maintained if there is in the statement of claim an allegation of a verbal contract sufficient to support the action.

3. Appearance, § 12 —when confers jurisdiction. In an action where defendant has entered an appearance, held error to allow a motion to dismiss on the ground of want of jurisdiction, for the reason that in such case the court has jurisdiction to try all issues.


text:
    Rosina Leindecker, Defendant in Error, v. Joseph J. Schaeffer, Plaintiff in Error.
    Gen. No. 20,553.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action of forcible detainer by Rosina Leindecker, plaintiff, against Joseph J. Schaeffer, defendant, in the Municipal Court of Chicago, to recover possession of premises of which defendant retained possession after the expiration of the term of a lease. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Henry Roth, for plaintiff in error.
    Martin C. Koebel, for defendant in error; E. M. Seymour, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Frauds, Statute of, § 24 —when lease void under. A verbal agreement for a lease for a year to begin in futuro is void under the Statute of Frauds.

2. Landlord and tenant, § 88 —when lessor’s assent to holding over essential to renew term. A tenant under a written lease cannot, by holding over after the expiration of the term, and refusing to surrender possession, create a tenancy at will or at suffranee, for the reason that until the landlord recognizes the new tenancy, by acceptance of rent, or otherwise, the holding over is a mere offer to become a tenant on the terms of the former lease, not assented to by the landlord.


text:
    Edward Lein by Annie Lein, Defendant in Error, v. Centaur Motor Company of Illinois, Plaintiff in Error.
    Gen. No. 20,592.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Edward Lein, by Annie Lein, his next friend, plaintiff, against the Centaur Motor Company of Illinois, a corporation, defendant, in the Municipal Court of Chicago, to recover back money paid by a minor under a repudiated contract. To reverse a judgment for plaintiff for five hundred dollars, defendant prosecutes this writ of error.
    Miller, Gorham & Wales, for plaintiff in error.
    John T. Byrnes, for defendant in error.

      Abstract of the Decision.
    1. Payment, § 39

      —when shown. In an action by a minor to recover back money paid under a repudiated contract, where it appeared that defendant accepted from plaintiff a written order, in which plaintiff stated that he inclosed the money sought to be recovered, in part payment on the contract, held that the contract was conclusive as to the payment of the money.
    2. Infants, § 46

      —pleadings in action to recover payments. In an action by a minor to recover back money paid under a repudiated contract, where the statement of claim alleges that plaintiff was, at the time of making the contract, and still is, a minor, which is not traversed in the affidavit of defense, held immaterial whether plaintiff at first gave a different reason for repudiating the contract, saying nothing about his minority, or whether he disaffirmed within a reasonable time after majority.
    3. Infants, § 21

      —what are necessaries. . Necessaries must be such things as supply the personal needs of the infant, either those of his body, such as food, clothing, lodging, and the like, or those of his mind, as instruction suitable and requisite for the proper development of his mind.
    4. Infants, § 21

      —when doctrine of necessaries inapplicable. The doctrine of necessaries does not apply to the trading contracts of an infant.
    5. Infants, § 21

      —when loan not a necessary. The doctrine of necessaries does not apply to a loan of money to an infant, either where the money loaned, without express agreement, is used to purchase necessaries, or where there is an express agreement that it be so used, for the reason that the lender should provide the necessaries, if he intends to claim the protection of the doctrine.
    6. Infants, § 21

      —when articles purchased to earn living not necessaries. Articles purchased by a minor are not necessaries merely because the minor earns his living by use of them, and has no other means of support.
    7. Infants, § 21

      —when automobile not a necessary. In an action by a minor to recover back money paid under a repudiated contract to purchase an automobile, where defendant’s affidavit of defense alleged that plaintiff intended to use the automobile for the purpose of earning a living by carrying passengers for hire, and was not to be used for pleasure, or as a luxury, held proper to direct a verdict for plaintiff, for the reason that the facts alleged did not constitute a defense to the action, in that such facts do not bring the case within the doctrine of necessaries.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Lehigh Valley Coal Sales Company, Appellant, v. Otto Kuecken et al., trading as William Kuecken & Company, Appellees.
    Gen. No. 20,599.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Henry C. Beitrer, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 14, 1915.
    Statement of the Case.
    Action by the Lehigh Valley Coal Sales Company, plaintiff, against Otto Kuecken, Adolf Kuecken and Minnie Kuecken, copartners, trading as William Kuecken & Company, defendants, in the Municipal Court of Chicago, to recover for coal sold, after a dissolution of the partnership, to one of the partners who continued the business after such dissolution, using the former partnership name. Part of the coal sued for was sold by plaintiff and part by a corporation of which plaintiff was the successor and assignee. Such assignor corporation had dealings with the partnership while defendants were members, though plaintiff had no such dealings. All of the coal sued for was sold after the dissolution, of which plaintiff had no notice. At least one and one-half years before the sale of any of the coal sued for, defendants mailed to such assignor corporation a printed notice of the dissolution. The letter containing the notice was addressed to such assignor corporation at a former place of business, it having removed to another place of business, also in Chicago. After suit was brought, defendant Otto Kuecken was adjudicated a bankrupt, and the action seems to have been discontinued as to him, before trial. From a judgment of nil capiat, plaintiff appeals.
    Hoag & Ullmann, for appellant.

      Abstract of the Decision.
    1. Partnership, § 352

      —twhen notice of dissolution not necessary. In an action against members of a dissolved partnership, by a plaintiff who had no dealings with the partnership prior to the dissolution to recover for goods sold after such dissolution to one of the partners who, after such dissolution, and with the consent of the other partners, continued the business under the former partnership name, an instruction that plaintiff could not recover held proper, although plaintiff had no notice of the dissolution, for the reason that in such case defendants were not bound to notify plaintiff to escape liability on contracts made subsequently by one doing business under the former partnership name.
    2. Partnership, § 352

      —when notice of dissolution necessary. A partner who withdraws from the partnership cannot divest himself of liability for debts subsequently contracted by it with persons who had dealings with the partnership prior to his withdrawal except by proof that such persons received actual notice of his withdrawal.
    3. Partnership, § 352

      —when evidence sufficient to show receipt of notice of dissolution. Evidence that a notice is mailed to a corporation, addressed to its former place of business, held prima facie evidence that the notice was duly delivered to such corporation at a new place of business, it appearing that at the time the notice was mailed such corporation received from fifty to seventy-five letters a day.
    4. Appeal and error, § 1410

      —when finding of jury on question of fact not disturbed. In an action against members of a dissolved partnership, to recover for goods sold by a corporation of which plaintiff is the successor and assignee to one who, after such dissolution, and when the sale was made, was doing business under the former partnership name, where the main issue was the receipt by such assignor corporation of a printed notice of such dissolution, mailed to it by defendants one and one-half years before the sale of the goods, held that the record presented a question of fact for the jury, on which their verdict was conclusive.
    Henry D. Coghlan, for appellees; George F. Ort, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    A. L. Schultz and A. F. Schultz, trading as A. L. Schultz & Son, Defendants in Error, v. Herbert Deeming, Plaintiff in Error.
    Gen. No. 20,632.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim contradictory. An averment in a statement of claim that goods were sold to defendant at his request, coupled with a subsequent averment that the goods were delivered to a third person by direction of defendant, and that defendant guarantied payment for the goods, is contradictory, as setting up both a contract of sale and a contract of guaranty.
    2. Guaranty, § 1

      —how term defined. A guaranty is a promise to answer for the payment of a debt, or the performance of a duty, by another, who is himself, in the first instance, liable for such payment or performance.

      Statement of the Case.
    Action by A. L. Schultz and A. F. Schultz, trading as A. L. Schultz & Son, plaintiffs, against Herbert Deeming, defendant, in the Municipal Court of Chicago, to recover on a contract for goods sold and delivered. To reverse a judgment for plaintiffs for one hundred and sixty dollars, defendant prosecutes this writ of error.
    Martin L. Wilborn, for plaintiff in error; John W. Sutton, of counsel.
    Vincent D. Wyman, Otto W. Jurgens and Charles E. Carpenter, 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. Justice Baker

delivered the opinion of the court.

3. Guaranty, § 34*—when evidence insufficient to establish. In an action to recover for goods supplied to a third person, under an agreement which the statement of claim describes both as a sale and as a guaranty that such third person would pay for the goods, evidence held to show a sale to defendant, and not a guaranty.

4. Saxes, § 329*—when evidence sufficient to show. In an action to recover for goods supplied to a third person by direction of defendant, which contract defendant denied that he made, held that a finding for plaintiff was properly made on the evidence.


text:
    The People of the State of Illinois, Defendant in Error, v. Nellie Morgan, Plaintiff in Error.
    Gen. No. 20,756.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. New-comes, Judge, presiding.
    Heard in this court at the March term, 1915. Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Nellie Morgan, defendant, in the Municipal Court of Chicago, charging defendant with the larceny of “four dollars and fifty cents, good and lawful money of the United States of America, and one pocketbook of the value of fifty cents, all of the value of four dollars and fifty cents.” The jury found defendant guilty of larceny and that the value of the property stolen was four dollars and ten cents. Defendant was sentenced to pay a fine of twenty-five dollars, and to imprisonment for ten months. To reverse a judgment of conviction, defendant prosecutes this writ of error.

      Abstract of the Decision.
    1. Larceny, § 25

      —when description of money insufficient. An information which charges defendant with the larceny of a pocketbook, and also with the larceny of money, without describing the money further than by stating its amount, and without alleging that the description is unknown, is defective in so far as it charges larceny of the money, and must be regarded as charging merely larceny of the pocketbook.
    2. Larceny, § 41

      —when verdict may find thing stolen of greater value than charged. On an information charging defendant with larceny, the jury are warranted, on proper evidence, in finding the value of the article alleged to have been stolen to be greater than alleged in the information.
    3. Criminal law, § 384

      —when length of sentence in discretion of court. Within the limits fixed by law, the amount of sentence in a criminal case is a matter which rests in the discretion of the trial judge.
    Charles E. Erbstein and Charles P. R. Macauley, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. John Montgomery, Plaintiff in Error.
    Gen. No. 20,758.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. E. K. Jaeecki, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.

      Statement of the Case.
    Action by the City of - Chicago, plaintiff, against John Montgomery, defendant, in the Municipal Court of Chicago, to recover a penalty for the sale of morphine without the prescription of a duly registered physician, in violation of the Municipal Code of Chicago. The same questions were raised in this case as in City of Chicago v. Montgomery, 191 Ill. App. 558, and as to such questions, the same contentions were made by counsel in the Appellate Court, and the same decision made by that court.
    In this case, one Tucker, a police officer, was permitted to testify to a conversation in which one Isadore Bubinsky stated in defendant’s presence that defendant sold him the morphine as charged, together with a needle and cathartic pills. Defendant replied, “He did not get the morphine from me. I only sold him the needles.”
    One Benjamin Bubinsky, brother of Isadore, testified that he went to defendant’s drug store with Tucker, and found a package in Isadora’s pocket, which Isadore stated he bought of defendant. Kate Bubinsky, wife of Isadore, testified that she saw defendant give Isadore a bottle, which he put in his pocket, and also Isadore give defendant money. She also testified that she got the pills and needles from her husband’s pocket after they got home. •
    To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Edward H. Morris, for plaintiff in error.
    John W. Beckwith, for defendant in error; Max M. Korshak and Vernon L. Bean, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Criminal law, § 136 —when evidence of conversation competent to show admission. The rule that evidence of a conversation, where a defendant charged with an offense, unequivocally denies it, is incompetent in a criminal case to prove an admission, has no application to a case where defendant, being charged with an offense, in part denies and in part admits it, and evidence of such a conversation is competent to prove an admission.

2. Druggists, § 9 —when evidence sufficient to show sale of morphine without prescription. On an information charging defendant with the sale of morphine without the prescription of a duly registered physician, in violation of the Municipal Code of Chicago, evidence held to show clearly that defendant sold the morphine as charged.


text:
    John F. Jasper, Appellee, v. Griffin Wheel Company, Appellant.
    Gen. No. 20,765.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in-this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John F. Jasper, plaintiff, against the Griffin Wheel Company, a corporation, defendant, in the Superior Court of Cook county, to recover for personal injuries. From a judgment of $2,000 for plaintiff, defendant appeals.
    Plaintiff was employed by defendant as carpenter and millwright in its foundry buildings. The accident occurred in a two-story foundry building of defendant, where plaintiff was ordered by defendant’s foreman to repair a broken gate on a freight elevator, used to hoist “buggies” of scrap iron from the first to the second, or charging floor. No one was specially employed, to operate this elevator. When an employee had occasion to hoist iron, he pushed his “buggy” aboard the elevator, ran the elevator to the second floor, where he pushed the “buggy” off. After unloading, he pushed the empty “buggy” on the elevator, ran the elevator back to the first floor, and again pushed the “buggy” off. The elevator was operated by an endless cable, which passed over sheaves at both top and bottom of the elevator shaft. The car could, be stopped by means of a rope, which hung in the shaft, and which shifted the power from the tight to the loose pulley. The gate in question worked between cleats which held it in place, and automatically rose as the elevator car descended, and fell as the car rose.
    There was some conflict as to the understanding between plaintiff and the foreman as to when the repair should be commenced, the latter, with another witness, testifying that plaintiff and the foreman agreed that nothing should be done until the elevator shut down for the night, owing to the danger.
    Plaintiff testified that he did not in fact wait, but commenced work at once to remove the gate from the cleats, in order to do which it was necessary to remove the bottom of the cleat. This he sawed off about four feet from the bottom, and when about to enter the shaft td remove the cleat, an employee was seen coming with a buggy of scrap iron. Plaintiff instructed this employee after starting the elevator upward, not to run it down until plaintiff directed, to which the employee assented. Plaintiff then entered the shaft and was prying at the cleat with a pinch, bar when he heard the car coming down. Not finding the safety rope, and the gate being down, he lay down in the bottom of the shaft, where the car struck him, causing the injuries sued for.
    Instruction No. 3, given for plaintiff, was as follows:

      Abstract of the Decision.
    1. Trial, § 155

      —when weight of conflicting evidence for jury. In an action to recover for personal injuries, where the testimony is conflicting, the jury are warranted in taking plaintiff’s testimony as true, where there are undisputed facts tending to support it, it being for the jury to say what the facts were.
    2. Master and servant, § 260

      —when carpenter and employee operating elevator not fellow-servants. A carpenter engaged in repairing an elevator in the master’s buildings, and another person employed by the same master, who has occasion at times to use the elevator, but who is not regularly employed in such work, are not fellow-servants, hut a servant so using the elevator becomes pro hac vice its conductor, for the negligent acts of whom, while so employed, the master is liable.
    3. Master and servant, § 697

      —when evidence sufficient to show negligence. Where plaintiff, a carpenter and millwright, is engaged in repairing the gate of an elevator in one of the master’s foundry buildings, and enters the shaft in reliance on the promise of another servant who operates the elevator that he will not lower the elevator until plaintiff signals, but such other nevertheless lowers the elevator without signal, injuring plaintiff, evidence held to warrant the jury in finding that the servant in charge of the elevator was negligent, and that his negligence was that of the master.
    4. Master and servant, § 350

      —when negligence of another em

      ployee not assumed risk. A carpenter and millwright employed by a foundry corporation and engaged in repairing an elevator belonging to defendant, does not, by his contract of employment, assume the risk of an injury caused by the negligent act of another servant, who, while in charge of the elevator, lowers the car without signal from plaintiff, after having agreed not to lower it before receiving plaintiff’s signal.

      “You are instructed that what is meant by preponderance or greater weight of the evidence, is the preponderance or greater weight of the evidence which you believe; and if you do not believe any portion of the evidence, when considered together with other evidence in the case, then that evidence which you do not believe need not be considered by you in determining where the weight or preponderance lies.”
    Frank M. Cos and E. J. Fellingham, for appellant.
    Fred H. Atwood, Frank B. Pease, Charles O. Loucks and Vernon E. Loucks, for appellee.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

5. Master and servant, § 699 —when evidence sufficient to support finding of freedom from contributory negligence. In an action by a servant to recover for personal injuries received while repairing an elevator in one of the master’s foundry buildings, in the usual course of his employment, where plaintiff- enters the elevator shaft to remove a cleat holding the elevator gate in place, relying on the promise of the servant in charge of the elevator that he will not lower the elevator car until plaintiff signals, and where the injury is caused by the lowering of the elevator car before such signal, held that the jury might properly find from the evidence that plaintiff was not guilty of contributory negligence, and that plaintiff, in securing and relying on the promise, did all that was reasonably required for his own safety, although he did not throw off the power by the use of the safety rope, and tie it up so that the power could not be thrown on, or place timbers in the shaft to arrest the descent of the car, both of which he might have done.

6. Master and servant, § 823 —when instruction on preponderance of evidence not reversible error. In an action by a servant to recover for personal injuries caused by the negligent operation of an elevator car while plaintiff was repairing the elevator gate, an instruction to the effect that the preponderance or greater weight of the evidence meant the preponderance or greater weight of only such evidence as the jury might believe, and that any evidence not believed need not be considered in determining where the weight or preponderance lay, held, under the facts of the case, not reversible error, though open to serious objection, in that the jury cannot refuse to consider any part of the evidence in determining the question of its preponderance, but must consider all the evidence, and though in another case the error might require a reversal.