text:
    W. A. Koch, Appellee, v. The Home Insurance Company, New York, Appellant.
    Insurance, § 485

      —when award made by appraisers no bar to action on policy. An award made by appraisers under the provisions of a policy of insurance on an automobile, held no bar to a suit on the policy and not admissible in evidence in such action, where it appeared that the appraiser for the insured refused to consent to the award, that there was no pretense that either of the appraisers who signed the award had any knowledge whatever of the value of the car at the time of its loss or the extent of the loss or damage, and that they made no conscientious effort to ascertain such facts before making the award.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    McCormick & Murphy, for appellant.
    Beach & Trapp, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action of assumpsit brought by appellee to recover for the loss by fire of an automobile under a policy of insurance issued by appellant Company. The jury returned a verdict in favor of the plaintiff assessing his damages at $1,157.58, for which amount judgment was rendered.

The declaration declares specially upon the policy of insurance and to which were appended also the common counts. The defendant filed a plea of the general issue and two special pleas, one a plea of arbitration and award and the other a plea of tender of the amount fixed by the award. Plaintiff filed replications to these special pleas. The policy insured the plaintiff against actual loss and damage by fire to a 1910 model, Davis 45 H. P., five-passenger automobile to an amount not exceeding $1,500, then owned and used by plaintiff in his business of practicing physician and surgeon. The automobile caught fire on the public highway near San Jose, Illinois, June 13, 1912, while being driven from Pekin to Middletown. The fire originated from a gasoline leakage in the drip pan and the car was substantially destroyed.

The policy of insurance contained a provision that in the event of disagreement as to the amount of loss or damage the same shall be ascertained by two competent and disinterested appraisers, the insured and the Company each to select one, and the two so chosen to select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately the sound value and damage, and failing to agree shall submit their differences to the umpire; and the award of any two shall determine the amount of such loss and damage. The plaintiff and the defendant being unable to agree as to the amount of the loss or damage to be paid, consented to resort to an arbitration or appraisal under this provision of the policy and entered into a written agreement to that effect, each party appointing an appraiser and the appraisers selected an umpire. An award was made fixing the value of the car at the time it was burned at $875, finding the loss to be $825 and the salvage $50. Plaintiff refused to abide by this award and brought this suit to recover under the policy. Upon the trial the defendant Company sought to introduce the agreement for the appraisement and the award, under its special pleas. The trial court sustained an objection to the admission of this evidence and it is conceded by counsel for appellant that the ruling of the trial court in this regard is the only question to be considered on this appeal, as all the other errors assigned are collateral to and are the natural sequence following the court’s action in refusing to admit said evidence.

There is no dispute in the evidence as to the method the appraisers pursued in making the award in question. The appraisers met in Chicago; two of them had never seen the car, none of them had seen the car after it was damaged by fire; they gave no notice to the plaintiff of the time or place of the meeting; took no evidence whatever; made no effort to ascertain the condition or value of the car immediately prior to the time it was injured by fire; made no effort whatever to ascertain the extent of the damage caused by the fire; and, in fact, did not have, and made no effort to obtain, any knowledge whatever of the matter in which they were selected to arbitrate and to adjust the rights as between the parties.

On the contrary, they arbitrarily fixed the value of the car and the loss and the salvage at the amounts heretofore stated. The appraiser selected by the plaintiff refused to consent to such an award and the award was made by defendant’s appraiser and the umpire and signed by them. There is no pretense that either one of the appraisers who signed this award had any knowledge whatever of the actual value of the car at the time it was burned or the extent of the loss or damage by fire, but it is contended by appellant that these appraisers were appointed as experts simply to make an appraisement and that it was not an arbitration, and that said appraisers were not required to take any evidence or give any notice to the parties, hut they were only required to fix the loss or damage by fire from their expert knowledge of such matters. We do not deem it necessary to decide whether this was an arbitration, or simply an appraisement to be controlled only by the expert knowledge of the appraisers as contended by appellant. Whether it was an arbitration or an appraisement there must have been at least some conscientious effort made to ascertain what the facts were before they attempted to determine the rights of the parties. We do not see how it would require any expert knowledge to make the appraisement that was made in this case. A great many authorities have been cited by counsel for appellant on the questions of arbitration and appraisement, but none of them announce a doctrine that would uphold an award made by the appraisers under the circumstances shown by the evidence in this record. Such an award cannot be sustained as a bar to plaintiff’s right of action under the policy.

The trial court did not err in sustaining the objection to the admission in evidence of the agreement to arbitrate and the award made thereunder, and as the amount of the verdict is fully sustained by the evidence the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Ezekiel French, Appellee, v. E. W. Bates et al., Drainage Commissioners Broadwell Special District No. 1, Appellants.
    1. Dbainage, § 91

      —when evidence sufficient to sustain judgment ordering mandamus to issue against commissioners. On petition for a peremptory writ of mandamus to compel the drainage commissioners to provide a more sufficient outlet for the drainage of petitioner’s land, a judgment ordering the writ to issue held sustained by the evidence, it appearing that the commissioners had dispensed with an open ditch and used a fourteen inch tile, which was of insufficient capacity for the water of the district to pass through and in consequence thereof the water stood on the lands of the petitioner until other lands below him were drained.
    2. Dbainage, § 90

      —duties of commissioners enforceable by mandamus. The duties of drainage commissioners prescribed by sections 17 and 41 of the Farm Drainage Act (Hurd’s R. S. 1911, pp. 905, 911, J. & A. lili 4493, 4518) are mandatory and may be enforced by mandamus.
    3. Dbainage, § 87

      —discretion of commissioners to use open ditches or tile drains. Drainage commissioners have the right in their discretion to use tile for an outlet in place of an open ditch, provided they use tile of sufficient capacity and lay them in such a manner as to accomplish the purpose for which they are used.
    ' 4. Dbainage, § 90

      —when petition for mandamus to compel commissioners to provide sufficient outlets no interference with discretionary powers. A petition for a peremptory writ of mandamus to compel drainage commissioners to provide an outlet of ample capacity for the waters of the district does not seek to regulate or control any discretionary powers or duties of the commissioners; the plan or scheme to accomplish the result rests wholly within the discretion of the commissioners, and such discretion will not be interfered with by the courts unless it is manifest that it has been grossly abused.
    5. Drainage, § 90

      —sufficiency of demand on drainage commissioners before filing petition for mandamus. Written demand served by landowner upon drainage commissioners to provide sufficient drainage of his land, held sufficient to entitle him to file a petition for a peremptory writ of mandamus to compel commissioners to provide for an adequate drainage of his land.
    6. Mandamus, § 117

      —when statute of limitations begins to run against right to file petition against drainage commissioners. The statute of limitations does not begin to run as against the right of a landowner to file a petition for a peremptory writ of mandamus to compel the drainage commissioners to construct proper drains until after demand is made.
    7. New tbial, § 73

      —when newly-discovered evidence not grounds 'for. After judgment entered ordering a peremptory writ of mandamus to issue against drainage commissioners to compel them to provide more adequate drains for petitioner’s property, newly-discovered evidence presented by affidavit on motion for new trial to the effect that at one time when the petitioner was testifying that his land was covered with water, the mouth of the tile was covered with water so as to deprive the ditch of any outlet for a time, held insufficient to materially affect the merits of the case.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Habéis, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Humphrey & Anderson, for appellants.
    King & Miller, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion pf the court.

Appellee filed a petition in the Circuit Court of Logan county for a peremptory writ of mandamus to compel the Drainage Commissioners of Broadwell Special District No. 1 to provide and execute some plan of altering or enlarging the scheme of drainage of said district as will afford an adequate outlet to properly drain the lands of the petitioner in said district. The cause was tried before a jury upon four questions of fact, which the jury found in favor of the petitioner. The verdict found, (1) that within five years prior to the 9th day of January, 1913 (the date of the filing of the petition), the district had failed to furnish a sufficient outlet for the adequate drainage of the lands of the petitioner located in said district; (2) that such condition still exists; (3) that petitioner had within five years made a demand upon said district to furnish a system with a sufficient outlet; (4) that no sufficient outlet had been furnished by the commissioners. The court entered judgment upon the verdict of the jury and ordered a peremptory writ of mandamus to issue against defendants in accordance with the prayer of the petition; from which judgment this appeal is prosecuted by the commissioners.

This drainage district embraces about 2,340 acres of land situated in Broadwell, Elkhart and Mt. Pulaski townships and was organized in 1884. The drainage ditch runs in a southeasterly and northwesterly direction through the district, the outlet being in the northwest corner thereof. It is about four miles in length and under the original system for the first two and one-fourth miles running southeasterly from the outlet an open ditch was constructed five and one-half to six feet deep and six to nine feet wide. From the southeastern terminus of the open ditch for the balance of the distance the system consisted of twelve, ten and eight inch tile. The lands of the petitioner are located in the southeast part of said district and through his lands a ten inch tile was laid.

In 1904 the commissioners decided to dispense with the open ditch, and used in place thereof a fourteen inch tile and filled in the open ditch. The contention of the petitioner is that since the fourteen inch tile was laid in place of the open ditch there has not been a sufficient outlet for the drainage waters of the district and that the waters stand on his lands until the other lands below bim are drained, in consequence of which in rainy seasons his lands have remained flooded to such an extent and for such a length of time as to cause bim a great deal of loss and damage; that his lands are classified at one hundred, the maximum rate; that he has paid in assessments since the district was organized over two thousand dollars and is entitled to have such an outlet constructed as will provide his lands with adequate drainage. The evidence shows that from the outlet in the northwest corner of the district running for a distance of eight hundred feet in a southeasterly direction a single line of tile fourteen inches in diameter is laid. At this point (eight hundred feet from the outlet), this single line of tile is connected with two lines of tile running along side by side, parallel with each other, for over a mile through said district. One line of this last mentioned tile consists of fourteen inch tile and the other of twelve inch tile. At the southeastern terminus of this double line of tile is connected a single line of twelve inch tile, which, in turn, is connected with ten inch tile and the latter with eight inch tile. It was found necessary to put in this double line of tile in order to take care of the drainage waters. Thus it will be seen that all the accumulated drainage waters of this district empty into and are finally discharged through the single line of fourteen inch tile. There was much testimony taken by both parties on the trial on the question of fact as to whether there was a sufficient outlet to adequately drain the lands of the petitioner. The jury found adversely to appellants, which finding was approved by the trial court and we think is justified by the evidence. The accompanying plat shows substantially the location of the drains in this district.

Two propositions are advanced by appellants and argued at length: First, that the drainage commissioners are vested with a discretion in determining upon the proper scheme for the drainage system and when that discretion has been exercised courts cannot interfere with or control it. Second, that if the court has a right to entertain a petition for mandamus in a case of this character then it should have submitted a question of fact to the jury to determine just what system of drainage would be proper and necessary.

.Counsel for appellants misapprehend the purpose of the petition and the effect of the judgment. The petition does not seek nor does the judgment attempt to regulate or control any discretionary powers or duties of the commissioners. They only seek to enforce the mandatory duties of the commissioners to provide an outlet of ample capacity for the waters of the district. The plan or scheme to accomplish this result is wholly within the discretion of the commissioners, and this discretion will not be interfered with by the courts unless it is manifest that it has been grossly abused. The commissioners have the right in their discretion to use tile for an outlet in place of an open ditch, provided, that they use tile of sufficient capacity and lay them in such a manner as to accomplish the purpose for which they are used.

Section 17 of the Farm Drainage Act (Hurd’s Stat. 1911, p. 905, J. & A. 4493) provides that the commissioners shall determine upon a system of drainage which shall provide main outlets of ample capacity for the waters of the district, having in view the future contingencies as well as the present, and section 41 of the same Act (J. & A. 4518) provides that if the commissioners find by reason of error in locating or constructing the ditches, or from any other means, the lands of the district are not drained or protected as contemplated, or some of them receive partial or no benefit, they shall use the corporate funds of the district to carry out the original purposes to the end that all the lands so far as proper shall receive their proper and equal benefits as contemplated when the lands were classified. The duties prescribed by these sections of the statute are mandatory and may be enforced by mandamus. Langan v. Milk’s Grove Spec. Drain. Dist. No. 1, 239 Ill. 430; Peotone & M. Union Drain. Dist. No. 1 v. Adams, 163 Ill. 428.

It is assigned as error that no sufficient demand was made upon the commissioners. The evidence shows that on the 9th day of May, 1908, the petitioner served the drainage commissioners with a written notice stating in substance that he desired to advise them that by reason of the fact that the main ditch of the district had been filled up and a tile drain placed therein that said tile drain was not of sufficient capacity to carry off the water of said district and that his lands, describing them, were improperly drained; that he had been greatly damaged thereby and that unless immediate steps were taken by them to put in good working order the main ditch of the district or in some manner provide for the complete and proper drainage of his land he would proceed to take such legal steps as he might be advised are proper to accomplish such drainage of the land. This demand was amply sufficient.

It is further contended by appellants that appellee is barred by the statute of limitations and that the rulings of the court thereon were erroneous. It is claimed that the statute began to run from the time that the tile were substituted for the open ditch. The trial court held, and we think properly, that the statute did not begin to run until the demand was made. We held in the case of Meents v. Reynolds, 62 Ill. App. 17, in a suit for a peremptory writ of mandamus to compel the drainage commissioners to build a bridge, that the statute of limitations did not commence to run until after a demand for the bridge had been made by the land owners. By analogy the same principle should apply to the case at bar, and we are of the opinion that the court did not err in so holding.

Appellants also assign as error that a new trial should have been granted on the ground of newly-discovered evidence. On the motion for new trial an affidavit was presented showing that at one time when the petitioner testified his land was covered with water, the mouth of the tile was covered with water to a depth of eight feet, thus depriving the ditch of any outlet for a time.

We do not think that this evidence, if introduced, would be of sufficient weight to materially affect'the merits of the case.

There being no material error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Paul Kuhn and Elizabeth Kuhn, Appellants, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by Paul Kuhn and Elizabeth Kuhn against Cleveland, Cincinnati, Chicago and St. Louis Railway Company to recover damages for breach of four bills of lading for the transportation of four carloads of wheat from Ashmore, Illinois, to Chattanooga, Tenn. The declaration alleged that the defendant, through its agent, the connecting carrier, permitted an inspection of the wheat to be made at destination contrary to the terms of the bill of lading and that by reason thereof the wheat was rejected by the consignee to plaintiff’s damage. From a judgment against defendant for only nominal damages, plaintiffs appeal.

      Abstract of the Decision.
    1. Cabbiebs, § 188

      —when initial carrier Halle for permitting connecting carrier to allow inspection of grain contrary to terms of Hll of lading. In an action against a railroad company to recover damages for permitting its connecting carrier to allow wheat shipped to a consignee to be inspected at destination contrary to the terms of the bills of lading, it being alleged that the inspection caused the consignee to refuse to accept the wheat, and plaintiffs, claiming a loss on the contract price after paying the freight and selling the grain at public sale after he had stored it in a warehouse for six months, held that defendant was bound to prevent the inspection but that plaintiffs were entitled to only nominal damages, it appearing that there was no complete sale of the wheat and that the inspection was not the promixate cause of any loss or damage suffered by plaintiffs.
    2. Sales, § 67

      —place of inspection of grain. Where a person orders grain of a certain grade through a broker to be consigned to him, where the custom and usage of the grain market permits buyers to inspect the grain before purchasing, such usage and custom becomes a part of the agreement to purchase, where nothing is said in the negotiations between the broker and the buyer regarding the inspection.
    Livingston & Bach, for appellants.
    George B. Gillespie, for appellee; J. P. Bindley and B. J. Cary, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    George W. Tarr, Appellant, v. J. W. Stearman, Appellee.
    1. Sales, § 422*—when transaction is a conditional sale of an office rather than a contract for services. An owner of a dentist office had employed a dentist on a salary to run the business. Afterwards the owner and the dentist entered into a written agreement whereby the dentist for a certain length of time was to manage the business, pay all the expenses, pay to the owner a certain monthly sum, and receive the balance of the receipts for his compensation, and in consideration o.f the faithful performance of the services by the dentist the owner agreed to convey to him all the fixtures and the good-will of the office at the end of that time. Held, that the agreement amounted to a conditional sale of the office to the dentist instead of a contract for his services.
    2. Sales, § 423

      —rule for determining whether transaction is a conditional sale. The construction of a contract is a question of law, and in order to determine whether a transaction is a conditional sale it is first necessary to ascertain the character of the agreement and look to the purposes of the parties as evidenced by the provisions thereof, and the real purpose of the agreement as so evidenced must determine its character, no matter how the parties thereto may denominate it.
    3. Contbacts, § 215

      —rule in determining the character of a contract. In determining the real character of a contract, courts will always look to its purpose rather than to the name given to it by the parties.
    4. Contbacts, § 154

      —when restriction on right of dentist to practice within certain territory void as an unreasonable restraint of trade and against public policy. A restriction in a contract with a dentist providing that the dentist shall never practice dentistry within certain territory after his connection with the person with whom he contracted ceases, “whether said relation is terminated by expiration of the contract or otherwise,” held void as being in unreasonable restraint of trade and against public policy.
    5. Contbacts, § 154

      —when provision in contract against practicing dentistry within certain limits is without force. A restrictive provision in a contract between the owner of a dentist office and a dentist that the dentist shall not practice dentistry within certain limits while the contract is being performed or after it has been faithfully performed by the owner is without force, where the only performance of anything on the part of the owner is to receive certain monthly instalments paid by the dentist.
    6. Injunction, § 80

      —when provision in contract against practicing dentistry cannot be enforced. A restrictive provision in a contract between an owner of a dentist office and a dentist providing that the dentist so long as he shall be connected with the owner shall never practice dentistry in certain territory, except as an “employe” of the owner, cannot be enforced on bill filed by owner, where it appears that the dentist under the contract is not an employe of the owner and the notice served upon the dentist and the bill alleges that the contract has terminated.

      Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed with directions.
    Opinion filed December 27, 1913.
    Sidney S. Breese and Barber & Barber, for appellant ; Robert A. Holland, Jr., of counsel.
    Roy M. Seeley and E. L. Chapin, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal to review the decree entered in the Circuit Court of Sangamon county in a suit in chancery brought by appellant against the appellee. Appellee has also filed cross-errors in this court.

The facts are substantially as follows: In August, 1909, one Charles J. Tarr of St. Louis, Mo., who at that time was engaged in the business of renting and equipping dental offices and employing licensed dentists to run them, opened up a dental office under the name of “Eastern Dentists” in the city of Springfield, 111., and employed appellee, who was a licensed dentist, at a salary of $30 per week to run said office. In November, 1909, appellant George W. Tarr, who was then a citizen of St. Louis but who has since become a citizen of Minneapolis, Minn., purchased said dental office from his brother, said Charles J. Tarr. Appellant was in the same business of renting and equipping dental offices and employing licensed dentists to run them as Charles J. Tarr. After appellant purchased said dental office in November, 1909, he continued to employ appellee to run said business at the same salary of $30 per week. These relations continued between appellant and appellee until January 1, 1910, when the written contract in controversy in this case was executed by appellant, party of the first part, and appellee, party of the second part. This contract, in substance, states that said party of the first part desires to secure the services of the party of the second part in connection with the management of said business and it is agreed between the parties that beginning on the first day of January, 1910, the first party will employ the second party to manage and conduct said dental business for a period of fifty-five months from said date, said second party to be paid for his services as follows: During the first four months out of the receipts of said business on or before the fifth day of each month all expenses connected with the running of said business of the previous month shall be paid; out of the balance that may remain, second party shall pay to the first party on or before the fifth day of' each month the sum of $40; the balance of the earnings remaining each month to be paid to second party as his compensation for his services during the preceding month. During the next forty-nine months the same provision is made, except that second party is to pay to first party $50 instead of $40 per month. For the fifty-fourth month the same provision is made, except that second party is to pay $85 for that month to the said first party. The contract then provides that the general policy of the management of said business shall be determined by said first party and that second party shall expend not. less than $40 a month for advertising. Then follows the provisions concerning the agreement of second party not to practice dentistry in Springfield nor within twenty-five miles thereof, which will be hereinafter set out and considered. Then follows these provisions:

“It is further agreed between the parties that if, at any time, said party of the second part shall so conduct said business that the receipts of said business, during any given month, shall be insufficient to pay the expenses of said month and to pay said party of the first part the allowance mentioned in this contract in the manner above provided, said party of the first part shall have the privilege of terminating said contract by giving said party of the second part twenty days’ notice of his intention to terminate the same.
It is further agreed between the parties hereto that if said party of the second part shall well and truly perform all of the agreements of this contract by him to be performed, that said party of the first part, at the end of fifty-four months, will, as a reward for faithful services, convey to the said party of the second part, by proper instrument, the entire business of said Eastern Dentists, being conducted at 504 East Main Street, in the City of Springfield, Illinois, or at any other office in said city to which said business may be removed, and that, by such instrument, said party of the first part will convey to said party of the second part the good will of said business in Springfield, Illinois, the right to use the said name of Eastern Dentists in Springfield, and also a clear title to the personal property, furniture, tools, etc., being at said time in said business in the City of Springfield, Illinois, and the conveyance of said property rights shall be free and clear of any and all mortgages and liens whatsoever. It is further understood between the parties that said party of the second part shall have no right whatever to the conveyance of said business or said property unless he shall fully and faithfully perform the agreements of this contract.”

The bill is filed on the theory that this is a contract of employment and avers that four monthly instalments of $50 each due appellant under the contract had not been paid by appellee and that appellant has paid $28.46 for expenses in running the office and that appellee has so conducted said business that the receipts thereof during said four months have not been sufficient to pay the expenses of the same and to pay appellant said monthly instalments; that he served a written notice upon appellee stating that the services rendered by him had not been satisfactory and that on account of several breaches of said contract on his part and of his failure during said months to so conduct said business that the receipts thereof should be sufficient to pay the expenses and to pay the instalments under said contract, that appellant had determined to terminate the “relationship” existing between him and the appellee and to terminate said contract; that by reason of the premises said contract and the employment of defendant became terminated; that appellee refused to quit the management and conduct of said business and surrender the possession to appellant and refused to deliver up the possession of the premises or the possession of the personal property of appellant; that appellee is insolvent; that he threatens to continue to practice dentistry in said city without the written consent of appellant and continues to use the trade name “Eastern Dentists”; and prays for an injunction.

The answer admitted the execution of the contract and substantially denied the other material allegations of the bill in regard to the alleged defaults under the contract.

A temporary writ of injunction without notice to appellee-issued on August 26, 1912, enjoining and restraining him from, (a) managing, controlling, conducting and retaining possession of the dental business conducted under the name of “Eastern Dentists,” at 504 East Adams street, in the city of Springfield, Illinois; from retaining possession of the location thereof, and show ease and sign privilege in the stairway thereto; from excluding George W. Tarr or his duly authorized agent from the possession, control, conduct and management of said dental business and the said location thereof; from preventing, in any way or in any manner, George W. Tarr or his duly authorized agent taking the sole and exclusive possession, control, conduct and management of said dental business and the said location thereof, as above described; (b) from retaining possession of any of the personal property, furniture and tools of said dental business; from withholding from George W. Tarr, or his duly authorized agent, the keys to the rooms wherein said dental business is located as hereinbefore described; from removing from said location any of the personal property, furniture and tools .of said dental business; (c). and from engaging directly or indirectly in behalf of yourself, or in behalf of others in the practice of dentistry, or being in anywise connected with any dental concern in the said city of Springfield, Illinois, or within twenty-five miles thereof, without written consent of George W. Tarr.

The cause was referred to the master, who found, among other things, that at the time the injunction was served and appellant took possession of the offices there was left in the offices material and fixtures of the value of $1,400, according to the testimony of appellee, which had been purchased by appellee out of the profits of said business; that appellee had paid all the expenses of said office and had paid appellant $1,210 on the instalments under the contract, but had failed to pay four instalments of $50 each, and was therefore indebted to appellant at the time of the service of the notice in the sum of $200; that the business was so conducted that the receipts thereof were sufficient each month to pay the expenses and to pay appellant his monthly instalment, but that the increased personal and family expenses of appellee had prevented him from paying the said four instalments to appellant, and that the failure to pay said instalments was the only breach of the contract on the part of appellee up to the time of the service of the notice; that no evidence was introduced on the question of insolvency; that appellant is and was a nonresident, unlicensed dentist; that after the service of said notice appellee claimed to own said business, attempted to rent said dental parlors for his own use and refused to permit appellant or his agents to take charge of the business or to quit until the issuing of said temporary injunction.

The foregoing findings of fact are fully warranted by the evidence. "The findings of law by the master were: That as to the matters and things enjoined and restrained in items (a) and (b) hereinbefore mentioned the complainant has an adequate remedy at law; that as to matters and things enjoined and restrained in item (c), that the provisions of said contract upon which said restraining order is based, under the facts, and circumstances in this case, should not be enforced, the same being unreasonable, unconscionable and against public policy; * * * And further, that even if that part of the contract were enforceable, injunction would not lie, because the injury is not irreparable and is susceptible of pecuniary compensation; since the greatest possible loss there could be to the complainant would be the aggregate of unpaid instalments ; and that there is therefore an adequate remedy at law.

Appellant filed objections before the master and exceptions in the Circuit Court. The chancellor sustained the exception to the findings that appellant had an adequate remedy at law and that the bill should be dismissed for want of equity, and entered a decree in accordance with the prayer of the bill with the exception that that part of the contract providing that appellee should not practice in Springfield, etc., was held void, and the injunction in regard thereto was dissolved.

From that part of the decree holding said last mentioned provision of the contract void and refusing to restrain appellee from practicing his profession in Springfield, or within twenty-five miles thereof, appellant prosecutes this appeal. Appellee has filed numerous cross-errors challenging the correctness of the decree in sustaining appellant’s exceptions to-the finding of the master that appellant had an adequate remedy at law, that the injury was not irreparable and was susceptible of pecuniary compensation, and that the bill should be dismissed for want of equity.

The contention of appellee is that this contract was a conditional sale of the business and property of the appellant, while appellant contends that it was purely a contract for services only. The construction of a contract is a question of law, and in order to determine whether a transaction is a conditional sale it is first necessary to ascertain the character of the agreement and look to the purpose of the parties as evidenced by the provisions thereof, and the real purpose of the agreement as so evidenced must determine its character, no matter how the parties thereto may denominate it. Prior to the execution of this contract appellee was working for appellant at a salary of $30 per week. The essence of the written agreement is plainly that upon the payment by appellee of certain stipulated monthly instalments for a period of fifty-five months that the business then becomes the property of appellee. The only pecuniary interest appellant has under this contract is the payment of the fixed monthly instalments by appellee. Appellant does not share in the profits of the business, and is not concerned whether the business be large or small or in what manner it may be conducted, provided these instalments are paid, and agrees that at the end of fifty-four months to convey to appellee the entire business, including its good-will, the right to use the name of “Eastern Dentists,” a clear title to the personal property, furniture, tools, etc., used in the business. The expressions in the contract implying employment and that the conveyance of the title to the appellee upon the completion thereof would be made “as a reward for the faithful services of appellee in performing his part of the contract,” cannot disguise or evade the real purpose evidenced by the agreement itself. The only faithful services of appellee that appellant could be interested in under the agreement were the faithful payments of the instalments when they became due. It is apparent upon examination of the cases that in determining the real character of a contract the courts will always look to its purpose rather than to its name given to it by the parties. Murch v. Wright, 46 Ill. 487; Lucas v. Campbell, 88 Ill. 447; Latham v. Sumner, 89 Ill. 233; Gilbert v. National Cash Register Co., 176 Ill. 288; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664. In 6 A. & E. Encyc. of Law, 447, it is stated: “The delivery of personal property under a contract that the party receiving it is to pay for it in installments at specified times, and when so paid for, it is to become his property, bnt that the title is to remain in the original owner until all the purchase money has been paid, constitutes a familiar example of a conditional sale.”

The primary and ultimate purpose of this contract is the purchase by appellee of the business and personal property connected therewith from appellant, by monthly specified payments or instalments. From the cases cited it will be seen that it is immaterial whether the agreement is designated by the, parties as a “mortgage,” “lease,” “contract of bailment,” or “contract of employment,” and if the real intention and result of the performance thereof is the vesting of the title from the vendor to the vendee, it is a conditional sale.

Three paragraphs of this contract relate to the restriction of appellee in practicing dentistry in Springfield or within twenty-five miles thereof. The first states that so long as he is connected with appellant he will never within said limits practice except as an “employe” of appellant. We have already seen that appellee under this contract was not an employe of appellant. Also appellant in the notice served on appellee and in the bill alleges that the contract has terminated so he cannot seek any relief under this clause.

The next paragraph provides that after he ceases to be connected with appellant under the contract, whether said relation is terminated by expiration of contract or otherwise, he will never engage in said practice within said limits.

The third paragraph provides that neither while the contract is being performed or after it has been faithfully performed by appellant shall appellee practice within said limits. The only performance of anything on the part of appellant required by the contract was to receive the monthly instalments paid by appellee. This last paragraph is without force.

The second paragraph above mentioned is the only one that need be considered. This restriction is unlimited as to time, and provides that appellee shall never practice dentistry within said territory after his connection with appellant ceases, “whether said relation is terminated by expiration of contract or otherwise.” The effect of this provision is that even if appellee made all the payments and performed all the conditions and appellant had conveyed to him the business and property, nevertheless he could never practice dentistry within said territory. Such a provision is repugnant to the other terms of the contract, is unreasonable and void.

It is contended that this provision of the contract is not void because the time is unlimited, and the cases of Linn v. Sigsbee, 67 Ill. 75, and Ryan v. Hamilton, 205 Ill. 191, are cited in support of this proposition. While it is true the Supreme Court upheld the contracts in those eases, yet it does not appear that the fact they did not provide for any limit of time was presented as a defense, and the court did not pass on that question in either case.

In the case of Andrews v. Kingsbury, 212 Ill. 100, the Supreme Court says:

“It is next insisted that the contract is invalid because it is an unreasonable restraint of trade and against public policy. The law is well settled that contracts in total restraint of trade are void for the reason that they are injurious to the public, depriving it of the industry of the party restrained, and also because of the injury to the party himself by being deprived of the opportunity to pursue his avocation for the support of himself and family; but a contract which is only in partial restraint of trade and is reasonable in its provisions as to time and place, and supported by a sufficient consideration, is valid, and the restraint is held to be reasonable whenever it is such, only, as affords a fair protection to the interests of the one in whose favor it is made. (3 Am. & Eng. Ency. of Law, 882; Hursen v. Gavin, 162 Ill. 377; Union Strawboard Co. v. Bonfield, 193 id. 420; Consolidated Coal Co. v. Schmisseur, 135 id. 371.) In this case the contract provided that the appellant would not engage in the newspaper business in the city of Olney for a period of five years. It was thus limited as to time and place, and appears to be reasonable in all its terms and conditions. We see no sufficient reason for holding it unreasonable. ’ ’

So also the same court announced in Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616:

“The authorities agree that contracts in partial restraint of trade, in order to be valid, must be reasonable as to time, place, terms, etc., manifesting an intention to simply protect the party relying upon the covenant in the reasonable restraint of unjust discrimination against him. Such contracts usually grow out of sales of property with the good will of a business, profession, partnership, etc., but they are not confined to such contracts.”

We are of the opinion that the rule is as stated in the latter cases, as it would be wholly unreasonable to hold that appellee never under any circumstances or conditions that might arise in the future be permitted to practice his profession within said territory.

We are also of the opinion that these provisions can-' not be enforced on the ground of public policy. Every contract must be construed by itself, and it is a question of law whether it is reasonable or unreasonable, or whether it is contrary to public policy. Lanzit v. Sefton Mfg. Co., 184 Ill. 326. In all such contracts the interest of the public is paramount. The public have a right to the benefit of the industry and skill of appellee in the business in which he may be most skilful and useful. Lanzit v. Sefton Mfg. Co., supra; Lawrence v. Kidder, 10 Barb. (N. Y.) 641. Appellant cannot practice dentistry in Illinois, and cannot take the place of appellee.' The scientific medical and surgical treatment of the teeth at the present day has become highly developed and is of importance to the public health and welfare, and even if it can be maintained that public policy does not forbid a nonresident, nonpracticing, unlicensed dealer of dental supplies from owning, controlling and conducting the business or practice of dentistry in this State, yet it would be clearly contrary thereto to allow him to enforce these provisions of this contract.

These provisions of the contract being void, and the contract itself being one of conditional sale, it follows that appellant has an adequate remedy at law, and the decree must be reversed with directions to dismiss the bill for want of equity.

Reversed with directions.


text:
    George B. Maston, Appellee, v. J. C. Ross, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by George B. Maston against J. O. Boss and Ellen Boss to recover commissions on a sale of real estate owned by defendants. A verdict was rendered against both defendants but the court granted a new trial to defendant, Ellen Boss, whereupon plaintiff dismissed the suit as to her without amending the declaration, and judgment was rendered against J. O. Boss for three hundred and twenty dollars. From the judgment, J. O. Boss appeals.
    A. B. Halt, and O. M. Jokes, for appellant; Hall & Holaday, of counsel.
    J. H. Dyer and C. F. Dyer, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 192 —when judgment against one joint defendant erroneous. In an action against two defendants jointly for commissions on a sale of real estate, it being alleged that the defendants jointly owned the property and that the contract was made with them jointly, held that each defendant was a necessary party to the action and that a judgment entered against one upon a discontinuance of the action as to the other was erroneous.

2. Judgment, § 192 —when must he rendered against all joint defendants or none. When an action is brought on a joint contract the judgment must be rendered against all the defendants or none, unless a defense is interposed which is personal to the defendant who makes it, such as infancy, coverture, lunacy, bankruptcy and the like, or unless one is joined as a defendant in the action who is an unnecessary or improper defendant.

3. Dismissal, nonsuit and discontinuance, § 11 —whqn suit may he dismissed as to one or more joint defendants. In actions ex contractu where a plaintiff has a right to bring an action against either one of several joint debtors or obligors as he may elect, as where there is a separate individual liability on each one of several joint debtors or obligors and the plaintiff sues more than one of them in the same action, he may dismiss as to some and take judgment as to the others, as in the case of joint sureties on a bond, the rule being that if one of the defendants could have been sued alone in the first instance then the others were not necessary parties, and the liability of the defendant retained in the suit is not thereby increased because each of the defendants were liable to the plaintiff for the whole amount of the debt.


text:
    Frank Lockett, Appellee, v. Charles Zimmerman, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Champaign county; the Hon. William' G. Cochean, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 27, 1913.

      Abstract of the Decision.
    I. Brokers, § 88

      —when evidence insufficient to show agreement to pay member of real estate firm his share of commission. In an action brought by a member of a real estate firm in his own name to recover his share of the commissions for selling real estate belonging to defendant under a written contract between the defendant and the firm, evidence held insufficient to show a parol agreement by the defendant to pay the plairitiff individually his share of the commission.
    2. Brokers, § 95

      —when instruction erroneous. In an action by a member of a real estate firm to recover his share of commissions for selling real estate belonging to defendant under a written contract between the defendant and the firm, an instruction given for plaintiff telling the jury that plaintiff is entitled to recover his commission though defendant changed his proposition with a view to dispense with plaintiff’s services, when the plaintiff received no notice of such fact, held erroneous as ignoring an alleged modification of the contract and as assuming facts.
    3. Partnership, § 32

      —when member estopped to deny a copartnership. In an action brought by a member of a real estate firm in his own name to recover his share of a commission for selling real estate belonging to defendant under a written contract purporting to be executed between defendant and the plaintiff and another as a real estate firm, held that the plaintiff was estopped to deny that the contract was executed by him and such other person as copartners.
    Statement of the Case.
    Action by Frank Lockett against Charles Zimmerman in assumpsit by attachment proceedings, the defendant being a resident of Wisconsin, to recover a certain sum alleged to be due him as his share of the commissions for selling real estate for defendant under a contract between the defendant and the plaintiff and John D. Stayton, a real estate firm. From a judgment in favor of plaintiff for $766.66, defendant appeals.
    Dobbins & Dobbins, for appellant.
    H. Anderson and L. B. Saffer, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    The Town of Western Mound, Appellee, v. Gideon B. Loper, Appellant.
    1. Appeal and ebbob, § 1088

      —when error will not be considered for failure of brief to refer to the abstract. The Appellate Court will not consider an assignment of error that the finding is not sustained by the evidence where the brief of counsel for appellant is simply a statement of his conclusions on the evidence and there is an implied invitation to the court to search the abstract and the record to determine that his conclusions on the weight of the evidence are correct.
    2. Appeal and ebbob, § 1088

      —requisites of brief in assigning for error that finding is contrary to evidence. To assign for error that the finding is contrary to the evidence, the facts shown by the evidence upon which he relies should be specifically pointed out and reference made to the abstract where they may be found.
    Appeal from the County Court of Macoupin county; the Hon. Tbuman A. Snell, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Peebles & Peebles, for appellant.
    Rihaker & Eihaker and Victor Hemphill, for appellee.

      See Illinois Notes Digest, Veis. XI to XV, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

This action was originally brought before a justice of the peace against appellant to recover a penalty for obstructing a public highway. Appellant was found guilty and appealed to the County Court, where the case was tried before the court without a jury and appellant found guilty a second time, and fined ten dollars. From the judgment of the County Court he prosecutes this appeal to this court.

The only assignment of error presented or argued by counsel for appellant in his brief is that the finding is contrary to the evidence. This involves the question as to whether the place where the alleged obstruction was erected was a public highway, having become so by dedication or prescription. A large amount of evidence was introduced on this question. The brief of counsel for appellant is simply a statement of his conclusions on the evidence. Only one reference is made to the abstract in support of the argument and that upon an immaterial point. There is an implied invitation to the court to search the abstract and record and determine that his conclusions on the weight of the evidence are correct. The court is not required to do this. The facts shown by the evidence on which appellant relies should be specifically pointed out and reference made to the abstract where they may be found.

In the case of Chicago City Ry. Co. v. Van Vleck, 40 Ill. App. 367, the Court says: “Several pages of objections and exceptions are practically pitchforked in before the court, with the implied invitation that we look them over, examine the abstract, find out the connection in which each particular question arose, search out the materiality of evidence excluded, ascertain for ourselves the injurious operation or tendency of answers permitted, and say on the whole whether upon some one or more of the exceptions the verdict should not be overturned.

We decline to enter upon the consideration of alleged errors thus bundled upon us. C. R. I. & P. R. R. Co. v. Moffitt, 75 Ill. 525.”

To the same effect is Minchrod v. Ullman, 60 Ill. App. 400; Ludwig v. L. C. Huck Malting Co., 46 Ill. App. 494; Hudson v. Madison, 75 Ill. App. 442.

The name of not a single witness is mentioned or his evidence commented upon, and no reference is made to the abstract or record where any particular evidence may be found. We cannot undertake to consider assignments of error presented to us in this way.

The judgment of the County Court must be affirmed.

Affirmed.


text:
    Lizzie Turner, Appellee, v. James G. Turner, Appellant.
    1. Divorce, § 39

      —when acts of parties before marriage inadmissible. On bill by wife for divorce, wife’s testimony that the husband had sexual intercourse with her before they were married, held incompetent as tending to prove no issue in the case and its admission held prejudicial error.
    2. Divorce, § 42

      —when evidence of wife’s illicit relations before marriage competent. On bill by wife for divorce, where the husband had filed a cross-bill charging the wife with adultery, and a witness on behalf of the husband testified that he had sexual intercourse with the complainant since her marriage, held that testimony of such witness that he had sexual intercourse with her a number of times before her marriage was competent to show a continued illicit relation between them.
    3. Divorce, § 78

      —when refusal to direct a verdict harmless error. Refusal of trial court on bill for divorce to direct a verdict for defendant on the issue of cruelty, held harmless where the original bill is dismissed for want of equity.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed December 27, 1913.
    Evan Worth and Beach & Trapp, for appellant.
    McCormick & Murphy, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee filed a bill for divorce from appellant, charging as grounds therefor, habitual drunkenness for two years and extreme and repeated cruelty. Appellant filed his cross-bill charging appellee with habitual drunkenness for two years, with extreme and repeated cruelty and also with adultery at certain times with certain men, and on other occasions with divers men unknown. These five issues of fact were submitted to a jury which found appellant guilty of extreme and repeated cruelty and not guilty of habitual drunkenness under the original bill; that appellee was guilty of habitual drunkenness and not guilty of extreme and repeated cruelty or of adultery under the cross-bill.

The trial court overruled the motion for new trial and entered a decree dismissing both the cross-bill and original bill for want of equity.

The acts of cruelty under the circumstances testified to by appellee did not warrant under the law the verdict of the jury in finding appellant guilty of that offense, and the trial court should have directed the jury to have returned a verdict for appellant as to that issue, but as the court has dismissed the original bill for want of equity, appellant is not harmed thereby and we are not inclined to disturb the decree in that regard.

The verdict of the jury finding appellee not guilty of adultery is manifestly against the weight of the evidence, but as the decree must be reversed and a new trial had as to this issue under the cross-bill, on account of other errors, we will refrain from discussing the evidence in regard thereto.

The trial court permitted appellee to testify, over objection, that appellant had had sexual intercourse with her before they were married. Such testimony was clearly incompetent, as it tended to prove no issue in the case, and its only effect could be to prejudice the jury against him. Whatever the conduct of appellant and appellee might have been in this respect with each other before they were married, it was completely obliterated and atoned for by the marriage. 'After appellant married appellee, the law imposed upon her the same obligations as it did upon all other married persons. The fact, if it is true, that appellant had had intercourse with her before her marriage to him gave her no license or privilege to indulge in adulterous conduct after the marriage. The policy and the law of this State fully recognize the principle that however guilty a man or woman may be of unlawful sexual intercourse with each other if they subsequently marry each other the offense is fully abated and atoned for. Thus in a prosecution for adultery under the Criminal Code, the statute provides: “That it shall be in the power of the party or parties offending, to suspend or prevent the prosecution by their intermarriage.” (Hurd’s E. S. 1909, ch. 38, sec. 11, J. & A. fj 3493.) So also in a prosecution for seduction it is provided: “That the subsequent intermarriage of the parties shall be a bar to the prosecution of said offense” (Idem. sec. 525, J. & A. ft 3936). It was clearly error for the court to admit this testimony.

A witness testified on behalf of appellant that he had had sexual intercourse with appellee a number of times, the last time within three or four weeks before his own marriage, which if three weeks prior thereto would make the date of his act after the marriage of appellee to appellant. He also testified that he had called on appellee a number of times at her home after her marriage when appellant was not there. Appellant offered to prove by the witness that he had had sexual intercourse with appellee a number of times before her marriage. The court sustained an objection to this offered testimony, and its action in regard thereto is also assigned as error.

In the case of Crane v. People, 168 Ill. 395, the plaintiff in error had been convicted of the crime of adultery. The offense of which he was found guilty was committed in Kane county, and the court permitted the People to prove the prior adulterous relations of the parties in Cook county, on the theory that it was competent to prove the existence of an adulterous disposition between them. The Supreme Court held this evidence to be proper and state the principle as follows:

“Wliatever may have been said to the contrary in certain cases, it must now be regarded as settled law; that in such cases prior acts of improper familiarity, or of adultery, between the parties, whether they occurred in the same jurisdiction or not, and even subsequent acts, which tend to show a continued illicit relation between them, may be proved in explanation of, or as characterizing, the acts and conduct of the parties complained of as constituting the particular offense charged. ’ ’

Among the authorities cited in support of this doctrine, by the Court, is the case of Thayer v. Thayer, 101 Mass. 111, which was a suit for divorce, and is directly in point. If such evidence is competent to prove adultery in a criminal action, it is certainly competent in a civil action.

That part of the decree dismissing the original bill for want of equity will be affirmed, but that part dismissing the cross-bill will be reversed and cause remanded with directions to set aside the verdict and grant a new trial on the issue of adultery under the cross-bill; and if the verdict on such issue shall be for appellant, to enter a decree granting him a divorce upon his cross-bill, on that ground.

Affirmed in part, reversed in part and remanded with directions.


author: Mr. Justice Eldbedge

text:
    The People of the State of Illinois, Appellee, v. James Bohan, Appellant. The People of the State of Illinois, Appellee, v. William Sheehan, Appellant.
    Criminal law, § 627

      —power of State’s Attorney to compromise judgments. A State’s Attorney has no pardoning power and no authority to compromise judgments that have been rendered in courts of competent jurisdiction in criminal cases.

      Appeal from the County Court of De Witt county; the Hon. Fred C. Hill, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Edward J. Sweeney, for appellants.
    Louis O. Williams, for appellee.

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

   Mr. Justice Eldbedge

delivered the opinion of the court.

At the January term, 1910, of the County Court of DeWitt county, judgments were rendered against the appellants, Janies Bohan and William Sheehan, for six hundred dollars and one thousand dollars, respectively, in criminal prosecutions for the unlawful selling of intoxicating liquors. Appellants did not pay the judgments and in default thereof were imprisoned in the county jail. They remained in jail until they were released on the order of the State’s Attorney. The State’s Attorney made an alleged settlement with Bohan, whereby he paid the State’s Attorney one hundred dollars in cash and gave his note for one hundred dollars. He likewise made an alleged settlement with Sheehan, whereby Sheehan paid him fifty dollars in cash and gave his note for one hundred dollars. When these alleged settlements were made the appellants were released from jail by order of the State’s Attorney. At the next election another State’s Attorney was elected and he found the aforesaid judgments in the County Court against the appellants, respectively, remained unpaid and had executions issued against the appellants and levies made thereunder. Appellants then came into court and made their respective motions to quash the executions on the ground that they had settled the judgments in the manner aforesaid with the preceding State’s Attorney. The motions were overruled and they have prosecuted this appeal, and the two cases have been consolidated in this court.

That a State’s Attorney has no pardoning power and no authority to settle and compromise judgments that have been rendered in courts of competent jurisdiction in criminal cases seems too clear for argument, but the question has been settled by this court in the case of Whittington v. Ross, 8 Ill. App. 234. Under the authority of this case the judgment in the County Court in each case must be affirmed.

Affirmed.


text:
    John L. Jenkins et al., Appellants, v. Ida M. Brittin, Administratrix, et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of De Witt county; the Hon. Solon Philbbick, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by John L. Jenkins and others, trading as Jenkins Grain Company against Ida M. Brittin, administratrix and Charles L. Brittin, administrator of the estate of John William Brittin, deceased, to recover damages on a contract with deceased for failure to deliver 2,800 bushels of corn alleged to have been sold by him to plaintiffs in his lifetime. Judgment was entered in favor of plaintiffs for sixty dollars damages. Plaintiffs being dissatisfied with the judgment, appeal.
    Ingham & Ingham, for appellants.
    Herrick & Herrick, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Executors and administrators, § 496 —when admissions of administrators as to contracts of deceased incompetent. In an action against administrators of the estate of the deceased to recover damages on a contract made by deceased, evidence of conversations by the administrators, or either of them, tending to recognize the validity of the contract or to vary the terms thereof is incompetent.

2. Executors and administrators, § 109 —authority to modify terms of contract made by deceased. Administrators of an estate have no power or authority to modify the terms of a contract made by the deceased, and where the estate is liable on a contract made by deceased for failure to deliver corn after a reasonable time they have no power to extend the time for delivery.

3. Sales, § 124 —time for delivery where time not specified in contract. .Where no time of delivery is specified on sale of chattels, a reasonable time under all the circumstances will be implied, and what is a reasonable time under all the circumstances in the case is a question of fact for the jury to determine.

4. Contracts, § 254 —necessity of consideration for subsequent agreement as to time for performance. After the time for the performance of a contract has passed, any arrangement made between the parties for the performance of the contract at a different time is not binding unless supported by a new consideration.

Mr. Justice Philbrick took no part in the consideration of this case.


author: Mr. Justice Thompson

text:
    J. I. Case Threshing Machine Company, Appellant, v. Horace M. Tallman, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon James C. McBride, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Rehearing denied.
    Statement of the Case.
    Action by J. I. Case Threshing Machine Company against Horace M. Tallman to recover the balance oí an alleged purchase price of certain notes executed by J. W. Henderson, Jr., to plaintiff, the notes being secured by chattel mortgages. Plaintiff claims that defendant agreed to pay a certain sum for the notes and mortgages. After defendant refused to accept a tender of them they were foreclosed by plaintiff, and the balance sued for is the difference between the contract price and the proceeds of the foreclosure sale. From a judgment in favor of defendant, plaintiff appeals.
    Abstract of the Decision.
    1. Sales, I 329

      -—when evidence insufficient to establish sale of notes and mortgages. In an action to recover the purchase price of certain notes secured by chattel mortgages, the evidence being conflicting whether defendant agreed to purchase them, held that a verdict for defendant was sustained by the evidence.
    2. Appeal and erbob, § 1514

      —when remarlos of counsel not based on excluded evidence. Argument of counsel to the jury concerning the anxiety of an agent of plaintiff to induce defendant to purchase notes, held not a comment on excluded evidence concerning same but based on the acts of the agent and the inferences legitimately deduced therefrom.
    3. Appeal and ebbob, § 1537

      —when giving of duplicate instructions not reversible error. Giving of an instruction stating an abstract proposition of law and another instruction which is a concrete application of the law stated in the abstract instruction, held not reversible error, though the abstract instruction should not have been given.
    Chapee & Chew and George B. Rhoads, for appellant.
    E. A. Richardson and U. G. Ward, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Town of Bloomington, Plaintiff in Error, v. Town of City of Bloomington, Defendant in Error.
    1. Municipal corporations, § 53

      —legislative control of funds raised hy taxation. Since municipal corporations are subject to legislative control and may be changed, modified, enlarged, restrained or abolished by the legislature, the public, county and township funds are under such control.
    2. Township organization, § 20

      —funds which may he apportioned on division of a town. Under Hurd’s R. S. ch. 139, § 32, J. & A. 1f 11264, concerning the apportionment of funds of a town when it is divided, unexpended funds raised by taxation are to be apportioned, though the taxes were levied for a special purpose.
    3. Township organization, § 20

      —when judgment in favor of original town apportionahle upon division of the town. Where a town is divided, the new-town is entitled to an apportionment of a judgment recovered by the original town against a city embraced within the boundaries of the new town for taxes paid to it under a void statute, though part of the judgment was for taxes levied and collected on property within the city under R. S. ch. 121, § 14, J. & A. jf 9641, to build bridges in the original town.
    4. Township organization, § 20

      —when right to apportionment on division of a toton not defeated. In apportioning taxes levied and collected upon a division of a town, the fact that a city embracing the same territory as the new town had been paid its proportionate share of such taxes does not deprive the new town of its right to an apportionment under the statute; the new town and the city are distinct municipalities.
    Error to the County Court of McLean county; the Hon. Homer W. Hall, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Stone, Oglevee & Franklin, for plaintiff in error.
    William E. Bach, A. W. Peasley and Barry & Morrissey, for defendant in error.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Prior to April 4, 1912, the territory within the city of Bloomington was partly in the town of Blooming-ton and partly in the town of Normal. On April 4, 1912, the territory within the city of Bloomington was organized into a new township called “Town of the City of Bloomington.” People v. Grover, 258 Ill. 124. At the time of the organization of the town of the city of Bloomington, the town of Bloomington was posessed of certain credits, moneys and personal property. The town of Bloomington and the town of the city of Bloomington being unable to agree upon a division or apportionment of said credits and moneys, submitted the matters in controversy to the County Court of McLean county pursuant to section 36 of chapter 139 of Hurd’s Statutes. (J. & A. 11268.)

A stipulation was made agreeing upon the following facts:

(1) That the town of the city of Bloomington was legally organized on April 4, Í912.

(2) That .854 of the taxable property of the town of Bloomington prior to April 4, 1912, was within that portion of the corporate limits of the city of Bloomington in Bloomington township which now lies wholly within the town of the city of Bloomington, as determined by the last assessment for said town prior to April 4, 1912.

(3) That .146 of the taxable property in the town of Bloominglon prior to April 4, 1912, was contained in that portion of the township of Bloomington that is without the corporate limits of the city of Blooming-ton and without the territory now contained within the town of the city of Bloomington.

(4) That the People’s Bank of Bloomington now holds $3,643.18, which belongs to the town of the city of Bloomington and the town of Bloomington in the proportions above specified.

(5) That said bank also holds $7,106.42, which was collected for road and bridge purposes in the town of Bloomington for the year 1911 by the town collector, which is claimed by the highway commissioners of the present town of Bloomington and is also claimed by the city of Bloomington.

(6) That the city of Bloomington received from Cyrus Frank, the town collector of the town of Bloomington, $7,122.16, which is one-half of the road and bridge taxes collected for 1911, from property within the corporate limits of the city of Bloomington.

(7) That the highway commissioners received from the said town collector from the road and bridge taxes for 1911, the sums of $1,392.68 and $1,039.83; the said sum of $1,039.83 being claimed by the city of Bloomington to have been erroneously paid to said commissioners and is in controversy in this proceeding.

(8) That the city of Bloomington received from P. M. Stubblefield, county collector, the sum of $5,-140.88, road and bridge, telephone, telegraph and railroad taxes, which sum constituted one-half of the said taxes collected by said county collector from property within the corporate limits of the city of Bloomington.

(9) That the highway commissioners of Bloomington township received from said Stubblefield $8,-861.35, road and bridge, telegraph, telephone and railroad taxes, of which sum all but $1,245.88 are the subject of controversy here, $3,895 of the same being claimed by the city of Bloomington, and of the balance after deducting the $1,245.88 and the $3,895 the town of the city of Bloomington claims, .854 per cent.

(10) That the supervisor of Bloomington township held $770.38 of dog tax and also held a balance of $165.13 township funds, which are to be distributed in the proportion shown in stipulations two and three.

(11) That the highway commissioners of Bloomington township levied for the year 1909, the limit of 36 cents for road and bridge purposes under section 13 of the Road and Bridge Law (J. & A. jf 9640), and made a certificate that a contingency existed requiring a greater levy and obtained the consent of the board of town auditors and assessor for an additional levy of 25 cents under section 14 of the Road, and Bridge Law as amended in 1909 (J. & A. ft 9641), which said levies were spread upon the property of the township and collected; that the city of Bloomington, a city with more than 20,000 inhabitants, was located partly in the township of Bloomington and partly in the township of Normal; that said levy of 61 cents- upon the taxable property within the city of Bloomington, that was located in Bloomington township, realized the snm of $40,987.78 after the payment of the costs of levy and collection; that the whole of said $40,987.78 was paid over to the treasurer of the city of Bloomington; that of said sum the levy under section 14 produced $16,798 and the levy under section 13 produced $24,189.48; that the board of highway commissioners recovered a judgment on June 3, 1911, against the city of Bloomington for the whole of said taxes levied under section 14, viz., $16,798, and for one-half of the taxes under section 13 above mentioned, which judgment was thereafter affirmed by the Supreme Court, for $28,652.61 and said judgment is still unpaid.

Evidence was heard showing that the contingency, for which the 25 cent levy under section 14 of the Boad and Bridge Act was made, was the construction of two new bridges, both outside the limits of the city of Bloomington; that they were old bridges before the levy was made at the places where the new bridges were to be built and the old bridges are still in use although they have been repaired.

The County Court found that the judgment in favor of the highway commissioners of the town of Bloomington against the city of Bloomington is $28,652.61 and interest thereon $2,674.22; that the town collector of Bloomington township collected $16,661.09 road and bridge taxes in Bloomington township for the year 1911 prior to April 4, 1912; that one-half of the said amount of road and bridge taxes collected within the city of Bloomington was $7,122.16 and was rightfully paid to the city treasurer of the city of Bloomington by the town collector; that the remaining half of the road and bridge taxes collected by the town collector within the city of Bloomington together with the road and bridge taxes collected in the town of Bloomington without the city of Bloomington amount to $9,538.93, and of that sum fourteen and six-tenths per cent, thereof was rightfully paid to the highway commis- ' sioners of Bloomington township but that $1,039.83 was wrongfully paid to the highway commissioners of Bloomington township and that said sum together with $7,106.42 in the People’s Bank should be divided in the manner hereinafter directed; that the county collector of McLean county collected $14,002.23 delinquent road and bridge, telephone, telegraph and railroad taxes for 1911, of which amount $5,140.88 constituted one-half of said taxes collected within the corporate limits of the city of Bloomington and was rightfully paid to the treasurer of the city of Bloomington by the county collector, and that the balance of said amount, $8,861.35, being the remaining half of said taxes collected within the city of Bloomington and all of said taxes collected in the town of Bloomington without the city of Bloomington was erroneously paid to the highway commissioners of the town of Bloomington, and the same should have been divided in the manner hereinafter provided.

The court found that the total amount in controversy is $47,088.55, and that said sum is composed of moneys, credits and property of the town of Bloomington immediately prior to the organization of the town of the city of Bloomington and remained unexpended on the date of the organization of said new township, and of which sum $8,655.30 has already been paid to the highway commissioners of Bloomington township.

The court ordered that the town of the city of Bloomington is entitled to receive $40,204.42, which is eighty-five and four-tenths per cent, of said $47,088.55, and the town of Bloomington is entitled to $6,884.13, which is fourteen and «six-tenths per cent, of said $47,-088.55, and that said fund of $47,088.55 be so apportioned between said town of Bloomington and the town of the city of Bloomington by the proper officers. The town of Bloomington appeals from that order.

No question is raised over the calculations made by the County Court, the only questions raised are concerning the legal principles adopted for the distribution of the moneys in controversy. The first contention of appellant is that the $16,789.06, part of the judgment for $28,652.61 and interest recovered in June, 1911, in favor of the highway commissioners of the old town of Bloomington should not be divided and apportioned as is provided for the division of property of a town when the town shall be divided, because such part of the judgment was for taxes levied and collected on the part of the property within the city of Bloomington that was within the original town of Blooming-ton under section 14 of chapter 121 of the Statutes (J. & A. ftf 9641), which provides for an additional levy of road and bridge taxes for an emergency, which emergency was the building of two bridges in the original town of Bloomington.

The next contention of appellant is that the new town of the city of Bloomington embraces the same territory as the city of Bloomington, and the city of Bloomington having, at the time the said taxes, viz., the remainder of the taxes for which the judgment was rendered and the road and bridge taxes for 1911 were collected, received half of said taxes as provided by the statute, the new town of the city of Bloomington is not entitled to any part thereof because it would be making a second division with the same territory.

The legislature had full and exclusive power to provide whether and in what manner the property and funds of the old town of Bloomington should be divided when the new town, the town of the city of Blooming-ton, was organized which included a part of the territory of the old town. It exercised .its power and authority by enacting section 32 of chapter 139 of the Statute (J. & A. ft 11264), which provides: “When two or more towns, any one of which are possessed of or entitled to moneys, rights or credits, or other personal estate, shall be united, or when a town possessed of or entitled to moneys, rights or credits, or other personal estate, shall be divided or altered, such personal estate including moneys, shall be apportioned between the towns interested therein by the supervisors and assessors of such towns according to the amount of taxable property in the town or towns united, divided or altered, as the same existed immediately before such union, division or alteration, to be ascertained by the last assessment list of such towns; and such supervisors and assessors shall meet for the purpose aforesaid as soon as may be, after such union, division or alteration.”

The judgment against the city of Bloomington for $28,652.61 was for road and bridge taxes paid to the city of Bloomington in excess of its lawful share under a void statute. Highway Commissioners v. City of Bloomington, 253 Ill. 164.

It is argued that the taxes levied on the property in the city of Bloomington for the erection of the bridges in the town of Bloomington outside of the limits of the city of Bloomington may not be diverted from the purpose for which they were levied. . The fund arising therefrom is unexpended and no debt has been incurred because of such levy. The equities of this matter are not before the court. No question of the validity of section 32 of chapter 139 can be raised in this court. The language of that section is clear and free from ambiguity, there is no room for construction and this court has no authority to revise or annul its provisions. It has been held by the highest court in this State that where taxes were levied and collected “for the purpose of building a jail, erecting bridges and other public improvements, ’ ’ and a special- charter of a city within the county required a division of the county taxes in proportion to the amount • collected within and without the city, that the city was entitled to its share of the county taxes although they were levied for a special purpose. Board Sup’rs Logan County v. City of Lincoln, 81 Ill. 156; Board Sup’rs Sangamon County v. City of Springfield, 63 Ill. 66.

Municipal corporations are subject to legislative control and may be changed, modified, enlarged, restrained or abolished at the pleasure of the legislature. People v. Grover, 258 Ill. 124; Coles v. Madison County, Breese, 154. Having this power the public, county and township funds are under legislative control. Board Sup’rs Sangamon County v. City of Springfield, 63 Ill. 66; City of Chicago v. Manhattan Cement Co., 178 Ill. 372; Heffner v. Cass & Morgan Counties, 193 Ill. 439. The words of the statute concerning the apportionment of the funds of a township when it is divided, being clear and unambiguous, must be given their usual and ordinary meaning and courts cannot change the clear meaning of the words used, even though the consequences appear not to be such as were contemplated (Diederich v. Rose, 228 Ill. 610), and any suggestions for a change on account of injustice must be addressed to the legislature and not to the courts. Rudolph Wurlitzer Co. v. Dickinson, 247 Ill. 27; People v. Evans, 247 Ill. 547.

The contention that the city of Bloomington having received half of said road and bridge taxes, therefore the new town of Bloomington has no right to receive its proportionate share of the funds belonging to the old township when the new one was organized is fully answered by the fact that the city of Bloomington and the town of the city of Bloomington are separate and distinct municipalities. The township of Bloomington is entitled to its proportionate share without regard to what the city of Bloomington, a distinct and different municipality, received.

This is a statutory proceeding and the County Court appears to have strictly followed the statute. We find no error in the judgment and it is affirmed.

Affirmed.


text:
    Town of Mattoon, Plaintiff in Error, v. Z. N. Elliott, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Roads and bbidqes, § 71

      —when town estopped by resurvey of road by highway commissioners. Where highway commissioners upon petition of landowners have the location of a road resurveyed and approve the report of the surveyors, the town is estopped to prosecute a suit to recover a penalty from an abutting owner for building a fence on a line which was established by the resurvey as the boundary of the road.
    2. Estoppel, § 94

      —when applicable to municipal corporations. The doctrine of estoppel in pais applies to municipal corporations, but the public will only be estopped or not as justice may require.
    Error to the Circuit Court of Coles county; the Hon. William B. Scholeield, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.

      Certiorari denied by Supreme Court (making opinion final),
    Statement of the Case.
    Action by Fred Block, Sr., in the name of the Town of Mattoon against Z. N. Elliott to recover a penalty for the alleged obstruction of a highway under section 74, ch. 121, B. S., J. & A. ([ 9703. The commissioners of highways refused to bring the suit and an owner of land abutting the highway caused the suit to be brought. From a judgment nil capiat in favor of defendant, plaintiif brings error.
    Jambs W. and Edward C. Craig, Donald B. Craig and Charles C. Lee, for plaintiff in error.
    Bryan H. Tivnen and Henry A. Neal, for defendant in error.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Thomas B. Cochran, Appellee, v. City of Charleston, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 1100

      —when instructions as to duty of city to heep its streets in safe condition erroneous. In an action against a city for personal injuries resulting from stepping into a hole in a street, the declaration charging the city with a greater duty than the law requires, held that the instructions given were erroneous in that some of them stated a positive duty of the city to make its streets reasonably safe and others stated that it was its duty to use reasonable care to make its streets safe.
    2. Damages, § 115

      —when verdict for personal injuries excessive. A verdict for two thousand eight hundred dollars for personal injuries, held excessive, it not appearing that plaintiff suffered any serious injury and that he had no bones broken or serious bruises.
    Appeal from the Circuit Court of Coles county; the Hon. E. R. E. Kimbrough, Judge presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by Thomas B. Cochran against the city of Charleston to recover for personal injuries sustained by plaintiff alleged to have been caused by the negligence of defendant in permitting a hole which was excavated between the sidewalk and curbing to remain unguarded. From a judgment in favor of plaintiff for two thousand eight hundred dollars, defendant appeals.
    John T. Kincade and Albert C. Anderson, for appellant.
    Stotsenburg & Weathers and H. A. Meal, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, 8am$ topic &iui section number.

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    International Text Book Company, Appellant, v. John F. Galligan, Appellee.
    1. Corporations, § 48

      —necessity of denial in writing of corporate existence when suit commenced before justice of the peace. In an action by a foreign corporation where the suit was originally begun before a justice of the peace and an appeal was taken to the County Court, the plaintiff is not required to prove its corporate existence where defendant has not complied with section 65, ch. 79, of the act relating to justices and constables, J. & A. jf 6926, by filing a denial in writing of plaintiff’s corporate existence.
    2. Corporations, § 774

      —proof of corporate existence of foreign corporation. A foreign corporation cannot prove its corporate existence by offering in evidence a certificate of its incorporation without offering to prove the foreign statute under which it was created.
    Appeal from the County Court of Sangamon county; the Hon. John B. Weaves, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 27, 1913.
    D. Logan (tiffin and John P. Snigg, for appellant.
    S. H. Cummins, for appellee.

      gee Illinois Notes Digest, Vols. XI to XV, same topic an4 section number.

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit begun before a justice of the peace in Sangamon county to recover for the breach of a contract; from the judgment before the justice an appeal was perfected to the County Court. The contract is a subscription for an architectural course in a correspondence school of plaintiff signed by the defendant at Springfield and forwarded to Scranton, Pa., where it was accepted by plaintiff. A trial by jury was waived and after the hearing was begun the defendant objected to the admission in evidence of the written proposition until proof was made of the complete organization of the International Text Book Company. The court sustained the objection to this evidence. The plaintiff also offered in evidence what purported to be a certificate of the incorporation of plaintiff in the State of Pennsylvania, certified to by the Secretary of State under-the seal of the State. This was objected to and the objection sustained to this and all other evidence offered. The court rendered judgment in favor of the defendant and the plaintiff appeals.

: It is contended that the court erred in sustaining- the objection to the evidence of appellant concerning the contract. The court sustained this objection for the reason that appellant had not proved that it was a corporation. There was no plea of nul tiel corporation or denial in writing of the corporate existence of appellant filed. Section 65 of chapter 79 of the Statute (the act revising the law concerning justices of the peace) provides: “In actions by or against corporations, it shall not be necessary to prove the existence of such corporation, or that it sues or is sued by its corporate name, unless previous to the commencement of the trial, the corporate existence of such plaintiff or defendant, or that its name is correctly stated is denied in writing, signed by the party making such denial or by his agent or attorney.” (J. & A. 6926.) There being no such denial on file the court erroneously sustained the objection to the evidence offered. Appellee cites the case of American Sales Book Co. v. Wemple, 168 Ill. App. 639, as authority for the ruling of the court. The foregoing statute is not referred to in that case and appears to have been overlooked by the court and counsel. The statute must control until it has been repealed or set aside.

The proof that appellant offered to make of its incorporation in a foreign State was insufficient, for the reason the proof of the law under which it was attempted to be incorporated was necessary as well as existence under color of such sanction. The appellant should have offered the statute of Pennsylvania under which the supposed corporation might lawfully be created if there had been a denial in writing of appellant’s corporate existence on file. Marshall v. Keach, 227 Ill. 35; Dean & Son v. W. B. Conkey Co., 180 Ill. App. 162. However, since there was no denial in writing of plaintiff’s incorporation on file, it was not necessary to offer any proof on that question.

For the error pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The W. T. Rawleigh Medical Company, Appellee, v. J. W. Barnett, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of De Witt county; the Hon. Solon Philbkick, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action in assumpsit by The W. T. Rawleigh Medical Company, a corporation, against J. W. Barnett to recover upon a promissory note. From a judgment in favor of plaintiff for $538.13, defendant appeals.
    L. O. Williams, for appellant.
    Edward J. Sweeney and Morris J. Hinchcliff, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Bills and notes, § 358 —when plea of want of consideration demurrable. In an action on a promissory note, a special plea of want of consideration setting up that the note was given for a release of defendant by plaintiff from a void contract of guaranty, held inartificially drawn and subject to special demurrer.

2. Appeal and ebboe, § 1361 —•when refusal to permit filing of additional pleas not error. Refusal of court to permit the filing of additional pleas, held not error, where application to file them was not made until the case was called for trial.

3. Appeal and ebboe, § 986 —when denial of motion for continuance not presented for review. The question whether the court erred in overruling a motion for a continuance is not preserved for review, where there is no motion for a continuance or showing thereon in the bill of exceptions.


text:
    Joseph W. Johnson, Appellee, v. Danville, Urbana and Champaign Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbbough, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by Joseph W. Johnson against the Danville, Urbana and Champaign Railway Company to recover damages for personal injuries sustained by plaintiff caused by being struck by a telephone pole which the employes of defendant were lowering by means of ropes when plaintiff was driving along a public highway. From a judgment in favor of plaintiff for $2,500, defendant appeals.

      Abstract of the Decision.
    1. Damages, § 162

      —allegations sufficient to admit of proof of damages resulting from inability to worlc. The rule in this State is that in order to recover compensation for inability to work at plaintiff’s ordinary and usual employment or business, all that is necessary in the declaration is the general averment of such inability caused by the injury and consequent loss and damage, and that proof of his particular employment or business and of his ordinary wages and earnings therein is admissible in evidence under such general averment.
    2. Damages, § 174

      —when testimony as to earning capacity inadmissible. In an action for personal injuries permitting plaintiff, over objection, to testify as to what he could earn instead of what he did earn in his business, held error.
    3. Damages, § 213

      —when instruction for damages for personal injuries erroneous. In an action for personal injuries, an instruction that if the jury believe from the evidence that plaintiff “was injured in his ability to labor and attend to his affairs and generally pursue the course of life he might otherwise have done as well since as before the injury” and that such injuries were inflicted through the negligence of defendant, “then the jury may assess such damages as will compensate the plaintiff for all the loss he may have sustained that is a necessary result of such injuries, if the evidence shows he sustained any loss as a result of such injuries,” held erroneous as not confining the jury in their assessment of damages to the evidence on the question of damages.
    4. Evidence, § 442

      —when opinion of physician based on testimony in the case improper. In an action for personal injuries where the manner in which plaintiff was injured was not disputed, permitting physicians to testify as to whether the circumstances of the accident would have caused the injury, basing their opinion upon the testimony of plaintiff as to how he had been injured, held improper.
    Charles Troup, for appellant; George W. Burton, of counsel.
    John J. Bea, Walter C. Bindley and F. T. Carbon, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.