text:
    Theodore B. Kolb, Appellee, v. Estate of Abraham Stephens, Deceased, Appellant.
    1. Appeals and ebbobs—administration of estates. R. S., c. 3, § 123, as to appeals from the circuit court to the supreme court, R. S., c. 37, § 25 (Appellate Court Act, § 8), as to the jurisdiction of the appellate court, R. S., c. 37, §§ 212 and 213, as to appeals from the county court, and the Practice Act of 1907, § 118, as to appeals from the circuit court to the appellate court, must be construed together in determining whether an appeal from the circuit court on the allowance of a claim against an estate should properly be taken first to the appellate court.
    2. Administbation of estates—when appeal from allowance of claim should he taken to appellate court. An appeal from the circuit court on the allowance of a claim against the estate of a deceased person is properly taken first to the appellate court.
    3. Administbation of estates—when sufficient that appeal is perfected hy only one of several administrators. Where a record shows that an appeal from an allowance against an estate was prayed for and granted to administrators severally or jointly, it is immaterial that only one of the administrators perfected the appeal.

      4. Bills and notes—evidence of absence of consideration. A person made claim against an estate based on a note of the decedent claimed to have been given for services to be performed as a nurse, and testified to such effect. Numerous witnesses testified that claimant stated that she was working for wages and that she was paid, and letters written by the decedent to her during an absence requested her to return as a favor and not as a matter of right. Seld, the note was without consideration.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of fact.
    Opinion filed October 15, 1912.
    Rehearing denied December 20, 1912.
    De Mange, Gillespie & De Mange, James W. Boyd, Robert Henning and Welty, Sterling & Whitmore, for appellant.
    Thurman, Hume & Kennedy, S. P. Robinson and Livingston & Bach, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Theodore B. Kolb filed a claim in the County Court of McLean County, against the estate of Abraham Stephens, deceased, based upon a promissory note in the words and figures following:

“$25,000. Weston, Ill., Nov. 3, 1902.
On Demand I promise to pay Ella M. Chapman Twenty-five Thousand dollars out of My estate After My Death, the payment of this note Must be paid regardless of will with int. & expenses incurred in collecting the same. A. Stephens.
“For value received. I hereby certify this note was written by Ella M. Chapman by My Eequest.
A. Stephens.”
It is endorsed,—“Dec. 12/04
Deceived on Within Note
$1,100.00”
“Dec. 12/08
Eeeeived on within Note $700.00.
“Ella M. Chapman”

The note was transferred by Ella M. Chapman to claimant after the death of Stephens, who died December 15, 1908. The administrators filed an affidavit denying the execution and delivery of the note by Stephens. The claim was allowed in the county court and the administrators appealed to the circuit court. At the first trial in the circuit court the jury failed to agree upon a verdict, and at the second trial a verdict was returned in favor of the claimant for $33,995.55 on which judgment was rendered; one of the administrators brings the case by appeal to this court.

The appellee has moved to dismiss the appeal and insists (1) that the appeal should have been taken to the supreme court, and (2) that this court has no jurisdiction because only one of the administrators perfected the appeal.

The appellee contends that because section 123 of chapter 3, of the Revised Statutes provides that appeals shall be allowed from all judgments, orders or decrees of the county court * * * to the circuit court * * * and from the circuit court to the supreme court, that therefore this appeal should have been taken to the supreme court. The act that appellee relies upon was enacted in 1845. Appellate courts were established in this state in 1877. Section 25 of chapter 37 (Rev. Stat. 1911). Section 8 of the Appellate Court Act provides that: ‘ ‘ The Appellate Courts created by this act shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal, or writs of error from the final judgments, orders or decrees of any of the circuit courts * * * in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors and cases involving a franchise or freehold or the validity of a statute.”

Section 212 of chapter 37, of the Revised Statutes (Sec. 122 of the County Court Act) provides for appeals from the final orders, judgments and decrees of the county court to the circuit court except as provided in the following section. Section 213 (Sec. 123 of the County Court Act) provides that “appeals and writs of error may be taken and prosecuted from the final orders, judgments, and decrees of the county court to the Supreme or Appellate Court” in certain enumerated proceedings, which do not include the allowance of claims against estates. Section 118 of the Practice Act of 1907 (Sec. 89 of the Act of 1877 as amended in 1879) provides that “Appeals from and writs of error to circuit courts * * * in all criminal cases below the grade of felony shall be taken directly to the Appellate Court, and in all criminal cases above the grade of misdemeanors and cases in which a franchise or freehold or the validity of a statute or a construction of the constitution is involved * * * and in all cases relating to revenue, or in which the State is interested, as a party or otherwise, shall be taken directly to the Supreme Court.” These several sections of the statute, contained in the various court acts and the practice act, regulating the taking of appeals and conferring jurisdiction thereover in the supreme and appellate courts, must be construed together. The appellate courts are given general jurisdiction in all appealable cases, except in cases where the right of appeal is limited to the supreme court. Civil cases are reviewed only by appeals or writs of error. Criminal cases are reviewed only by writs of error. The term appeals as used in the Act of 1877 can only be. applicable to civil cases. Appeals from the circuit court on the allowance of claims against estates of deceased persons are not within any of the exceptions, in which the supreme court on appeals has primary jurisdiction, without the case being first reviewed by the appellate court.

It was held in Grier v. Cable, 159 Ill. 29, that the Appellate Court Act repeals so much of section 123 of the Administration Act as is in conflict with it. While the allowance of a claim against an estate of a deceased person is a statutory proceeding and not a suit or proceeding at law (Grier v. Cable, 159 Ill. 29) yet with the exception that written pleadings are not required, it is otherwise conducted in compliance with the rules governing the trial of suits at law and the parties are entitled to a jury as a matter of right. The universal practice on appeals from the circuit court from the allowance of claims against estates, since the passage of the Appellate Court Act, has been to take the appeal first to the appellate court, and then to the supreme court. The following cases, Hobbs v. Ferguson’s Estate, 100 Ill. 232; Bliss v. Seaman, 165 Ill. 422; Starrett v. Brosseau, 208 Ill. 408; Schell v. Weaver, 225 Ill. 159; Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, with many others, show the construction that has been given to the Appellate Court Act, ever since its adoption. The practice of appealing to the supreme court through the appellate court has become an established rule and is within the reasonable meaning of the several acts when they are considered together.

While only one of the- administrators with the will annexed perfected this appeal, the record shows that the appeal was prayed for and granted to them severally or jointly. The administrator represents the estate. The fact that there is a coadministrator is not a reason why one of them might not appeal from the judgment against them as administrators. It was properly taken by one of them in his representative capacity. The motion to dismiss the appeal is denied.

It is contended by appellant that the note on which the claim of appellee is based was not executed by Abraham Stephens. There were many witnesses who testified concerning the signature and more witnesses' testified that the signature to the note is not his signature than there are who testified it is his signature. The body of the note is all in the writing of the payee, and the record contains a photograph of the note. The curve of the last line of the body of the note over the signature tends to show that the line was written after the signature was attached, but in the view we take of the case, it is not necessary to pass upon that question or upon the question of what witnesses were entitled to the greater credit concerning the genuineness of the signature.

Of the many errors assigned and argued by appellant it is only necessary to consider the contention that the note was a gift to the payee and without consideration. The only consideration claimed to have been given for the note were the services rendered to Stephens and his family by the payee. The evidence shows that Abraham Stephens died December 15,1908, at the age of eighty-one years. His wife died in 1905, and he had no children. Ella M. Chapman is now about fifty-five years of age, a niece of his wife, and had a second husband, who died in 1909, aged eighty-eight years; she had two sons by a first marriage one of whom married a sister of the appellee. In 1900, Ella M. Chapman who lived in New York, came to visit the Stephens’ family at their home at Weston, Illinois. The first day she was at the Stephens’ home she made inquiry about his affairs and whether Stephens had made a will. After remaining at the Stephens’ home a few weeks she returned to New York. In July, 1901, she returned to Weston and remained in the Stephens’ household until his death, with the exception of a few weeks in 1904 when she returned to New York for a short time. While at the Stephens’ home she did much of the general housework assisted by others and nursed and cared for both Stephens and his wife. Stephens had no need of a nurse except a few weeks in 1906, and a few weeks before his death; The fact is proved beyond a doubt, by the evidence of witnesses who talked with Mrs. Chapman and with Stephens in the presence of Mrs. Chapman, at various times from when she first came to the home of Abraham Stephens in 1901, that she was there working for wages and that she was paid. Several witnesses testified that she told them that she could get twenty-five dollars a week at home as a nurse and that that was what Stephens was paying her; other witnesses testified that she said she was getting twenty dollars a week. Susan A. Blaidsdell testified that Mrs. Chapman said to her in the presence of Stephens first when she came, that Uncle Abe said he would give her as much as she could earn in the east as a nurse, and she guessed she would stay there; Catherine McBroom testified that about a year before Stephens died Mrs. Chapman said that she could get twenty-five dollars at home and that was what she was receiving there; that she had saved her money to pay off a mortgage and that Stephens had paid her $1,000 to pay a mortgage she owed. She told Carrie Hicox that she earned ten dollars a week in New York and that her uncle gave her $1,000 to pay off a mortgage. Fred Squires testified that after the death of Stephens she told him that she had not received any wages for about two years; he asked her what she had been getting and she replied twenty dollars a week. Alice Franklin testified that in 1905, Mrs. Chapman told her that she had only drawn twenty-three dollars of her wages in that year and that she had been economical. Luella Davis, a deaf mute, testified that in a conversation carried on in writing in 1907, that she told her that she was getting twenty-five dollars a week; Sarah Stephens testified that she told her that she married Mr. Chapman for a home and didn’t get any, so she went to nursing and got ten dollars a week; that Stephens told her he would pay her what she got at home and she would rather come there than go among strangers. Robert Grady, a nurse, testified that he talked with Stephens in the presence of Mrs. Chapman; that Stephens asked him what he got for nursing and he told him ten dollars a week and his keeping, and Stephens said to him that he ought to have more, that he paid Mrs. Chapman fifteen dollars a week and paid her every week and that after Stephens’ death Mrs. Chapman said Uncle Abe always paid her well. Emma Phillips testified that in 1905, before the death of Mrs. Stephens, Mrs. Chapman told her that she was getting twenty dollars a week and all the money from the butter, eggs and chickens she would raise; Laura McComas testified substantially the same as Emma Phillips. Nettie Graves, a niece of the deceased testified that in 1901, soon after Mrs. Chapman went to Stephens’ Mrs. Ella Chapman told her if Uncle Abe would discharge Nellie Chapman, a domestic working there, and pay her, Ella Chapman, in addition the wages he was paying Nellie Chapman, she, Mrs. Ella Chapman, would do all the work and take care of Mrs. Stephens besides; that a man in New York had offered her twenty-five dollars a week to take care of his wife and she came back to work for Uncle Abe because he would pay her the same. She told Mrs. Gloyd, an elder sister of Mrs. Stephens, who asked her if Stephens told her he would pay her twenty-five dollars a week, that Stephens said he would give her what she got at home.

Two indorsements one of $1,100 dated Dec. 12, 1904, and one of seven hundred dollars dated December 12, 1908, are written on the note. There is no proof in the record concerning the $1,100 payment other than the admission of Mrs. Chapman that her uncle gave her that sum. Stephens deposited his money in banks and took certificates of deposit; when he desired to withdraw money he surrendered a certificate or had the money withdrawn indorsed on a certificate.

On December 13, 1908, Mrs. Chapman wrote a letter to the bank that the seven hundred dollars, part of the money she had withdrawn on one of Stephens’ certificates, was a loan that he had promised her. Letters written by Stephens to Mrs. Chapman March 18 and 21, 1904, while she was in New York, show that he requested her to come back not as a matter of right that he could demand but as a favor to him. If the note had been given for services to be performed by her, then the letters would not have requested her return as a favor.

While Mrs. Chapman contradicted many of the witnesses who testified concerning her statements, a careful review of all the evidence shows by a manifest and clear preponderance that Mrs. Chapman worked for Stephens by the week for wages. Her statements and the statements of Stephens made in her presence show that she was paid from time to time and that she was working for fifteen to twenty-five dollars per week during all the time she was living at the Stephens home. Her claim that the note was given for services to be performed is shown to be unfounded. The note was given without consideration and was a gift to her. The judgment is therefore reversed with a finding of fact.

Reversed.

Finding of Fact. The note in evidence was given without consideration and was a gift from Stephens to Mrs. Chapman and the appellee is not a holder in due course.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Ed. Walther, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Master and servant—instructions as to fellow-servants. A crew consisting of a foreman, an engineer and laborers, engaged in transferring coal from a derrick car, are fellow-servants as a matter of law with, the exception of the foreman, and refusal so to instruct the jury is reversible error.
    2. Master and servant—when question of fellow-servant one of fact or law. The question of the relation of fellow-servant, is ordinarily one of fact and only becomes one of law when there is no dispute as to the facts and' the evidence with all legitimate inferences to be drawn therefrom is such that all reasonable men must reach the same conclusion.
    3. Master and-servant—combined) negligence of employer and, fellow-servant. If the negligence of the employer combined with the negligence of a fellow-servant in producing the injury, and the negligence of neither is alone the efficient cause, the master is liable.

      4. Master and servant—when assumed visit no defense. The question of assumed risk arises under a contract of employment, and where the employee is injured by reason of the direct command and wrongful order of his employer and is himself using ordinary care under the particular circumstances, the doctrine of assumed risk has no application.
    5. Evidence—cross-examination. Where the plaintiff or any witnesses have made conflicting statements defendant is entitled to broad latitude in thoroughly cross-examining them concerning details and surroundings of any meetings in order to refresh their memory.
    6. Evidence—re-examination of witness. The right to re-examine a witness about a matter omitted through forgetfulness is discretionary with the court.
    Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. • Myers, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Bracken & Young, for appellant; Silas H. Strawn, of counsel.
    Jesse E. Hoffman and George F. Dick, Jr., for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Plaintiff recovered a verdict and judgment against defendant for $2,500, as damages for personal injuries, from which the defendant prosecutes this appeal. The declaration, consisting of several counts, alleges in substance that plaintiff was in the employ of defendant as a laborer and a member of the “cleanup” gang in defendant’s Bloomington yards; that the men were operating a derrick, which was being used to transfer coal from coal cars to locomotive tenders; that while engaged in that work the derrick remained stationary; that it was equipped with motive power so as to be moved along the track with its own power, and was so used as a switch engine; that the derrick and engineer in charge of it were under the direction of the foreman of the gang; that plaintiff’s work was to wave signals to the engineer when to move the derrick boom; that plaintiff was directed by the foreman to prepare the coupling on the derrick for the purpose of using said derrick as a switch engine to move the car on which the gang was working; that in obedience to said order he stepped in front of the derrick, and while in the act of preparing the coupling and in the exercise of ordinary care, without warning to him the foreman negligently signalled the engineer to come ahead, which signal the" engineer promptly obeyed and started the derrick, and plaintiff’s foot was caug’ht and crushed. One of the counts alleges that the foreman was not a fellow-servant with plaintiff; another alleges that plaintiff had no experience as a switchman working with moving engines or cars and did not know of the danger attendant upon using said derrick as a switch engine. None of the counts allege that plaintiff was not injured in consequence of an assumed risk. There were two trials before a jury ; at the first trial the jury disagreed.

The evidence shows that plaintiff is twenty-six years of age; that he had been working as a member of the clean-up gang for several years; that he had frequently worked with the derrick; that he acted as foreman in the absence of the regular foreman; that John Askew the foreman, gave an order to plaintiff, who was a short distance from the derrick, to get the coupling ready to push a coal car and called to the engineer to come ahead. The plaintiff stepped between the cars and the derrick car, moving towards the coal car, caught plaintiff’s foot and ran over it. The derrick car is a low, flat car, on which is a boiler, engine, derrick and machinery for working the derrick and this car. can move itself with its own power very slowly;— about one and a quarter miles an hour.

The frictional questions in the case are whether plaintiff knew of the order of the foreman to the engineer before he stepped between the derrick car and the coal car, and in stepping between these cars was he in the exercise of ordinary care or did he assume the risk in going between the cars. The defendant contends that the orders to the plaintiff and to the engineer were given simultaneously and that plaintiff knew before he made a move to get the coupling ready that the order had been given to the engineer to come ahead, while the plaintiff contends that he did not know that the foreman had given any order to the engineer to come ahead, and that the car moved just as he got to the coupling and that while he had done this kind of work before he had always given the signals to the engineer to move the car after he had arranged the coupling. In view of the conflicting contentions it was important that the rulings upon the admission and rejection of evidence bearing on these questions should be correct.

A witness Paul Holtz, the engineer working on the derrick at the time plaintiff was injured, was asked as omitted questions on re-examination the following by counsel for defendant: “Where was Walther, if you know, when Askew was talking to you while standing at the side of the derrick?” “Had he prepared the bar before this time?” “Do you recall any other time before Ed. was hurt and while the derrick was moving slowly on the track that he prepared the bar for the coupling?” “Where was Askew when he called to you to go ahead?” “Had he prepared the bar before this time?” An objection that they were incompetent and not proper re-examination was sustained to each of these questions. The plaintiff, while a witness on this trial was asked in cross-examination, “While on the witness stand and testifying in the former trial, was this question asked, ‘Was you standing against the derrick,’ and did you answer, ‘No, I was going toward it.’ ” “Were you asked when a witness in the former trial, this question, ‘Did you notice whether the derrick started with a jerk or jump suddenly?’ ” An objection was sustained to each of these questions.

A witness Baxter, who took a pair of crutches to plaintiff at the hospital, testified concerning statements that he had said plaintiff made to him at the hospital as to how the accident happened. The plaintiff denied having made any such statements at any time. On cross-examination the plaintiff was asked if Baxter brought him a pair of crutches, and if at that time anything was said about the injury, and objections were sustained to these questions. The plaintiff admitted at first that he had talked with Baxter and afterwards said he never had any talk with him.

The right to re-examine a witness about a matter omitted through forgetfulness is discretionary with the court. The objection to each of these questions, except possibly those objected to as not proper reexamination the admission of which were in the legal discretion of the court, should have been overruled. The evidence sought to be introduced was competent and important in its bearing on the question of plaintiff’s knowledge or lack of knowledge of the order given the engineer and was material on the question of the care or contributory negligence of plaintiff. The statements of plaintiff (if any) made to Baxter were competent evidence as admissions against him. The plaintiff having denied making such statements the defendant was entitled to cross-examine him fully and to ask concerning the details and surroundings of any meeting he and Baxter had which might tend to refresh his memory.

The foreman, Askew, now not in the employ of defendant, had made inconsistent written statements concerning the accident. The parties were entitled to a thorough cross-examination of the witness as to how he came to make such statements. The ruling of the court was proper concerning the questions asked this witness.

It is insisted there was error in giving and refusing instructions. The plaintiff’s fourth instruction informs the jury that if they believe that plaintiff by his foreman was ordered to prepare the coupling on the derrick as alleged in the first count, then plaintiff had the right to assume that the foreman would not by his negligence make the performance of said duty in carrying out said order unsafe, and if the jury believe from the evidence that the foreman, after so giving said order, without warning to plaintiff negligently signalled the engineer to move the derrick and the plaintiff was injured as charged, then they should find for plaintiff and assess his damages at such amount as will compensate him for his injury so far as the same is shown by the evidence, provided they believe plaintiff in carrying out said order was in the exercise of ordinary care for his own safety. The defendant argues that this instruction is erroneous because there is no averment in the count that plaintiff did not assume the risk which caused his injury, and the instruction does not require plaintiff to prove that he was not injured in an assumed risk. The seventh instruction given for the defendant told the jury that if the derrick was moving before plaintiff stepped in front of it or that plaintiff by ordinary care would have known that the foreman had ordered the engineer to move the derrick before he stepped in front of it, then plaintiff assumed the risk of injury from the moving derrick. The trial court from the giving of the latter instruction would appear to have considered that the question of assumed risk was involved in some of the counts. It was held in Wells & French Co. v. Kapaczynski, 218 Ill. 149, that “The injury to the plaintiff having resulted, according to the finding of the Appellate Court, from the wrongful and negligent order of the defendant, and the plaintiff himself being without fault, the doctrine of assumed risk can have no application whatever to the case.” In Chicago & E. I. R. Co. v. Heerey, 203 Ill. 492, it was said, “The employee must always exercise the degree of care which an ordinarily prudent person would have exercised under the same circumstances, but he does not assume the risk resulting from a direct command.” Dallemand v. Saalfeldt, 175 Ill. 310; Western Stone Co. v. Muscial, 196 Ill. 382; Graver Tank Works v. O’Donnell, 191 Ill. 236. Under the doctrine of these cases the question of assumed risk arises under a contract of employment and was not involved if plaintiff was acting under a peremptory order from his foreman. and was, while in the exercise of that degree of care which an ordinarily prudent person would have exercised under the same circumstances, injured as the result of a negligent order of the foreman. The question of ordinary care or contributory negligence only was involved and that question was fully covered by the instruction. There was no error in the fourth instruction in the respect concerning which complaint is made.

The plaintiff’s second given instruction is an abstract proposition and should have been made applicable to the case.

It is contended that the court erred in refusing the following instruction requested by the defendant. “You are instructed by the court, as a matter of law, that all persons, except foreman Askew, composing the gang, as it has been called in the evidence, who were working in connection with the operation of the derrick in question, were fellow-servants; and if you believe from the evidence that plaintiff’s injury was caused by the act of omission of any such fellow-servant, and not by the fault or negligence of his said foreman, then the plaintiff cannot recover in this case, and you should render verdict in favor of the defendant.”

If the negligence of the employer “combined with the negligence of a fellow-servant in producing the injury, and the negligence of neither is, alone, the efficient cause,” then the master is liable. Chicago & A. R. Co. v. Wise, 206 Ill. 453; Lyons v. Ryerson & Son, 242 Ill. 409. The instruction as asked assumes that the employee working in connection with the operation of the derrick were fellow-servants of plaintiff. “The question of the relation of fellow-servants is ordinarily one of fact and only becomes a question of law when there is no dispute with reference to the facts, and the evidence, with all legitimate inferences to be drawn therefrom is such that all reasonable and intelligent men must reach the same conclusion.” Bennett v. Chicago City Ry. Co., 243 Ill. 420; Hartley v. Chicago & A. R. Co., 197 Ill. 440. The facts proven in this case show the existence of the relation of fellow-servants between the employees, except the foreman, in the gang of which plaintiff was a member. The instruction as asked lays down a correct proposition of law and should have been given.

The judgment is reversed and the cause remanded for the errors indicated.

Reversed and remanded.


text:
    Edwin Beggs, Appellee, v. Postal Telegraph-Cable Company, Appellant.
    1. Telegraphs and telephones—delayed message. The fact that certain wires of a telegraph company went “dead” will not avoid liability for damages for delay in dispatching a message if there was time enough before to have sent it or other means of transmission were available.
    2. Appeals and errors—harmless error. Where the court improperly sustains an objection to a question of defendant and a verdict is rendered against defendant, it is not reversible error if the verdict is supported by the evidence notwithstanding the particular matter covered by the question.
    3. Evidence—leading questions. A question is leading which puts into the mouth of the witness the words to be echoed back or plainly suggests the answer desired.
    4. Appeals and errors—appellate court hound hy its own decisions. The decisions and announced propositions of law of the appellate court are binding on that court and will not be departed from in a subsequent appeal of the same case, nor will it review its former opinions.

      Appeal from the Circuit Court, of Macon county; the Hon. Wn> liam G. Cochean, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Hugh Crea and Hugh W. Housum, for appellant.
    Chester Allan Smith and Buckingham & Gray, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Plaintiff brought suit in trespass on the case against the defendant to recover damages for alleged delay in the transmission of a cypher telegram sent by H. I. Baldwin & Co., agent of plaintiff, from Decatur, to the Nye & Jenks Grain Co. at Chicago. The case has been tried twice in the circuit court. On the first trial the plaintiff recovered a verdict for $1,125 upon which the court rendered judgment. Upon appeal to this court that judgment was reversed and the cause remanded. Beggs v. Postal Telegraph-Cable Co., 159 Ill. App. 247. A statement of the case, pleadings, facts and legal questions involved in that appeal will be found in our former opinion and need not be repeated here. After the case was remanded the second and fourth counts of the declaration were amended by making the averment that it was the duty of the defendant to deliver messages within a reasonable time, and that 9:30 a. m. was a reasonable time within which the message should have been delivered. On the second trial the plaintiff recovered a verdict for $750 upon which judgment was rendered and the defendant again appeals.

In the former opinion of this court the case was reversed for the reasons (1) that the court had sustained objections to evidence offered by defendant to prove the condition of its service, and the means it had to transmit the message, and (2) because the evidence did not show that if the telegram had been received in Chicago at 9:30, the receiver of the telegram would have been able to find a purchaser on the board of trade for the grain offered for sale, or could have consummated a contract of sale such as plaintiff an-' thorized by the telegram.

The evidence in the case now shows that when the market opened on the board of trade at 9:30 wheat was at ninety-seven cents and if the telegram had been delivered by that time the wheat, directed by the telegram to be sold, would have been disposed of at ninety-five and ninety-five and one-half cents, the prices fixed in the dispatch. One of the firm of the Nye & Jenks Grain Co., testified that the firm would have taken the wheat as offered by the telegram when the market opened at 9:30, but when the telegram was delivered at 9:45 the price had declined so that sales could not be made at the prices named. The agents of plaintiff were notified at 10:40 that the telegram had been delayed and that at 10:35 the price had fallen to ninety-four and a half cents, so that the proof now is that there was a loss because of the failure to deliver the telegram.

It is urged by appellant that it was not guilty of any negligence and that the court erred in refusing to give a peremptory instruction to find in its favor. The telegram was delivered by Baldwin & Co., to a messenger of the defendant in Decatur at 9:05 a. m. It was received at the defendant’s Decatur office at 9 :10, but was not forwarded until 9:37 and was delivered in Chicago at 9:40. The evidence snows that the defendant has three wires connecting its Decatur and Chicago offices with three operators in Decatur; that at 9:15 two of the wires went dead or became open, so that messages could not be transmitted to Chicago over them, and remained dead or open between ten and fifteen minutes; before 9:15 grain messages to Chicago go to the Chicago general office, but after 9:15 they go direct to an office in the board of trade. The message in question could have been transmitted in a minute and a half over any of these wires. J. J. Fierek, the manager of the defendant’s Decatur office, testified that they had instructions not to use one of these wires, described as the third, in the forenoon when what is called the multiplex system is being used, without getting permission from Chicago and that would take ten or fifteen minutes, but there is no proof that the multiplex system was being used that forenoon. He also testified that five other grain messages were transmitted from Decatur over the wire after the one alleged to have been delayed was received, before it was sent, and that he does not know whether they were transmitted in the order they were received or not, or whether the delayed telegram was in the office in advance of the five messages sent before it; that he supposed the delayed message was a grain message and he knew that such messages are important and should be delivered as quickly as possible, and that he sent two or three telegrams to Chicago by way of St. Louis to the wire chief asking him to locate the difficulty with the wires. H. I. Baldwin, one of the firm who sent the telegram, testified that the manager of the defendant solicited their business and that "he told the manager that their messages were for the sale or purchase of grain and were important, and that it was necessary that their telegrams should be on the board of trade before 9:30 a. m. The defendant from the statement of its manager at Decatur could get dispatches to Chicago by way of St. Louis while two of the direct wires were open and it might have sent the delayed dispatch the same way, or it might have sent it over the Western Union Telegraph line or have got permission to use the third wire. There is evidence of negligence upon which the verdict can be sustained and there was no error in refusing the peremptory instruction.

Defendant contends that the court erred in refusing to admit evidence offered by it. Defendant’s manager at Decatur, after testifying that the defendant’s vires between Decatur and Chicago went through Bloomington, Clinton, Peoria, Streator and other cities, was asked: “A telegram on July 8, 1907, being sent from your office to Chicago would have to pass through these various offices you have named?” An objection to this question, that it'was leading, was sustained. The question was leading as it puts into the witness’s mouth the words to be echoed back, or plainly suggests the answer which defendant desired. 4 Ency. of Ev. 654. It was also a repetition of an answer just made by the witness. The next question was: “Would the fact of there being these offices you have referred to on the line between Decatur and Chicago have any tendency to delay the transmission of a message from Decatur to Chicago?” It was answered: “Well, the mere fact we are running through them would not necessarily unless they were using the wires.” This was followed by a question and answer showing that if the intermediate offices were using the wires, the Decatur office would have to wait until they got through with them. If the ruling had not been proper, still the defendant was not harmed thereby for the reason the answer desired was obtained from the witness both before and after the ruling complained of was made. It is also contended that there was error in sustaining an objection to a question put to Fierek, “if there was anything you could have done after the line came open that you did not do in order to get that telegram through; what could you have done?” This was objected to with the statement that he might tell what he did. We see no legal reason for sustaining the objection unless it be that his answer might have been merely a conclusion. The evidence shows that there were several things that might have been done, while the two wires were open, that he did not do. There was time enough after the telegram was received before the wires went dead to have sent it, and if the lines were dead fifteen minutes, then on the witness’ statement the message was not sent for seven minutes after they were closed. The ruling was not reversible error.

Several contentions are presented and argued at considerable length, but the same arguments were’ urged and the same authorities cited on the former appeal and those contentions were passed upon in our former opinion. The decision of an appellate court and the propositions of law announced in reversing a case are binding on that court and will not be departed from on a subsequent appeal in the same case. In re Maher’s Estate, 204 Ill. 25; Griesbach v. People, 226 Ill. 65; Mariner v. Ingraham, 230 Ill. 130; Landt v. McCullough, 130 Ill. App. 515.

We have no right or desire to review our former opinion. Finding no reversible error in the case the judgment is affirmed.

Affirmed.


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    Fred Felchner, Defendant in Error, v. Consolidated Coal Company, Plaintiff in Error.
    1. Appeals and errors—failure to comply with section 81 of the Practice Act. Where a full transcript of all proceedings is filed, the failure to comply with section 81 of the Practice Act, in regard to giving notice, is not necessarily a ground for affirming a judgment, but may be a reason for taxing unnecessary costs.
    2. Mines—unsafe tracks. Section 18 of the Mining Act of 1907, which requires a mine examiner to inspect all places where men are expected to pass or work, and when a dangerous condition is discovered to place a mark thereat, applies to dangerous and unsafe hauling tracks.
    3. Evidence—conversations before accident. In an action for personal injury to a mule driver caused from unsafe hauling tracks in a mine, conversations between miners and the mine examiner in which complaint was made about the tracks a week or two before the accident are admissible for the purpose of showing that the company had notice and knowledge of the defective condition.
    Error to the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.

      Brown & Hay, for plaintiff in error; Mastin & Sherlock, of counsel.
    Rinaker & Rinaker, for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in case begun by Fred Felchner, by his next friend, against the Consolidated Coal Company of St. Louis to recover damages for an injury to his person, while working as a mule driver in the coal mine of defendant. The plaintiff recovered a verdict and judgment for eight hundred dollars against the defendant, who prosecutes this writ of error.

' The defendant in error has entered a motion in this court to affirm the judgment, for the reason that plaintiff in error did not “serve upon the opposite party, or his attorney, five days’ notice of the time when and place where he will file his praecipe for a record in such cause, together with a copy of such praecipe ’ ’ as is required by section 81 of the Practice Act.

The clerk of the trial court certifices that the record filed in this court, is a full, true and complete copy of the praecipe for summons, summons, return thereon, declaration, plea, verdict, judgment, bill of exceptions and all orders of the court, and is a full and complete transcript of all proceedings in the cause. The defendant in error has not suggested any diminution of the record. We are of the opinion that the object of this provision of the statute is to abbreviate the record, so that the transcript will only contain such portions of the record as will fully and fairly present the questions sought to be presented for review. The failure to comply with that section of the statute is not necessarily a reason for affirming a judgment of the trial court, but may be a reason for taxing unnecessary costs against a party who fails to comply with the statute and might be successful in an appellate court.

The trial was had upon two counts of the declaration which aver a wilful failure of the defendant to comply with section 18 of the Mining Act of 1907. The first count avers that the defendant was engaged in mining coal and that the plaintiff was an employee in defendant’s mine; the duty of defendant through its mine examiners to visit the mine before men are permitted to enter to work and to inspect all places where men are expected to pass or work, and when places are found in which dangerous conditions exist, to place a conspicuous mark thereat, as a notice to all men to keep out; that there was maintained an unsafe place at the entrance to room 34 in that an iron rail track on a rapidly descending grade extended from said room by a very short curve and said rails were of uneven height, whereby loaded cars were caused to jump or leave the track, which was known to the defendant, yet the defendant did not place a mark thereat, and permitted plaintiff to drive mules with cars over said track whereby a car was derailed and plaintiff injured. The second is similar to the first, except that it does not aver that the dangerous condition was known to the defendant. The defendant filed the general issue.

The preponderance of the evidence shows that from the entrance of room thirty-four to the face of the coal was an up grade so that cars had to be “spragged” in taking them out of the room; that the curve at the mouth of the room was very sharp and that the rail on the outside of the curve was the lower; that cars had been derailed at that point and the mine manager had been notified of the condition several days previous to the date of the accident by which plaintiff was injured, and requested to have the dangerous condition made safe, and although the mine examiner had passed over this place and examined the room, there was no mark or danger signal placed at the entrance to the room.

On the day of the injury plaintiff with his mule went to room 34 to get a loaded car and bring it to the parting. There were iron sprags at the parting to use on down grades. Plaintiff did not take any sprags with him on this trip having an impression that he had left some at that room on a former trip. The miners in the room split a piece of timber to make a sprag which plaintiff used, but the car jumped the track at the curve and threw plaintiff under the wheel breaking his arm.

Plaintiff in error insists that under the construction of section 18 of the Mining Act passed in 1907, announced in Pate v. Blair-Big Muddy Coal Co., 252 Ill. 198, in- which it was held that the provision of the statute which requires a mine examiner to inspect “all places where men are expected to pass or to work and observe * * * other unsafe conditions” and “when working places are discovered in which * * * any dangerous conditions exist he shall place a conspicuous mark thereat,” does not apply to machinery several hundred feet distant from where a trip hauler was injured, that therefore it does not apply to dangerous and unsafe hauling tracks, and that a peremptory instruction asked by plaintiff in error should have been given. In the Pate case the injury was caused by defects in machinery in an engine room a considerable distance from the place of the accident and a danger signal at the engine room would not have warned Pate that the working place where he was injured was unsafe. In Cook v. Big Muddy Mining Co., 249 Ill. 41, and in the Pate case, supra, it was said the statute only applies to physical conditions which make a working place dangerous. The statute requires mine examiners “to observe whether there are recent falls or other obstructions in rooms or roadways, or accumulations of gas or other unsafe conditions,” and “when working places are discovered in which accumulations of gas or recent falls or any dangerous condition exists” that the examiner “shall place a conspicuous mark thereat as notice to all men to keep out.”

The condition of a track in a mine over which drivers must pass with their mules and cars would appear to be as much a physical condition as the condition of the roof over a hauling way. Dunham v. Black Diamond Coal Co., 239 Ill. 457.

There was no error in refusing the peremptory instruction and the evidence sustains the verdict.

It is also insisted that the court erred in overruling an objection to conversations between two miners at different times with the mine examiner from one to two weeks before the date of the accident in which they made complaint to the mine examiner of the condition of the track at the mouth of this room. This evidence was proper for the purpose of showing notice to and knowledge of the plaintiff in error of the condition of the track at that place.

Finding no error in the record the judgment is affirmed.

Affirmed.


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    Oliver Morrow, Appellee, v. A. J. Duggan, Administrator, Appellant. Rebecca Morrow, Appellee, v. A. J. Duggan, Administrator, Appellant.
    1. Administration of estates—allowance of claims. On a claim for material and labor used in constructing buildings on a farm, where there is a set-off for rent, an instruction to the effect that proof that plaintiff used and occupied the farm cast upon him the burden of showing payment for such use and occupation, and that the law does not require him to show payment by direct evidence, but that it is sufficient if the jury believe from the evidence, facts and circumstances that such payment was made, is not erroneous where there is testimony that rent was paid.
    2. Administration of estates—claims. In an action on a claim for boarding and nursing deceased, the question whether plaintiff was a member of the family is one of fact.

      3. Administration of estates—claims for services. In an action on a claim for boarding and nursing deceased, an instruction given for plaintiff which imperfectly defines a family relation as that state or condition of affairs which makes it the moral duty of the person performing such services to perform the same without compensation, is not reversible error where a second instruction given for defendant supplements it so that the jury are fully and fairly instructed on the question.
    4. Appeals and errors—waiver of errors. Where errors are not raised either by assignment of error or in argument, they are waived.
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed as modified on remittitur.
    Opinion filed October 15, 1912.
    J. B. Vaughn, Victor Hemphill and H. T. Schumacher, for appellant.
    Edw. C. Knotts and Peebles & Peebles, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Oliver Morrow and Bebecca Morrow, each filed a claim in the County Court of Macoupin County, against the estate of James W. Lumsden, deceased. The claim of Oliver Morrow is for $2,000, for materials furnished and work and labor performed in the construction of buildings, sheds and fences on the farm of the deceased during five years prior to the death of Lumsden. The claim of Bebecca Morrow is for $3,040, board of the deceased, washing, sewing and nursing during the last five years of his life. Oliver Morrow is the administrator of the deceased. Upon the filing of these claims the court appointed A. J. Duggan, administrator to defend. The claims were allowed in the county court and both claims were appealed to the circuit court by the administrator to defend.

By agreement of the parties, the two claims were tried together by a jury in the circuit court. Verdicts were returned finding in favor of Oliver Morrow for the sum of $775, and in favor of Bebecca Morrow for the sum of $2,375. Motions for new trials were overruled and judgments rendered on the verdicts in favor of the respective claimants. The administrator to defend appeals and contends as to the claim of Bebecca Morrow (1) that the services rendered by her were rendered by her as a member of the family of the deceased; (2) that the judgment in her favor is excessive, and (3) that there was error in the first instruction given at her request. As to the judgment in favor of Oliver Morrow, appellant contends (1) that it was paid by rent due from claimant to deceased; (2) that it is excessive, and (3) that the court erred in giving the first instruction given at his request.

The evidence in the case shows that deceased died intestate leaving no widow or descendants, but only collateral kinsmen as his heirs; that he owned a seventy-seven acre farm in Macoupin County at the time of his death, on which he had lived for many years; that Oliver Morrow is the husband of Bebecca Morrow, and she is a niece of the deceased; that Oliver Morrow and his wife had an established home in Greene County before they moved on the farm of the deceased; that about eighteen years before his death he desired the Morrows to come and live on his farm and that at his request they came and lived with him until his death.

The evidence also shows that Oliver Morrow did make very considerable improvements on the farm during the last five years of Lumsden’s life. In 1908, he built a large corn crib, a wagon shed, and a chicken house that would reasonably cost from $1,000 to $1,200. The estate filed a set-off for rent of the farm for five years. A witness, Hugh Dikis, testified that Lumsden told .him in August, 1910, that he got his rent, four dollars an acre. The jury could appear to have allowed the rent of the year 1910 as. a set-off against the costs of the improvements.. When all the evidence in the case bearing on the claim of Oliver Morrow is considered we cannot say that the judgment in his favor is manifestly against the weight of the evidence.

The instruction given at the request of Oliver Morrow, that appellant contends is erroneous, states that proof that Morrow used and occupied the farm cast upon him the burden of showing payment for such use and occupation and that the law does not require him to show such payment by direct evidence, but that it is sufficient if the jury believe from the evidence, and facts, and circumstances in evidence, thait such payment was made. Appellant states there was no evidence in the record to show any payment on rent. The evidence of the witness, Dikis, concerning the statement made by Lumsden in 1910, was a sufficient basis for giving the instruction and there was no error in giving it.

The issue whether Eebecca Morrow was a member of the family of Lumsden or. she performed the services in boarding and caring for him expecting compensation, and he received such services expecting to pay for them, is a question of fact to be decided from a consideration of all the evidence.

The evidence shows that before going to Lumsden ’s the claimant had a home and family interests of her own; and that he was anxious to have her come and care for him. No family relation existed except the relation of uncle and niece. Lumsden told Mrs. Dikis, “I don’t see why Becky and Oliver won’t come and live with me,"” and repeated the same thing to claimant in Mrs. Dikis’ presence. This tends to show that claimant went to look after him at his request. In 1908, Lumsden told William Boyd, when he was working for Morrow, that “Bud and his wife treat me good, I intend them to reap a reward afterwards and intend them to get the farm afterwards.” He also told S. E.. McCormick that he intended them to have the farm. During the last years of Lumsden’s life he was very feeble, he was paralyzed to such an extent that he was entirely helpless during the last two months of his life, and had no control over his passages. During the last two years of his life he was so feeble that he had to have an attendant if he went away from home. The fact that the deceased charged Morrow four dollars an acre for the farm also rebuts the contention that the family relation existed between claimants and the deceased. The evidence tends to show that when the services were rendered, both parties expected them to be paid for and that claimant did not perform the services as a member of the family of deceased; we cannot say a verdict in favor of the claimant is manifestly against the evidence.

The evidence shows that the board and washing was worth four dollars a week, and the nursing while he was paralyzed was worth from fourteen to twenty-, five dollars a week. The claimant was entitled to $1,040 for board and washing for five years, that being the full amount claimed for such services. During the time the deceased was paralyzed prior to his death, the claimant rendered to the deceased all the services of a nurse and also services that a nurse would not perform. Before that time the evidence shows he got aronnd reasonably well for an aged man and only required an attendant when he went from home. The jury allowed $1,335 for nursing. This allowance cannot be sustained by the evidence. We are of the opinion that the judgment in her favor is clearly excesssive, and that the sum of $1,500 would be all that she is entitled to recover for board, washing and nursing.

The first instruction given for the claimant undertook to define what is meant by “family relations,” and defined it as that state or condition of affairs which makes it the moral duty of the person performing such services to perform or make the same without compensation. The instruction is not a peremptory one and while it is very imperfect in its definition, the second instruction given for the defendant fully supplements it so that the jury were fully and fairly instructed on that question and the giving of the instruction was not reversible error.

The circuit court in rendering judgments on the verdicts failed to classify them as required by the Administration Act, and also erroneously awarded executions on the judgments. The appellant however has not raised any question as to the classification or the awarding executions, either by assignment or error or in argument. All errors not raised are waived. The judgments will be modified in this court by making them of the seventh class and ordering the judgments paid in due course of administration.

The judgment in favor of Oliver Morrow is affirmed as modified and the judgment in favor of Rebecca Morrow will be affirmed for the sum of $1,500, as above modified, provided she remits down to that sum within ten days, otherwise it will be reversed because it is excessive. The costs of this appeal to be paid one-half by Rebecca Morrow and the remaining half by the administrator in due course of administration.

Judgment of Oliver Morrow affirmed as modified.

Judgment of Rebecca Morrow affirmed as modified on remittitur.


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    John T. Briggs et al., Appellees, v. Matt G. Reynolds et al., Appellants.
    1. Corporations—fraud on subscribers. Where promoters and officers of a corporation agree with subscribers for stock that money and notes therefor shall remain in Illinois until the proposed corporation obtains a license from another state to do business therein, it is a fraud on such subscribers if certificates of deposit for such money are issued in the name of the corporation and with such notes are sent out of Illinois before such license is obtained.

      2. Corporations—situs of stock subscriptions. Where subscribers for stock of a corporation to. be organized in Missouri are entitled to have their subscriptions canceled for fraud, and it was agreed that the proceeds of such subscriptions should remain in Illinois until a license to do business was obtained in Missouri, the fact that receivers are appointed in Missouri does not justify the taking of such proceeds in Illinois by such receivers when they are appointed before authority to do business was obtained by the proposed corporation, since in equity the situs of the proceeds remained in Illinois.
    3. Evidence—parol. In equity where fraud in securing stock subscriptions is alleged, parol evidence is admissible to add to the terms of the written subscription.
    4. Receivers—competency to act. A party to a suit or a master in chancery is incompetent to act as receiver.
    5. Receivers—when appointment of one incompetent to act harmless error. The appointment of a master in chancery, who is a party to the suit, as receiver, is harmless error if the decree is otherwise harmless.
    6. Decrees—when erroneous. Where a bill in the circuit court only asks relief concerning moneys and notes given by the complainants for stock of a proposed foreign corporation, which are held by a bank and by a trustee, a decree is erroneous which directs such bank and such trustee to turn over to the receiver appointed by the court all moneys, notes and- papers in their possession claimed by receivers of such proposed corporation appointed in a foreign jurisdiction, when the record shows that there are subscribers to the stock of such corporation residing in the county who paid money or gave notes on their subscriptions but are not parties to the suit, and that there is more money on deposit in such bank than complainants paid on their subscriptions.
    7. Courts—delegation of duties. A decree is erroneous which directs a receiver to fix and retain his compensation as receiver and to fix and pay his solicitors’ fees.
    Appeal from the Circuit Court of Pike county; the Hon. Harry Hiobee, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed in part and remanded with directions.
    Opinion filed October 15, 1912.
    Statement toy the Court. John T. Briggs and fifteen other persons filed their hill in the Circuit Court of Pike County against Matt O. Reynolds, receiver, D. Lacey Crawford, receiver, the Continental Life Assurance Company, the First National Bank of Pittsfield, Illinois, Harry B. Gardner, Walter J. Miller and Por,~ tis P. Shaw.
    The allegations of the bill are that complainants are residents of Pike County; that Portis P. Shaw, a resident of Missouri, agent for Walter J. Miller, Harry B. Gordon and others, who were the promoters, officers and managers of the Continental Life Assurance Company and the International Fire Assurance Company of the city of St. Louis, Missouri, two proposed corporations then being organized under the laws of the State of Missouri, for the purpose of doing life and fire insurance business, respectively, heretofore solicited your orators and each of them to purchase shares of the capital stock of one or the other or both of said proposed corporations; that to induce your orators to purchase stock of said proposed corporations, the said Shaw acting as agent with the authority of said promoters and managers made to each of them certain statements and agreements; that said statements and agreements, and the truth of the same and the carrying out of such agreements were essential elements and a valuable consideration and a necessary part of the agreements entered into, when said shares of stock of said proposed corporations were purchased or subscribed for by your orators.
    That among the statements made by said Shaw to induce your orators to purchase or subscribe for such stock in said proposed companies, which were binding on said companies, were, that all the shares of stock of said proposed corporations were being sold at the uniform and unvarying price of thirty dollars per share, the price agreed upon or paid for each share of stock to be issued to your orators and each of them, and that no stock had been or would be sold at a lower price than that to be paid by your orators to-wit, thirty dollars for each share; that a restriction was put upon all sellers of stock of said corporations, whereby no more then twenty per cent, of the purchase price could be charged for selling said shares of stock and the balance of the amount would be put into the business of said corporations; that eighty-five per cent, of the stock of the corporations had been sold at a net cost of fourteen per cent, of the purchase price; that as a further consideration of the purchase of said stock, it was agreed between your orators and said proposed companies through said Shaw that all money received for said shares of stock paid for by your orators should be deposited in the First National Bank of Pittsfield and would not be removed from said bank to the home offices of said proposed corporations in St. Louis, until said companies secured a license from the State of Missouri to do business, but would be loaned for said corporations by L. A. Chamberlain, assistant cashier of said bank, who was to be appointed trustee for said corporations.
    That your orators relying on said statements and agreements subscribed for a large number of shares of the stock of said corporations to-wit; one hundred and twenty shares at thirty dollars per share and paid for the same in cash or in notes and cash, and that "since the purchase of said stock by your orators disputes have arisen between said Miller, Gardner and others connected with said proposed corporations, and lawsuits have been instituted 'in the circuit courts of the city of St. Louis and by an order of one of said courts Matt G. Reynolds has been appointed receiver of the proposed Continental Life Assurance Company, and D. Lacey Crawford has been appointed receiver of the International Fire Assurance Company.
    That since the appointment of these receivers it has been discovered that Miller, Gardner, and others in charge of the organization of said proposed corporations have not attempted to complete the organization of said proposed corporations and have dishonestly used all the money that came to their possession for pretended salaries, fees and personal investments.
    That the sale of said stock through said agents was a fraud on your orators, and each of them, by said officers and managers, and at the time of said sales they had already knowingly, wilfully and dishonestly mismanaged the affairs of said companies and misappropriated all funds received for stock so that it is impossible to complete the organization or to procure a license to do business from the State of Missouri, and the only tiling that the receivers can do is to close up the affairs of said corporations by collecting and distributing whatever sums can be collected from the parties who have misappropriated the same.
    That it is not true that the stock was sold at a uniform price of thirty dollars per share, but much stock was sold at $12.50 per share to bankers, and they were to have a commission on stock sold to others so that said stock subscribed for by bankers was practically given to them; that it was not provided that the cost of the sale of stock should not exceed twenty per cent, of the price for which it was sold, but that Gardner, who acted as secretary, claimed he was entitled to a salary of five hundred dollars per month, and twenty-four per cent, on all stock sold by him.
    That by reason of said frauds so knowingly perpetrated on them by the officers and agents of said companies, your orators are entitled to have the sales of stock to them rescinded and set aside.
    That there is on deposit in the First National Bank at Pittsfield $2,750, money paid by your orators and certain -notes and checks, and that the receivers appointed in the State of Missouri are attempting to withdraw said money, notes and checks from said bank and remove the same to the State of Missouri.
    The bill prays that the receivers so appointed in Missouri be restrained from taking said money and notes from the bank in Pittsfield; that the bank be restrained from paying the money on deposit and delivering the said notes to the Missouri receivers; for the appointment of a local receiver to collect said notes and checks and draw the money from said bank and that when the rights of the parties are ascertained that the court will order a distribution of said money, notes and checks among your orators and for general relief. A temporary injunction was granted and a receiver appointed in Pike County.
    The defendant, the First National Bank of Pitts-field, answered the bill and admits that it has certain notes signed by certain of complainants sent to it for collection by the Continental Assurance Company of America before the appointment of the receiver in St. Louis and $2,702.50, on deposit for which it had issued certificates of deposit to the Continental Assurance Company of America; that it is not advised of the rights of the parties and that it is willing to abide by the decree of the court.
    Matt G-. Reynolds, receiver, answered stating that the Continental Assurance Company is a corporation and that during its organization its officers were engaged in selling stock in various states. He admits that on the application of certain parties, he had been appointed receiver on June 10,1910, and that the complainants had purchased certain amounts of stock and states the number of shares of stock purchased by each complainant with the amount paid therefor; that the money was deposited in the First National Bank of Pittsfield, and certificates of deposit issued therefor to the Continental Assurance Company, which are now in possession of Matt Gr. Reynolds, receiver; that notes taken in payment of stock had been sent to said Continental Assurance Company to its home office at St. Louis, and that certain of said notes describing them have been sent by the receiver to the First National Bank of Pittsfield and are now held by it for collection, and that the situs of said deposits and credits is in the State of Missouri; that the complaining stockholders stand in the same relation to the company as all other stockholders; that the stock sold to complainants was sold on the same plan as all other stock sold by said companies and denies all fraud and that complainants are entitled to the relief prayed.

      The cause was submitted on the bill, answer, and evidence heard in open court, and a decree rendered finding the facts as alleged in the bill, continuing the receivership, directing the First National Bank of Pittsfield and L. A. Chamberlain, trustee, to turn over to Edward Doocy, receiver, all moneys, notes and papers which they now have in their possession claimed by Matt G-. Reynolds, receiver, and D. Lacey Crawford, receiver, as part of the assets of said defendant corporations. The decree further orders that Edward Doocy, receiver, take possession, of all the moneys, notes and papers now in the possession of said First National Bank of Pittsfield, and L. A. Chamberlain, trustee, and redistribute the same back to the persons entitled thereto, in proper proportions, after paying the costs and expenses of this suit, including his reasonable compensation and solicitor’s fees, and report his acts to the court. Reynolds, the receiver of the defendant corporations appointed by the court in St. Louis, Missouri, appeals from the decree of the Pike County Circuit Court.
    Chase, Morsey and Paul F. Grote, for appellant.
    Anderson & Matthews, Henry Bush and Hess & Crow, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The appellant contends that the money and notes received by the agent of the proposed corporations having been deposited in the First National Bank at Pittsfield and certificates of deposit issued for the money in the name of the corporations, and .forwarded to the office of defendants at St. Louis, the situs of the funds is in St. Louis, and that the Circuit Court of Pike County has no jurisdiction over the matters in controversy, or over the proposed corporations.

The bill was filed by the complainants to set aside the contracts made by them for the purchase of stock in the proposed corporations, on the ground of fraud and misrepresentation made in the sale of such stock. The decree finds and the evidence sustains all the allegations of fraud contained in the bill. The moneys received for the sale of stock were all to remain in Illinois, in the possession of a local trustee, until the proposed corporations obtained licenses from the State of Missouri, authorizing them to do business. The issuing of certificates of deposit with the sending of such certificates, and the promissory notes made by some of the complainants to St. Louis, out of the State of Illinois, was-a fraud on the complainants and contrary to the agreement upon which the subscriptions were obtained. The proposed corporations only reached a preliminary stage in their organization, when fraud was discovered in their management. The fact that receivers were appointed in St. Louis will not justify the receipts from the subscriptions for stock in Illinois being sent or taken by the Missouri receivers to St. Louis in fraud of the agreement under which the subscriptions were made. The situs of the proceeds of the subscriptions for stock was by agreement under which the subscriptions were made, to be in Illinois until the proposed corporations were authorized to do business. The proposed corporations never having been authorized to- do business in Missouri, in equity the situs of the proceeds must be held to have remained in Illinois. The subscriptions of the complainants, residents of Illinois, having been obtained by fraud, the proceeds should not be permitted to be removed from Illinois, by a foreign receiver for the benefit of subscribers for stock in other states, when the Illinois subscribers are entitled to have their subscriptions canceled and their money refunded to them because of the fraud perpetrated on them by the promoters of said proposed corporations in procuring such subscriptions.

It is further contended that the subscriptions for stock being in writing, parol evidence is not admissible to add to the terms of the written subscription. While that is the rule at law, it is not the rule in equity, where fraud is alleged. Grand Tower & C. G. R. Co. v. Walton, 150 Ill. 428; Race v. Weston, 86 Ill. 91.

It is also contended that there is error in the appointment of Edward Doocy as receiver in Illinois. Doocy is the Master in Chancery in Pike County, and one of the complainants. A party to a suit or a master in chancery is not competent to act as receiver; the receiver should be an impartial and indifferent person. Benneson v. Bill, 62 Ill. 408; Watson v. Cudney, 144 Ill. App. 624.

The appointment of Doocy was erroneous, but harmless to appellant, if the decree was otherwise harmless.

The decree directs the receiver, appointed by the Circuit Court of Pike County, to receive and the First National Bank of Pittsfield and L. A. Chamberlain, trustee, to turn over to Edward Doocy, receiver, all moneys, notes and papers which they now have in their possession claimed by Matt G. Reynolds and D. Lacey Crawford, receivers, as part of the assets of said corporations. The bill was only filed to cancel the subscriptions made by complainants and to secure to complainants the moneys and notes so obtained from them by fraud. While the decree settling the rights of the parties as between complainants and defendants is substantially correct, there are some errors requiring a reversal of the decree. The record shows that there are some subscribers to the stock of said corporations, residing in Pike County, who have paid money or given notes on their subscriptions, who are not parties to this suit, and that there is more money on deposit in the bank at Pittsfield than complainants have paid on their subscriptions. The court should not have ordered the receiver to take possession of anything except the moneys paid and notes made by complainants, since the bill only asks relief concerning such moneys and notes.

The decree also was erroneous in directing the receiver to fix and retain his own compensation as receiver and to fix and pay his solicitor’s fees and distribute the remaining moneys and notes amongst the complainants; the court thereby delegated to the receiver the duties of the court and made the receiver the judge of his own compensation and of the fees of his- solicitor. The decree is erroneous in the particulars indicated.

The decree will be reversed and the cause remanded with directions to the court to appoint an impartial receiver to collect and receive the moneys paid and notes made by complainants, or any of them, and to refer the cause to a special master to take the evidence and report the same with his conclusions, and for the court to enter a final decree directing the return of the payments and notes made by complainants to them.

Reversed in part and remanded with directions.


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    Frank Griffin, Appellee, v. George H. Spengler, Appellant.
    1. Agency—evidence. A judgment for plaintiff for goods sold to an alleged agent of defendant is not supported by the evidence, where, from the draft on defendant given to plaintiff by such alleged agent, and from the evidence, it seems that no agency existed, that the goods in question were bought by the alleged agent for himself, that the defendant did not receive such goods and that authority was given to draw on defendant only when goods shipped to him covered the amount of the drafts.
    2. Agency—evidence. Payment of checks to- which the name of the payor is signed by a third party tends to prove an agency.
    3. Payment—presumptions. Payment of drafts drawn on a party by a third party is presumed to be made from funds of the drawer in the hands of the drawee.
    Appeal from the County Court of Sangamon county; the Hon. 3. B. Weaveb, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed with finding of fact.
    Opinion filed October 15, 1912.
    Stevens & Herndon, for appellant.
    Andrus & Trutter, for appellee.
   Mr. Presiding Justice Thompson

delivered' the opinion of the court.

Appellee began a suit before a justice of the peace against appellant to recover $95.50, the value of chickens claimed to have been sold by appellee to appellant. An appeal was taken from the justice of the peace to the county court; a trial there resulted in a verdict for appellee for $102.11. Appellee remitted $2.56 and judgment was rendered in his favor for $95.58.

Numerous errors are assigned and argued but in the view we take of the case it will be only necessary to review the assignment that the judgment for the appellee cannot be sustained on the evidence. The evidence on behalf of appellee shows that he sold the chickens to one George Sutherland, an agent of F. J. Gansler, and received a draft on appellant for the purchase price in the following words and figures:

“No. -
NICK GANSLER
Buyer and Shipper of Hides, Tallow, Wool, Poultry, Butter & Eggs.
Buffalo, Illinois.
$99.55— Dec. 27, 1910.—
At sight pay to the order of Frank Griffin Ninety-nine ...............................55-100 Dollars-Value received, and charge same to account of
N. Gansler & Co.,
Geo. Sutherland.
To Geo. H. Spengler,
Springfield, Ill.
Payable at First National Bank.”

Acceptance and payment were refused by appellant on presentation of the draft.

Appellant is a wholesale dealer in poultry and produce in Springfield. F. J. Gansler prior to September, 1910, had been engaged in buying poultry in the eastern part of Sangamon County, and shipping it to appellant and other wholesale dealers; to whoever would pay the highest price. In September he called on appellant and informed him he was short of money with which to carry on his business and requested appellant to honor drafts in payment for poultry. His proposition was, “I will turn the poultry in and you cash the drafts and I will send you a statement and then you can send me the balance.” This proposition appellant accepted and under this agreement Gansler bought chickens at the lowest price he could get them, and sold them to appellant at the price appellant was paying at the time. If however other wholesale dealers were paying higher prices than appellant, he shipped to the other dealers. Statements were made by Gansler to appellant showing sales by Gansler to appellant; these statements did not show the purchase price paid by Gansler for the poultry. When the proposition of Gansler to appellant was made, Gansler told appellant that George Sutherland was buying for him and it was agreed that either might draw drafts. On September 27, 1910, Sutherland called at the home of appellee, bought his chickens and gave the draft offered in evidence, but does not know what he did with the chickens. “I hauled some to Buffalo, but I don’t know whether I hauled those or not,” “the chickens I shipped to Spengler I hauled to Illipolis.” Appellee offered in evidence eighteen express receipts . showing the shipment of chickens by Sutherland to appellant, but all dated prior to the date of the purchase of appellee’s chickens so that it would appear appellant never received the chickens bought for Gansler of appellee.

The evidence of Spengler with reference to the agreement differs only from Gansler’s in that he says he expressly told Gansler that he would buy his poultry at the market price, pay his drafts so long as he shipped enough poultry to cover drafts and when he didn’t have enough he would turn him down.

There is other evidence in the record that Gansler and Sutherland bought chickens from other parties and paid for them with drafts on appellant which he honored.

Appellee’s theory is that Gansler and Sutherland were the agents of appellant and that appellant was, because of the agreement made and the acts done under it, legally bound to pay all drafts drawn on him by Gansler and Sutherland. There is , no evidence in the record from which it can be said these buyers of chickens were the agents of appellant. Sutherland bought the chickens purchased by him for Gansler, and Gansler'bought for himself and sold the chickens bought by either Sutherland or himself to appellant, and appellant when he received the chickens paid the drafts which either Gansler or Sutherland had issued. The draft shows on its face that Gansler was buying for himself. The issuing of drafts on a party by a third party is entirely different from drawing checks and signing the name of a party. Payment of checks so drawn would tend to prove an agency while the payment of drafts is presumed to be made from the funds of the drawer in the hands of the drawee. Appellant was under no obligation to honor the drafts unless he had money on hand belonging to Gansler or received chickens to balance the drafts. The judgment is manifestly against the evidence, it is therefore reversed with a finding of fact.

Reversed.

Finding of fact. The chickens were not bought by either appellant or any agent of his.


text:
    Village of Riverton, Appellee, v. F. G. Horn, Appellant.
    1. Licenses—validity of ordinance. An ordinance the subject-matter of which is within the control of a city or village will not be declared void because unreasonable or oppressive unless the presumption in favor of its validity is overcome by clear proof.
    2. Licenses—1>ilIposters. An ordinance requiring billposters to pay a license fee bears personally on those actually doing the posting and in determining the question whether it is oppressive or unreasonable the income of the posting employee of a corporation engaged in the business, and not that of the corporation, is to be considered.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbekhiton, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    E. E. Bone, for appellant.
    Stevens & Herndon, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

F. G-. Horn was arrested in the Village of Riverton, under a warrant issued by a justice, for posting bills without a license in violation of an ordinance of the village,- which required billposters to pay an annual fee of fifty dollars. From the judgment before the justice, an appeal was taken to the circuit court, where the case was tried by the court without a jury, on a stipulation of facts. The defendant was found guilty and a fine of fifteen dollars was assessed against him. He appeals to this court.

The stipulation is that the ordinance be admitted in evidence subject to the objection that it is null and void for the reason it is unreasonable, oppressive, and prohibitive; that F. G-. Horn on September 26, 1910, and for more than a year prior thereto, was employed by, and posted bills for, the W. J. Horn Posting-Sign System, a corporation doing a general advertising business for others for hire, with its principal office in the City of Springfield; that the said corporation had prior to September 26, 1910, constructed nine billboards on private property in the Village of River-ton, which it had leased from the owners for a valuable consideration; that said billboard^ were ten feet in height and the total number of lineal feet of the nine billboards amounted to two hundred and twenty-six feet; that part of said billboards was erected on the property line; that F. G-. Horn under the direction of the W. J. Horn Posting-Sign System on September 26, 1910, did stand upon and at the side of the street, and post advertising matter for said company in the Village of Riverton, on some of said billboards without either said corporation or the defendant procuring a license to post bills as required by the ordinance; that the defendant was arrested for posting bills as aforesaid without a license; that the expense to the Village of Riverton for issuing such license for inspection and for supervision of said billboards did not exceed ten dollars per annum; that the Village of Riverton had a population of 1911; that the annual net income of the W. J. Horn Posting-Sign System derived from all its business done in River-ton from September 26, 1909, to September 26, 1910, amounted to $34.87, not including the wages of the employee who posted said advertising matter; that for the preceding year the net income of said corporation not including the wages of the employee who did the posting was $34.57; that said corporation has posted and distributed advertising matter in Riverton for its customers for several years for hire; that the said corporation during each year it has done business in Riverton has made reasonable effort to procure advertising matter for posting, and that the demand for the display and distribution of advertising matter in said village was not sufficient to enable it, in the exercise of reasonable diligence, to fill all the space on said billboards. An itemized account of the expenses and receipts of the W. J. Horn Posting-Sign System in the Village of Riverton for the said two years is attached to and made a part of the stipulation.

The ordinance requires any person, firm or corporation, engaged in a business required by ordinance to be licensed to register his or its name, residence, business and where it is carried on with the village clerk. It imposes a fine of not less than five dollars nor more than two hundred dollars for carrying on any business required to be licensed without first having obtained a license, and ordains that “billposters shall pay a license fee of fifty dollars per annum.”

The appellant submitted a proposition of law asking the court to hold that the ordinance in question is unreasonable, oppressive, and prohibitive in its character and therefore void. This the court refused to hold.

The only question in the case is whether or not the court erred in refusing to hold said ordinance to be void.

The stipulation is concerning the annual net income of the W. J. Horn Posting-Sign System from its billboards in Riverton, and that the defendant on September 26, 1911, did some posting of advertising matter for it. The stipulation contains nothing concerning the income or profits of the defendant from bill-posting. It makes no reference to the income of the employee of the corporation from billposting in the Village of Riverton. The itemized account of the receipts and expenses contains nothing concerning the compensation paid to any employee, but only refers to income and expenses other than wages connected with billboards of a corporation that is not a defendant. The ordinance in evidence does not license billboards, but only billposters. The corporation apparently rents its space and the advertisers pay the employee for posting. The defendant, who did the posting, may do posting for other parties, and his hillposting in Biverton was not necessarily confined to the billboards of the W. J. Horn Posting-Sign System. There is neither anything in the stipulation, nor any evidence tending to prove the reasonableness or unreasonableness of the license fee charged for bill-posting.

The Village of Biverton has the right to license street advertising by means of billboards, signboards, and signs, and to regulate the character and control the location of such billboards, signboards, and signs. Laws of 1909, page 139. An ordinance, the subject-matter of which is within the control of cities and villages, will not be declared void because of a claim that the ordinance is unreasonable or oppressive, unless it clearly appears that it is such. The presumption is in favor of the validity of ordinances and it is incumbent on those attacking their validity to show such invalidity. People v. Cregier, 138 Ill. 401; City of Rock Island v. Wagner, 45 Ill. App. 444. The stipulation failing to show that the ordinance is unreasonable so far as the business of the defendant is concerned, the court did not err in its holding. The judgment is affirmed.

Affirmed.


text:
    Sarah E. Jordan, Appellee, v. St. Louis, Springfield & Peoria Railroad Company, Appellant.
    1. Caeriebs—injury to passenger. Where a passenger was injured by another passenger being thrown upon her in an alleged jerk of the train, and the evidence is conflicting and uncertain, the finding of the jury of the cause of action proved, approved by the trial judge, is upheld.
    2. Damages—excessive verdict. Seven hundred dollars held excessive and remittitur to four hundred ordered where plaintiff, a woman of sixty-eight, sustained bruises incapacitating her for about one month.

      Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1912.'
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Graham & Graham, for appellant; George W. Burton, of counsel.
    Smith & Friedmeyer, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Sarah E. Jordan brought suit against the St. Louis, Springfield and Peoria Eailroad Company to recover for personal injuries sustained by her while a passenger on a car of defendant. She recovered a verdict for seven hundred dollars on which judgment was rendered. The defendant appeals.

The declaration alleges that while plaintiff was a passenger riding from Chatham, a station on said railroad, to the City of Springfield, when the car approached the Woodside station, and the car was running at a high rate of speed, the conductor called the name of the station and thereby invited passengers to prepare to leave the car; that the car was then operated at á high and dangerous rate of speed upon and over a curve or over a switch connecting to the track, and that a passenger, while passing along the aisle, in response to the call of the conductor, was by reason of a violent lurch of the car thrown against the plaintiff and seriously injured her.

It is urged (1) that the negligence is not proved by the greater weight of evidence, and (2) that the damages awarded are excessive. The evidence shows that the conductor called the name of Woodside station as the car approached" it, and that a man passing along the aisle, while the car was moving, fell against the plaintiff, while she sat in a seat- in the car, and injured her to some extent. There is evidence that something unusual together with the speed, caused a sudden jerk or lunge of the car, which threw a passenger in the aisle against the plaintiff. There is also evidence that there was no jerk or lunge of the car. There is some uncertainty as to the exact locality where the injury occurred, hut there was a curve in the track and a switch connection in the neighborhood where the injury was received. In this state of the evidence we cannot say that the jury were not justified in finding that the cause of action was proved as alleged, when the finding was approved by the trial court.

The accident happened May 24, 1911. Two physicians who had treated plaintiff testified concerning the extent of her injuries. One of them saw her the day of the injury and the following day. He found some of the muscles on the left side bruised, and stated that in his judgment all difficulty from the injury would disappear within a month. The other examined her the second day after the injury. He testified that he found no discoloration, no redness, and no swelling, although she complained of a great deal of pain; that he continued to treat her until June 18th; that she suffered but little pain after May 29th, and on June 18th she was free from pain and able to get about the house; that he then quit treating her because his visits were no longer necessary and that in his judgment every indication or result of this injury should disappear within a week of June 18th. The plaintiff is a housewife sixty-eight years of age. It is shown by the evidence of neighboring women that she began helping to do the housework about a month after she was injured and to do her washing within two or three months thereafter, although plaintiff and members of her family testify to the weakness of plaintiff down to the time of the trial, yet she was not treated by any physician after June 18th.

"We are constrained to the conclusion from the evidence in this record, that the damages awarded plaintiff are clearly excessive. The defendant has already paid her doctor’s bills; if the plaintiff shall within five days remit from the judgment all damages in excess of four hundred dollars it will he affirmed for that sum, appellee to pay the costs, otherwise it will be reversed and the cause remanded.

Reversed and remanded.