text:
    Chicago Builders’ Specialties Company, Defendant in Error, v. Koehring Machine Company, Plaintiff in Error.
    Gen. No. 21,645.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by the Chicago Builders’ Specialties Company, a corporation, plaintiff, against the Koehring Machine Company, a corporation, defendant, to recover for breach of contract for the sale of certain machinery. From a judgment in favor of plaintiff for the amount of its claim, $144, defendant brings error.
    The plaintiff on. December 23, 1909, wrote the defendant concerning the purchase of certain machinery. To this defendant replied giving the cost of the several items and stating that the defendant could fill the order immediately. Nothing further appeared to have been done until March 19, 1910, when the parties communicated by telephone. A witness for the plaintiff testified that on that date he talked over the telephone with a representative of the defendant and told him that they were ready to close the Horrabin deal, and asked the defendant how soon the order could be filled, and that the defendant replied by Wednesday of the following week. Immediately afterwards plaintiff wrote a letter confirming the telephone communication and instructed the defendant to ship the goods to plaintiff’s customer, Horrabin, at Iowa City, Iowa. There were further communications between the parties in reference to the method of payment, the defendant insisting that it would not ship the goods except upon the receipt of a certified check for the amount, $411. The plaintiff sent a certified check March 28th through a bank, and on March 31st the defendant wrote a letter to the plaintiff as follows: “Owing to your late reply to our request for certified check with your order No. 5190, we cannot now accept this order, and have requested the bank to return your check.” It further appeared that the defendant filled the Horrabin order direct on March 25th. A witness for the defendant testified that in the telephone conversation March 19th, he told the plaintiff he would not accept the order; that the plaintiff would have to take it up direct with the defendant’s Chicago agent. The evidence further showed that plaintiff had contracted to sell the machinery to Horrabin for $555, and his profit would be $144.
    Abstract of the Decision.
    1. Sales, § 373

      —when evidence is sufficient to show making of contract. In an action to recover damages for the breach of a contract for the sale of certain machinery, evidence held sufficient to show that a contract was made between the parties.
    2. Sales, § 93

      —when evidence is sufficient to show that contract was not abandoned. In an action to recover damages for the breach of a contract for the sale of certain machinery, evidence held sufficient to show that the contract between the parties was not abandoned.
    Montgomery, Hart, Smith & Steere, for plaintiff in error.
    Culver, Andrews, King & Cook, for defendant in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Peter Schoenhofen Brewing Company, Defendant in Error, v. Mrs. H. M. Newbold, Plaintiff in Error.
    Gen. No. 21,702.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 325

      —when burden of proof is on seller to prove price at which goods are sold. While the burden of proving payment is on the defendant where he admits the receipt of goods and the price claimed by plaintiff and interposes a defense that payment has been made, yet where the price to be paid for the goods is in dispute, the burden of proving the price at which the goods were sold is upon the plaintiff.
    Error to the Municipal Court Of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by the Peter Schoenhofen Brewing Company, a corporation, plaintiff, against Mrs. H. M. Newbold, defendant, to recover for goods sold and delivered. From a judgment for plaintiff for the amount of its claim, $558, defendant brings error.
    Timothy J. Fell, for plaintiff in error; Hermann P, Haase, of counsel.
    James J. Kelly, for defendant in error; John A. Burke, of counsel.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    S. D. Childs & Company, Appellant, v. City of Chicago and William R. Moorhouse, Commissioner of Public Works, Appellees.
    Gen. No. 22,991.
    1. Eminent domain, § 42

      —when watchman’s house for use with municipal bridge is not an additional burden upon fee of street. A watchman’s house which is constructed on a street in order that the watchman may, upon the operation of a municipal “jack-knife” bridge over a navigable river, lower the gates across the roadway and warn the public is not an additional burden upon the fee of the street, but is an essential part of the bridge.
    2. Eminent domain—what does not constitute taking of street for navigation and for private purposes without compensation. There is no taking of a street for- the purpose of navigation and for private purposes without compensation, where, in order that the premises on one side of a navigable river may be used for, railroad purposes and that the river may be open for the necessary width for the purpose of navigation, it is necessary that the abutments on the side used by railroads be constructed in the river and that the bridge be moved a certain distance in the other direction so that not only the river but a certain portion of the street on the side of the river opposite the railroad premises be bridged.
    3. Eminent domain, § 40

      —when remedy of owner of damaged property is at law. The remedy of one whose property is damaged by the method of construction of a lawful public improvement is at law.
    4. Dedication, § 5

      —how question of intention to make is determined. The question of intention to dedicate a street across a navigable river is the controlling element and must be gathered from the plat and all the attendant circumstances.
    5. Dedication, § 5

      -—when evidence sufficient to show dedication of street across navigable river. Evidence, including an examined plat, held to show the intention of the dedication of a street to connect both portions of the street by extending it across a navigable river.
    6. Railboads—when lessee may authorise construction of viaduct. The lessee, under a 999-year lease of property for railway purposes, held to have the right to authorize the construction of a viaduct from a navigable river over the railroad property to connect a municipal bridge with a city street.
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed January 17, 1917.
    Edmund S. Cummings and Lee D. Mathias, for appellant.
    Samuel A. Ettelson, C. E. Cleveland and M. S. Cressy, for appellees.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

S. D. Childs & Company, a corporation, filed a bill in equity against the City of Chicago and certain of its officials to restrain the defendants from constructing a bridge in Monroe street across the Chicago River, until damages occasioned to complainant’s property by reason of the construction of the bridge should be first ascertained and paid. A temporary writ of injunction was ordered, from which the defendants prosecuted an appeal to this court, where the order of the triál court was modified and the cause reversed and remanded. The city, to conform with the opinion of this court, changed its plans so that the entire bridge would be constructed within Monroe street. The facts are stated in the former opinion of this court (198 Ill. App. 590) and need not be repeated. After the decision on the former appeal, complainant filed an amended and supplemental bill, and, after issue joined, the cause was tried upon the merits, and a decree entered dismissing the amended and supplemental bill for want of equity.

The appeal was taken directly to the Supreme Court, but on motion of the defendants it was transferred here by that court. On that account a number of points are argued in the briefs that it will be unnecessary for us to pass upon. The only contentions of complainant not covered in our former opinion are: (1) that the proposed construction of the watchman’s house in the street is an additional burden upon the fee of the street, and that the city has not acquired the right to construct the same by condemnation, contract or otherwise; (2) that the construction of the bridge as proposed is designed for the purpose of aiding navigation, and not to facilitate travel on the street; (3) that the city has not the right to construct the bridge across the river, for the reason that Monroe street when dedicated stopped at the banks of the river and did not extend across it; (4) that the city has not acquired the right to construct that portion of the bridge or viaduct between the west bank of the river and Canal street, and particularly the twenty-seven and one-half feet immediately west of the river.

First. The plans and specifications of the bridge provide for the construction of the watchman’s house at the east end of the pit. The house when completed will extend over the street from curb to curb and rest on two pillars, the floor being sixteen feet above the roadway. There are fourteen feet of sidewalk space between the curb and the lot line on each side. When the bridge is being operated, the watchman lowers the gates across the roadway and warns the public. We are clearly of the opinion that this house is an essential part of the bridge and therefore not an additional burden upon the fee of the street.

Second. The abutments on the west side of the river are to be built in the river, in order not to obstruct any part of the premises on the west side of the river for railroad purposes, and to provide a channel of one hundred and sixty-five feet in width for purposes of navigation. To accomplish these purposes it was necessary that the bridge be moved to the east so that not only the river, but approximately fifty feet of the street is to be bridged. Complainant contends that this constitutes the taking' of the street for the purpose of navigation and for private purposes without compensation, and is therefore unlawful. The Chicago River is a navigable stream, under the control of the Federal Government, and the bridge must be constructed under the supervision and approval of Federal authority. The chief engineer of the city, under whose supervision the plans were prepared, testified that the bridge could be constructed in no other feasible manner. We are therefore of the opinion that the contention of the complainant is untenable. Of course if complainant is damaged by reason of the method of construction adopted, such damages may be recovered in an action at law. Rigney v. City of Chicago, 102 Ill. 64.

Third. Complainant contends that the title to the bed of the Chicago River is in the riparian owners to the thread of the stream, subject to the rights of the public for the purposes of navigation; that Monroe street was not dedicated across the river, but stopped at the river’s banks and that the city has not acquired the right by condemnation or otherwise to construct the bridge over the river. In support of this contention, it is argued that the plat of school section 16 addition to Chicago, “indicates the Chicago river by two boundary lines and Monroe street coming up to the banks of the river on each side thereof. There is no mark on the plat indicating or denoting that it was the intention of the dedicator that Monroe street should be dedicated across the Chicago River.” The question of intention is the controlling element and must be gathered from the plat and all the attendant circumstances in evidence. In passing on a similar question, Mr. Justice Scholfield, in delivering the opinion of the court in Piper v. Connelly, 108 Ill. 646, said (p. 651): “The question of intention must be settled by the language of the deed and all the attendant circumstances in evidence, and not merely by the letter in the descriptive part of the deed.” The plat of section 16 in the record shows Monroe street extends from east to west across the entire section; that the Chicago River divided the section about the middle in a northerly and southerly direction. The river is indicated by two lines representing the easterly and westerly banks. The boundary lines of Monroe street stop at the lines indicating the banks of the river. The plat also shows at least seven other streets extending from east to west across the section, indicated in the same manner as Monroe street. There are also at least four streets east and the same number west of the river extending across the section from north to south and indicated in a like manner, so that the entire section is divided into blocks, and on each side of Monroe street the blocks are divided into lots. From an examination of the entire plat we are clearly of the opinion that it was the intention of the dedicator that Monroe street should extend across the river.

Fourth. The complainant contends that the city has not the right to construct the viaduct from the west bank of the river to Canal street, and that unless such viaduct is constructed the bridge cannot be used. Of course the law will not permit the city to construct a bridge which cannot be utilized. It is conceded that the bridge cannot be used without the viaduct. The question therefore is whether the city has the right to construct the viaduct. Monroe street between the river and Canal street was vacated in 1861, and conveyed to the Chicago, Pittsburgh and Ft. Wayne Railway Company for railway purposes. The railway company and its successors have continued to and are now occupying the property for such purposes. The evidence tends to show that the railway company, its lessees and successors, have conveyed to the Union Station Company the westerly one hundred and thirty-two feet of that portion of Monroe street, but have not conveyed the twenty-seven and one-half feet immediately west of the river; that the Pittsburgh, Ft. Wayne and Chicago Railway Company, the owner of the premises, executed a lease for a period of 999 years to the premises, which lease is now the property of the Pennsylvania Company. The Union Station Company is a corporation organized for the purpose of constructing a union station in Chicago. It was authorized to make use of certain streets by the city council, and, as a consideration for such rights, it agreed to construct a bridge across the river at Monroe street, connect it with Canal street by means of a viaduct, and procure a grant to the city of the right to extend Monroe street upon the viaduct from the bridge to Canal street. The Union Station Company has changed its name to Chicago Union Station Company, and in accordance with the provisions of the ordinance agreed to build the viaduct, and has given bond to secure the performance of its agreement in this regard. The ordinance further provides that if the viaduct is not constructed by the station company, the city may do so, and the Pennsylvania Company, the lessee under the 999-year lease, is required to accept the provisions of this ordinance, which it has done. July 11, 1916, the Chicago Union Station Company granted to the city, in accordance with the ordinance, a perpetual easement to construct and use a viaduct from the bridge to Canal street, and under the provisions of the ordinance it has also agreed to secure a similar grant from the owner of the fee and the lessees of the twenty-seven and one-half foot strip. The evidence also shows that complainant’s leasehold interest in the premises which it occupies will expire April 30, 1919. The Pennsylvania Company, under its lease, which has about 950 years yet to run, must use this property in the same manner and for the same purposes as the Pittsburgh, Ft. Wayne and Chicago Railway Company are required to use it, namely, for railway purposes. Building a union station is certainly using the premises for railway purposes. One of the conditions under which this station must be constructed is that a viaduct be built connecting the bridge with Canal street as provided by the city ordinance, which provisions have been accepted by the lessee Pennsylvania Company. From the foregoing it appears that the objection urged by complainant is that the city has not obtained the right to construct and maintain the viaduct from the owner of the fee of the twenty-seven and one-half feet immediately west of the river. We are, however, of the opinion that the Pennsylvania Company, under the provisions of its lease, has the right to authorize the construction of the viaduct. Chicago West Division Ry. Co. v. Metropolitan West Side El. R. Co., 152 Ill. 519.

Finding no reversible error in the record, the decree of the Superior Court of Cook county is affirmed.

Affirmed.


author: Mr. Justice Goodwin

text:
    Emily Gustafson and Vernon Gustafson, minor, by Emily Gustafson, Appellees, v. Robert Peterson and William Schaefer, Appellants.
    Gen. No. 21,431.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. J. BE. Fobistoff, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed January 17, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Emily Gustafson and Vernon Gustafson, a minor, suing by Emily Gustafson, Ms mother and next friend, plaintiffs, against Robert Peterson and William Schaefer, defendants, under the Dramshop Act, sec. 9 (J. & A. ([ 4609), for damage to their means of support. From a judgment for plaintiiffs for $2,500, defendants appeal.
    The first instruction given on behalf of defendants was as follows:
    “The court instructs .the jury, as a matter of law, that it is unlawful to sell or give intoxicating liquors to an habitual drunkard or to a person when intoxicated, and you are further instructed that a sale to such person is a sale wantonly and wilfully made; so if you believe from the evidence that intoxicating liquors were sold or given to Carl Gustafson by the defendants at the time when they knew, or ought to have known, that the said Carl Gustafson was intoxicated or had become an habitual drunkard, then such sales or gifts, if any, were unlawful.”
    Robert J. Nordhold and Rose & Symmes, for appellants.
    Rankin, Howard & Donnelly, for appellees.

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

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Intoxicating liquors, § 233 —when evidence as to loss of support subsequent to wrongful acts complained of is admissible. In an action by a wife and child against saloon keepers under the Dramshop Act, sec. 9 (J. & A. If 4609), to recover damages for loss of support due to the intoxication of the husband and father, evidence tending to show loss of support subsequent to the wrongful acts complained of, held to be admissible.

2. Intoxicating liquobs, § 233 —what damages may be recovered for loss of support. The damages recoverable in an action under the Dramshop Act, see. 9 (J. & A. If 4609), by a wife and child for damage to their means of support are not confined to damages which they suffered up to the time suit was brought, but include loss of support subsequent to the time of d’ommencing the 'action, since the wrongful acts complained of give rise to but one cause of action.

3. Intoxicating liquors, § 216 —when evidence as to attitude of husband when drunk towards wife and child is admissible. In an action against saloon keepers under the Dramshop Act, sec. 9 (J. & A. If 4609), for damage to their means of support, evidence as to the attitude of the husband when drunk towards the plaintiffs, held admissible for the purpose of showing the nature and extent of the husband’s intoxication, when introduced in connection with a description of his conduct when drunk.

4. Intoxicating liquobs, § 249 —when instruction on unlawfulness of sale of intoxicating liquor to an habitual drunkard is not erroneous. In an action by a wife and child against saloon keepers under the Dramshop Act, sec. 9 (J. & A. If 4609), for damage to their means of support, an instruction that it is unlawful to sell or give intoxicating liquors to an habitual drunkard or to a person when intoxicated and that a sale to such a person is a sale wantonly and wilfully made, and that if the jury believed from the evidence that intoxicating liquors were sold or given to the husband by the defendants at a time when they knew, or ought to have known, that the husband was intoxicated or had become an habitual drunkard, then such sales or gifts, if any, were unlawful, held not erroneous.

5. Intoxicating liquobs, § 253 —when instruction is not erroneous as not conforming with pleadings. In an action by a wife and child against saloon keepers under the Dramshop Act, sec. 9 (J. &. A. If 4609), for damage to their means of support due to the intoxication of the husband, an objection to an instruction that it did not limit the time when the defendants gave or sold intoxicating liquors to the husband to the time alleged in the declaration, held untenable where there was no evidence of sale by either defendant other than those set out in the declaration and the instruction expressly limited the jury to the sales shown by the evidence.

6. Intoxicating liquors, § 225 —ivhen evidence is sufficient to sustain verdict in action for loss of support. The Dramshop Act, sec. 9 (J. & A. jf 4609), gives an action to a wife and child against saloon keepers selling intoxicating liquor to the husband for damage to loss of support resulting from intoxication from liquor or otherwise, and evidence which establishes intoxication will sustain a verdict for the plaintiffs even though it is not shown to be habitual.

7. Pleading, § 447 -—-when objection that more is declared upon than is proved is unavailable. Where enough is proved to establish a right of action it is no objection that more is declared upon, as the matter not proved may be treated as surplusage.

8. Intoxicating liquors, § 253 —when instruction in action by wife and child for loss of means of support is not erroneous as allowing recovery greater than declared on in declaration. In an action under the Dramshop Act, sec. 9 (J. & A. If 4609), by a wife and child against saloon keepers for damage to their means of support due to intoxication of the husband and father, held that an instruction allowing recovery for injury to property as well as means of support was not erroneous, although the declaration counted only on injury to the latter, the jury having been confined to what they believed from the evidence, and there being nothing in the record tending to show injury to property.

9. Intoxicating liquors, § 250 —when instruction on right to recover exemplary damages in action for loss of support is not erroneous. An action under the Dramshop Act, sec. 9 (J. & A. jf 4609), by a wife and child against saloon keepers for damage to their support due to the intoxication of husband and father, an instruction that if the jury believed from all. the circumstances that plaintiffs ought to recover exemplary damages, they might, if they saw fit, in addition to the actual damages, assess such further sum as exemplary damages as they believed from all the circumstances in evidence in the case that plaintiffs were entitled to, held not erroneous because not explaining to the jury in what circumstances exemplary damages were allowable, such objection being met by another instruction.

10. Instructions, § 10 —what instruction must contain. It is not necessary to state all the principles of law relative to one subject in one instruction.

11. Intoxicating liquobs, § 250 —when instruction on liability of saloon keepers for act of servant in action for loss of support is not erroneous. In an action under the Dramshop Act, sec. 9 (J. & A. If 4609), by a wife and child against saloon keepers for loss of support due to the intoxication of the husband and father an instruction that the defendants were liable for the acts of their servants held not objectionable as tending to mislead the jury into allowing exemplary damages, even though the defendants had forbidden the sales where, in the only instruction on exemplary damages, the court instructed the jury that the right to such damages depended upon the finding that the conduct of defendants was wanton and in wilful disregard of the plaintiffs’ rights.

12. Intoxicating liquobs, § 254 —when requested instruction on liability of codefendant for exemplary damages is properly refused as misleading. In an action by a wife and child under the Dramshop Act, sec. 9 (J. & A. j[ 4609), against saloon keepers to recover for loss of support due to intoxication of the husband and father, a requested instruction that if one defendant was guilty of conduct which would permit exemplary damages and the other not, then the jury could only assess “such damages as you find the defendant least at fault is liable for,” held properly refused as being ambiguous • and misleading.

13. Intoxicating liquobs, § 254 —when requested instruction on period of intoxication that can be considered is properly refused. In an action by a wife and child under the Dramshop Act, sec. 9 (J. & A. If 4609), to recover damages for the loss of support due to intoxication of the husband, a requested instruction that the jury should not consider habitual intoxication of the husband at any time or period other than the time or period during which it was proven by the evidence that the defendants or either of them sold or gave intoxicating liquors to him, held properly refused.

14. Intoxicating liquobs, § 254 —when requested instruction that no recovery may be had unless habitual intoxication is shown is properly refused. In an action under the Dramshop Act, sec. 9 fj. & A. If 4609), to recover damages for loss of support due to the intoxication of the husband and father, a requested instruction that no recovery could be had unless habitual intoxication was shown, held properly refused, as recovery might be had for damages caused by intoxication, even though it had been shown to be habitual.


author: Mr. Justice Gtoodwih

text:
    Louis Weiss, Plaintiff in Error, v. Max Clamitz and Amelia Clamitz, Defendants in Error.
    Gen. No. 21,461.
    (Not to Tbe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by Louis Weiss, plaintiff, against Max Clamitz and Amelia Clamitz, defendants, to recover earnest money paid under a contract for a sale of certain real property. From a judgment against him for costs, plaintiff brings error.
    The contract provided, among other things, that the land should-be subject to an incumbrance of $3,500, of which $500 was to be payable in July, 1913, and the balance in 1917. Upon an examination, it appeared that the property was subject to an incumbrance of $3,500, of which $500 was payable August 7,1914, $500 August 7, 1915, and the balance in 1917. Plaintiff gave notice to the defendants that he elected to stand on his contract, and must have a conveyance subject only to the incumbrance therein provided for. No such conveyance was tendered.
    Fleck, Kavekey & Burke, for plaintiff in error; William Bebda, of counsel.
    No appearance for defendants in error.

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

   Mr. Justice Gtoodwih

delivered the opinion of the court.

Abstract of the Decision.

1. Vendor and purchaser, § 81 —what does not constitute waiver of condition in contract.' Where a contract for the sale of land provides that the land shall he subject to a specified incumbrance, an agreement to change the terms of the contract so as to permit an incumbrance materially different from the one originally provided for does not constitute a waiver of the condition.

2. Evidence, § 322 —when parol evidence inadmissible to vary terms of contract. Where a contract for the sale of real property provides that the land shall he subject to a specified incumbrance, payable at specified periods, evidence that an agreement to change the terms of the contract so as to permit an incumbrance materially different from the one originally provided for is inadmissible as an attempt to vary the terms of a written document by parol evidence.

3. Vendor and purchaser, § 325 —when purchaser is entitled to repayment of earnest money. Where a contract for the sale of real estate provides that the land shall he subject to a specified incumbrance payable at specified periods, and the vendor is unable to furnish a conveyance subject only to such incumbrance within the time stipulated by the contract, the purchaser is not in default- and is entitled to recover earnest money deposited under the contract,

4. Appeal and error, § 1810 —when final judgment will be entered in Appellate Court upon reversal. Where, in an action by the purchaser of real estate against a vendor to recover earnest money paid under the contract, there is no dispute in regard to the amount, the Appellate Court upon reversing a judgment for defendant will enter final judgment for the amount claimed.


text:
    G. E. Clinton, Defendant in Error, v. Rhoda Royal, Plaintiff in Error.
    Gen. No. 21,474.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed January 17, 1917.
    Rehearing denied January 29, 1917.
    Statement of the Case.
    Action by G-. E. Clinton, plaintiff, against Rhoda Royal, defendant, on two judgment notes for $2.50 each, drawn by defendant and made payable to one Seaver, and by him indorsed in blank. From a judgment against him on a directed verdict, defendant brings error.
    The notes in question were judgment notes signed by the defendant, and on the back of each appeared the following order:
    “Chicago, Ill. March 14th, 1914.
    6 < cni'PPT*
    Young Buffalo Wild West Co.
    “Please pay to the order of Vernon C. Seaver Two Hundred and Fifty ($250.00) Dollars, and charge same to my 1913 account.' . .. . ....
    Rhoda Royal.”
    The date and the amount named in those orders were identical with the date and the amount named in the promissory notes.
    The defendant testified that the Young Buffalo Wild West Company owed him $1,700 for services during, the year 1913; that he considered Seaver as the owner of the show; that he had done all his business with him; that at the time the notes were made, Seaver gave him $500 on account, and expressly agreed to look to the show for reimbursement, and that defendant would not have to pay the notes; that he (Beaver) would get the $500 from the show; that the defendant was about to attach the show for the amount due him, and that Beaver advanced the $500 with the tacit understanding that the attachment would not be made, and that it was not made, and that he credited the account of the show with the $500 which he had received. All of this testimony was stricken out. Counsel for defendant also made the following offer:
    Abstract of the Decision.
    1. Bills and notes, § 251

      —when purchaser after maturity without consideration is charged with notice of defenses pleadable against payee. A purchaser of judgment notes after maturity and without consideration is charged with notice of any defenses plead-able against the payee, unless title is procured from a person standing in the position of a bona fide purchaser without notice.
    2. Bills and notes, § 18

      —lohen designation of particular account to be debited with amount of judgment notes does not render them conditional. Under the Negotiable Instruments Law, sec. 3 (J. & A. If 7642), notations on the backs of judgment notes designating a particular fund to be debited with the amounts of the notes do not render the notes conditional.
    “Tour Honor, I want to show the schedules filed and sworn to on behalf of the Wild West Company, a corporation in bankruptcy, that they scheduled their indebtedness to this defendant at $1,200, showing the payment less the $500 which appears upon these notes.”
    This offer was objected to, and the evidence excluded as immaterial.
    Adolph Marks, for plaintiff in error.
    Wheelock, Newey & Mackenzie, for defendant in error.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Bills and notes, § 431 —when parol evidence is inadmissible. Evidence as to a conversation had at the time notes are executed is inadmissible for the purpose of varying the terms of the notes themselves, or for the purpose of showing an agreement that defendant would not be liable according to their terms.

4. Bills and notes, § 426 —when bankruptcy schedules are erroneously excluded in action on judgment notes. In an action on two judgment notes given by an employee of a circus to the manager thereof, on the backs of which were notations directing the treasurer of the company to pay to the manager the amounts thereof and charge to the maker’s account, and there was evidence that the manager had expressly agreed to look to the circus for reimbursement and that defendant would not have to pay the note, held that schedules filed in bankruptcy by the circus company showing that the indebtedness to the defendant had been reduced by the amount of such notes were admissible in evidence, especially in view of the fact that the payee had the entire control and management of all the affairs of the bankrupt company.


text:
    Bridget Corrigan, Defendant in Error, v. North American Union, Plaintiff in Error.
    Gen. No. 21,490.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. J. J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term,- 1915.
    Affirmed.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by Bridget Corrigan, plaintiff, against North American Union, defendant, to recover on a benefit policy issued to one George Whelan. From a judgment in favor of plaintiff, defendant brings error.
    C. V. Donovan, for plaintiff in error.

      Abstract of the Decision.
    1. Insurance, § 789

      —when evidence is insufficient to show that insured was engaged in prohibited occupation of bartender. In an action on a mutual benefit insurance policy, evidence held insufficient to show that insured, who had been in the habit of frequenting his brother’s saloon, had been engaged in the prohibited occupation of bartender.
    2. Insurance, g 789

      —when person occasionally selling liquor is not engaged in prohibited occupation of bartender. Casual sales of liquor made from time to time in a brother’s saloon by one not employed for the purpose and receiving no compensation therefor do not, as a matter of law, constitute him a ^person engaged in the occupation of bartender in violation of a provision of a mutual benefit insurance policy.
    Timothy J. Fell, for defendant in error; Hermann P. Haase, of counsel.

      See Illinois Notes Digest, Yola, XI to XV, and; Cumulative Quarterly, sanie topic an# section number.

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Edward Hudson, Defendant in Error, v. Ben Marks et al., Plaintiffs in Error.
    Gen. No. 21,553.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon.' Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1917.
    Rehearing denied January 29, 1917.
    Statement of the Case.
    Action by Edward Hudson, plaintiff, against Ben Marks,. D. S. Marks, Emanuel Mendelson and I. Lipsey, defendants, to recover rent under a lease. From the denial of the motion to vacate a judgment against defendants entered by confession under a power of attorney, reserved to plaintiff in the lease, defendants bring error.
    Abstract of the Decision.
    1. " Landlord and tenant, § 310

      —when receipt of rent with knowledge of illegal use of premises does not constitute defense to action on lease. It is not a defense to an action by a landlord against lessees on a lease for rent that the lessor received rent with the knowledge that the premises had been used for immoral purposes where it is not shown that he acquiesced in such use or permitted the occupants to continue the use of the premises for such a purpose.
    2. Judgment, § 82

      —when judgment by confession will not be vacated. A judgment by confession will not be vacated unless the affidavit on which it is based sets out facts which, if true, would in themselves constitute a defense.
    3. Judgment, § 82

      —how affidavits filed in support of motion to vacate judgment by confession must be construed. Affidavits filed in support of a motion to vacate a judgment by confession must be construed most strongly against the party making the application.
    4. Judgment, § 82

      —when affidavit in support of motion to vacate judgment by confession is insufficient. An affidavit filed in support of a motion to vacate a judgment by confession on a lease which stated that the assignees of the lease used the premises as a house of ill fame, that the use of such premises by the assignees for such purpose was with full knowledge and notice thereof on the part of the plaintiff, and that the plaintiff accepted certain payments of rent knowing the money paid to him was the proceeds of the unlawful and immoral uses to which said premises were devoted, held insufficient.
    Levy & Levy, for plaintiffs in error.
    Frederick A. Brown and Baymond S. Pruitt, for defendant in error; John G-. McDonald, of counsel.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    W. B. Crane and. O. F. Crane, trading as W. B. Crane & Company, Defendants in Error, v. James M. Taft, Plaintiff in Error.
    Gen. No. 21,580.
    1. Carriers, § 74

      —what is duty of carrier as to forwarding of goods when route is specified. A carrier who undertakes to carry the goods of a shipper to a point named and then forward them by given route to the destination is bound to forward them over the route named unless unforeseen circumstances justify a change in the route.
    2. Carriers—what is duty of connecting carrier as to acceptance and carriage of goods contrary to specified route. Where goods are tendered to a carrier hy another carrier in lawful possession, it is its duty to accept and carry them even though a different route he named.
    3. Carriers, § 209

      —when connecting carrier is entitled to lien upon goods. Where goods are delivered to an initial carrier hy the shipper with directions that they be shipped by specified route and, in violation of such instructions, are turned over to a connecting carrier and taken by a different route thereon to the destination, such connecting carrier is entitled to a lien upon the goods for its freight charges.
    Error to the Municipal Court of Chicago; the Hon. John Steak, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed January 17, 1917.
    Worth E. Caylor, for plaintiff in error.
    W. Tudor ApMadoo, for defendants in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

In this case, the defendants in error, who will be referred to hereafter as plaintiffs, recovered a judgment against the plaintiff in error, hereafter referred to as defendant, in a replevin suit brought to recover two carloads of lumber. The judgment was for the return of the property and nominal damages. It is to reverse this judgment that the writ of error is sued out. The facts were stipulated to be that the plaintiffs had shipped the lumber in question from Salt Lick, Kentucky, under a uniform bill of lading by which the property was consigned to themselves at Chicago, and the route expressly stated. After the initial carrier had taken the cars over its line to Cincinnati, Ohio, it disregarded the route specified and turned them over to a railroad not named in the bill of lading, which carried them to their destination in Chicago. The plaintiffs, as consignees, refused the freight when tendered, and thereupon the final carrier deposited the contents with the defendant, who placed them in his warehouse. When the plaintiffs demanded the lumber of him, and he refused to surrender it without a payment of charges, they brought this replevin suit. The plaintiffs did not offer to pay or tender payment to any person or corporation of any amount whatever for the transportation of this lumber or the warehouse charges. No question has been made of the right of the defendant to retain the lumber if the final carrier had a lien for its charges, nor as to the right of the plaintiffs to recover possession of the lumber without the payment of such warehouse charges if the final carrier had no lien; the sole question is, as to whether the final carrier had a lien for the transportation charges.

While cases have been cited, none appears to be in point, and it would, therefore, seem to be a matter of first impression, which must be governed by the general principles applicable to carriers.

A carrier who undertakes to carry the goods of a shipper to a point named, and then forward them by a given route to their destination, is bound to forward them over the route named, unless there are unforeseen circumstances which justify a change in the route. The question, then, is, what is the duty of an intermediate or final carrier where goods are tendered it by a carrier when the bill of lading shows that the consignor has routed them over another line? Is it its duty to refuse the shipment until the tendering carrier has produced evidence which satisfies it that the facts and circumstances are such as to authorize a diversion from the route named? It is, of course, the duty of a common carrier at common law and, in interstate shipments, under the acts passed to regulate interstate commerce, to receive and carry goods when tendered by those having them in their lawful possession and under their control. While an initial carrier intrusted and charged with the duty of forwarding goods to their destination has express authority to forward them over the route named in the bill of lading, it is also within the scope of its implied authority to make changes in that route if the facts and circumstances are such as to make it necessary, and the question of whether the original route shall be followed or another selected is one between the shipper and the original carrier. When, therefore, goods are tendered to a connecting carrier by a carrier in possession, we think it is clearly its duty to accept them and carry them to their destination, and that it is not justified in refusing so to do until express authority to make the change in the route is shown, or until evidence is heard on the question of the initial carrier’s right to change the route. In other words, we think that where goods are tendered to a carrier by another carrier in lawful possession, it has a duty to accept and carry them, even though a different route be named. To hold otherwise would be to cause endless confusion and delay. We are, therefore, of the opinion that the final carrier in the case at bar, in accepting and carrying the goods to their destination, did only what the law required of it, and that it was entitled to a lien upon the goods for its lawful charges.. If the initial carrier, who acted as the agent for the shipper in the matter of forwarding the goods, violated his contract by making an unauthorized diversion, it is responsible to the plaintiffs for the damages resulting therefrom, and liable to such penalties as it may have incurred. As the trial court allowed a recovery of the property without any tender of the lawful warehouse charges or of the charges due the final carrier, we are of the opinion that the judgment is erroneous. The judgment is, therefore, reversed and the cause will be remanded to the Municipal Court..

Reversed and remanded.


text:
    Frank Alford, Defendant in Error, v. Antonia Lambert, Plaintiff in Error.
    Gen. No. 21,592.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Gooditow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by Frank Alford, plaintiff, against Antonia Lambert, defendant, to recover the sum of $836 alleged to be due plaintiff for work as janitor for twenty months at $35 a month, and other items, including $21 for borrowed money. From a judgment for plaintiff for $836, defendant brings error.
    Emil A. Meyer and Edward H. Morris, for plaintiff in error.

      Abstract of the Decision.
    1. Witnesses, § 41

      —when husband is competent witness for wife. In an action concerning the separate estate of a wife, her husband is a competent witness for her.
    2. Master and servant, § 82

      —when evidence as to amount of worlc done by servant is admissible. In an action by a janitor of an apartment building, consisting of fifteen flats, to recover, among other tilings, for his services for twenty months at $35 per month, where the defense was that defendant had not agreed to pay plaintiff anything and that he simply worked for his board and lodging, and it appeared that defendant’s husband also worked in the building, held that evidence as to the amount of work which plaintiff did during the term he was with defendant was admissible for consideration in determining whether a contract had been entered into for the payment of the sum claimed per month.
    Comerford & Cohen, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    John Forler, Plaintiff in Error, v. E. R. Butts, Defendant in Error.
    Gen. No. 21,622.
    (Ebt to be reported in fall.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by John Forler, plaintiff, against E. B. Butts, defendant, on two promissory notes aggregating $590. From a judgment in favor of defendant, plaintiff brings error.

      Abstract of the Decision.
    1. Bills and notes, § 283

      —when debt is extinguished by unrear sonable delay in presentation of cheeks. A delay of five days in presentation of checks for payment, held to be unreasonable and to constitute a payment or extinguishment of debt for which the checks were drawn, where the bank on which they were drawn failed before the checks were presented for payment.
    These checks were given on a Monday, and plaintiff failed to deposit them in the bank in Chicag’o until Wednesday or Thursday, and this resulted in a failure to present them to the bank in Niles, Michigan, on which they were drawn, until Saturday, the day the bank closed its doors. The defendant had on deposit with the bank at the time of its failure an amount in excess of the amount o.f the checks. The evidence further disclosed that it takes about two and a half hours to travel by. rail from Chicago, where the transaction took place, to Niles, Michigan.
    Plaintiff, however, contended that as the defendant wrote him on the day of the bank’s failure, saying that he hoped the checks had been paid, and, if not, he (defendant) was out that amount, and also in a conversation with plaintiff agreed to give a note for the amount of the checks, that these promises revived .defendant’s obligation without any further consideration, and that it was immaterial whether defendant knew that by the rules of law the negligence of plaintiff to deposit the checks promptly would discharge him.
    Edward A. Mechling, for plaintiff in error.
    James Nicholas Lorenz, for defendant in error; John W. Lyddick, of counsel.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

2. Bills and notes, § 291 —When new promise by drawer does not constitute waiver of discharge by failure to present checks for payment within reasonable time. A new promise by a maker of checks who is discharged from liability because of the unreasonable delay of the payee thereof in presenting the checks to the bank on which they were .drawn for payment, which is made without a full knowledge of the facts out of which the discharge arose, does not constitute a waiver of the defense of delay in presentation of the checks for payment.


text:
    City of Chicago, Defendant in Error, v. J. J. Moser, Plaintiif in Error.
    Gen. No. 21,707.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahonet, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by the City of Chicago, plaintiff, against J. J. Moser, defendant, to recover for alleged violation of section 2012 of the Municipal Code relative to breach of the peace. From a judgment for the plaintiff for one dollar and costs, defendant brings error.
    J. J. Moser, for plaintiff in.error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Evidence, § 221 —when hearsay inadmissible. A refusal by the court upon motion to strike out hearsay evidence, held reversible error.

2. Tbial, § 45 —when remarlos by trial judge constitute reversible error. Obviously improper and prejudicial remarks by the presiding judge at a trial before a jury constitute reversible error.

3. Breach or the peace, § 1 —what does not constitute breach of peace. Where a person in possession of a ticket which entitled him to become a passenger on a certain railroad passed through its entrance gates without force but refused to have his ticket punched in the honest belief that the railroad company had no right to insist upon cancellation of a fare until it was apparent that transportation would be furnished, held that, although a trespass, this was not a violation of section 2012 of the Municipal Code of the City of Chicago, providing, in effect, that all persons who shall make, aid, countenance or assist in making any form of noise, riot, disturbance, breach of the peace, or a diversion tending to a breach of the peace, within the limits of said city, shall be subject to a fine of not less than one dollar nor more than two hundred dollars.

4. Carriers—when may eject trespasser from station. A railroad has the right to make reasonable rules and regulations for the conduct of its business, and a person entering its station in contravention of such a rule or regulation is a trespasser and may rightfully be ejected by the railroad, using no more force than necessary, notwithstanding the fact such person may have acted upon a claim of right made in good faith.

5. Appeal and ebbob—when bill of exceptions 'is sufficient. A bill of exceptions filed in an action based upon a municipal ordinance is sufficient although it contains no copy of the ordinance where its substance was stated in an instruction given to the jury to which no exception was made or preserved, and particularly where the offense for which the defendant was tried was fully disclosed by the sworn complaint filed in the trial court and by the statement of counsel for the city preserved in the bill.


author: Mr. Justice Taylor

text:
    Henry Weiss and Samuel S. Schwartz, Defendants in Error, v. S. A. Corn, Flaintiif in Error.
    Gen. No. 21,275.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Dismissal, nonsuit and discontinuance, § 43

      —lohen motion for nonsuit is too late. Where motion for a nonsuit was not made until after the trial judge had stated that he did not see how the plaintiffs could recover or what he could do but allow the defendant’s motion for a finding in his favor, held that such motion for a nonsuit was an admission that the plaintiffs had been informed of the court’s conclusion, and was too late.
    2. Municipal Court op Chicago, § 29

      —how fourth-class case must he decided on review. Under section 23 of the Municipal Court Act (J. & A. If 3335), it is the duty of the Appellate Court in a fourth-class case to decide the case upon its merits as appearing from the statement or stenographic report signed by the trial judge.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by Henry Weiss and Samuel S. Schwartz, plaintiffs, against S. A. Corn, defendant, to recover the sum of $942.85 for goods sold and delivered. From a judgment for defendant for costs upon a nonsuit, plaintiffs bring error.
    Martin L. Wilborn, for plaintiff in error.
    Bernard J. Brown, for defendants in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.

3. Municipal Coubt op Chicago, § 29 —when finding of trial court will not be disturbed. Where, in a fourth-class case under the Municipal Court Act, the evidence was conflicting and the trial judge at the conclusion of the evidence made a résumé and analysis of the effect thereof and conclusion that the defendant had established his defense, held that the plaintiffs had failed to make out their alleged case by a preponderance of the evidence.


text:
    Daniel P. Brian and J. Thurston Brian, copartners, trading as D. P. Brian & Son, Defendants in Error, v. H. A. Born Packers’ Supply Company, Plaintiff in Error.
    Gen. No. 21,538.
    1. Sales, § 388

      —what are remedies of buyer for breach of warranty. Where goods are sold with warranty the buyer has, on breach of the warranty, an option of returning the goods or of retaining them and suing on the warranty.
    2. Sales, § 105

      —-when right to rescind sale and return goods is waived by buyer. Where the buyer of goods received and executed a written acceptance of same as entirely satisfactory, he thereby waived the right to rescind the sale and return the goods.
    3. Sales, § 427

      —when seller of goods under conditional sale contract cannot prevent obtaining of perfect title by buyer. Where a party purchased goods upon condition that title should remain in the seller until the goods were paid for, held that the seller could do nothing to prevent the buyer from getting perfect title upon retaining the goods and paying the purchase price.
    4. Sales, § 388

      —when action is based on breach of warranty and not on rescission of contract. Where the statement of claim in an action of the fourth class in the Municipal Court of Chicago set up a sale of a refrigerating plant and warranty of same by the defendant to the plaintiffs, a breach of such warranty, damages by reason thereof, and payment of part of the purchase price, under which evidence of such breach and payment was presented and instructions given that the action was one for breach of warranty, held that such action was one based upon breach of warranty and not one based upon rescission of contract, notwithstanding there was no evidence of damages for such breach and a verdict was rendered for an amount equal to the payment shown on account of the purchase price.
    5. Sales, § 404

      —what is measure of damages for breach of warranty. The measure of damages for breach of a warranty is the difference between the value of the goods as warranted and their actual value in their defective condition.
    6. Sales, § 404

      —what evidence is insufficient as basis for determination of damages for breach of warranty. Evidence of payment of the purchase price of goods sold with warranty does not constitute of itself a sufficient basis for determination by a jury of damages for a breach of the warranty.
    7. Sales, § 402

      —when refusal of court to instruct jury as to measure of damages for breach of warranty is error. In an action for damages for breach of warranty it was error for the court not to instruct the jury, when requested so to do, as to measure of damages in case they found a breach.
    8. Municipal Court of Chicago, § 31

      —when case reversed. The statement of a claim, the evidence, the instructions, and the verdict should be reasonably consistent and all tend to support the judgment, and where the evidence, the instructions and the verdict are irreconcilable, the judgment should be reversed.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed January 17, 1917.
    Rehearing denied January 29, 1917.
    Baker & Holder, for plaintiff in error.
    Paul Wemple, C. M. Cávense and Walter F. Olds, for defendants in error; Paul Wemple, of counsel. '

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

      See Illinoifi Notes Digrest, Vo3g. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

This was a suit of the fourth class begun in the Municipal Court by Daniel P. Brian and J. Thurston Brian, copartners, doing business as D. P. Brian & Son, defendants in error (hereinafter referred to as plaintiffs), against the H. A. Born Packers’ Supply Company, a corporation, plaintiff in error (hereinafter referred to as defendant), to recover damages in the sum of $1,000, for an alleged breach of warranty in the sale of a refrigerating plant.

The plaintiffs’ statement of claim alleges, among other things, that on or about September 12, 1911, the plaintiffs and defendant entered into a written contract by which the defendant sold and the plaintiffs purchased a refrigerating machine and equipment, including a 4%-horsepower gasoline engine, for $935; that the defendant guaranteed the said machine to do its work to perfection; that “the engine furnished by the defendant had failed to operate said refrigerating plant and has been and is of no value to the plaintiffs, and there has been a total breach of the defendant’s warranty as to said refrigerating plant”; that the plaintiffs have paid under said contract the sum of $810.50 to the defendant and have suffered damage by the loss of the use of one of their own refrigerators which was connected with the said refrigerating plant, to the damage "of the plaintiffs in the sum of $1,000.

On January 8, 1914, the plaintiffs filed a more specific statement of claim to which was attached a copy of the written contract. The new statement of claim alleges, among other things, that the engine would not operate the plant; that the plaintiffs lost the use of their refrigerators from May to October, both inclusive, in the years 1912 and 1913; that they paid the sum of $57.65 for repairs in an attempt to make said plant operate satisfactorily; that they have paid to the defendant, under said contract, the sum of $810.50; “to the damage of the plaintiffs in the sum of $1,000.” On January 16, 1914, the'defendant filed an affidavit of merits in which the defendant admits the sale and delivery to the plaintiffs of the refrigerating machine pursuant to the above-mentioned written contract, but denies that it was unsatisfactory and not in accordance with the contract, and that the plaintiffs lost the nse of said refrigerator during the months of May to October in the years 1912 and 1913, and denies that the plaintiffs were damaged in the sum of $1,000 or in any amount, but alleges that the plaintiffs are entitled to a set-off in the sum of $167, being the balance of the purchase price remaining unpaid.

On January 16,1914, the defendant filed a statement of claim setting up four certain promissory notes (part of the purchase price) signed by the plaintiffs, payable to the order of the defendant, three being for the sum of $50 each, payable respectively in seven, eight and nine months after date, the fourth being for $17.50 and payable ten months after date.

The plaintiffs filed an affidavit of merits to defendant’s set-off upon the four promissory notes, claiming that the notes were given as part of the purchase price of the machine and that there had been a total want and failure of consideration for said notes in that the machine was warranted to operate satisfactorily, and that it has not so operated and has been and is of no value to the plaintiffs. The case was tried before a jury.

The evidence, substantially, was as follows: The plaintiffs, butchers in Waverly, Illinois, on September 12, 1911, bought, by written contract, from the defendant a refrigerating plant to be used in place of ice, for cooling meat in their ice boxes. H. A. Born, president of the defendant company, in the fall of 1911 visited the plaintiffs’ place and looked over the situation and told them what they needed. The result was the sale above mentioned. The contract provided for building and furnishing a refrigerating and power plant, with a 4%-horsepower gasoline engine, together with certain specified equipment for $935. It contained the following, “and further guarantee said machine to do its work to perfection”; also “and purchaser claims no title to said property until all payments have been made as above stated.” On October 23, 1911, defendant sent two workmen, Furman and Barry, to Waverly and by November 6,1911, the plant was installed. The first engine was found to be insufficient and the defendant sent a larger engine for which the plaintiffs paid $43 extra. The plant was then operated for one afternoon before Furman and Barry left. On November 6, 1911, the plaintiffs gave the defendant a receipt which stated the plant had “been properly installed and worked entirely satisfactorily,” etc. Meanwhile, according to the suggestions of the defendant, the plaintiffs had sealed the ice boxes so as to bring about more perfect insulation. In order to get familiar with the machinery, the plaintiffs operated the plant about two hours a day for a week after November 6,1911, although at that time the weather was cold and artificial refrigeration was unnecessary. The plant was idle until April 1, 1912, when the weather grew warm. It was then started but failed to furnish sufficient refrigeration: Beginning with May 9, 1912, the defendant sent a number of letters to the plaintiffs; and on June 29, 1912, it wrote: “Our Mr. Maher returned this morning and we have his report on the condition of the engine that you have. We have taken this matter up with the factory again and we will see that an engine is rushed to you with all possible haste. Of course we are indeed sorry that this engine fell down,” etc. The third gas engine arrived July 23, 1912, and was refused by the plaintiffs. Brian testified that it was never set up and that he notified Born the engine was there subject to his disposal. Whereupon defendant wired “accept or stand suit.” The plaintiffs stopped operating the machine in June, 1912, and took the coils out of one box and began using ice. The coils remained in the other ice box until March 1,1914; the rest of the apparatus was loft in, where it was erected, in the "building, until the machine was torn down on March 1, 1914, when it was taken out by the plaintiffs and put in storage on the premises belonging to the plaintiffs "where it was at the time of the trial. The evidence also shows that the refrigerating plant, as erected, had no market value; and that defendant was notified by plaintiffs some time in June, 1912, that they refused any more responsibility in regard to it; that it was of no use to them. There was no return, however, or offer to return the refrigerating plant. On October 24, 1911, the plaintiffs paid, as part of the purchase price, $467.50 and gave their notes for the balance; six of which latter notes, each for $50, were paid (the last one being paid May 6, 1912) and the remaining four, three being for $50 each and one of $17.50 being still unpaid and constituting the basis of the defendant’s set-off. The plaintiffs had paid altogether on the purchase price $823.

After being instructed orally by the trial judge, the jury brought in a verdict against the defendant for $823.50 and costs of suit. The defendant made a motion for a new trial and also in arrest of judgment, both of which were overruled.

It is contended by the defendant: First, that as the judgment is for a breach of warranty, it cannot stand because there is no evidence in the record of damages for a breach of warranty; second, that as a judgment based on a rescission of the contract, it cannot stand, as that is inconsistent with the statement of claim, and also the jury were instructed only on the theory of a breach of warranty. The plaintiffs claim that the cause of action is rescission and also that the court did not err in refusing the defendant’s proffered instructions.

An examination of the record discloses: First, a statement of claim obviously based on a breach of warranty; second, evidence of a breach of warranty; third, evidence showing just what part of the purchase price had been paid; fourth, no evidence of damages for a breach • of warranty; fifth, instructions only on the theory of a breach of warranty; sixth, a verdict for an amount equal to that part of the purchase price that had already been paid by the plaintiffs.

Of the foreg’oing’ six subjects, three, the statement of claim, the evidence of a breach of warranty, and the instructions, are consistent only with a trial on the theory of an alleg’ed breach of warranty. The other three, the evidence of the purchase price that was paid, the absence of evidence of damag’es for a breach of warranty and the verdict of the jury, are consistent only with the trial on the theory of an alleged rescission of the contract. We cannot agree with the plaintiffs ’ contention that the suit in the case at bar is not a suit for a breach of warranty, but is a suit to recover that portion of the purchase price for the refrigerating plant which the plaintiffs have paid.

The plaintiffs had the option to return the refrigerating plant or to retain it and sue for a breach of warranty. Kemp v. Freeman, 42 Ill. App. 500. The evidence shows that the defendant retained the refrigerating plant in its possession and had it in its possession at the time of the trial. The coils in one of the ice boxes remained there from the fall of 1911, when they were put in by the defendant, until March 1, 1914; in fact, the machine as a refrigerating plant, was not torn down until March 1, 1914. Also the plaintiffs on November 6, 1911, accepted in writing, the plant as satisfactory; and had it not been for the condition in the contract, the title would have passed on November 6, 1911, to the plaintiffs. It is difficult to discover any right on the part of the plaintiffs to rescind the contract after the refrigerating plant was put in, and it was admitted by the plaintiffs that it had “been properly installed and working entirely sr isfactorily.” As to the sale being conditional, and the title remaining in the defendant, the latter could do nothing to prevent plaintiffs from getting a perfect title upon the retention of the property and the payment of the purchase price. Fleury & Co. v. Tufts, 25 Ill. App. 101. According to the law, it cannot bo said that in such a case an action for breach of warranty would not lie. As far as the defendant was concerned, it was an executed contract. The plaintiffs having received and had installed the complete refrigerating plant, in-November, 1911, and having executed a written acceptance of the property at that time, must be considered as having waived the right to rescind and return it.

We, therefore, proceed to a consideration of the case as one for a .breach of warranty. The measure of damages for a breach of warranty is the difference between the value of the refrigerating machine and attachments as warranted and the actual value in their defective condition. Woodford Distilling Co. v. Remington Typeioriter Co., 174 Ill. App. 244. As said above, however, the record fails to disclose any. evidence of such damages arising by reason of a breach of warranty. There is no evidence in the record which the jury could consider when- it undertook to ascertain and assess damages for a breach of warranty. It is true the evidence discloses what part of the purchase price had been paid, but that, of itself, constituted no sufficient basis for the determination' of damages for a breach of warranty. If the law would allow us to consider the suit as one for rescission of the contract, then the evidence as to what part of the purchase price had been paid might have justified such a verdict as was rendered in this case. But it is our opinion that the litigation, as evidenced by the record, is for damages for a breach of warranty. The trial judge instructed the jury that the plaintiffs were seeking to recover against the defendant for a breach of warranty and “that the burden of proof is upon the plaintiffs to establish by a preponderance of the evidence that the defendant permitted a breach of warranty and plaintiffs suffered damages therefrom.” Such an instruction, if the suit were for a rescission of the contract, would be very misleading to the jury and vitiate the verdict which was rendered.

The defendant requested the trial judge to instruct the jury as follows:

“That the amounts paid by plaintiffs to defendant on account of the purchase price cannot be recovered back by plaintiffs as a part of its damages, if any, in this case.

“That if you find from the evidence that defendant permitted a breach of the warranty expressed in the written contract, still plaintiffs were not entitled in law to reject the machinery and recover back the purchase price paid.

“That the contract made by the plaintiffs with the defendant in this case is inseparable, and if you find from the evidence that any material portion of the machinery called for by said contract furnished by defendant to the plaintiffs failed to conform to the warranty, then the measure of the plaintiffs’ damage is the difference between the value of the thing, of the entire machine and attachments as warranted, and their value there in their defective condition, if you find from the evidence that their condition was defective.

“If you find from the evidence that the refrigerating plant furnished by the defendant under the contract would not operate satisfactorily, then the measure of the plaintiffs’ damage is the difference between the value of the entire machinery and attachments as warranted and their actual value in their defective condition, if you find from the evidence that 'their condition was defective.”

We are of the opinion that the defendant’s request should have been granted. A case such as this, whether involving a breach of warranty or a question of rescission, is one in which it is particularly necessary that the jury be properly instructed in the rules of lay applicable to the facts. The defendant was entitled to have the jury clearly and accurately instructed as to the law of the case. The ad damnum of plaintiffs’ statement of claim is $1,000, yet nowhere in the instructions which were given was the jury informed how to measure the damages in case they found there was a breach of warranty. They were instructed as to what would constitute a breach, but were not given any rule of law applicable to such facts by which damages might be ascertained and assessed. They were left entirely in the dark on that subject and the result was they brought in a verdict such as might have been expected (as soon as they found there was a breach of warranty), that is, the amount of the purchase price which the plaintiffs had paid.

On the theory that it was a suit for a breach of warranty, it should have been taken from the jury at the close of all the evidence, and on the theory that it was for a rescission of the contract, the jury were improperly instructed. Where, as in this case, a trial has taken place in which a jury have found there was a breach of warranty and therefore that the plaintiffs might be entitled to damages, it is with reluctance that we set aside the judgment; but the law, which the courts are created to apply, requires that the statement of claim, the evidence, the-instructions and the verdict shall be at least reasonably consistent, and shall all tend to support the judgment, whereas in the instant case, the evidence, the instructions and the verdict are completely irreconcilable.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice McSurely

text:
    William H. Herhold, Appellant, v. Frederick H. Herhold and Herhold Chair Company, Appellees.
    Gen. No. 22,451.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.

      Certiorari denied ky Supreme Court (making opinion final).
    Statement of the Case.
    Bill by William H. Herhold, complainant, against Frederick H. Herhold and Herhold Chair Company, a corporation, defendants, charging misappropriation of funds of the company by Frederick H. Herhold and praying for an accounting, restitution and appointment of a receiver of the company. From an order by the court on its own motion dismissing the bill for want óf equity, the complainant appeals.
    Complainant was a brother of the defendant Frederick H. Herhold, and they, with other brothers and sisters, were the sole stockholders of the defendant company, and complainant was at one time secretary of the company, but in consequence of complainant’s refusal to join in a certain disposition of the estate of their parents desired by the others, complainant was deposed at the next directors’ meeting from his office as secretary of the company and from his employment as superintendent of the business.'
    Worth Allen, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellees; Carl Meyer, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Corporations, § 267 —when evidence is insufficient to support bill in suit for accounting against officer. Evidence held insufficient to support the allegations of the bill or to warrant appointment of a receiver in a suit against an officer of a corporation for alleged misappropriation of funds.

2. Corporation's, § 554 —when appointment of receiver proper for going corporation. So long as a concern is a prosperous going corporation there is no necessity for a receiver, and before one is appointed it must clearly appear that such appointment is an imperative necessity to preserve the property of the concern.

3. Corporations, § 554 —when appointment of receiver proper because of apprehensions as to future of corporation. Apprehensions of the future of a corporation, to entitle the appointment of a receiver thereof, must be founded on facts clearly proven by evidence and not merely on hostile expressions, especially such as naturally arise out of a family quarrel.

4. Corporations, § 553 —when depriving stockholder of office is not ground for appointment of receiver. Merely depriving a stockholder, by vote of directors representing a majority of the stock, of his employment as secretary of a corporation is not such evidence as warrants appointment of a receiver of the company, in the absence of facts showing loss to the stockholder as such.

5. Corporations, § 267 —when opinion in another case in which officer was party is inadmissible in suit against him for accounting. Evidence under a bill for accounting, charging a misappropriation of funds by an officer of a corporation consisting of an opinion of the Appellate Court in another case in which the defendant was a party, offered as tending to show his improper conduct in that case and a habit on his part, held properly excluded.


author: Mr. Presiding Justice MoSurelt

text:
    George J. Williams, Appellant, v. J. C. Veeder, Appellee.
    Gen. No. 22,571.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 449

      -—when evidence insufficient to show surrender of lease. Evidence held to show that there was no surrender of a lease, in an action thereon for rent.
    2. Landlord and tenant, § 326

      '—when refusal to direct verdict in action for rent is erroneous. Where a lessee of an apartment executed a lease from the same lessor of another apartment, and was notified he would he held answerable under the ofd lease until a new tenant was secured, held, upon evidence so showing in an action by the lessor for unpaid rent under the old lease, that the court erred in refusing to direct a verdict for the plaintiff for the amount of the rent for the period until a new tenant was secured.

      Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Action by George J. Williams, plaintiff, against J. C. Veeder, defendant, to recover $56.25, being one and one-half months ’ unpaid rent on a lease. From a judgment for defendant, plaintiff appeals.
    The former opinion of the Appellate Court in the same case, 195 Ill. App. 413, held that the defendant was obligated on the lease for rent to April 30, 1915. He vacated May 1,1914, and the plaintiff re-rented the premises one and one-half months later. The defendant claimed a surrender of the lease April 30, 1914.
    Charles S. Williston, for appellant.
    Balcomb, Lane & McGrath, for appellee.

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

   Mr. Presiding Justice MoSurelt

delivered the opinion of the court.


text:
    George E. Ford, Plaintiff in Error, v. American Express Company and Illinois Central Railroad Company, Defendants in Error.
    Gen. No. 22,581.
    (Not to foe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Rehearing denied February 5, 1917.
    Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by George E. Ford, plaintiff, against the American Express Company and Illinois Central Railroad Company, defendants, to recover damages for alleged failure by the defendants to deliver promptly a carload of strawberries, shipped from Louisiana to Chicago. From a judgment for defendants, plaintiff brings error.
    Stewart Reed Brown, for plaintiff in error.
    William A. Purcell, for defendants in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 4 —when railroad is not common carrier. A railroad company is not a common carrier of the traffic of an express company, hut acts simply as its agent.

2. Carriers, § 82 —what constitutes delivery to consignee by express company. Where a carload of strawberries shipped by an express company as a common carrier was placed by the railroad company on its team tracks at destination which were used by the express company for its deliveries, and the consignee there opened the car, inspected the contents, and receipted and paid the charges for the shipment, held that there was a delivery to the consignee, notwithstanding when he went to unload the next day he found the car had been taken away by some one’s mistake.

3. Carriers, § 96 —when not íiable for delay in delivery. There can be no recovery against a railroad company for failure to perform a contract to deliver goods promptly where no goods are actually received by the company, but are received by an express company whose cars are carried by the railroad company.


text:
    Heinrich Waldes et al., trading as Waldes & Company, Appellants, v. W. R. Hanes, Appellee.
    Gen. No. 22,593.
    (Bot to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Action by Heinrich Waldes, Siegmund Waldes, Ignatz Hue and Edward Meszenger, copartners, trading as Waldes & Company, plaintiffs, against W. R. Hanes, defendant, to recover for goods sold, to which the defendant claimed a set-off under a warranty of fitness of the goods for a special purpose. From a judgment for defendant for $275, upon trial by a jury, plaintiffs appeal.
    Abstract of the Decision.
    1. Appeal and ebbor, § 1526

      —when instructions are not reversibly erroneous. Instructions which were so confusing, misleading and prejudicial as to compel reversal in a close case will not do so where under the undisputed evidence the jury returned the only verdict they could properly return.
    2. Instructions, § 135

      —when failure to give instruction cannot be complained of. Failure to give an instruction, in an action for damages, as to measure of damages cannot he complained of on appeal where neither party requested such an instruction.
    3. Sales, § 404

      —what is measure of damages for breach of warranty of fitness for special purpose. In an action for damages for breach of warranty of fitness for a special purpose of goods purchased, held that proper elements of damage were the difference between their agreed price and the price the purchaser was obliged to pay for goods that answered the purpose, also that the use of the unfit goods made worthless other goods on which they were used and also payment of freight and duty on the unfit goods.
    Normah K. Aetdersow, for appellants.
    Carhahah, Blsdoh & Slusser, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Giuseppe Elia, Defendant in Error, v. Societa Mutuo Soccorso di Piane Crati, Plaintiff in Error.
    Gen. No. 22,599.
    1. Appeal and error, § 866

      —what are requisites of abstract. An abstract is the pleading of the parties and must inform the court of review as to the character of the case and the issue involved.
    2. Appeal-and error, § 1752

      —when judgment will be affirmed. In the absence of an abstract informing the court as to the character of the case and the issue involved, the judgment will be affirmed.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in this-court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Boceo De Steeano, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

We must affirm the judgment in this case for the reason that the plaintiff in error has furnished this court with no proper abstract of record. What purports to be an abstract commences as follows:

“1. Placita.

Present: Honorable Sheridan Fry, judg'e of the Municipal Court of Chicago.

“2. Premise.

“3. Plaintiff’s statement of claim.

“5. Summons.

“6. Appearance of defendant.

“7. Order.

“8. Order.

“9. Affidavit of merits.

“10. Judgment for thirty-five ($35) dollars.”

As has been said many times, the abstract is the pleading of the parties and must inform the court of review as to what the case is about. The abstract before us utterly fails in this respect. See classic opinion by Judge Gary in Bishop v. Loewus, 63 Ill. App. 351. See also, Deane v. Michigan Stove Co., 69 Ill. App. 106.

In the absence of an abstract informing the court as to the character of the case and the issue involved, the judgment will be affirmed.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. Emma Simonetti, Plaintiff in Error.
    Gen. No. 22,600.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Emma Simonetti, defendant, for keeping and maintaining a disorderly house in violation of an ordinance of the City of Chicago. From a judgment upon a verdict of guilty and fine of one hundred dollars, defendant brings error.
    William L. Martin, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 27 —how action of trial court in refusing change of venue should he preserved for review. Under section 23 of the Municipal Court Act (J. & A. U 3335), in order to secure a review of the trial court’s action in refusing a change of venue, the plaintiff in error should make a correct statement of such action, as required by the statute, and not present it by a bill of exceptions, for which the 'statute makes no provision in such matter.

2. Venue, § 34 —when error in refusing motion for change of is waived. Participating in the trial of a case after refusal of a motion for a change of venue waives any error of the court in such refusal.

3. Attorney and client, § 11 -—when attorney may not take acknowledgment. An affidavit for a change of venue sworn to before an attorney in the case should not be received or considered.

4. Municipal corporations, § 867 —when presumed that findings of trial court are correct. In the absence from the record of a municipal ordinance upon which a prosecution is based, and of which the court cannot take judicial notice, the findings of the trial court will be presumed correct.

5. Appeal and error, § 966 —binding effect of record. The Appellate Court is bound by the record as to the proceedings before the trial court.


text:
    City of Chicago, Defendant in Error, v. Gussie Boller, Plaintiff in Error.
    Gen. No. 22,601.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 27

      —how action of trial court in refusing change of venue should he preserved for review. Under section 23 of the Municipal Court Act (J. & A. If 3335), in order to secure a review of the trial court’s action in refusing a change of venue, the plaintiff in error should make a correct statement of such action, as required by the statute, and not present it by a bill of exceptions, for which the statute makes no provision in such matter.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against G-ussie Boiler, defendant, for keeping a place where liquor was sold in less quantities than one gallon without a license, in violation of an ordinance of the city. From a judgment upon a verdict of guilty and fine of fifty dollars, defendant brings error.
    The defendant appeared by the same counsel who made substantially the.same points of error as in the case of City of Chicago v. Simonetti, ante, p. 279.
    William L. Martin, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Venue, § 34 —when error in refusing motion for change of is waived. Participating in the trial of a case after refusal of a motion for a change of venue waives any error of the court in such refusal.

3. Attorney and client, § 11 —when attorney may not take acknowledgment. An affidavit for a change of venue sworn to before an attorney in the case should not be received or considered.

4. Municipal corporations, § 867 —when presumed that findings of trial court are correct. In the absence from the record of a municipal ordinance upon which the action is based, and of which the court cannot take judicial notice, the findings of the trial court will be presumed correct.

5. Appeal and error, § 966 —binding effect of record. The Appellate Court is bound by the record as to the proceedings before the trial court.


text:
    City of Chicago, Defendant in Error, v. Gussie Boller, Plaintiff in Error.
    Gen. No. 22,602.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Prosecution by the City of .Chicago, plaintiff, against Gussie Boiler, defendant, for keeping and maintaining a house of ill fame for the practice of prostitution in violation of a city ordinance. From a judgment upon a verdict of guilty and fine of seventy-five dollars, defendant brings error.
    William L. Martin, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 25

      —when application for extension of time for filing correct stenographic report is too late. An application for an extension of time for filing a “correct stenographic report” under section 23 of the Municipal Court Act (J. & A. If 3335) made more than thirty, days after rendition of the judgment is too late, and the court had no jurisdiction after said thirty days to allow further time for filing such report.
    2. Municipal Court of Chicago, § 26

      —when question of sufficiency of evidence will not he considered. Where a stenographic report on writ of error in the Appellate Court under section 23 of the Municipal Court Act (J. & A. If 3335), is stricken from the record because not filed in time, no assignment of error based on the sufficiency of the evidence will be considered.
    3. Municipal Court of Chicago, § 31

      —when judgment will he affirmed. Where a stenographic report is stricken from the record and no errors arising from the statutory record are presented, the judgment should he affirmed.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    John and William Hallissey, trading as Hallissey Brothers, Appellees, v. Rothschild & Company, Appellant.
    Gen. No. 22,606.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Action by John and William Hallissey, trading as Hallissey Brothers, plaintiffs, against Rothschild & Company, defendant, to recover damages to plaintiffs’ horse occasioned by the negligent operation of defendant’s automobile. From a judgment for plaintiffs for $225, defendant appeals.
    Abstract of the Decision.
    1. Appeal and ebrob, § 1512

      —when improper remarles by trial court are harmless error. Where the verdict of the jury was the only one under the evidence they could properly have reached, the judgment should not be reversed merely bcause of improper remarks by the trial judge in refusing a request for a continuance of the case.
    2. Automobiles and gabages, § 3

      —when question whether collision of automobile with horse is due to sole negligence of driver of automobile is for jury. Where plaintiffs’ horse while turning into a cross street, after its driver had looked behind and seen defendant’s automobile one-fourth of a block away and going at eighteen or twenty miles an hour, was struck by the automobile which had attempted to pass on the side towards which the horse was turning, held that it was a question of fact for the jury whether the accident was caused by defendant’s sole negligence.
    3. Damages, § 190

      —when verdict for injury to horse is not excessive. Where the evidence showed plaintiffs’ horse was worth $250 before it was injured by defendant’s automobile, and thereafter was lame, unfit for any but farm work, and worth about $50, and that its board following the injury was $46, held that a verdict for $225 was not excessive.
    John A. Bloomingston, for appellant.
    Ryan, Condon & Livingston, for appellees; Donald A. Callahan, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.