text:
    Edwards & Bradford Lumber Company, Appellant, v. G. Bontjes and J. H. Bontjes, trading as B. & B. Coal Company, Appellees.
    Gen. No. 6,013.
    (Not to be reported in full.)
    Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.
    Heard in this, court at the April term, 1915.
    Reversed and remanded.
    Opinion filed June 11, 1915.
    Statement of the Case.
    Action of assumpsit brought by the Edwards & Bradford Lumber Company against Gr. and J. H. Bontjes, trading as the B. & B. Coal Company, to recover for eight carloads of coal sold and delivered them prior to July 1, 1912. The defendants claimed that they did not purchase the coal from the plaintiff but from one, McCullough, and that there was no contractual relation between them and the plaintiff. Gr. Bontjes died and the case proceeded against J. II. Bontjes, the surviving partner. From a judgment in fav'or of the defendants, the plaintiff appeals.
    The evidence showed that prior to July 1, 1912, McCullough was the lessee and operator of a coal mine,

      and that on that day he contracted with the plaintiff in relation to the output of the mine. The written contract was excluded on the objection of the defendants, but oral evidence was given to the effect that at the time of the sale of the coal to the defendants, the plaintiff was the owner of the entire output of the mine, and that under an agreement with McCullough all coal was to be shipped in the plaintiff’s name and all money collected by it; that McCullough’s relation to the mine was strictly that of operator «and that he had no connection with the sale of coal except that made at retail at the mine, while from some evidence it might be inferred that the plaintiff was handling the output of the mine as sales agent for McCullough. The latter operated the mine at his own expense on money furnished by the plaintiff, who received eight per cent, and McCullough ninety-two per cent, of the money received from carload shipments from the mine; and that the plaintiff was to advance the latter his percentage on notice of shipments and to collect the whole amount from the purchaser.
    At the túne the alleged purchase of coal occurred the defendants were operating a coal mine near that of McCullough; and there was evidence that it was customary for them to borrow powder from each other; and that about the time the eight carloads of coal were received that McCullough borrowed $115 worth of powder, which defendants claimed was to be paid for in coal; and that the eight carloads were received in pay‘ment. The plaintiff claimed that the purchase of the powder was the individual affair of McCullough with which it had no connection; and that the defendants had notice of the fact that the plaintiff owned the coal before the time of «such sale. There was evidence tending to support each claim, and also of a recognition by the defendants of the plaintiff as their creditor.
    At the request of the defendants, the court instructed the jury;

      Abstract of the Decision.
    1. Sales, § 330

      —when instructions in action for price erroneous. Instructions in an action for the price of coal delivered the defendant, held erroneous, where the evidence was conflicting as to whether it was purchased from the lessee and operator of-a mine or from the plaintiff, who, under a contract with the former, controlled the output of the mine.

      2. ‘‘ That if you believe from the evidence that the coal in question*, at the time it was purchased by the defendants, through their agent, P. J. Matheney, if you believe from the evidence that the defendants did so purchase it, was the property of E. W. McCullough and not the property of the plaintiff, then the plaintiff cannot recover in this case, and you should find the issues joined for the defendants unless you further believe from the evidence that the defendants knew or had reason to believe that the plaintiff had the exclusive control of the output of the mine operated by said McCullough. ’ ’
    4. “That if you believe from the evidence that the contract for the purchase of the coal in question was entered into between E. W. McCullough under the name of the Spaulding Coal Company, and the defendants through their agent, P. J. Matheney, then the plaintiff cannot recover in this case and you should find the issues joined for the defendants.”
    5. “That before the plaintiff can recover in this case that it must prove, by the greater weight of evidence, that the defendants purchased the coal in question from it, the plaintiff, and that they have not paid for the same. If the plaintiff fails to make this proof, you should find for the defendants.”
    Page, Hunter, Page & Dallwig, for appellant; Alden, Latham & Young, of counsel.
    Quinn, Quinn & McGrath, for appellees.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

2. Instructions, § 159*—when instructions construed as series. A series of instructions is to he read as a whole.

3. Instructions, § 160 -—when had instruction cured hy other instructions. A had instruction may he explained and cured by other 'instructions of a series, unless a verdict is directed on the faulty one.

4. Assignments, § 31*—when assignee may recover on contract. A person cannot recover as the assignee of a contract, in an action not brought in the name of the assignor, where he does not bring himself within section 18 of the Practice Act (J. & A. If 8555).


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    James Savio et al., Appellees, v. Anton Vieno et al., Appellants.
    Gen. No. 5,988.
    (Not to Tbe reported in full.)
    Appeal from the City Court of Spring Valley; the Hon. C. E. Sheldon, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed June 11, 1915.
    Rehearing denied July 7, 1915.
    Statement of the Case.
    Bill in equity filed by James Savio and two others against Court Rose No. 12 of the Foresters of America, of Spring Valley, Illinois, and the treasurer, financial treasurer and the trustees thereof, alleging that the complainants were members of said order, of which Court Rose was a local beneficiary society subject to the constitution and by-laws of said body and of the Grand Court of Illinois, and that at a meeting held November 24, 1913, a majority of the members of the local body attempted to secede from the Order of Foresters of America, and at a meeting held January 24, 1914, they attempted to change the name of the local body; that the notice for the November meeting did not comply with the rules of the order, and that therefore the proceeding was illegal and void; that the defendants are in possession of about $1,800 belonging to said order and derived from dues paid by the respective members together with the charter, rituals, books, paraphernalia and costumes of the society, and certain real estate belonging to the society, which the defendants threaten to convert to their own use or to turn over to a new order which they have attempted to join; that by the laws of the society in case of an attempt by a local body to secede, if fifteen or more of the members, including some one competent to preside, do not secede (as was alleged to be the case here), they shall constitute the local body, and be entitled to the property belonging to it before the attempted secession, and that if there are not fifteen members refusing to secede, that the property shall then belong to the grand lodge of the Order of Foresters of the State of Illinois. The complainants prayed that the action of November 24, 1913, be held illegal; and also for a temporary injunction restraining the defendants from disposing of said property. An injunction without bond was issued. Thereafter a motion, which was denied was made to dissolve the injunction, and by leave of court the complainants dismissed their bill as to one complainant who -had died and as to the defendant Court Bose .No. 12, and made it a complainant, and filed an amended and supplemental bill, to which the Grand Court of Illinois was made a defendant. The amended bill alleged that the laws of the order did not provide adequate relief. Subsequently, with leave of court, other amendments were made to the bill, including the prayer, so as to include the new defendants. The defendants, except the Grand Court, moved to dissolve the injunction, and the motion was denied. The Grand Court answered admitting- most of the allegations of the bill. The other defendants then answered denying most of its allegations, when the defendants with the exception of the Grand Court, again moved to dissolve the injunction, and the motion was denied. Whereupon the defendants, with the exception of the Grand Court, filed a bond, and attempted to appeal from the order denying such motions.
    Abstract of the Decision.
    1. Injunction, § 367

      —when denial of motion to dissolve is appealable. Under section 123 of the Practice Act (J. & A. j[ 8661), an appeal lies from the denial of a motion to dissolve an injunction made either before or after answer.
    2. Injunction, § 183*—when verification sufficient. The verification of an injunction bill, as well as a supplemental bill and amendments thereto, held absolute, except as to matters expressly charged on information and belief.
    3. Injunction, § 165*—when preliminary injunction dissolved by amendment to bill. The filing of an amendment to an injunction bill, as well as a supplemental bill and amendments thereto, which merely make the allegations of the original bill more specific, although made without an express order that they should be without prejudice to a preliminary injunction previously granted, do not have the effect of dissolving such writ.
    4. Fraternal and mutual benefit societies, § 55*—when member may enjoin disposition of property. A bill of complaint filed by a member of a local beneficiary society against the society and its officers, alleging an illegal attempt by the defendants and others to secede from the order, and that the defendants were in possession of money and property belonging to the society which they intended to turn over to a new society which they intended to join, or to convert it to their own use, held to justify the granting of a preliminary injunction until a hearing on the merits.

      It was contended that the verification to the original, the amended and supplemental bills were defective, and made those pleadings entirely on information and belief, and that the court erred in subsequently permitting the amendment of the verifications.
    The motions for leave to file the amended and supplemental bills and subsequent amendments did not ask that it be without prejudice to the injunction.
    J. L. Murphy, for appellants.
    Gilbert F. Wagner, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Thomas Caveglia et al., Appellees, v. Anton Vieno et al., Appellants.
    Gen. No. 5,989.
    (Not to he reported in full.)
    Appeal from the City Court of Spring Valley; the Hon. C. E. Sheldon, Judge, presiding."
    Heard in this court at the April term, 1915. Amended and refiled June 25, 1915. Rehearing denied July 7, 1915.
    Reversed and remanded.
    Opinion filed June 11, 1915.
    Statement of the Case.
    Bill filed by Thomas Caveglia and sixty or seventy others against five persons as defendants, .who were alleged to be the treasurer, financial treasurer and trustees of Court Bose No. 12, Foresters of America, of Spring Valley, Illinois, under the jurisdiction of the Grand Court of Illinois. The bill alleged that the complainants were all members of said Court; and in its main features the bill and its amendments were like those discussed in Savio v. Vieno, ante, p.395. A preliminar/injunction was granted. Thereafter by leave of court, the bill was amended, which the defendants moved to dismiss because filed without the consent of certain of the complainants, affidavits of whom were filed denying authority to use their names. The court permitted the complainants to discontinue the suit as to all of such parties excepting Pietro Biva, and then denied the motion to dismiss the action. Complainants filed an amendment to their hill making the Grand Court, Foresters of America, of the State of Illinois, a defendant; whereupon all of the defendants answered ; and thereafter the defendants, other than the Grand Court, moved to dissolve the injunction, which was denied, and the movents then appealed from the two orders denying the motions to dissolve.
    Abstract of the Decision.
    1. Injunction, § 262

      —when dissolved on filing of plea of another suit pending. An injunction, issued in an action by members of a fraternal society against the officers and trustees thereof, to restrain an unlawful disposition of its property, should not be dissolved and the suit dismissed on the filing merely of a plea of the pend-ency of another action against the defendants pertaining to the same matter where some of the complainants in the last’ action were not parties to the first suit.
    2. Equity, § 183*—when suit dismissed on plea of another action pending. The mere filing of a plea alleging the pendency of another suit between the same parties concerning the same matter does not entitle the defendant to a dismissal of the bill of complaint before the plea has been put on issue and tried.
    3. Appeal and ebbob, § 990*—when affidavits on motion reviewed. Affidavits used on a motion to dismiss a bill of complaint because not filed with the consent of all of the complainants, and which are copied into the record by the clerk, cannot be considered on appeal when not embodied in a certificate of the evidence.

      The defendants contend that the suit should have been dismissed on the filing by them of a plea of the pendency of the previous action, to which many of the complainants in the present suit were not parties.
    Court Rose No. 12 was not a party to the suit either as complainant or defendant.
    J. L. Murphy, for appellants.
    Gilbert F. Wagner, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

4. Equity, § 97*—when consent of complainant to use of name presumed. That a bill of complaint was filed with the consent of a complainant will be presumed in an appeal from the denial of a motion to dismiss because of the failure to obtain his consent before filing, where the evidence submitted on the motion is not embodied in a certificate of evidence.

5. Fraternal and mutual benefit societies, § 55*—when society necessary party to proceeding to enjoin officers. A fraternal society is an essential party, either complainant or defendant, to an action by a member to ^enjoin an unlawful disposition of its property by its officers and trustees.


text:
    Willfred Coal Company, Plaintiff in Error, v. Fred A. Sapp et al., Defendant in Error.
    Gen. No. 5,995.
    1. Libel and slander, § 88

      —when corporation may sue for libel. A corporation may sue for a libel reflecting on the management of its trade or business, its credit and its property, without alleging or proving special damages, where the language used is actionable per se.

      2. Libel and slander, § 7*—how words of libelous publication construed. In order to ascertain the meaning of an alleged libelous newspaper publication, the whole of the article must be construed and read in connection with the headlines, each phrase construed in the light of the entire publication, the words used must be taken in their natural and obvious meaning, and in the sense that fairly belongs to them.
    3. Libel and slander, § 40*—what charges against corporation libelous per se. It is libelous per se to publish falsely of a coal mining company that it has violated some of the laws requiring the use of safety appliances in its mine; that its miners were not properly protected by safety appliances; that it violated the law by using a boiler for six months without reporting its condition; that by reason of such violations the mine had been closed by a State mine inspector, and a criminal prosecution brought against the president of the company; that the latter could not be found and was a fugitive from justice; that thirty-five miners were thrown out of employment; that one of them had to sue in order to obtain his pay; that the company had been wrecked; that it was not able to meet its pay-rolls, and that no plans had been made for reopening the mine.
    Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded with directions.
    Opinion filed June 11, 1915.
    Statement by the Court. The plaintiff in error, an Illinois corporation, engaged in the business of operating a coal mine and selling the products thereof, brought suit in the Circuit Court of La Salle county against the defendants in error, the editors and proprietors of the Daily Republican-Times, a newspaper published at Ottawa in said county, to recover damages for the publication of an alleged libelous article in said newspaper. An amended declaration was filed to which a general demurrer was sustained. The plaintiff electing to stand by its declaration, judgment in bar was entered against plaintiff, and it has sued out this writ of error to review the action of the trial court.
    The amended declaration consists of one count, which, omitting, formal parts and matters of inducement relative to the occupation of plaintiff in error and the good opinion of the public which it claims to have enjoyed, is as follows:
    “And the said plaintiff, at that time and place (October 15, 1912, at Senéca, La Salle County, Illinois), did a large and lucrative business in mining and selling coal in and at said coal mine, and the plaintiff had many customers with whom it did business and many others who, together with said customers, extended to it confidence and credit, and from its said business as aforesaid, a large profit resulted to the plaintiff. The plaintiff also had and employed as its president and manager one J. L. Jones, who is the same person hereinafter mentioned in said libel, by said name, and the said J. L. Jones, as president and manager of said plaintiff, had and- enjoyed among the said customers of said plaintiff a good reputation for honesty and fair dealing and skilful management of the business of said plaintiff, and the said confidence and esteem in which the said Jones was held by the said customers of the plaintiff increased and extended and maintained the business of the said plaintiff, as aforesaid, and thereby greatly increased the profit which said plaintiff derived from the said business, and thereby greatly increased the value of the property which the said plaintiff used in and about its said business; yet, the defendants, well knowing the premises, but wickedly and maliciously intending to injure the plaintiff in its said business, and to bring it into public scandal and disgrace, to wit: on or about the 15th day of October, A. D. 1912, in, to wit: the City of Ottawa, County of La Salle and State of Illinois, wickedly and maliciously did compose and publish and caused to be composed and published of and concerning plaintiff, in a certain newspaper called the Daily Republican-Times, whereof the defendants were then and there the editors and proprietors, a certain false,' scandalous, malicious and defamatory libel containing the false, scandalous, malicious, defamatory and libelous matter following, of and concerning the plaintiff, that is to say:
    ‘ Sheriff in hunt of Coal Co. head—Willfred Mine at Seneca closed by Inspector—President Skips—Information Filed against J. L. Jones. State Inspector charges the miners were not properly protected by safety appliances—Miner starts suit for wages— Miners out of Employment.
    ‘The Willfred Coal Mine, at Seneca (meaning the mine of the plaintiff) was closed Monday by Hector McAllister, of Streator, state mine inspector, on the ground that the men employed at the mines were not properly protected. The sheriff of the county is in search of J. L. Jones, the president of the company (meaning plaintiff). Jones has been made defendant in a criminal suit started in the County Court by State’s Attorney C. S. Cullen, in which Jones (meaning the president of the plaintiff) is charged with operating his mine without proper boiler inspection. The information was filed by the State’s Attorney September 27th, and the papers have been in the sheriff’s hands since that time, but J ones (meaning the president of the plaintiff) cannot be located. Deputy Sheriff Rasmus Benson was in Seneca Monday looking for the coal company (meaning plaintiff) president, but he was not to be found. It is said Jones is in hiding in Chicago. Jones, it is said, has remained away from Seneca since the information was filed. The business of the company (meaning the plaintiff) has become badly wrecked, and it is said the coal company (meaning the plaintiff) has not been able to meet its (meaning the plaintiff) payroll. Phil Timmins, former employee of the Willfred Coal Co. had trouble collecting the wages which he charges is due him and has brought suit. Timmins claims that on one occasion when he went to Jones (meaning the president of the plaintiff) to collect his wages he was thrown down a flight of stairs, and that on another occasion he was ordered off the sidewalk by Jones (meaning the president of the plaintiff). The information filed against Jones (meaning the president of the plaintiff) with Hector McAllister as prosecuting witness, represents that the Willfred Coal Co. (meaning the plaintiff) used a boiler at its mine for a period of more than six months without making a report on its condition.- After McAllister had taken up the boiler matter he made a close examination of the mine and directed that it be closed until the proper safety appliances are installed. The thirty-five men employed at the mine are now out of work. At the office of the coal company this afternoon it was announced that no definite plans had been made for reopening the mine (meaning the mine of the plaintiff.) ’
    By means of the committing of which said grievances by the defendants the plaintiff has been and is- greatly injured in its good name, reputation, -credit, trade and business and has fallen into great discredit among its creditors and other worthy persons with whom it had dealings and in its said trade and business, which business was that of operating a coal mine and selling the product thereof and purchasing supplies, labor and material in the operation of said mine; insomuch that those creditors and other persons wholly on account of the publishing and distribution of the said false, scandalous, malicious and defamatory libel by the said defendants, as aforesaid, have altogether refused to sell and refused to buy of or sell to or have anything to do with the plaintiff in its trade and business aforesaid. And the plaintiff has been and is greatly injured also in its reputation, trade and business-, because of the said false, scandalous, malicious, and defamatory libel by the said defendants, as aforesaid, of the reputation of the plaintiff’s president and manager, said J. L. Jones, as aforesaid. And also by means of the premises the plaintiff has been brought into public scandal and disgrace and has been and is shunned and avoided by divers persons and has been and is thereby .injured; to the damage of the plaintiff in the sum of twenty thousand dollars ($20,,000.00), and therefore this suit is brought.” '
    Abraham E. Mabie and I. I. Hanna, for plaintiff in error.
    McDougall & Chapman, for defendants in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

It is contended by defendants in error that the declaration fails to allege any special damage resulting in pecuniary loss to plaintiff in error, and that by reason thereof it is fatally defective. The determination of this question depends upon whether the article complained of or any of the statements therein contained are, as applied to the corporation, libelous per se. If the article contains statements which are actionable of themselves when applied to the plaintiff corporation and its credit, trade and business, it was unnecessary to allege special damage, and the demurrer should have been overruled. If the words used are not actionable per se, it may be necessary to determine whether the allegations of special damage are sufficient.

At common law a corporation may maintain an action for libel affecting its trade or business. Hahnemannian Life Ins. Co. v. Beebe, 48 Ill. 87; Jewelers’ Mercantile Agency v. Douglass, 35 Ill. App. 627; Inland Printer Co. v. Economical Half Tone Supply Co., 99 Ill. App. 8; Newell on Slander and Libel (3rd Ed.) par. 448; 5 Thompson on Corp. (2nd Ed.) sec. 5440; 25 Cyc. 425. In some of the earlier cases, notably in Trenton Mutual Life & Fire Ins. Co. v. Perrine, 23 N. J. L. (3 Zab.) 402, decided in 1852, it was held that no words spoken or written of a corporation could be actionable in themselves, and that the corporation must always allege and prove special damage in order to recover. This distinction was thought to be justified by the fact that a corporation has not, like an individual, any character or reputation to be affected by the libel, independent of its trade or business. However, the law is now well settled that a corporation may sue for a libel reflecting on the management of its trade or business, its credit and its property, without alleging or proving special damage, where the language used is actionable per se. Newell on Slander and Libel (3rd Ed.) par. 448; 5 Thompson on Corp. (2nd Ed.) sec. 5440; Ohio & M. Ry. Co. v. Press Pub. Co., 48 Fed. 206; American Book Co. v. Gates, 85 Fed. 729; Gross Coal Co. v. Rose, 126 Wis. 24; Midland Pub. Co. v. Implement Trade Journal Co., 108 Mo. App. 223; Reporters’ Ass’n of America v. Sun Printing & Publishing Ass’n, 186 N. Y. 437; Bee Pub. Co. v. World Pub. Co., 59 Neb. 713; Arrow Steamship Co. v. Bennett, 73 Hun (N. Y.) 81; Shoe & Leather Bank v. Thompson, 18 Abb. Pr. (N. Y.) 413; Union Associated Press v. Heath, 49 App. Div. (N. Y.) 247; St. James Military Academy v. Gaiser, 125 Mo. 517; South Hetton Coal Co. v. Northeastern News Ass’n. 1 Q. B. 133. In note to Brayton v. Cleveland Special Police Co., 63 Ohio St. 83, reported in 52 L. R. A. 525, an extensive collection of authorities will be found upon the question here involved.

The cases relied upon by defendants in error, except Trenton Mut. Life & Fire Ins. Co. v. Perrine, supra, do not support their contention that it is always necessary for a corporation in an action for libel to allege and prove special damage and pecuniary loss. In Memphis Tel. Co. v. Cumberland Telephone & Telegraph Co., 76 C. C. A. 436, 145 Fed. 904 and in Reporters’ Ass’n of America v. Sun Printing & Publishing Co., 186 N. Y. 437, it was held that the words complained of were not actionable per se, and the question, whether it would have been necessary to aver special damage had the language been actionable in itself, did not arise. However, in the case last cited, Mr. Justice Gray clearly recognizes the distinction between words actionable per se and those not, in pleading special damage. He says:

‘£ There has been some dispute in the cases as to the necessity of setting out the specific damage, which a corporation claims to have suffered from a libelous publication; but I regard the better rule to be that such an averment is not necessary, when the language is of so defamatory a nature as to directly affect credit and to occasion pecuniary injury.”

In American Book Co v. Gates, 85 Fed. 729, also relied upon by defendants in error, the plaintiff by leave of court struck out of Ms complaint all averments with reference to special damage, leaving the same as follows: “That by reason of the said premises and the acts of the defendant, as aforesaid, this plaintiff lias been damaged and has suffered damages to its business,' business reputation, and credit, * * * in the sum of one hundred thousand dollars.” It was held that one statement in the article complained of was libelous per se, and that as to such statement the complaint of the plaintiff corporation was sufficient without averment as to special damage. In Canton Surgical & Dental Chair Co. v. McLain, 82 Wis. 93, also cited by defendants in error, it was held that the words charged were not actionable per se, that they did not necessarily relate to the business of the plaintiff corporation, and that the complaint failed to state facts or circumstances, by way of colloquium or otherwise sufficient to enlarge the meaning of the supposed slanderous words. In concluding the opinion, the court says: “Nor does the mere general allegation of special injury in the loss of the sale of chairs supply such deficiency.” The question whether it would have been necessary to aver special damage had the words been actionable was not raised or considered. It is also to be observed that if this case could be given the force contended for by defendant in error, it is not in harmony with the later Wisconsin cases heretofore cited. Hahnemannian Life Ins. Co. v. Beebe, 48 Ill. 87, does not support the position of defendants in error. In that case a foreign corporation brought suit for an alleged libel, and on demurrer to the declaration it was held that the charter of the plaintiff should have been set out at length, in order that it might- be seen whether the publication was false in stating the mode in which it authorized the business to be done, and which was the subject of the criticism which constituted the alleged libel. It was further held that the usual formula in the declai ation, to the effect that the defendant falsely and maliciously wrote and published the article complained of, was not sufficient under the circumstances of that case to charge the falsity of the article. The question whether or not it was necessary to allege special damage apparently was not raised or considered by the court. That the article there complained of might have been libelous, if its falsity had been properly pleaded, is plainly intimated, when the court says:

“If the charter contains no such authority, and the company does not propose to do its business in this method, the publication may be libelous. Herein consists the fatal defect in this declaration. It nowhere purports to set out the charter, either in substance or in haec verba.”

Our attention has been called by defendants in error to 6 Thompson on Corp. (1st Ed.) sec. 7383, where it is said: “A Corporation may maintain an action for libel upon averment and proof of special damages. This would clearly be true in respect of a slander of its goods or property. ’ ’ An examination of the last edition of Thompson, vol. 5, sec. 5440, relating to the same subject, will disclose that the text of said section 7383 has been entirely omitted from the later edition, and not only is the rule there clearly recognized that a corporation may sue for a libel affecting its business or property, but numerous instances are given where it has been held that the language used was libelous per se. Trenton Mut. Life & Fire Ins. Co v. Perrine, supra, is the only case cited which tends to support the position of defendants in error. That decision was rendered in 1852, when there were practically no adjudicated cases upon the subject, and the case was necessarily one of first impression. In the Perrine case', a libel case, the declaration of the plaintiff corporation contained elaborate averments of special damage which were held sufficient upon demurrer. In the opinion the court says:

“It may be admitted, without prejudice to the present inquiry, that no words spolcen or written of a corporation are in themselves actionable, but the corporation must always show special damage in order to recover. And the reason for the distinction may be found in the fact, that a corporation has not, like an individual, any character to be effected by the libel, independent of its trade or business.”

This statement is not in harmony with the holdings in the later cases, nor does it commend itself to us as sound in principle, where the libelous statements pertain to the trade or business of a corporation and are of such a character as to naturally and proximately result in pecuniary injury.

The question whether the article complained of is libelous per se will be considered. The imputation of an indictable offense is not essential where the charge is written or printed. Harkness v. Chicago Daily News Co. 102 Ill. App. 162; Dowie v. Priddle, 116 Ill. App. 184, aff’d 216 Ill. 553. It is well settled that words spoken or written of one in his office, trade, profession or business, which tend to impair his credit, or charge him with fraud or indirect dealings or incapacity, and which tend to injure him in his trade, profession or business, are actionable without proof of special damage. Clifford v. Cochrane, 10 Ill. App. 570; MacDonald v. Lord, 27 Ill. App. Ill; Gerald v. Inter Ocean Pub. Co., 90 Ill. App. 205; Marion v. Courier Pub. Co., 125 Ill. App. 351; Gross Coal Co. v. Rose, 126 Wis. 24; Newell on Slander and Libel (3rd Ed.) par. 41. Any written words are libelous which impeach the credit of any merchant or trader by imputing to him bankruptcy, insolvency or even embarrassment, or which impute to him fraud or dishonesty or any mean and dishonorable trickery in the conduct of his business, or which in any other manner are prejudicial to him in the way of his employment or trade. Newell on Slander and Libel (3rd Ed.) par. 47. Words are actionable as libelous if they are fairly susceptible of a meaning defamatory of the business of the - plaintiff. Harkness v. Chicago Daily News Co., 102 Ill. App. 162. A publisher who maliciously makes a false statement of a material fact in relation to the wares of a merchant or manufacturer is guilty of a trade libel. Inland Printer Co. v. Economical Half Tone Supply Co., 99 Ill. App. 8.

The foregoing principles have been applied to libels affecting the credit, trade and business of corporations. Newell on Slander and Libel (3rd Ed.) par. 448. In 5 Thompson on Corp. (2nd Ed.) sec. 5440, it is said:

“A corporation may sue for a libel affecting its business or property, as where, for example, the corporation is engaged in a business which depends upon credit, and a defamatory publication is made which is injurious to' its credit. Thus a newspaper article falsely stating that a business corporation is in a precarious condition and cannot meet its financial obligations and that it is about to collapse as a business con-, cern is libelous per se. (See Bee Pub. Co. v. World Pub. Co., 59 Neb. 713). So it has been held libelous to charge a corporation engaged in the business of furnishing news to newspapers with tapping the telegraph wires of a rival company for its news. (Union Associated Press v. Heath, 49 App. Div. (N. Y.) 247.) So it is libelous to charge a trade journal with being a fake. (Midland Pub. Co. v. Implement Trade Journal, 108 Mo. App. 223.) So it has been held that a charge against a street railroad company of keeping two sets of books, one to make settlement with the State auditors, of its license, and one for its stockholders, is a charge involving moral turpitude and comes within the class that is actionable per se. (Cincinnati St. Ry. Co. v. Cincinnati Daily Tribune Co., 31 Cinc. L. Bul. (Ohio) 111.) It has been held libelous per se to charge that a corporation, engaged in the business of selling coal, at the time of a coal famine, when the people were suffering for fuel, not only asked extortionate prices for its coal but actually refused to sell coal to people suffering from sickness.”

In Gross Coal Co. v. Rose, 126 Wis. 24, the Supreme Court of "Wisconsin, in speaking of the defamatory charge there made, says: 11 Such a charge is libelous, bécause imputing mean and abhorrent conduct to the plaintiff in the management of its business, and thus tending necessarily to injure it in such business.”

In Inland Printer Co. v. Economical Half Tone Supply Co., 99 Ill. App. 8, it was held that a publication falsely charging that the wares of a manufacturer are a humbug, worthless and unfitted for practical use, is libelous per se. In Ohio & M. Ry. Co. v. Press Put. Co. 48 Fed. 206, it was held libelous per se to publish of a railroad corporation a statement that “over one half of the ties in the roadbed are rotten, and it is dangerous to run trains very fast;” to publish that a corporation engaged in selling books places out of date school books in frontier or backwoods states; and that “books that are referred to nowadays as a laughing stock by intelligent teachers are foisted upon whole States for a series of years,”—so relates to its methods in pursuing its business as to be actionable, without allegation of special damage. American Book Co. v. Gates, 85 Fed. 729. A defamatory publication that a steamship company has been detected in a swindling scheme, and forced to discontinue its business in the place selected, has been held to be libelous per se. Arroto Steamship Co. v. Bennett, 73 Hun (N. Y.) 81. In Shoe & Leather Bank v. Thompson 18 Abb. Pr. (N. Y.) 413, a banking corporation brought an action for libel for the publication of a statement that there were notes of the bank said to be counterfeits and the officers were in doubt as to which were good, and that divers persons refused to receive the notes of the bank or deal with it, to its damage. It was held that the words were actionable without an averment of special damage. In St. James Military Academy v. Gaiser, 125 Mo. 517, the publication referred to an academy where dancing was taught, to the effect that such institution was harmful to the moral and religious interests of the community, and urging people to absent themselves from the academy as long as dancing was allowed in the building. This was held sufficient to sustain an action for libel. In South Hetton Coal Co. v. Northeastern News Ass’n, 1 Q. B. 133, it was said that an action for libel will lie at the suit of an incorporated trading company for a defamatory publication calculated to injure its reputation in the way of its business, without proof of special damage.

In order to ascertain the meaning of a published article the whole of the article must be considered, each phrase must be construed in the light of the entire publication, and the words are to be taken in their natural and obvious meaning and in the sense that fairly belongs to them. The headlines of a newspaper article must also be read in connection with the language which follows. Marshall v. Chicago Herald Co., 185 Ill. App. 226. The words constituting the charge will be construed with their ordinarily accepted meaning. Sanford v. Gaddis, 13 111. 329; Nelson v. Borchenius, 52 111. 236; Miller v. Johnson, 79 111. 58; Barnes'v. Hamon, 71 111. 609. They must be taken in the sense which readers of common and reasonable understanding would ascribe to them, that is, in their ordinary or common acceptation. People v. Fuller, 141 Ill. App. 374, aff’d 238 Ill. 116; Ball v. Evening American Pub. Co., 237 Ill. 592; Ransom v. McCurley, 140 Ill. 626. The essence of the injury is the effect created by the libel upon the minds of the hearers. Nelson v. Borchenius, 52 Ill. 236.

Viewed in the light of the foregoing authorities, the question presented in the case at bar is not difficult of solution. The defamatory statements contained in the article complained of may be divided into two general classes, viz: Those relating directly to the corporation, its business, credit, property and management, and those pertaining to the acts and conduct of its president and manager in the management and control of its corporate affairs. The language complained of with reference to these two general classes of statements is clearly libelous per se. Construing the headlines and the body of the article together and taking the words used in their ordinary or common acceptation, that is, in the sense which a reader of common and reasonable understanding would ascribe to them, the imputation is clearly left that the plaintiff corporation in the conduct of its mine had violated some law requiring safety appliances for the protection of its miners; that its miners were not properly protected by safety appliances ; that it has violated the law by using a boiler at its mine for a period of more than six months without making a report of its- condition; that by reason of such violation of law, a criminal prosecution had been commenced, the mine closed by the State mine inspect- or, its thirty-five employees thrown out of employment and that no plan had been made for reopening the mine; that the company had become financially embarrassed, or in the language of the article, “the business of the company has become badly wrecked and it is said that the company has not been able to meet its payroll;” that one of its miners had trouble in collecting his wages and that it was necessary for him to sue. It may also be fairly and reasonably inferred from the article complained of that by reason of financial difficulties and the closing of the mine, the plaintiff corporation is no longer a going concern; that it is unable to produce the product of its mine for the purpose of supplying its customers; that it is uncertain when, if ever, it will be able to do so; and that its business has been so managed and conducted in violation of law that its president and manager is now a fugitive from justice. The article in the respects indicated clearly affects the trade, business and property of the plaintiff corporation, and its financial credit and standing, and the reasonable and natural consequence of which will be financial injury. As to such matters, it was unnecessary tó allege special damage.

Defendants in error treat the case as though the defamatory statements complained of related solely to the president and manager of the plaintiff in his private or personal capacity. If this were true, their position would be well taken, as held in Brayton v. Cleveland Special Police Co. 63 Ohio St. 83, and Midland Pub. Co. v. Implement Trade Journal Co., 108 Mo. App. 223. But here the article complained of not only relates to the corporation itself, and its trade, business and credit, but many of its statements in regard to the president and manager are in direct relation to the trade or business of the corporation and its control and management by him as such officer and manager. In South Hetten Coal Co. v. Northeastern News Ass’n, 1 Q. B. 133, it was held that while a corporation may not sue for a libel reflecting upon the members thereof personally, yet it may sue for a libel reflecting on their management of its trade or business, without alleging or proving special damage. In Riding v. Smith, L. B. 1 Exch. Div. 91, it was held that a husband might recover damages for defamatory statements regarding his wife (not actionable per se as to her) where it appeared that the wife assisted her husband in the conduct of his business, and that the words were spoken of her in relation to the business, in consequence of which he was injured in his credit and business. In Brayton v. Cleveland Special Police Co., supra, the court said:

“Although a corporation may sue for a slander upon it in the way of its business or trade, it cannot sue for a slander upon one of its stockholders or officers, if the slander be not in direct relation to the trade or business of the corporation, because the right of action is personal, and is confined strictly to the person of whom the slanderous language was uttered.”

It has been held that partners may sue jointly for defamatory words spoken of them in the way of their trade, business or profession, but that no damage can be allowed for words published of a partner as an individual, unless it appears that the injury to individual character affected the business of the firm. 25 Cyc. 426.

The judgment will be reversed and the cause remanded with directions to overrule the demurrer to the amended declaration.

Reversed and remanded with directions.


author: Mr. Presiding Justice Thompson

text:
    O. H. Paddock Lumber Company, Appellee, v. Western Union Telegraph Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Pana; the Hon. J. H. Fornoff, Judge, presiding.
    Heard in this court at the October term, 1914. Affirmed. Rehearing denied April 7, 1915.
    Opinion filed December 11, 1914.
    Statement of the Case.
    Action in case by the O. H. Paddock Lumber Company against the Western Union Telegraph Company to recover damages because of a mistake in the transmission of a telegram, sent to the plaintiff by the Louisville Cement Company, quoting the price on 3000 barrels of cement. On the trial the. appellant did not offer any evidence and the court directed a verdict in favor of the plaintiff for $300, on which judgment was rendered and the defendant appeals.
    The cement company in reply to a letter, sent a telegram to the plaintiff quoting a price of $1.64 per barrel for cement, while the telegram as delivered read $1.54. The plaintiff, without notice of the mistake and relying on the telegram, wired its acceptance of the offer and resold the cement to a customer at $1.72 per barrel. The cement company refused to furnish the cement at $1.54, and the plaintiff in order to protect its contract with its customer was compelled to pay $1.64 per barrel for the cement.
    Abstract of the Decision.
    Telegraphs and telephones, § 32

      —tolien lost profits recoverable for mistake in telegram quoting' prices. Where a telegram was changed in transmission so as to quote a lower price for cement than that stated in the message as filed, and the recipient in reliance thereon contracted to resell the cement, he may recover from the telegraph company the profits lost by his being compelled, in order to fulfil his contract, to pay for cement the figure stated in the telegram as filed;
    James A. Connolly and James T. Kelly, for appellant.
    Mc Quigg & Dowell, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    M. H. Wilson, Appellant, v. Thomas McVay et al., Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 11, 1914.
    Statement of the Case.
    Bill filed in chancery by M. H. Wilson against Thomas McVay, Bert McVay and Gr. H. Redman, for an accounting of commissions realized by the defendants from the sale of lands for a third party. The bill alleged that the complainant was .engaged in buying and selling land for commission and profit, and that a certain farm was listed with him for sale at $20,000, and that he was to have all over that figure he could realize; that the McVays were real estate agents, and that the complainant agreed with them that if they would find a purchaser that the commissions and profits should be divided equally between the complainant and the McVays; that the McVays conspired with Redman to sell the lands and to appropriate to themselves the'entire profit; that they made a sale for a consideration of a mortgage for $14,000 and divers sums of money and goods and merchandise of great value; that when the complainant demanded an accounting from the defendants they wrongfully refused to give it, asserting that the complainant had no interests in the profits from the sale.
    Abstract of the Decision.
    1. Discovery, § 5

      —when ground for discovery shown hy hill. A bill alleging that the complainant, with whom land was listed for sale, agreed with the defendant that if the, latter should find a purchaser they would divide the profit between them, that the defendant secured a buyer, and that conspiring with another, they sold the land and appropriated the profit to themselves, and refused to account to the complainant therefor, held not a bill for discovery.

      The defendants demurred to the bill on the ground that it did not state facts requiring the interposition of a court of equity, and that the complainant had a full and adequate remedy at law. The complainant contended that the bill was for discovery, and for an accounting between partners. The demurrer was sustained and the complainant appeals.
    William Mumford and Eby & Hulse, for appellant.
    Williams & Williams and Rollo Six, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Partnership, § 18*—when sharing profits from land sold creates partnership. An agreement between one real estate agent with whom land is listed for sale to divide the profits with another agent if the latter procures a purchaser does not create a partnership between them.

3. Equity, § 51*—when legal remedy adequate for recovery of profits between real estate agents. Equity is without jurisdiction of an action by a real estate agent, with whom land was listed for sale, against another agent for an accounting for profits received by the latter, who procured a purchaser under an agreement to divide the profits with the complainant, since the remedy at law was adequate.


text:
    Nettie L. Swann, Appellant, v. Mary C. Moore et al., Appellees.
    Partition, § 114

      —when solicitor’s fees taxed in favor of complainant. Solicitor’s fees will not be taxed in favor of the complainant against all of the parties to a partition proceeding, where he did not correctly state in his petition all of the rights and interests of the various parties in the property, and employed the solicitor in his own behalf.
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 11, 1914.
    Edward A. Cress, for appellant.
    Hill & Bullington, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a hill in chancery filed August 18, 1913, by Nettie L. Swann against Mary C. Moore and five other heirs of George P. Swann, deceased, praying for the partition of certain real estate therein described.

The original bill alleged that George P. Swann was at the time of his death the owner of a certain quarter section of land subject to a mortgage of $2,000, and also of certain residence property in the city of Hillsboro which the heirs had agreed should be sold at public auction; that said residence property had been sold at auction on August 16, 1913, under an oral agreement between the heirs; that a deed to the purchaser had not been executed and that the complainant is ready to execute a deed of the residence property. The bill prayed for a partition of the quarter section of land and the residence property if the sale of the residence should not be carried out.

An answer was filed on August 29th, setting up that the residence property had been sold and conveyed and that before the sale was made there was an oral agreement amongst all the heirs that the mortgage on the quarter section should be paid from the proceeds of the residence, for the reason that the holder of the mortgage was threatening that he was about to begin foreclosure proceedings; that after the sale of the residence had been made, complainant refused to execute the deed, unless her share of the proceeds should be paid to her without paying her portion of the said mortgage and.that the same was paid to her; that the defendants had paid six-sevenths of the mortgage and the complainant had refused to pay any part, and that one-seventh of the mortgage was a lien on her seventh part of the quarter section and should be paid therefrom. In November the complainant amended the bill by striking out all reference to the residence property. The amendment makes no allusion to the fact that six-sevenths of the mortgage had been paid by the defendants, and that the partition should subject her portion of the premises to the seventh of the mortgage that equitably should be paid from her share of the premises.

The court decreed a partition of the premises and that the interest of complainant be subject to the payment of the unpaid one-seventh part of the mortgage. The premises were reported indivisible and thereafter sold. Complainant then sought to have a solicitor’s fee taxed as costs and paid from the proceeds. The court refused to tax a solicitor’s fee as costs. The complainant appeals.

The only question before this court is the right of the complainant to have a solicitor’s fee taxed as costs in the case against all the parties. The original bill prayed for a partition of the quarter section of land and the residence property. The partition of the residence property was only sought if the sale at auction, made two days before the bill was filed, should not be carried out by the parties mailing a deed to the purchaser. At the time the residence property was sold, the parties had an offer of $100 an acre for the farm land. The complainant refused to sell the farm at $100 an acre but insisted on $125 an acre. The farm was appraised by the commissioners at $102, and was sold at $85.25 per acre.

After the answer of the defendants was filed, and upwards of three months after the residence was sold, the complainant amended her bill by omitting all reference to the residence, which had been sold at auction by agreement of the parties. She well knew when the bill was amended that the defendants had paid their six-sevenths of the mortgage on the farm from their part of the proceeds of the sale of the residence.

She also knew that she had not paid the part -for which her share of the farm was liable. The complainant and most of the defendants discussed the question of selling the farm at a private sale or at auction and whether it should be sold on the 16th day of August, when the house was sold. Two days thereafter she employed counsel and filed the bill for partition without mentioning the matter to the other tenants in common. When she amended her hill she did not accurately set forth the interests of the tenants in common for the reason her portion of the premises was liable for the payment of one-seventh of the mortgage while the other heirs had paid their proportion of the mortgage. Bights and interests are not set forth in such manner as to authorize the allowance of solicitor’s fees as costs unless every interest of every character is correctly set forth. Metheny v. Bohn, 164 Ill. 495; Joest v. Adel, 209 Ill. 432. Complainant was not acting in good faith in the matter. To entitle a party to have solicitor’s fees taxed as costs the solicitor should be employed and act for all the parties. Partisanship on the part of counsel in favor of one tenant in common deprives the party of the right to have counsel fees taxed as costs. It was necessary for the other tenants in common to employ counsel to protect their interests, and complainant was not entitled to have her solicitor’s fees taxed as costs in the case. There is no error in the decree and it is affirmed.

Affirmed.


text:
    Cornelius B. Keller et al., Appellees, v. Charles W. Keller et al. Charles W. Keller and William T. Vandeveer, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed December 11, 1914.
    Statement of the Case.
    /
    Bill for partition filed by Cornelius B. Keller, Jennie Zimmerman, Elenora K. Martin and Grace Bach against Charles W. Keller, John H. Keller, Mary A. Keller and William T. Yandeveer, Appellants, alleging a tenancy in common in certain real estate, the existence of certain mortgage indebtedness, and that the land, except two town lots, was in the possession of Charles W. Keller under farm agreement, dated March 1, 1913, which terminated March 1, 1914. The bill grayed for a partition according to the respective rights of the parties. The farm agreement was “between Charles W. Keller, Jennie Zimmerman, J. H. Keller, Elenora Martin, Grace Bach and C. B. Keller, heirs of J. B. Keller, deceased, parties of the first part, and Charles W. Keller, individually, party of the second part,” and was signed by all of them under seal. The contract stated that the parties being desirous of farming the lands for profit, agreed to pay the second party for the managing and conducting the same as follows: That the second party should reside on the land, farm, and manage the same to the'best of his ability, rotating crops as occasion required, and to make such repairs and improvements on the land as might be necessary; that the parties of the first part would “furnish one-half of the necessary personal property with which second party is to farm said lands; and second party agrees to furnish one-half of all the personal property necessary for conducting the farm, and that the personal property is to be owned by first parties and second party in common ; ’ ’ that the ‘ ‘ second party is to furnish and pay the expense of all labor necessary for successfully conducting said lands and feeding and raising live stock;” and that neither of the parties were to keep any stock on the farm not owned by them in common; that the second party was to devote his entire time to carrying out the contract. The agreement was to be in force for one year, when it might be terminated and the property owned in common disposed of by either of the parties by giving thirty days’ notice in writing, or if not terminated, that it might be renewed by the mutual agreement of the parties. In the event of termination of the contract and the inability of the parties hereto to agree as to the disposition of the personal property on hand, then it was to be sold at public sale within thirty days after such notice was served, and the proceeds of said sale, after deducting the expenses thereof, were to be divided between the parties according to their . i espective interests. It was further agreed that Edmund H. Bach should act as the representative of the parties of the first part, and also how the bank account should be kept and checked against, and the moneys arising from sales deposited, and the profits divided.
    The defendants admitted the ownership of the land, but denied that the contract expired March 1, 1914, and asserted that the agreement had been renewed for another year, and that a written memorandum thereof was to be made; that the defendants had executed such written memorandum; that C. W. Keller, relying on said agreement had sown seventy acres of winter wheat, had purchased a large number of cattle for fattening, and had done other things towards carrying out the contract for another year; and he asked that if partition was decreed, it be subject to the right of occupancy in furtherance of the partnership contract for another year, and that the interests of the defendants be set off jointly.
    Abstract of the Decision.
    1. Partnership, § 23

      —when agreement to work farm constitutes partnership. A partnership is created where a person goes into possession of farm land owned by another, to work, manage and pay for working it, under an agreement whereby each is to furnish one-half of the necessary personal property, which is to be owned in common, and the proceeds are to be divided at the expiration of one year.
    2. Partnership, § 57*—when partnership to farm land extended by implication. A contract of partnership to farm land held not extended by implication for another year by the fact that the person who was to manage, work and pay for working it, sowed wheat in the fall preceding the expiration of the term, with the knowledge and consent of the husbands of the female owners of the land, and purchased cattle for feeding.

      The evidence showed that any agreement for the extension of the term, if made, was with the husbands of the female complainants, acting for them, and that the memorandum of the extension was not signed by the complainants.
    The court found the interests of the parties as set up in the bill, and that under the contract Charles W. Keller was entitled to the possession of that portion of the farm lands upon which he had sown wheat in the fall of 1913, until the crop was matured and harvested, and that his right of possession to the balance of the land expired March 1, 1914. From a decree entered on such findings, the defendants appeal.
    John E. Hogan, for appellants.
    Taylor & Taylor, for appellees.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

3. Partnership, § 58 —when partnership to farm, land not extended. A contract of partnership for working a farm for one year, held not extended for another year by agreement with the husbands of the female owners thereof, where no memorandum of the extension was signed by them.

4. Partnership, § 57*—when partner entitled to possession of farm, land after expiration of partnership. The fact that a person who worked and managed a farm under an agreement of partnership which expired March 1, 1914, sowed wheat in the preceding fall with the consent of the husbands of the female owners thereof, and purchased cattle for feeding, beM'not to entitle him to possession of the land sown after the expiration of the partnership.

5. Partnership, § 57*—when partnership to worTc farm not extended by sowing fall crop. The fact that a person who was to manage, work and pay for working a farm under a partnership agreement which expired March 1, 1914, sowed wheat in the preceding fall with the consent of the husbands of the female owners of the property, and purchased cattle for feeding, held not to prevent the termination of the agreement, since the grain was sown in performance of the contract, and could he settled for under the terms thereof at the expiration of the term.


text:
    W. O. Edwards, Administrator, Appellee, v. George W. Negley, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed December 11, 1914.
    Statement of the Case.
    Action by W. O. Edwards, administrator of Lonnie Arthur, deceased, against George W. Negley to recover damages for the benefit of next of kin resulting from the alleged wrongful death of deceased. From a judgment for $362.50, for plaintiff, defendant appeals.
    Lonnie Arthur was a child four years old living with his parents in a house owned by appellee at the northwest corner of a block. The lot was surrounded by a fence. In the rear of the lot was a fence separating the lot from an alley running north and south through the block. The street running east and west on the north side of the block was known as Gregg street. The lots, in the block in which the Arthurs lived, lying west of the alley were vacant except that they were used by appellee for storing logs for a saw mill of his on property west of the block. The lot immediately west of the lot the Arthurs lived on was lot 24.
    North of Gregg street and in line with the fence in the rear of the lot the Arthurs lived on was a barn in which the Arthurs kept a pony. There was a fence along the south side of Gregg street. There was a gate in the fence on the north side of lot 24 and a small gateway into the alley in the rear of the Arthur lot. The evidence tended to show that the end of the alley near Gregg street was somewhat obstructed with logs and that in order to drive in with coal and other supplies to the Arthurs and other tenants east of the alley, teams drove from Gregg street through the gate on the north side of lot 24, then east to the alley and along the alley.
    The evidence also tended to show that on the day of the death of Lonnie Arthur, George Arthur a brother of Lonnie, with Lonnie went to feed the pony in the bam and after that was done George went west on Gregg street leaving Lonnie on Gregg street near the gate, and that Lonnie started to go through the gate and across lot 24 to go home. The eviderice further tended to show that a day or so before the death of Lonnie, an employee of appellant, while at work skidding logs on lot 24, had left the frame of a truck made of six by six oak timbers about six feet long, with cross pieces three or four feet long, to which were attached iron axles, reared up nearly perpendicular against the fence or one of the gateposts.
    It was claimed by appellee that the lot with logs on it with the truck as reared up was an attractive nuisance, and that Lonnie pulled over this frame, weighing about three hundred and fifty pounds, and that it fell on him and killed him. George Arthur testified that he told Lonnié to go home, and that he, George, had gone a few feet west when he looked around and saw Lonnie with the truck lying on him.
    George Arthur testified that the truck was reared up by the fence, the lower side of it about a foot from the fence, when they went past it on the way to feed the pony, and that after he told Lonnie to go home and Lonnie started through the gate, and when he, George, had gone a few feet, he looked around and saw Lonnie lying on the ground with the truck on him and that he lifted the truck off Lonnie and put it back against the fence, moved Lonnie a short distance and ran to the house for his mother. A number of witnesses who arrived there In a few minutes say the truck was lying on the ground a few feet from Lonnie. The little boy was killed by a fracture of the skull. The employees of appellant testified the frame of the truck was in a safe condition and that the little boy could not have pulled it over upon himself. Several witnesses testify that children of tenants of appellant living just east of the alley were frequently playing in the log yard with the knowledge of appellant.
    F. L. Draper, for appellant.
    R. Allan Stephens, for appellee.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Negligence, § 19 —when question of death from attractive nuisance for jury. The question of the cause of the death of a four-year-old boy who was found under a heavy truck, weighing three hundred and fifty pounds, on a lot belonging to defendant adjoining the father’s premises, and whether it was caused by an attractive nuisance negligently placed there by defendant or his employees, were questions of fact to be decided by the jury from the evidence in the case.

2. Witnesses, § 43*—when wife incompetent for husband though interested in suit. A wife is not a competent witness for a husband, although she is interested in the event of the suit where the husband is interested.

3. Witnesses, § 131*—when plaintiff competent in action for wrongful death. The father of a child, plaintiff in an action to recover damages for the benefit of next of kin resulting from alleged wrongful death of deceased, is a competent witness in his own behalf. '

4. Witnesses, § 41*—when husband competent in behalf of wife. The father of a child, who, as administrator, is suing for damages for alleged wrongful death of the child, is a competent witness on behalf of his wife, who will, if judgment is recovered, have an interest which is her separate property.

5. Evidence, § 231*—when plat admissible though not accepted. A city plat of premises where an accident occurred, showing streets and alleys, is admissible in an action by an administrator for damages for wrongful death of his child, although the plat has not been accepted by the city, where the evidence is that the streets shown in the plat are used by the public and improved.

6. Instructions, § 87*—when erroneous on preponderance of evidence. An instruction which amounts to an argument as to what constitutes the preponderance of evidence, as between a single witness on one side and four or five witnesses on the other, is faulty as being abstract and very misleading.

7. Evidence, § 475*—what constitutes a preponderance of evidence. If a jury believe that a fact is established by the greater weight of evidence, it is proved by the preponderance of evidence.

8. Master and servant, § 870*—when instruction erroneous in action for injury to third person. In an action by a father as administrator against the owner of certain premises adjoining those occupied by- the parent, for damages for wrongful death of a four-year-old child, resulting from the falling of a heavy truck located on defendant’s premises and alleged to have been negligently placed there by defendant or his servants, an instruction that the master of a servant was chargeable with the injurious consequences of the servant’s acts done in the master’s service and within the scope of his employment, and that, if the jury believed from the evidence that the dangerous condition alleged in the declaration was caused by the acts of a servant of the defendant while in his service and in the scope of his employment, the defendant was bound by such acts, held to be imperfect and misleading when considered in connection with different counts in the declaration.

9. Negligence, § 107 —when recovery for death of child barred by contributory negligence of parent. Where a father sues, as administrator of his four-year-old child for the benefit of next of kin, including the mother, to recover damages for wrongful death alleged to have been caused by the negligent acts of the owner of adjoining premises or his servants in placing on its side a large truck used in handling logs on the premises which were frequented by and were attractive to children, the defendant, although guilty of some negligence, is not liable if the mother of the deceased was guilty of contributory negligence in permitting the child to go about the premises in charge of his older brother.

10. Negligence, § 19*—when no recovery for death from attractive nuisance. A person who is somewhat negligent in placing and leaving a truck used to move logs upon premises, thus rendered attractive to and frequented by children, is not liable in an action by the father as administrator to recover damages for the wrongful death of a four-year-old child who went about the premises in charge of an older brother, the injury being caused by the overturning of the truck, if the older brother was himself guilty of negligence that contributed to the injuries of the child.

11. Negligence, § 19*—when instructions on attractive nuisance properly refused. Instructions on attractive nuisances are properly refused because requiring proof to show that premises where a four-year-old child was killed by the falling of a truck used in handling logs, were vacant, where the averments in one count are contradictory because alleging that the premises were vacant, and also alleging that the premises were attractive to children, and that the children were attracted to the premises by said dogs and truck and by the dangerous condition of said truck, and further alleging that logs were stored thereon, and under other counts of the declaration the lots were alleged to be attractive and that the child was killed by the dangerous condition of the truck.


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    The People of the State of Illinois ex rel. Emeleco Norbauts, Appellee, v. Andrew Lucas, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bastards, § 62

      —when verdict not disturbed. A verdict and judgment in a prosecution for bastardy will not be disturbed as not being sustained by the weight of evidence where the evidence is conflicting, with no manifest preponderance either way, and has been approved by the trial court.
    2. Bastards, § 22*—when relatrix not impeached. The court upon appeal will not consider that the relatrix in a prosecution for bastardy, a young girl of foreign extraction, who was unable to speak English and who testified only through an interpreter, was impeached by her own testimony given on cross-examination where the jury saw her on the witness stand, believed her story, and the. verdict was approved by the trial court.
    3. Witnesses, § 213*—lohen excluding question previously answered not improper. It is not error in a prosecution for bastardy to sustain an objection to a question as to whether the prosecutrix had ever had improper relations with any other man between specified dates than she had told about, where the objection was that the question had already been answered and a reference to the record showed that it had been answered in substance in various forms several times.

      Appeal from the County Court of Macoupin county; the Hon. Truman A. Snell, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 11, 1914.
    Statement of the Case.
    Prosecution for bastardy. Upon judgment finding defendant to be the father of the child. Defendant appeals.
    Edward O. Knotts and Peebles & Peebles, for appellant.
    James H. Murphy and Victor H. Hemphill, for appellee; Rinaker & Rinaker, of counsel.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

4. Bastards, § 34*—when instruction harmless. The introduction to an instruction given for relatrix in a prosecution for bastardy, that it was a civil proceeding to provide for the support and maintenance of the bastard child of the prosecuting witness, while faulty, or not giving the jury any information concerning any issue submitted to it, is harmless error where it is followed by a concrete statement of the law applicable to the case.


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    Henry Fesser, Appellee, v. Chicago & Illinois Midland Railway Company, Appellant.
    1. Carriers, § 186

      —when connecting carrier agent of initial carrier. A connecting carrier is the agent of an initial carrier contracting to deliver goods beyond its terminus.
    2. Carriers, § 188*—when initial carrier liable for negligence of connecting carrier. An initial carrier which contracts to, deliver goods beyond its terminus to a commission company is responsible for the negligence or default of a connecting carrier, a stock yards company, in neglecting to promptly place several carloads of hogs at the chutes of the commission company.
    3. Carriers, § 3*—when stock yards company is a common carrier. A stock yards company which has its own tracks and furnishes facilities to shippers, buyers and traders in live stock, especially in conveying stock to side tracks and chutes apportioned to commission houses, is a common carrier.
    4. Carriers, §. 249*—when peremptory instruction properly refused in action for damage to live stock. It was not error to refuse a peremptory instruction requested on the ground that there was a written contract of shipping, in an action by a shipper against a carrier of stock for damages sustained by injury to live stock, delay in shipment and decline in market, where the defendant made no objection to plaintiff’s evidence, and the defendant remedied any defect in plaintiff’s proof by introducing the bills of lading after refusal of the instruction.
    5. Carriers, § 234

      —what constitutes unreasonable delay in shipping live stock. A delay by a carrier of stock in leaving car several hours on the tracks of a stock yards company, only a quarter of a mile from their destination, is unreasonable.
    Appeal from the Circuit Court of Christian county; the Hon. .Albert M. Rose, Judge, presiding.
    Heard in this court at the
    October term, 1914.
    Affirmed.
    Opinion filed December 11, 1914.
    Walter M. Provine, for appellant.
    J. E. Hogan and W. B. McBride, for appellee.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Henry Fesser brought this action against the Chicago & Illinois Midland Railway Company and the Hlinois Central Railroad Company to recover damages averred to have been sustained by reason of loss caused by damage to stock, delay in shipment and decline in the market. The suit was dismissed as to the Illinois Central Railroad Company. The original declaration contained the common counts only. Leave was obtained on the day the case was tried to file an additional count. The additional count avers that the defendant, the Chicago & Illinois Midland Railway Company, was on, etc., operating a certain railroad extending through the village of Kincaid in Christian county, and connecting with the Illinois Central Railroad, to the city of East St. Louis and the National Stock Yards in the State of Illinois, and that plaintiff delivered three carloads of hogs at the village of Kincaid to the Chicago & Illinois Midland Railway Company to safely and securely carry them from Kincaid to the National Stock Yards in East St. Louis. It then avers the duty of the carrier and that the defendant failed, etc., and negligently caused said shipment to be delayed whereby said hogs shrunk and depreciated in weight, and because of the careless manner of handling said hogs, five were killed, others crippled, and plaintiff was obliged to accept a lower price on a declining market, etc. The common counts were then withdrawn. - A jury was impaneled and after the evidence was' substantially closed, the additional count was amended by interlining that the: “Defendant agreed to safely and securely carry and deliver said stock from the village of Kincaid to the firm of Woodson-Fennewald Live Stock Commission Company, at their unloading chutes in the National Stock Yards in Bast St. Louis, Illinois.”

The jury returned a verdict in favor of plaintiff for $150, on which judgment was rendered and from which the defendant appeals.

The evidence shows that appellee shipped three carloads of hogs on June 2, 1913, from Kincaid over the appellant’s railroad consigned to the Woodson-Fennewald Commission Company in the National Stock Yards in East St. Louis. The stock was loaded after 11 o’clock in the forenoon. The train carrying the hogs left Kincaid about 12:30 that "day, and at Pawnee Junction the cars with the hogs were transferred to the Illinois Central ¡Railroad about 5 p. m., that afternoon. The appellee did not go on the train carrying the hogs but went on a passenger train leaving Kincaid for East St. Louis about 4 o’clock p. m. He saw the hogs at Pawnee Junction and testified they were hot when he saw them there, and that he requested the agent of appellant that they be watered and that the agent said they were-not on his line of railroad, that they had been transferred to the Illinois Central. The evidence shows that the hogs arrived in East St. Louis the next morning about 5:30 and the cars were placed by the Illinois Central on the tracks of the National Stock Yards Company at 7:50 that morning about a quarter of a mile from the chutes, where they "remained until noon when the market had closed for the day.

The appellee testified that he told the agent of appellant at Kincaid at the time the hogs were being loaded that the hogs were to be consigned to the Wood-son-Fennewald Commission Company, National Stock Yards, East St. Louis. There was no objection to this proof. Two bills of lading were made out by the agent, one for one car the other for two cars. These bills of lading were produced and introduced in evidence by appellant. The agent testifies that these were made out just before the passenger train left about .4 o ’clock. They are very imperfect, neither contains the date of the year. One has no consignee named therein. The bill for the two cars is consigned from “Kincaid, 111. Station to East St. Louis Station, consigned to Wood-son-Fennewald Comm. Co.” The evidence is clear that appellant received the hogs consigned to the Woodson-Fennewald Company at the East St. Louis" Stock Yards.

The proof shows that the National Stock Yards at East St. Louis have their own tracks and that different commission houses, among them the Woodson-Fennewald Commission Company, have certain side tracks apportioned to them ahd certain chutes to each commission house. The National Stock Yards under the evidence is shown to be a common carrier furnishing facilities to shippers, buyers and traders in live stock.

The rule is that when a carrier contracts to deliver goods beyond its terminus it becomes liable for the whole distance. All connecting carriers under such contract become the agents of such contracting carrier for whose negligence or default it is responsible. The connecting lines are regarded as the agents of the initial carrier. St. Louis Southwestern Ry. Co. v. Elgin Condensed Milk Co., 175 Ill. 557; Illinois Cent. R. Co. v. Frankenberg, 54 Ill. 88.

One of the contentions of appellant is that the National Stock Yards Company at East St. Louis is not a carrier but a warehouseman and that when the hogs had been placed1on the tracks of the Stockyard’s Company they had been placed in charge of a warehouseman. When the the hogs were placed on the tracks of the stock yards company they were not placed at the chutes but a quarter of a mile therefrom. They still had not reached their destination, which was the yards and chutes used by the Woodson-Fennewald Commission Company. They were not consigned to the stock yards company, but to the commission company at said stock yards, and until they were delivered at the chutes of the commission company they were still in transit. The appellant under the rule is responsible for the default of the stock yards company until they were placed at the chutes allotted to the commission company to which they were consigned.

Complaint is made of -the giving and refusing of certain instructions. The objections are all based on the theory that the hogs had arrived at their destination when the cars were placed on the tracks of the stock yards company. The instructions lay down the law properly, since under the evidence the stock yards company is a carrier and the hogs did not arrive at their destination until placed at the chutes where they could be unloaded.

At the close of appellee’s evidence, the appellant requested a peremptory instruction on the ground that 'there was a written contract of shipping, namely, the bill of lading. The appellant had made no objection to appellee’s evidence. The appellant, after the court refused the peremptory instruction, then produced and introduced the bills of lading and remedied any defect there had theretofore been in the proof.

The jury were justified in finding that there was unreasonable delay in delivering the hogs as the proof shows that they had remained several hours on the tracks of the stock yards company, only a quarter of a mile from their destination. It is not contended that the appellee did not sustain loss to the amount of the judgment. Finding no reversible error in the case the judgment is affirmed.

Affirmed.


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    John W. Haskins, Appellee, v. St. Louis & Springfield Railway Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed December 11, 1914.
    Statement of the Case.
    Action by John W. Haskins against the St. Louis & Springfield Railway Company to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals.
    The plaintiff, a passenger upon an interurban car to which was attached a trailer, stepped off the car at night in a well-lighted section of the city and could have seen the trailer if he had looked, but started to walk a short distance towards the brilliantly-lighted section of the city in the same way the car was going. He then attempted to cross the street behind the first car and was knocked down and injured by the trailer. Plaintiff claimed he had never known of a trailer being used before.
    Graham & Graham and John B. Hardaway, for appellant; George W. Burton, of counsel.

      Abstract of the Decision.
    1. Negligence, § 68

      —when plaintiff must prove due care. The plaintiff, in order to recover for damages for personal injuries, must prove that he was in the exercise of due care at time of •injury.
    2. Carriers; § 329*—when relation as passenger terminated. One who has ridden as a passenger on an interurban car ceases to be a passenger when he has alighted from the car upon a public street, intending to pursue his further journey on foot.
    3. Carriers, § 438*—when passenger negligent after alighting. One who had been a passenger upon an interurban train and had alighted therefrom in a 'city was not in the exercise of due care, but was guilty of gross negligence where it appeared that he had alighted from the train intending to cross the street behind the car; that he walked towards the brilliantly-lighted section of the city in the same direction that the car was going, and after walking a short distance attempted to cross the street between the car and a trailer and was knocked down and injured; that the street was brightly lighted and the plaintiff could have seen the trailer' at the time he got off the car, if he had looked, that thé train had lights on both ends; that plaintiff was under the influence of liquor, and his only excuse for not seeing the trailer was that the brilliant lights of the city dazzled him.
    W. St. J. Wines, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Elmer O. Neff, Appellee, v. Harwood Barley Manufacturing Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodobe N. Gbeen, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 11, 1914.
    Statement of the Case.
    Action in assumpsit by Elmer O. Neff against the Harwood Barley Manufacturing Company, a corporation engaged in the manufacture and sale of motor trucks, to recover a commission for trucks sold by the defendant, the purchasers of which were introduced to defendant by plaintiff, and on which plaintiff claims defendant agreed to pay a commission of twenty-five per cent, of the selling price. From a judgment in favor of plaintiff, defendant appeals.
    The principal contention of appellant was that appellee was not an agent of appellant. Appellant sent a printed circular to appellee to which was attached a postal card that appellee filled out by stating thereon that he was interested in a one-ton truck and requesting that appellant’s agent call on him, and mailed the card to appellant. The appellant on receipt of the card mailed to appellee a catalogue of its motor trucks. This catalogue on its first page under the heading “Officers and Directors” named C. Gf. Barley as treasurer and general manager, and on the last page under the heading “Agencies and Service Stations” named, among others, W. F. Breedlove, Joplin, Missouri.
    On September 2, 1913, after appellee had mailed the card to appellant, he'received a letter from appellant signed by Charles O. Bailey, treasurer. The last paragraph of this letter is:
    “We are referring your inquiry to our Mr. Breed-love, who will be in your vicinity soon, and he can call on you as he can give you the fullest information regarding the price, etc. He is desirous of seeing yon about the agency of our truck in your vicinity, as we can save you some money by making you our agent. We can furnish a one-ton truck with stake body in about three weeks after receipt of your order, four at the outside.”
    The appellant at the time it wrote the letter to appellee also forwarded the card written by appellee to Breedlove. The day after appellant wrote its letter to appellee, Breedlove wrote a letter to appellee stating that he was in receipt of his card which had been referred to him, and that he (Breedlove) would call on appellee the "following week and take the matter up with him, and it would pay appellee well to wait for him. At the time fixed in the letter, Breedlove went to Pekin and met appellee. The evidence for appellee is that Breed-love, as agent for appellant, proposed to appellee that appellant would pay him a commission of twenty-five per cent, on the sale of motortrucks to such prospective buyers as appellee might introduce Breedlove; that appellee agreed to take Breedlove to prospective purchasers and introduce him on that basis, and thereafter on that day did introduce Breedlove to Albert-son & Koch, who purchased a truck on September 9th from appellant.
    He also took Breedlove and introduced him to the German American Brewing Company, which also bought a truck from appellant. After the introduction of Breedlove to Albertson & Koch and the brewing-company, appellee and Breedlove went to a bank in Pekin and there Breedlove told the cashier, in appellee’s presence, that Breedlove wanted to make appellee agent for appellant and told him what the commission was and figured out the commission he would get if a sale should be made to Albertson & Koch and to the German American Brewing Company. The evidence of appellee and the cashier of the bank is that appellee was to have the commission agreed upon if Albertson & Koch and the brewing company purchased trucks, and that during the conversation in the bank he suggested that Breedlove close the sales to Albertson & Kocli and the German American Brewing Company before Neff gave his order, and that Breedlove assented to this proposal. Appellee testifies that he was not asked to sign an order for a truck but that he did give an order for a truck to be shipped to him on condition that Albertson & Koch and the brewing company bought trucks.
    Abstract of the Decision.
    1. Principal and agent, § 8

      —when evidence shows agency. Evidence held to establish, an agency to sell motor trucks on commission, and not a conditional appointment subject to the purchase of a truck and the advancement of a specified sum thereon.
    2. Prinicipal and agent, § 74*—when principal liable for commission to agent appointed by agent. Where a prospective purchaser writes a manufacturing concern that he is desirous of purchasing a motor truck and is informed that their agent is desirous of seeing the purchaser about the agency of the truck in purchaser’s vicinity, such agent acts within the apparent scope of his authority in appointing the purchaser as agent, and it is immaterial that the appointing agent may have acted contrary to private instructions.

      Appellant contends that it was necessary for appellee to purchase a truck and to advance $200 on it before he could be appointed an agent. Appellee proved that he had between $1,200 and $1,400 in the bank at the time Breedlove and he were at the bank, and that he was not asked to advance $200.
    Prettyman, Velde & Prettyman, for appellant.
    Ralph Dempsey, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

3. Pbincipal and agent, § 190*—when principal cannot defeat recovery of commissions. Where a manufacturing concern selling through agents on commission has received the benefit of work done under an agency created under authority which it notified a prospective purchaser and agent it had reposed in one of its general appointing agents, the right of such appointed agent to a commission cannot he defeated by the mere fact that the seller subsequently makes agents of the customers introduced by such appointed agent.

4. Instbuctions, § 73*—when not erroneous as assuming facts. An instruction stating, “if you find from the greater weight of the evidence that the defendant acting by its duly authorized aggnt, agreed,” etc., is not erroneous as assuming that a contract was made with a duly authorized agent of defendant.