text:
    People’s Bank of Bloomington, Conservator, Defendant in Error, v. John H. Wood, Executor, Plaintiff in Error.
    1. Pleading, § 79

      —what are requisites of plea to jurisdiction. A plea to the jurisdiction which is in the nature of a plea in -abatement must he certain to every intent and leave nothing to be drawn by inference and must include all such supposable matter as would, if alleged by the opposite party' by replication, defeat the plea.
    2. Venue, § 3*—where executor sued at cofimon law. At common law the executor was sued in transitory actions where he resided.
    3. Venue, § 3*—where executor may he sued. An executor may be. sued where he resides or where he may be found, although in a county other than that in which the will was probated and administration granted.
    4. Pleading, § 79*—when plea to jurisdiction insufficient. A plea to the jurisdiction in the nature of a plea in abatement, in an action on promissory notes against the executor of an estate, which avers that defendant was appointed and duly qualified as executor of the will of deceased in the-Probate Court of a county other than that in which he was sued, that he designated a certain day as the day for filing all claims in such court and that he is still acting as executor, and that he was served with process in a county-other than that in which he was appointed as executor, is demurrable for uncertainty.
    5. Appeal and ebroe, § 1571

      —when informal judgment harmless. The fact that the judgment in an action against an executor, whose plea to the jurisdiction was in the nature of abatement and was bad for uncertainty, should have been nil dicit or for want of a plea and not by default, is harmless error, as siich error was mere matter of form.
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 11, 1914.
    Livingston & Bach, for plaintiff in error.
    Barry & Morrissey, for defendant in error.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The People’s Bank of Bloomington, conservator of Mary G-. Bell, began this suit in the Circuit Court of McLean county against John H. Wood, executor of the estate of Edward B. G-ridley, deceased. The declaration avers that plaintiff is the conservator of Mary G. Bell; that Edward B. Gridley departed this life in January, 1914, leaving a last will which was duly admitted to probate by the Probate Court of Cook county, Illinois, and that John H. Wood was duly appointed executor and has qualified and is acting as such executor; that Edward B. Gridley in his lifetime was indebted to Mary G. Bell on certain notes executed by him, etc. Summons was issued to the sheriff of McLean county and duly served on the executor. At the term to which the summons was returnable, the executor filed a plea which, after the title of the case, is as follows:

“John H. Wood, executor of the last will and testament of the estate of Edward B. Gridley, deceased, in his own person comes and defends, etc., and says that before and at the time of the commencement of said action he was appointed executor of the last will and testament of Edward B. Gridley, deceased, by the Probate Court of Cook county, Illinois; that he then and there in said county duly qualified to act as such executor, as provided for by law; that said appointment was made on the 16th day of March, 1914, and that he qualified on said date; that he designated the 14th day of May, 1914, as the day for filing all claims ag’ainst the said estate in said court; that he is still acting as such executor and that he, the said defendant, was found and served with process in the county of McLean, Illinois, and not in the county of Cook, Illinois, and this he is ready to verify, wherefore he prays judgment of the court here will take cognizance of the action aforesaid.”

The plaintiff filed a special demurrer to the plea. The court sustained the demurrer. The defendant was thereafter ruled to plead instanter and failing to plead further was defaulted, and a writ of inquiry ordered for the assessment of damages. Evidence was heard and the damages assessed at $14,736.99, for which sum judgment was rendered against the estate to be paid in due course of administration. The estate has sued out a writ of error to review the judgment.

The question presented for consideration is whether the Circuit Court of McLean county acquired jurisdiction over the estate of the deceased to render judgment against it. The deceased died in Cook county. His will was admitted to probate in that county. The suit was begun in McLean county to recover on certain notes executed by the deceased. The summons was issued by the circuit clerk of McLean county to the sheriff of McLean county and served on the executor in McLean county.

The plea is a plea to the jurisdiction in the nature of a plea in abatement. The plea neither avers that the executor is not a resident of McLean county nor that he was not found in said county or that he was not in McLean county doing business for the estate. So far as anything appears in the plea he may reside in McLean county or have been in McLean county leasing-lands belonging to the estate or doing other business for the estate. Such pleas must be certain to every intent and leave nothing to be drawn by inference. They must anticipate and include all such supposable matter as would, if alleged by the opposite party by replication, defeat the plea. 1 Encyc. of Pl.& Pr. 24; Willard v. Zehr, 215 Ill. 148; Finch v. Galigher, 181 Ill. 625; Shipman’s Com. Law Pl. 159.

Under the statute, the locus of the personal property of an estate for certain purposes is fixed by the residence of the administrator or executor and is not necessarily the county that issued the letters of administration. Paragraph 6 of section 6 of the Revenue Act (J. & A. ¶ 9219, subd. 6) provides that personal property shall be listed in the manner following: “The property of a person for whose benefit it is held in trust by the trustee, of the estate of a deceased person by the executor or administrator.” Section 19 (J. & A. ¶ 9233) of the same act provides: “Persons required to list property on behalf of others, shall list it in the same place in which they are required to list their own; but they shall list it separately from their own, specifying in each case the name of the person, estate, company or corporation to whom it belongs.” This statute is commented on in People v. Hibernian Banking Ass’n, 245 Ill. 522.

There is no provision of the statute in this State fixing the official residence of administrators and executors, further than that the statute provides that a nonresident may not be appointed either as an administrator or executor, and the sections of the Revenue Act to which reference has been made; they have no official residence. It is said in Thompson v. Wood, 115 Cal. 301: Executors “are but the representatives of the deceased. The executors are, in a sense, trustees, but not of the testatrix, who has no longer trustee or representative, but for the beneficiaries under the will and the heirs and creditors. No rule of law with which I am acquainted gives countenance to the idea that there is an official residence for an executor. In some States the venue of actions is specially declared to be where it would have been necessary to sue the deceased. We have no such law. At common law the executor was sued in transitory actions where he resided.”

If it were the law that an executor may not be sued out of the county issuing letters, an executor residing in another county might by remaining out of such county prevent the allowance of claims not presented until after claim day, as the Administration Act does not authorize the issuance of summons for the executor on claims presented against the estate after claim day to any other county than the one in which letters were issued.

We are not aware of any provision of the statute in Illinois changing the rule at common law in suits against executors. Under section 6 of the Practice Act (J. & A. ¶ 8543), a defendant may be sued where he resides or may be found. There was no error in sustaining the demurrer to the plea.

Plaintiff in error also states that the judgment should have been nil dicit or for want of a plea and not by default. The contention of plaintiff in error is correct, but since that error is a mere matter of form, it is not one that requires that the judgment be reversed. Plaff v. Pacific Express Co., 251 Ill. 243.

No other questions are raised or mentioned in any way by plaintiff in error.

Finding no reversible error presented for review, the judgment is affirmed.

Affirmed,


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Peter Coutrakon and Gus Keresotes, trading as Contrakon & Keresotes, Appellants, v. Passow & Sons, Appellee.
    (Not to Tbe 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. Petition for rehearing withdrawn February 3, 1915.
    Affirmed.
    Opinion filed December 11, 1914.
    Statement of the Case.
    An action in assumpsit by Peter Coutrakon and Gfus Keresotes, partners, trading as Coutrakon & Keresotes, against Passow & Sons, a corporation, to recover $400, part payment made by plaintiffs on a soda fountain, which defendant agreed' to build for them for $1,800 according to the terms and specifications of a written contract, and which was to be delivered to them on or about May 1, 1913.
    The defendant filed a plea of the general issue with a notice of set-off, claiming a balance of $1,400 due on the original contract together with $245.80 additional made up of items of interest, storage and freight, etc. A verdict of $1,400 was found in favor of defendant, on which judgment was rendered, and the plaintiffs appeal.
    The order for the fountain was made March 26,1913, and by its terms the defendant agreed to manufacture and ship it on or about May 1st, subject to delay on account of strikes or other unforeseen accidents, and to furnish a mechanic to set it up. The freight was to be paid by the purchasers, and settlement to be made on arrival of the fountain at Springfield, terms $800 cash, balance of $1,000 payable in sixty days with interest, the title to remain in the defendant until notes and chattel mortgage were executed by the purchasers. Time was not made the essence of the contract. The purchasers made an advance payment of $400 when the order was signed. Among other provisions of the specifications was the following “Pump section. There are to be two 10 pump sections, each to have 10 porcelain syrup jars, 7 pumps, liquid style. * * C'outrakon testified that in a conversation with appellee’s agent before the contract was signed it was agreed that the pumps should all be liquid carbonic pumps made by the Liquid Carbonic - Company. Appellants claim that they canceled the contract because the fountain was not shipped on or about May 1st, and that "they are entitled to recover the advance payment. On April 21st, appellee wrote to appellants that on account of some unforeseen conditions that had arisen it would not be able to ship the fountain on May 1st. On April 28th appellee wrote to appellants that it expected to ship the outfit within the next ten days. On May 17th appellants wrote to appellee that they had rescinded the contract and demanded the return of the $400. Appellants employed Mr. McGrath, an attorney in Springfield, to act for them in the matter. On May 20th the appellee wrote to McGrath that it was ready to ship the fountain, and requested appellants to comply with the contract as to the further sum of $400, the balance of the cash payment. On May 20th appellee wrote to McGrath the fountain would be shipped the next day. McGrath communicated with appellants and by their direction on May 21st sent a telegram to appellee, “send fountain under terms of original contract except the $1,000 to be paid July 26th, and $400 more when fountain is in store.” The fountain was shipped May 21st, and on May 24th appellants wired appellee that the fountain was in Springfield, and that they would accept it, but wished to change the terms of the old contract as to payment. On May 22nd appellee sent the bill of lading with a note and chattel mortgage to a bank in Springfield. On May 24th appellee wrote to McGrath that they had sent the First National Bank the papers and note and mortgage for $1,000, due July 26th, and that they held a carpenter in readiness to set up the outfit. On May 26th appellee received another letter from McGrath stating that " the fountain and fixtures would be accepted if as represented. Appellants refused to accept the fountain and fixtures, which remained at the freight depot in Springfield until September when the outfit was returned to appellee in Chicago.
    Appellants contend that they cannot be required to accept the outfit and pay for it because (1) it was not shipped on or about May 1st; (2) that appellee failed to furnish a mechanic to set it up; (3) the connections were not properly matched; the workmanship was poor and the mahogany veneering loose; (4) the tanks were not as called for by the specifications and (5) the pumps were not the kind made by the Liquid Carbonic Company.
    The delay in shipment was caused by the failure of the marble works that manufactured certain onyx columns on the fountain to have them cored; the evidence is uncertain as to whether that was the fault of the marble, works or the appellee.
    The plaintiffs inspected the fountain on its arrival, and say that it was not as represented. The contract contains the clause, “all claim for-shortage or noncompliance with contract must be made within five days of delivery of goods.” It did not appear that the appellants gave notice within five days of what they insist was a' noncompliance with the contract, other than the question of time.
    The evidence as to the other defenses urged to the set-off, is conflicting, there being no manifest preponderance either way.
    A motion for a new trial on the ground of newly-discovered evidence was denied, the evidence being cumulative as to the kind of pumps furnished in the fountain.
    Abstract of the Decision.
    1. Sales, § 125

      —when failure to deliver on time waived. A purchaser of a soda fountain under a contract requiring delivery on or about a certain date, subject to strikes or other unforeseen accidents, held, to have waived prompt delivery by directing, after a failure to ship on that day, to make shipment on a later date.
    2. Sales, § 147*—when right to reject within specified time waived. The purchaser of a soda fountain cannot say that it was not as represented by the seller, where no objection on that ground was made within five days after its delivery, as required by the contract of sale.
    3. Sales, § 141*—when finding that. goods comply with contract conclusive. Where the evidence is conflicting as to whether the tanks and pumps of a soda fountain comply with the specifications of a contract of sale, the finding of a jury that they do, which was approved by the trial court, is conclusive on appeal.
    4. New tbial, § 68*—lohen^newly-discovered cumulative evidence not ground for. A new trial will not be granted for newly-discovered evidence which is cumulative merely, and which would not necessarily have changed the verdict.
    5. Appeal and ebbob, § 1258*—when defeated party may allege compromise verdict. A defeated party cannot complain on appeal that a verdict was obtained by compromise, merely because it is for less than the amount claimed by the successful party.
    W. St. J. Wines, for appellants.
    Alonzo Hoff, 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.


author: Mr. Presiding Justice Eldredge

text:
    Eulala McCormick et al., Appellees, v. J. H. Decker et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the April term, 1914. Rehearing denied May 26, 1915. Opinion modified and refiled June 29, 1915.
    Reversed and remanded.
    Opinion filed April 16, 1915.
    Statement of the Case.
    An action by Búlala McCormick and others against J. H. Decker and others under section 9 of the Dram-shop Act (J. & A. 1J 4609) for an injury to their means of support caused by the death of their father resulting from habitual intoxication produced by liquors sold to him by appellants. Plaintiffs recovered a judgment against the defendant in the sum of $6,000, and the latter appeals.
    The mother of appellees was permitted to testify that, prior to the time deceased began to drink to excess, his demeanor and conduct towards the appellees was very kind, but that after he began to so use intoxicating liquors, and while he was under the influence thereof, his habits with reference to attention, care, watchfulness and service to the children were very careless, and that he paid but little attention to them.
    A witness on cross-examination was asked whether he was convicted for selling intoxicating liquors during the year 1909—1910, and answered that he had been convicted in 1913.
    Numerous checks drawn by deceased and payable to the various appellants were admitted in evidence upon the statement of counsel for appellee that further evidence would be produced to prove that they were given in payment for intoxicating liquor sold by them, respectively, to the deceased. A number of these checks bear date at a time when there were no licensed saloons in the town where deceased and appellants resided, and while appellants were conducting other kinds of business ; and with possibly one exception, they were not connected by any evidence with sales of liquor to deceased.
    The first instruction on behalf of appellees is a verbatim copy of all that portion of section 9 which has any application to the case. It is insisted that .the instruction is bad because it did not set out the entire section. The jury were instructed to consider all the instructions together as a series, and by other instructions given on behalf of appellants the jury were told that they could not find appellants, or either of them, guilty unless appellees proved by the evidence that they had beén injured in their means of support, and the damages were limited solely to such as they suffered in their means of support.
    The tenth instruction given on behalf of appellees attempted to define the* weight and credit that should be given to the witnesses, and concluded as follows: “And you should give to the testimony of such witness, if any there be, only such weight and credit as you shall believe him entitled to. under all the circumstances surrounding the case.77
    Counsel for appellees in his closing argument to the jury said: “The intoxicating liquors sold to McCormick caused his death, and defendants are'murderers.7 7
    W. H. Nelms, E. P. Drennan and Chafee & Chew, for appellants.
    F. M. Guinn and W. H. Whitaker, 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 Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Intoxicating liquors, § 232 —elements of damages in civil damage action. Damages accruing only from loss to a person’s means of support can be recovered, in an action under section 9 of the Dramshop Act (J. & A. If 4609).

2. Intoxicating liquors, § 216*—when evidence admissible in civil damage action as to conduct of father toioards children. Evidence as to attention, care, watchfulness and services given by a father when intoxicated, to his children, is not admissible in an action by them under section 9 of the Dramshop Act (J. & A. IF 4609) against a person for making sale of liquor to their father.

3. Intoxicating liquors, § 216*—when erroneous admission of evidence in civil damage action cured by instruction. Since an action under section 9 of the Dramshop Act (J. & A. If 4609), for injuries sustained by children by sales of liquor to their father, is confined to the injury suffered in their means of support, proof of the conduct of the parent, when intoxicated, towards his children is incompetent, and its admission is not cured by an instruction correctly limiting their damages.

4. Witnesses, § 304*—how witness’ conviction of crime shown. Proof of the conviction of witness of an infamous crime may, for the purpose of impeachment, be shown by his admissions on the stand, or proven like any other fact.

5. Intoxicating liquors, § 223*—when witness impeachable by conviction under Dramshop Act. A witness in an action under section 9 of the Dramshop Act (J. & A. jf 4609), by children to recover for injuries caused by sales of liquor to their father, cannot be impeached by showing his conviction for selling intoxicating liquor, since not an infamous crime.

6. Appeal and error, § 542*—when motion to strike essential to review of nonresponsive answer of witness. Error cannot be predicated on a voluntary nonresponsive answer to a question on the cross-examination of a witness, where no motion was made by the opposite party to exclude it.

7. Intoxicating liquors, § 208*—when checks given defendant admissible in civil damage action. Checks drawn by a parent and payable to the defendants in an action by the drawer’s children under section 9 of the Dramshop Act (J. & A. IF 4609), for loss occasioned by the death of their father, are not admissible where the defendants were not engaged in selling liquor at the date of the checks, and it was not shown that the checks were given in payment for intoxicating liquors.

8. Intoxicating liquors, § 249 —when instruction based on civil damage act sufficient. An instruction in an action under section 9 of the Dramshop Act (J. & A. If 4609), hy children to recover for the injury to their means of support by the death of their father, based on that portion of such section which is applicable to the case, held not erroneous, where the jury were instructed as to the true measure of damages in other portions of the charge.

9. Instructions, § 96*—instruction as to weight and credit to be given testimony. An instruction in an action by children under section 9 of the Dramshop Act (J. & A. If 4609), that such weight and credit should be given the testimony of witnesses as the jury should believe them entitled to under all the circumstances of the case, held erroneous.

10. Intoxicating liquors, § 247a*—when argument of counsel erroneous in civil damage action. An argument by the plaintiffs’ counsel to the jury in an action under section 9 of the Dramshop Act (J. & A. IT 4609), that the intoxicating liquors sold the plaintiffs’ father was the cause of his death, and that the defendants were murderers, held prejudicial to the defendants.


text:
    Joseph Loftus, Appellee, v. Illinois Midland Coal Company, Appellant.
    (Hot 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.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Appeal from a judgment against the Illinois Midland Coal Company in favor of Joseph Loftus, for the sum of $10,000 for personal injuries alleged to have been sustained by appellee because of the wilful violation by appellant of clause b, section 21, of the Mines and Miners’ Act (J. & A. ]f 7489), requiring places of refuge on hauling roads or gangways in mines.

      Abstract of the Decision.
    1. Mines and minerals, § 91

      —when failure to provide place of refuge pro'ximate cause of injury. Where three juries have found that the proximate cause of a minor’s injury was the failure of an employer to provide places of refuge in a mine as required by section 21b of the Mines and Miners’ Act (J. & A. 7489), and the Appellate Court has held that it was a question for the jury, the question is res adjudicata.

      There is no controversy about the facts. It was agreed on the trial in open court that there had been a violation of the statute. The facts disclosed are substantially the same as they appear on a former appeal of this ease (181 111. App. 197). It is conceded by counsel for appellant that appellee at the time of the injury was-acting within the scope of his employment. The principal contentions urged are that the lack of the places of refuge was not the proximate cause of the injury, errors in the admission of evidence, in the giving of instructions and that the damages are excessive.
    It is also insisted that the places of refuge provided for by the statute then in force were not meant for the benefit of appellee, but for miners going in and out of the mine, so as to allow them to escape passing cars or trips. The appellee, a flagman in a mine, was injured by being unable to escape a car which he had just assisted placing on the track as he was directed to do by an assistant mine boss.
    Error is assigned on the admission of evidence that the injury to the appellee’s prostate gland would cause a lessening of tone, would impair vitality' and vigor and affect the power of procreation also on an instruction given for appellee, that neither assumed risk nor contributory negligence was a defense, without defining these terms.
    Brown, Hay & Creighton, for appellant; Mastin & Sherlock and Underwood & Smyser, of counsel.
    Drennan & Lawler, 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 Eldredge

delivered the opinion of the.court.

2. Mines and minebals, § 91 —who -within act requiring places of refuge. A mine flagman is within the protection of section 21b of the Mines and Miners’ Act (J. & A. If 7489) relating to places of refuge on haulage roads or gangways in mines, where he was injured by being unable to escape from a car after he had assisted, as it was his duty to do, a driver in replacing it on the rails.

3. Mines and minebals, § 91*—evidence in action for injuries caused by failure to provide places of refuge. In an action for injuries sustained by a miner by reason of the failure of the former to provide places of refuge in a mine as required by section 21b of the Mines and Miners’ Act (J. & A. jf 7489), the defendant is not injured by the admission of evidence that at the time the plaintiff was injured he had gone to' the assistance of a driver in replacing a derailed car, at the direction of an assistant mine boss, where the evidence showed that it was a part of the plaintiff’s duties to do so.

4. Aípeal and ebror, § 1033*—predicating error on matter not shown by record. Error cannot be predicated on the alleged admission of evidence not shown by the abstract on appeal.

5. Mines and minerals, § 187*-—when assumed risk and contributory negligence no defense to action for injuries. An instruction in an action for injuries sustained by a miner by failure of his employer to provide places of refuge in a mine as required by section 21b of the Mines and Miners’ Act (J. & A. f 7489), that neither assumed risk nor contributory negligence was a defense, held not prejudicial to the defendant when such defenses were not made and issued by the pleadings or proof.

6. Damages, § 110*—when damages for injuries to miner not excessive. A verdict for $10,000 for injuries sustained by a miner, held not excessive.


text:
    Municipal Engineering & Contracting Company et al., Appellees, v. City of Farmer City, Appellant.
    1. Mechanics’ liens, § 79

      —when rental of sewer excavator subject of lien. A lien cannot he acquired under section 23 of the Mechanic’s Lien Act (J. & A. If 7161), on funds due a contractor from a city for constructing a sewer, for the rental of and repairs to a sewer excavating and hack filling machine used in the work.
    2. Mechanics’ liens, § 79*—when materialman entitled to lien for material used in malcing but not entering into public improvement. A lien cannot be acquired under section 23 of the Mechanic’s Lien Act (J. & A. If 7161), on funds due a contractor from a city for constructing a sewer, for lumber furnished for shoveling and bracing the trenches, and used for tracks for an excavating machine, and for lumber and piping used in making hut not entering into the improvement.
    3. Mechanics’ liens, § 79*—when lessor entitled to lien for rental of machinery used in malcing public improvement. The lessor of an engine and 'pump used for the removal of water from a sewer trench during construction is not entitled to a lien under section 23 of the Mechanic’s Lien Act (J. & A. 1f 7161), for the rental of the machines and for oil and gasoline supplied for running them, on funds due from a city to a contractor.
    4. Mechanics’ liens, § 79*—when lien exists for materials used in malcing but not entering into public improvement. No lien may be acquired under section 23 of the Mechanic’s Lien Act (J. & A. If 7161), on funds due from a city to a contractor, for tile used in conveying water from a sewer during construction, nor for pipes and fittings used to carry water from a tank to an engine and cement mixer.
    5. Mechanics’ liens, § 79*—when lien exists for repairing tools used in malcing public improvement. No lien exists under section 23 of the Mechanic’s Lien Act (J. & A. If 7161), on funds due a contractor from a city, for repairs made on machinery and tools used in constructing a sewer.
    6. Mechanics’ liens, § 5*—when act strictly construed. The Mechanic’s Lien Act (J. & A. IfV 7139 et seg.) must be strictly construed since it is in derogation of the common law.
    7. Municipal corporations, § 205*—construction of local improvement act. The Local Improvement Act must be strictly construed.

      8. Mechanics’ liens, § 79

      —when materialmen and subcontractors entitled to lien on money due contractor for public improvement. No lien can be established under section 23 of the Mechanic’s Lien Act (J. & A. If 7161), by materialmen and subcontractors, on funds =due a contractor from a city for a public improvement alleged to have been wrongfully paid him from money acquired by a general and special assessment, where the lienors do not prove that an assessment roll was filed and a judgment of confirmation rendered.
    9. Mechanics’ liens, § 79*—when subcontractor not entitled to for public improvement. Subcontractors cannot acquire a lien un der section 23 of the Mechanic’s Lien Act (J. & A. If 7161) on funds due from a city to a contractor for constructing a public improvement, where they failed to comply with a condition of the contract between the city and the contractor, requiring the assent of the board of local improvements to the subletting of any portion of the work.
    Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochean, Judge, presiding.
    Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed April 16, 1915.
    Statement by tlie Court. This is an appeal by the City of Farmer City to reverse the decree of the Circuit Court entered in favor of appellees in a suit to enforce liens on the money, bonds and warrants due or to become due Howes Brothers Company, a contractor, under section 23 of the Mechanic’s Lien Act (J. & A. K 7161).
    On the third day of August, 1908, the City of Farmer City passed an ordinance under the Local Improvement Act providing for the construction of a sewer in said city, to 'be paid for partly by general taxation and partly by special assessment to be levied on the property to be benefited thereby. The section of the ordinance governing the mode of raising the money for the payment is as follows:
    ‘ ‘ Section 8. That the cost of the improvement herein provided for shall be paid for as follows: Eight thousand dollars ($8,000.00) shall be paid for by general taxation, and the balance, including the sum of twelve hundred and seven dollars ($1207.00) shall be applied toward the payment of the cost and expenses attending the making and return of the assessment roll, collecting of such assessments and other costs by law authorized, shall be paid by special assessment upon the property benefited, in accordance with said Act of the G-eneral Assembly and the amendments thereto.”
    The contract for the improvement was let to Howes Brothers Company April 20th, 1909, for a consideration of $16,888.15, and contains the following provisions :
    ‘1 Conditions.
    2. Witnesseth : That the said party of the second part, for, and in consideration of the payments to be made by the said City of Farmer City as herein set forth, hereby covenants and agrees to furnish all tools, labor and material for the construction of a system of sewers in John street and other streets, avenues and public places in the City of Farmer City, Illinois, according to the ordinance, plans, profiles and specifications for said work on file in the office of the City Clerk of the City of Farmer City, Illinois; which said ordinance, plans, profiles and specifications are hereby made a part and portion of this contract.”
    ‘ ‘ Sub-contractors.
    11. This agreement shall not be assigned nor any part of the work sub-contracted without the written consent of the Board of Local Improvements indorsed thereon, and in no case shall such consent relieve the party of the second part from the obligations herein entered into by the said party, or change the terms of this agreement.”
    “City Pay Labors.
    16. It is further agreed that all funds becoming due said contractor under this contract shall be and are subject to the provisions of section 23 of an act entitled, ‘An act to revise the law in relation to mechanic’s liens,’ approved May 18, 1903, and in force July 1,1903.”

      The Municipal Engineering & Contracting Company filed its bill to foreclose a lien upon the money, bonds and warrants due or to become due the Howes Brothers Company from the city on account of the latter’s contract with the city, under and by virtue of section 23 of the Mechanic’s Lien Act (J. & A. Tf 7161). Shortly thereafter, the Alexander Lumber Company filed a similar bill. These bills were consolidated and numerous other lienor claimants were made parties defendant thereto. Some of these filed answers to the original bills and also intervening petitions, others filed answers which, on order of the court, were allowed to stand also as intervening petitions. With the exception of the difference in the character of the claims, the consolidated bills and intervening petitions are substantially the same, and set forth the ordinance; the execution of the contract between the city and Howes Brothers Company for the furnishing of all tools, labor and material for the construction of the sewer provided by the ordinance; aver that Howes Brothers Company completed the sewer and that it was accepted by the city June 30, 1910; that written notices of the respective claims for liens were filed with the city clerk in compliance with section 23; that at the time of the service of the notices there were sufficient money, bonds and warrants due the contract- or in the custody and control of the city officials to have paid all valid liens thereon.
    The answers of the city to the original bills and to the intervening petitions are substantially the same, and admit the passage of the ordinance and the contract with Howes Brothers Company, but deny every other material allegation. Howes Brothers Company filed no answers and was defaulted.
    The claim of the Municipal Engineering & Contracting Company is based upon the two written contracts made by them with Howes Brothers Company, for the rental of two machines used by the latter in constructing the sewer. The first contract provided for the rental of a No. 3 Chicago sewer excavating machine for fifty-six days for the consideration of $2,500, and $35 per day for each day in excess of that number. The second provided for the rental of a back filler machine for the sum of $325. The net amount of the claim, after allowing credits for payments, amounted to $2,733.43, and this sum includes repairs made on the machines during the progress of the work to the amount of $655.91. The decree allows this claim, together with interest thereon, making the total amount allowed $3,151.66.
    The decree allows a lien to the Alexander Lumber Company, including interest, in the sum of $2,590 for cement, labor and lumber. Much of the lumber was used for shoring the sides of the trench. Some of it was used, to place under the wheels of the trenching machine as a track for the latter to run on, some of it was taken away by the lumber company and a portion of it was left in the trenches. What proportion of the lumber .was so respectively disposed of is not shown by the evidence.
    The decree allows a lien to S. G. Arbogast, including interest, in the sum of $1,179.65 for brick, cement, labor, tile, rent of a pump, gasoline, oil, etc.
    The decree allows a lien to the White Hall Sewer Pipe & Stoneware Company, including interest, in the sum of $1,538.50, for sewer pipe which appears was actually used in the sewer, but the decree further provides in regard to this claim that said amount shall be paid by Howes Brothers Company to H. L. Williams within twenty days of the filing of the decree.
    The decree allows liens to other claimants as follows : E. M. Burr & Company, $323.96; South Bend Foundry Company, $15.49; Jesse McMurphy, $18; E. B. Darlington Lumber Company, $74.44; F. H. Cox, $819.05; John Berry, $10.80; H. L. Williams, $82.54; Joseph C. Gould, $179.17; Chapman Valve Manufacturing Company, $115.85.

      During the progress of the work from January 10, 1909, to November 4, 1909, the city issued to the contractor, Howes Brothers Company, eight orders, three of them were drawn on the ‘ ‘ General Fund, ’ ’ three on a “Special Fund,” and two on a “General—Special Fund. ’ ’ The total amount of these orders was $6,631.22. Eleven bonds, payable from the second instalment representing a total of $3,900, were also delivered to the contractor. The contractor failed to complete the work and the city hired the labor and finished the improvement at a cost of $3,903.03. This was done without advertising for bids or reletting the contract. It is contended by appellees that all of the above payments made by the city, and also the delivery of the bonds were illegal and void, and that in contemplation of law the city had the above funds in its possession at the time of the service of the notices of the claimants for liens.
    No assessment roll or order of confirmation of the assessment roll was introduced in evidence. No tax levy ordinance providing for the $8,000 to be raised by general taxation was introduced, and no evidence to show that there was not such an ordinance.
    Herrick & Herrick and H. M. Steely, for appellant.
    Ingham & Ingham, McMillen & McMillen, V. F. Browne and Lemon & Lemon, for appellees.

      See Illinois Notes Digest, Yols. 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 Eldredge

delivered the opinion of the court.

It is urged that no mechanic’s lien can be enforced for any material, apparatus or fixtures that did not enter into and become a part of the improvement, and the argument of counsel for the appellant in support of this contention is particularly addressed to the claims of the Municipal Engineering & Contracting Company and Alexander Lumber Company. The lien of the former is for rental for the two machines and the repairs on the same. They consisted of a sewer excavating machine and a hack filler. The furnishing of material, apparatus or machinery to a contractor, which is not attached to or does not become a part of the improvement, cannot be made the basis for a mechanic’s lien by a subcontractor under the laws of this state, and no lien should have been allowed for the rental of these machines nor for the repairs thereon. R. Haas Elect. & Mfg. Co. v. Springfield Amusement Park Co., 236 Ill. 452. And it makes no difference whether such articles were bought or rented by the contractor. McAuliffe v. Jorgenson, 107 Wis. 132.

The lien of the Alexander Lumber Company, in so far as it is represented by lumber used in the shoring or bracing of the trench, for trackage for the trenching machine and the portion taken away by it, can not be sustained. Rittenhouse & Embree Co. v. F. E. Brown & Co., 254 Ill. 549.

It follows also that the lien of S. Gr. Arbogast should not have been allowed for that part of his claim based upon the rental of an engine and pump for the pumping of water from the trench, the gasoline and oil used in the running of the engine and pump, the tile used for running the water off which did not become a part of the improvement, and the charges for hauling the tank and pump.

Likewise, it was error to allow the lien of H. L. Williams in so far as it was based upon his claim for pipe and fittings used in running the water from a tank to the engine, to the mixing boxes and to the concrete mixer.

So, also, no lien should have been allowed upon the 'claim of Joseph C. G-ould for repairs upon the machines and tools.

For the same reason the allowance of a lien to E. M. Burr & Company for the pipe used in holding the sheeting and stringers in place which did not become a part of the improvement cannot be sustained.

In our opinion, however, none of the liens established by the decree can be maintained for other reasons. The act providing for mechanics’ liens, being in derogation of the common law, in this State receives a strict construction. Schmidt v. Anderson, 253 Ill. 29; Turnes v. Brenckle, 249 Ill. 394. It has also been held that a strict construction shall apply to the Local Improvement Act in so far as determining the liability of a city under the act is concerned. City of Chicago v. Brede, 218 Ill. 528. It is claimed by appellees that the money payments made to the contractor out of the general, special and general-special funds were illegally made and that the city should be charged with having that amount of money on hand. The amount so paid- was $6,631.32. The ordinance provided that the cost of the sewer to the amount of $8,000 should be raised by general taxation. Ample time had elapsed between the passage of the ordinance and these payments to have levied and collected this general tax. There is nothing in the record to show that this was not done. If this general tax had been collected and was in the treasury of the city, and if these payments were made out of the money procured by a general tax for such purpose, then they were legally made. First Nat. Bank of Du Quoin v. Keith, 183 Ill. 475. Under the pleadings in this case the burden of proving the liability of the city was upon appellees. Section 39 of the Local Improvement Act (J. & A. 1429) makes it the duty of the officer making the assessment to estimate what proportion of the total cost of the improvement would be of benefit to the public, and section 41 (J. & A. ft 1431) provides that the assessment roll shall show what amount has been so assessed against the public and against each tract of land, and the amount of each instalment. No assessment roll was introduced in evidence. . Counsel for appellees did make an offer to introduce a portion of the assessment roll, stating that the offer was limited to a description of the lots etc., name of the owner, total amount assessed, its division into five instalments with the affidavit of the officer preparing the same, file mark of the county court, the amount assessed as a whole and the amounts of the different instalments. This offer was objected to by appellant and the court made no ruling on the objection. Neither the assessment roll, nor even that part which was offered, appears in the record, and all the information that can be gathered from the offer, with the exception of the amounts of the five different instalments, is substantially what has been stated above. An assessment roll and the order of its confirmation are the basis of a special assessment under the Local Improvement Act, are jurisdictional, and without which no assessment proceedings can be maintained. Morrison v. City of Chicago, 142 Ill. 660. In order for appellees to sustain their bills and intervening petitions in the court below, it was essential for them to prove that an assessment roll had been filed and that a judgment of confirmation had been entered thereon. Such evidence was the foundation of their case, and upon its proof depended the competency of the other proof offered. The assessment roll not having been introduced in evidence, we have no means of knowing whether the cash payments made aforesaid were made out of the $8,000 to have been raised by general taxation, or out of any sum which might have been assessed as public benefits or otherwise. Without this proof there can be no competent evidence that any assessments were ever made by virtue of this ordinance, or that the city had any funds derived therefrom, and no lien under section 23 of the Mechanic’s Lien Act (J. & A. 7161) can be established.

The rights of appellees to liens are subject to another fatal objection. They were sub-contractors under the statute, and like claimants have been so treated in all cases construing this section. West Chicago

Park Com’rs v. Western Granite Co., 200 Ill. 527; Haynes & Lyons v. County of Coles, 234 Ill. 137; Spalding Lumber Co. v. Brown, 171 Ill. 487. The original contract made the ordinance a part thereof, and the rights of appellees as subcontractors are dependent upon the contract and are controlled by all the provisions therein. Rittenhouse & Embree Co. v. Warren Const. Co., 264 Ill. 619. Section 11 of the contract provided that no part of the work could be subcontracted without the written consent of the board of local improvements indorsed thereon. Where the original contract provides that the improvement shall be delivered free from all liens, subcontractors can establish no liens thereon. Rittenhouse & Embree Co. v. Warren Const. Co., supra. By analogy, when a contract provides that the contractor shall perform all the work and furnish all the tools and material therefor, and that no part of the work shall be subcontracted without consent of a nominated party, such consent is a condition precedent to the establishment of a lien by a subcontractor. While in the present case no lien could have been established on the improvement itself, but only on the money, bonds or warrants due the contractor, yet the principle involved is the same. Although section 16 of the contract recognizes the right to liens under section 23 of the statute, yet the.whole contract must be construed together, and section 11 having provided that no part of the work should be subcontracted without the written consent of the board of local improvements indorsed thereon, subcontractors acquired no right to liens unless they had first procured the written consent of said board to their contracts with the original contractor. Benedict v. Danbury & N. R. R., 24 Conn. 320. None of the appellants had procured such consent.

For the reasons above stated, the decree must be reversed and the cause remanded with directions to dismiss the bills and intervening petitions for want of equity.

Reversed and remanded with directions.


text:
    Charles F. Bartson and William Millard, trading as Bartson & Millard, Appellants, v. J. V. Wiekert et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Reversed with directions.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Charles F. Bartson and William Millard, copartners, trading as Bartson & Millard, filed a hill to foreclose a mechanic’s lien on land owned or occupied by J. V. Wiekert and H. A. Bailey, for labor in cutting a drainage ditch thereon. On the hearing the bill of complaint was dismissed. The complainants appeal.
    A number of persons owning land through which a creek flowed, contracted with the appellants for the cutting of a drainage ditch through their lands, and agreed to pay a designated sum per rod for so much of the ditch as crossed their respective lands. Each landowner agreed to pay the amount set opposite his name on the contract. Opposite the names of Wiekert and Bailey appeared the sum of $714.56 for 81.2 rods. The contract provided that it should be null and void unless signed by all of the parties. All of the landowners, with the exception of Bailey, signed the contract under seal. Bailey owned two eighty-acre parcels of land divided by. a section line, which was in the possession of Wiekert under a five-years lease containing an option to purchase. Wiekert, in signing the contract, placed a star beside his name and a similar sign on the margin and wrote thereon, “signature binding only whenever ditch is cut on or along section line.’’

      The court found that Bailey did not sign the con-. tract or authorize Wiekert to do so for him; and also that the ditch was not cut on or along the section line.
    The evidence showed that when the subject of cutting the ditch was being discussed by the landowners, one of them testified that he called up Bailey by the telephone and asked him what he' would do in regard to the matter and he replied: “The farm is out of my hands; any arrangements will have to be made with Mr. Wiekert.” Bailey does not deny this conversation, but says that he does not remember it. Appellant Millard testifies that after the ditch was completed he called on Bailey and asked him to give him a check for the money, which Bailey refused to do, telling him that Wiekert was in control of the land. Bailey testifies that he talked with Wiekert about thp matter and tried to discourage him from joining in the project, but he does not testify that he ever forbid him to do so.
    Wiekert contends that as the ditch was not cut on or along the section line, he is not liable upon the contract. The creek entered the north eighty at the southeast corner thereof and meandered in a crooked and circuitous route in a northwesterly direction across the west line thereof about one hundred and eighty feet north of the section line. The object, as stated in the contract, was to straighten out the course of -the creek. One of the landowners testified that when he saw Wiekert about signing the contract, the latter said he was in favor of cutting the ditch provided it went on the section line, and that the witness told Wiekert it could not be cut clear through on the section line, to which Wiekert replied in substance: “No, they could not go clear through, they had to make a turn in his field”; that Wiekert marked on the map the place to which the ditch could go on the section line and where it would have to turn into the field and go northwesterly across the land, and that the place .marked by Wiekert is about the place where the turn was actually made.
    Abstract of the Decision.
    1. Mechanics’ liens, § 33

      —when lessee’s contract for improvement "binding on lessor. Under section 1 of the Mechanic’s Lien Act (J. & A. IT 7139) an owner of land who, without objections, knowingly permits a lessee to contract for an improvement, subjects the property to a lien therefor.
    2. Appeal and error, § 1397*—review of findings based, on depositions. The Appellate Court must review the evidence to determine whether a finding of fact made by a chancellor is contrary to the weight of the evidence, when based upon depositions taken before a master, without the latter making' a finding of facts.

      The ditch followed the section line bounding the north eighty on the line about half way across the eighty, then turned northwesterly and cut the west line of the eighty about one hundred and eighty feet north of the section line. This was done in order to make a connection with the creek where it crossed the west line of the eighty and entered the land of one Westen, and to avoid cutting through a sand hill on the latter’s land. One of the surveyors testified that Wiekert pointed out to him practically the place where the ditch was cut and where it should leave the section line. The county surveyor, whom the landowners employed to locate the line of the ditch, testified that he told Wiekert that it would be impossible to carry the ditch on the line all the way across his land, as a curve had to be made to avoid the sand hill, and that Wiekert replied, “well, keep on the section line as far as possible. ’ ’
    C. E. McNemar and Beach & Trapp, for appellants.
    W. A. Covey, for appellees.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

3. Mechanics’ mens, § 33 -—when evidence sufficient to show lessor’s consent to lessee’s contract for improvement. The evidence held to show that a landowner consented to his tenant contracting for the construction of a ditch on the demised premises, so as to entitle the contractor to a mechanic’s lien therefor.

4. Mechanics’ mens, § 49"—when substantial compliance, with contract sufficient. A substantial compliance with a contract to construct a ditch on or along a section line, held to entitle the contractor to a mechanic’s lien, although the contour of the land necessitated deviations 'from the section line.


text:
    Harry D. Cowden, Plaintiff in Error, v. Joseph Stout, Defendant in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action brought by Harry D. Cowden against Joseph Stout to recover $350 as commissions for procuring a loan of $35,000 for the defendant. The court without a jury, found for the defendant, and the plaintiff appeals.
    Frank Y. Hamilton and Welty, Sterling & Whitmore, for plaintiff in error.
    William N. Marshall, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

Principal and agent, § 83*—sufficiency of evidence to permit recovery for procuring loan. The evidence held sufficient to sustain a judgment for the defendant in an action to recover for procuring a loan.


text:
    The People of the State of Illinois, Defendant in Error, v. Frank Unger, Plaintiff in Error.
    1. Elections, § 237

      —how City Election Law construed as to powers of commissioner. The City Election Law, art. IV, sec. 26 (J. & A. IT 5055), providing that election commissioners when in session shall have authority and shall he required to keep the peace and to cause the arrest of any one who has committed a breach of the peace or of the election laws, and that it shall be the duty of all officers of the law present to obey the orders of such election commissioners or either of them, limits the duties of the election commissioners to the time when they are in session.
    2. Elections, § 239*—when assault on election commissioner not an offense' against election law. A city election commissioner was not performing any duty imposed upon him by law at the time of an assault upon himself outside the polling place, where he called upon an officer to assist an election judge and another person in handling a man who had been accused of illegally voting and had been ejected from the polling place at the instance of the commissioner, such commissioner being then struck by a member of a crowd which came to the aid of the expelled voter.
    Error to the County Court of Vermilion county; the Hon. E. J. Hawbaker, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed April 16, 1915.
    Dwyer & Dwyer, for plaintiff in error; H. A. Swallow, of counsel.
    J. H. Lewman, for defendant in error; C. M. Crayton, of counsel.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Plaintiff in error was convicted under the second count of an information filed by the State’s Attorney in the County Court of Vermilion county, which is as follows:

“That one Prank Unger on the 21st day of April, 1914, in the County of Vermilion, State of Illinois, at a general annual election then and there lawfully had and held in the Third Precinct of the Third Ward of the City of Danville, Illinois, on said April 21, 1914, did then and there knowingly and wilfully interfere with Joseph IT. Barnhart, then and there an election commissioner of the City of Danville, Illinois, in the discharge of his, the said Joseph H. Barnhart’s duties as such election commissioner for the said" City of Danville, in the said Third Precinct of the Third Ward of the said City of Danville, contrary to the statute, etc.”

The city of Danville had, prior to the time of the alleged commission of the alleged offense, adopted an act entitled, “An Act to amend an Act entitled ‘An Act regulating the holding of elections and declaring the result thereof in cities, villages and incorporated towns in this State, ’ approved June 19, 1885, in force July 1, 1885, as amended by an act approved June 15, 1891, in force July 1, 1891,” and approved April 24, 1899, in force July 1,1899 (J. & A. 4929 et seq.), and the amendments thereto. This act, commonly called “The City Election Law,” provides for a board of election commissioners.

On April 21,1914, a general election was held for the election of aldermen in the city of Danville. At this time Joseph H. Barnhart, was one of the election commissioners of said city. During this day he testified that he visited the various polling places to see that the judges and clerks of election were performing their duties, that the election was conducted properly and that there were no disturbances or violations of the election law in the polling places. About three o’clock in the afternoon he arrived in an automobile at the polling place in the third precinct of the third ward, lie left the automobile, went to the polling place, and found the election judges questioning a man who, they claimed had, voted illegally. Barnhart said he would take the man away in his automobile. One of the election judges and another man by the name of Cole attempted to take the man accused of illegal voting out of the polling place. He resisted and fought to free himself. After much disturbance they got him out of the polling place onto the sidewalk where the struggle was continued. Barnhart called to a special officer who was in the crowd to assist Cole and the election judge in handling the man. There was a crowd of people standing back of the 100-foot line at the time and someone in this crowd called out, “Fight,” whereupon a large number ran towards the officer struggling with the prisoner. Barnhart, when he saw the crowd coming, put up his hands and called out, ‘1 Get back. ’ ’ The evidence for the People tends to show that at this time the plaintiff in error - ran past Barnhart and struck him on the hand with his fist.

Many errors have been assigned on the record, but the most serious ones are the overruling of the motion to quash the information, and the contention that the conviction cannot be sustained under this act because Barnhart was performing no duties as election commissioner at the time of the assault. The determination of the latter proposition will dispose of all the others.

The offense charged is based upon section 2 of article VI of the Act (J. & A. jf 5031), which in part is as follows:

“If, at any election hereafter held in any such city * * * any person shall * * * knowingly, wilfully or fraudulently interfere with, delay or hinder, in any manner, any judge of election, poll clerk or other .officer of election in the discharge of his duties * * * upon conviction thereof, shall be adjudged guilty of a misdemeanor, and shall be punished by imprisonment in the county jail for not less than three months nor more than one year.”

Assuming that Barnhart as an election commissioner was an “officer of election” within the meaning of this section (which it is unnecessary to decide), was he in the performance of any duty as such commissioner at the time of the alleged assault? Counsel for defendant in error have not attempted to point out any provision of the statute imposing on the individual members of the board of election commissioners any duties to be performed in or around polling places during a general election, and we have been unable to find any. The duties of election commissioners enumerated in the act are such as they perform collectively as a board. The only section touching on' their duties as peace officers is section 26 of article VI (J. & A. 5055) which, in part, provides as follows:

‘ ‘ Said election commissioners, when in session, shall have authority and it shall be their duty to keep the peace, and to cause any person to be arrested for any breach of the peace or for any breach of election laws; and it shall be the duty of all officers of the law present to obey the order of such election commissioners or either of them, and an officer making an arrest by direction of any election commissioner shall be protected in making such arrest the same as if a warrant had been issued to him to make such arrest.”

This section clearly limits their duties as peace officers to the time they are in session. At the time the alleged offence is claimed to have been committed, Barnhart was in the performance of no duty imposed upon him by law as election commissioner, and consequently plaintiff in error could not have knowingly and wilfully interfered with him in the discharge of a duty which did not exist. If Barnhart was such an election officer as is contemplated by section 2, and if the information is sufficient to charge the violation of said section, the facts fail to prove the commission of the offense charged. The judgment is reversed.

Reversed.


text:
    Hanger & Maxfield, Appellees, v. Bloomington, Decatur & Champaign Railway Company, Appellant.
    1. Carriers, § 178

      —when assent to conditions in Mil of lading presumed. A shipper who has blank forms of bills of lading in his possession and fills them out and has been accustomed to do so for some time, is presumed to have knowledge of the conditions of the bills of lading and to assent to such conditions, especially where there is no denial that he had knowledge of such conditions or that he assented thereto.
    2. Carriers, § 178*—when shipper estopped to claim want of notice of limitations in Mil of lading. A shipper who has knowledge of the contents of bills of lading in his possession and fills them out, according to his custom, from time to time, is estopped to claim that he had no notice of the conditions therein and that he did not assent to such conditions.
    Appeal from the Circuit Court of McLean county; the Hon. Colostot D. Myers, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 16, 1915.
    Livingston & Bach, for appellant.
    Light & Light, for appellees.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellees sued appellant before a justice of the peace to recover damages for the loss of one barrel of kerosene. On an appeal to the Circuit Court of McLean county a trial was had before the court without a jury and judgment rendered against appellant for $12.60, the value of the kerosene.

The facts are either stipulated or substantially undisputed, and briefly stated are as follows: Appellees are oil merchants located at Bloomington, Illinois, and in January, 1912, received through one of their traveling salesmen a written order for the barrel of oil in controversy. This order reads as follows:

“January 3,1912. Sold to Ed. Stoll Ship to Bell Station, Central Received payment, German American Bank, Lincoln, Ills.”

It is conceded that the words “Ship to Bell Station, Central” are a direction to ship the oil to the consignee at Bell Station on the Illinois Central Railroad. Kate Maxfield, one of the partners in the firm of Hanger & Maxfield, appellees, and bookkeeper therefor, prepared' a bill of lading for the shipment of the oil to Bell Station on the Illinois Central Railroad and caused it to be delivered with the oil at the station of that company in Bloomington. The agent of the Illinois Central Railroad Company erroneously claimed that there was no such station on the line of that road and refused to receive the oil. Miss Maxfield then called up appellant company and after a conversation with appellant’s agent, through the telephone wrote out a new bill of lading for the shipment of the oil to Bell Station on appellant’s line and caused the same, together with the oil, to be delivered to appellant.

Appellant operates an interurban electric railway and stops its cars on signal at certain highway crossings along its line in the country in addition to the stops made in cities and villages. One of these highway crossing stops in the country was called Bell and is located south of Springfield. At Bell, and other country highway crossing stops, no agents, sheds, depots or warehouses are maintained, but only platforms, • erected for the convenience of loading and unloading passengers and freight.

The barrel was received by appellant for transportation and was carried and deposited by it on the platform at the highway crossing stop on its line called Bell. After several days, the consignee not having received the oil, an investigation disclosed that there was in fact a siding called Bell on the Illinois Central Bailroad, to which the oil should have been shipped as directed by the order. Appellee then requested appellant to return the oil, and when the latter attempted to do so, it found that the oil had disappeared from the platform and had evidently been stolen therefrom.

Miss Maxfield testified that she prepared the bill of lading in this case herself and that it was taken from a book of blank bills of lading which she kept for the purpose of shipping goods over appellant’s road and had used and filled out similar blanks for shipping goods over appellant’s railroad ever since it was built. The first part of the bill of lading reads as follows:

“Beceived subject to the classifications and tariffs in effect on the date of issue of this original bill of lading, at Bloomington, 111. Jan. 10, 1912, from H. & M. Ind. Oil Co., the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned and destined as indicated below, which said company agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back"hereof) and which are agreed to by the shipper and accepted for himself and his assigns.”

The words “Bloomington, 111. Jan. 10, 1912,” and “H & M. Ind. Oil Co.” were written in by Miss Max-field in the blank spaces left for that purpose. One of the conditions on the back of the bill of lading is as follows:

“Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at the risk of the owner after unloaded from the cars or vessels or until loaded into cars or vessels and when received from or delivered on private or other sidings, wharves, or landings, shall be at owner’s risk until the cars are attached to and after they are detached from train.”

It is the contention of appellees that appellant, as a common carrier, having assumed the transportation of the oil, became an insurer against everything but the act of God, the public enemy or the inherent nature of the property itself; that this common-law liability cannot be eliminated by the carrier by notice without also the express assent of the shipper, and that the burden of proving such notice and assent is on the carrier. Counsel for appellant concede that such is the general rule of law in this state but claim: First, that an electric interurban railway company which receives nonperishable freight for shipment over its railway line, billed to a crossroad stop, where such interurban railway does not maintain an agent or warehouse, is not liable for the loss of such freight if it carries said freight safely and deposits the same on the platform at the place or destination marked thereon. Louisville & N. R. Co. v. Gilmer, 89 Ala. 534; South & North Alabama R. Co. v. Wood, 66 Ala. 167, 72 Ala. 451; Hill v. St. Louis Southwestern Ry. Co., 67 Ark. 402; and second, that under the facts proven in this case, appellees not only had knowledge of the condition printed on the back of this bill of lading, but are also estopped from denying that they assented thereto.

The first proposition above advanced by appellant has never been passed upon by an Appellate tribunal in this State and it is unnecessary to pass upon it here. The second proposition, however, has been sustained under very similar facts to those shown by the record in this case. In the case of Field v. Chicago & R. I. R. Co., 71 Ill. 458, damages were sought for a delay of four months in the transportation and delivery of flour through the negligence of the railroad company. The plaintiff in that case, as in this, filled up the blanks in the bill of lading wherein was contained the provision that the responsibility of the company terminated on the delivery of the freight to the company whose line may be considered a part of the route to the place of destination. It appeared from the facts that the delay was caused by a connecting carrier. The plaintiff in that case denied knowledge of the conditions in the bill of lading and introduced evidence to that effect. The Supreme Court held:

‘ ‘ The question, then, made in this case, of the knowledge of the shipper as to the contents of these bills of lading, has been found against the plaintiff—that he had such knowledge; and looking into the transaction of the parties, and the proof that these bills of lading were in possession of the plaintiff, and filled out by his clerk, it was impossible, in the very nature of things, their contents should not have been known and well understood by the plaintiff. * * * It is past reasonable belief.”

In commenting upon this case, the Supreme Court, in the case of Erie & W. Transp. Co. v. Dater, 91 Ill. 195, said:

“The proof in that respect was accompanied with the testimony of the appellees that they were unaware of the provision. There was nothing, here of the kind which appeared in the cases of Oppenheimer v. United States Express Co., 69 Ill. 62, and Field v. Chicago & Rock Island R. R. Co., supra, where the receipts or bills of lading were in the previous possession of the consignors, and the blanks in them had been filled up by the consignors or their clerks, there having been a previous like practice in respect to shipments before, and where, although there was the testimony of the consignors that they had no-knowledge of the stipulations limiting the responsibility of the carrier, and never assented to them, this court said, in the former case, that the consignors must be held to have had such knowledge, and in the latter, that it was impossiblé in the very nature of things, that the contents of the bills of lading should not have been known and well understood by the consignor, and that the facts existing were sufficient to outweigh such contrary statements of the consignor and his clerk; and the finding of the court below that there was such knowledge and assent was sustained. But there was no such evidence, in the present case, of the consignors having the bill of lading previously in their possession and filling it out, or of a practice, before, of doing so with respect to similar bills of lading, or of having any such in their possession for the purpose of filling out for use. There is nothing here inconsistent with what was said in Merchants’ Dispatch & Transportation Co. v. Moore, 88 Ill. 138, as the presumption there spoken of was indulged in the absence of evidence to the contrary.”

In the case of Boscowitz v. Adams Exp. Co. 93 Ill. 523, it is stated:

“The same question arose in Field v. Chicago & Rock Island Railroad Co., 71 Ill. 458. In that case the bill of lading was filled out by the clerk of plaintiff, and as the court found the shippers had notice of the contents and assented to the restrictions therein contained, therefore the receipt or bill of lading was the contract between the parties. It is not understood there has been any departure from the doctrine of that case. That the fact the owner of the goods, by himself or clerk, filled up the receipt taken, is evidence tending to show the shippers had notice of the conditions and must have assented to them, may be true, but it is not conclusive. It is still a question of fact. Sometimes such evidence may produce conviction, and justly so, as in Field’s case, but cases may arise where the acts of the party may be susceptible of satisfactory explanation. ’ ’

It will thus be seen that where, shippers have the blank forms of bills of lading in their possession and fill them out themselves and have been accustomed to do so for a considerable length of time, they may be estopped from denying that they had notice of the conditions therein, and that they assented thereto, and such knowledge and assent may be presumed from such facts as a matter of law. The facts in the present case more strongly support this proposition than those in any of the cases cited, for the reason that there is no denial by appellees that they had knowledge of the said condition on the back of the bill of lading, or that they assented thereto.

The court held four propositions, submitted by appellees to be the law. They are of similar import and the first two are as follows:

“1. The court holds as a matter of law applicable to this case that the defendant received and accepted said goods in question as a common carrier of goods for hire, and by such acceptance assumed the obligation of such carrier to the plaintiffs, which obligation was that defendant was an absolute insurer of the safe delivery of said goods to the consignee as against all loss except that caused by the act of God, the public enemy or the inherent nature of the property itself.”
“2. The court holds as a matter of law applicable to this case that there is no evidence that the loss of the kerosene and drum was caused by an act of God, the public enemy or because of the inherent nature of the oil itself, and in the absence of such evidence the defendant is liable for the loss of the property.”

It is thus apparent that the court gave no consideration to the evidence tending to show that appellees knew of the condition in the bill of lading limiting the liability of appellant in the transportation of goods to places of this character, and that they assented thereto. The rules of law held by the court were inapplicable to the facts in this case. Illinois Match Co. v. Chicago, R. I. & P. Ry. Co., 250 Ill. 396. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    John M. Wolf, Appellant, v. M. A. Mattox, Administrator, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochean, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.
    Reversed and remanded.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action by John M. Wolf against M. A. Mattox, administrator of the estate of George W. Dishman, deceased, upon a claim based upon two promissory notes purporting to have been executed by deceased in his lifetime. From a judgment for defendant disallowing the claim, plaintiff appeals.
    The administrator and each of the heirs filed objections to the claim on the ground that the notes were not the notes of the deceased, and two of the heirs filed affidavits stating that the signatures to said notes were not the signatures of the deceased. The notes purported to be signed by George W. Dishman by his mark, and were witnessed by one Charles Lucas. Dishman died January 16, 1913, and letters of administration were issued January 18, 1913. The claim was not filed until November 3, 1913.
    Lucas testified that he was present when the notes were signed by Dishman with his marks, and that he, Lucas, signed his own name on the notes as a witness to the marks. Lucas himself could not read and all he could write was his signature. There is, a total absence of evidence of any consideration for these notes except that Lucas testified that they were given as renewals of two prior existing notes.
    Eosa Beck, one of the heirs and witness for appellee, over objection of appellant, was permitted to testify that she was familiar with her father’s business, arid that he trusted his debts, receipts and all such papers to her until about a year before his death; that she was familiar with his business in general and had talked with him about the amount of his debts and property; that she was in the office of his attorney with her father in November prior to his death, and at that time learned what his debts were and what he owed; that the first time she saw these notes was within two or three months before the trial and that she never heard of them before that time; that she never knew of his borrowing an amount of money that was anywhere equal to the aggregate sum of these notes.
    Abstract of the Decision.
    1. Bills and notes, § 420

      —what evidence inadmissible in action on note. Evidence by heirs and by the attorney and administrator oí the estate of deceased, the administrator being defendant in action to recover the amount of two notes alleged to have been signed hy the deceased in his lifetime, that they had not heard of the notes until a short time before the trial is incompetent and prejudicial.

      Charles Dishman, an heir and witness for appellee, was permitted, over objection, to testify that he knew his father’s business and never heard of these notes until about three months before the trial. He was then asked this question: “Did your father borrow any money of Mr. Wolf?” And answered: “Not that I know of.”
    The administrator testified, over objection, that he had been attorney for Dishman for three or four years before his death and never learned of the existence of the notes until shortly before they were filed as a claim in the County Court.
    Whitaker, Ward & Pugh, for appellant.
    E. J. Miller and J. K. Martin, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

2. Bills and notes, § 462*—when instructions erroneous in action on note. Instructions in an action upon a promissory note against the administrator of an estate, in which there was an issue as to the existence of the notes as those of the deceased, which apparently made a distinction between evidence and circumstances and told the jury to particularly consider the circumstances, are erroneous, especially where there was much erroneous proof of circumstances and there was no evidence in the record that the notes were not in existence during the lifetime of the deceased.

3. Instructions, § 82*—when erroneous for singling out witness. An instruction is erroneous which singles out a particular witness by name, who is not a party to a suit, and applies the law of impeachment to him alone, as such instructions should be general and apply to all witnesses.

4. Instructions, § 81*—when erroneous for singling out facts. An instruction which points out and calls the attention of the jury to particular facts in the case is erroneous.

5. Evidence, § 221*—wheh self-serving declarations inadmissible. Self-serving declarations made by a party to an action on a promissory note are inadmissible in his behalf.


text:
    E. W. Pouting, Appellant, v. Stephen E. Shepherd and Laura A. Shepherd, Appellees.
    1. Covenants, § 37

      —what evidence admissible in action for breach. Parol evidence tending to show that a grantee knew that coal and other minerals and the right to mine the same had been conveyed to another and that the consideration was based on that fact, is admissible in an' action of covenant brought by the grantee to recover damages for breach of a covenant of warranty of title to real estate, although prior articles of agreement had been executed which made no reference to a reservation of coal, where the wife of the grantor was a party defendant and had not been a party to the articles of agreement.
    2. Covenants, § 37*—when parol evidence admissible in action for breach. Parol evidence tending to show that a grantee had knowledge of the prior conveyances of coal and other minerals and mining rights in land to another, and that the consideration was based on that faqt, is admissible in an action of covenant brought to recover damages for breach of covenant warranty of title to real estate, although prior articles of agreement which made no references to a reservation of coal had been executed, where the grantee admits that he knew of the conveyance of the coal before the execution of the deed.
    3. Mines and minerals, § 11

      —what is effect of conveyance of mineral rights. The conveyance of coal and mining rights in land divides the land into two separate and distinct estates, the surface constituting one and the coal the other.
    4. Covenants, § 37*—what evidence admissible in action for breach of covenant of title. Parol evidence tending to show that a grantee had knowledge of the prior conveyance of coal and mining rights in land, and that the consideration for the deed was based on that fact, is admissible in an action of covenant in which damages were sought for breaqh of warranty of title to land, although prior articles of agreement which made no reference to a reservation of coal had been executed, where two separate estates in land had in fact been created by the prior conveyance of coal and mining rights.
    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 April 16, 1915.
    Wiley & Morey, for appellant.
    W. Nay Boggess and W. B. McBride, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic1 and section number.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This is an action of covenant brought to recover damages for the breach of a covenant of warranty of title to real estate conveyed by appellee to appellant by warranty deed dated January 14, 1913. The trial resulted in a verdict for appellant awarding him nominal damages in the sum of $1. The deed in question purports, in consideration of $1 and other valuable consideration, to convey and warrant to appellant one hundred and sixty acres of land in the county of Christian. The basis for the breach of warranty of title is the fact that at the time the deed was executed by appellees all the coal and other minerals with the right to mine the same had been conveyed to the Stonington Coal Company by prior grantors and appellées had title only to the surface. The defense to the action was that appellant, prior to the execution of the deed, knew that the coal had been conveyed and that the consideration paid by appellant was for the surface only.

Appellant owned some land in Washington county, Mississippi, known as the “Sligo plantation” and had listed the same with the witness Cantrall for sale. Appellee, Stephen R. Shepherd, had also listed his land with Cantrall for sale. Cantrall attempted to bring about a trade between appellant and Stephen R. Shepherd for the exchange of their respective lands. The evidence for appellees tends to show that Cantrall, in discussing the deal with appellant, informed him that the coal under the appellees’ land had been sold and that Ponting stated that he would make the trade, “coal or no coal,” and would pay Cantrall $1,000 if he should be successful in closing the deal. It appears that appellant’s attorney, William McGrinley, was in some way interested with appellant, either in the Sligo plantation or in the deal itself, although just what his interests were does not appear from the evidence. McGrinley was present on .several occasions when Cantrall talked over the matter with appellant. Cantrall gave to McGrinley an abstract of title of appellees’ land, which showed the conveyance of the coal, and McGrinley testifies that he examined the. abstract, discovered the condition of the title in regard to the coal and informed appellant of the same. McGrinley gave Cantrall a receipt for the abstract and this receipt is dated January 6, 1912, though McGrinley testifies that the abstract was not delivered to him by Cantrall until after articles of agreement had been executed by appellant and appellee Stephen R. Shepherd for the exchange of the property. These articles of agreement were entered into November 25, 1912, and provide that for and in consideration of the covenants therein made and to be performed by appellee, Stephen R. Shepherd, appellant agrees to convey by good and sufficient warranty deed to said appellee, Stephen R. Shepherd, the Sligo plantation, and in • consideration for the above transfer appellee, Stephen R. Shepherd, agrees to convey by good and sufficient warranty deed to appellant the one hundred and sixty acres of land heretofore mentioned in the deed. The deeds made pursuant to the articles of agreement were executed January 14, 1913.

It is insisted by appellant that all the parol testimony introduced by appellees, tending to show that appellant knew that the coal and other 'minerals and the right to mine the same had been conveyed and that the consideration for the deed of appellant was based on that fact, was incompetent for the reason that all prior agreements in regard to the consideration were merged in the articles of agreement signed by appellant and by Stephen R. Shepherd, appellee, and that as no reservation of the coal was made in the articles of agreement they are conclusive on the subject of the consideration. We do not think this contention can be sustained for two reas'ons: First, this is an action against Stephen R. Shepherd and Laura A. Shepherd, jointly. Laura A. Shepherd was not a party to the articles of agreement and could not be bound by their terms. Appellant admits that he knew of the conveyance of the coal before the execution of the deeds. Second, by the prior conveyance of the coal and the right to mine the same, the land of appellees was divided into two distinct estates, as was held in the case of Lloyd v. Sandusky, 203 Ill. 621. The surface constituted one and the coal the other, and the latter when thus severed constitutes land. At the time appellant received the deed from appellees there were two distinct tracts of land, one lying above the other, having the same legal description yet each was so severed from the other that it constituted a distinct and separate body of land. It was a question of fact for the jury to determine from the evidence whether appellant knew of this condition prior to his execution of the articles of agreement, and if he had this knowledge it must be presumed that the articles of agreement contemplated only the conveyance of the estate owned by Stephen E. Shepherd at that time and that his contract was only with reference to the estate so owned by him. Lloyd v. Sandusky, supra. We are' of opinion that there was no error in the admission of the parol evidence1 of the consideration of the deed in question, nor of the knowledge of appellant of the severance of the two estates. The judgment will be affirmed.

Affirmed.


text:
    M. E. Scarlett and George Thomas, Appellees, v. National Live Stock Insurance Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action of assumpsit by M. E. Scarlett and George Thomas against National Live Stock Insurance Company for the sum of $1,000 based upon a policy of insurance to indemnify plaintiffs for loss by death from accident, disease, theft and fire of a certain stallion. From a judgment for plaintiffs, defendant appeals.

      The bam in which the stallion was kept was destroyed by a fire in which the stallion lost his life. The application for the policy was procured from appellees by appellant’s agent Zea, and several of the defenses interposed were that appellees made certain false statements in the application which were warranties, in consequence of which the policy was void. The evidence for appellees tended to show that they truthfully answered all the questions in the application, and that the false answers therein were inserted by the agent without their knowledge.
    Zea, appellant’s agent, testified on the trial and did not deny the testimony of appellees that they gave true and correct answers to the questions in the application; and appellees, in making out the proofs of loss, fully disclosed therein all the matters truthfully, just as they testified they told the agent in the first instance when the application was made.
    The policy provided that the company should not be liable if the assured, in case of sickness or accident to the animal insured, should fail to render forthwith by registered mail or telegram, notice to the company at its home office of such sickness or accident, together with the name and address of the veterinarian employed. It appeared from the evidence that some time before the stallion was burned, he received a kick from a horse resulting in a slight scratch on the fleshy part of the hip which bled a little but did not penetrate through the skin, created no soreness, did not affect the animal in any way, was considered so slight that no attention was paid to it, and appellant was not notified thereof under the above provisions of the policy. It was insisted that there was a violation of this provision and thereby a recovery was barred.
    M. S. Meyberg and Lindley, Penwell & Lindley, for appellant; Walter C. Lindley, of counsel.
    J. H. Dyer and C. F. Dyer, for appellees.

      Abstract of the Decision.
    1. Insurance, § 621

      —when parol evidence admissible. When an applicant for insurance of a stallion against loss by death from accident, disease, theft and fire gave true answers to the questions contained in the application but the agent inserted false answers in lieu thereof, parol evidence is admissible in an action on the policy, to prove such facts notwithstanding stipulations contained in the application that the agent shall be deemed the agent of the assured.
    2. Insurance, § 331*—when notice of facts to agent is binding on insurer. Notice to an agent of an insurance company at the time of application for insurance upon a stallion, of facts material to the case, is notice to the insurance company.
    3. Insurance, § 336*—when insurer estopped to assert falsity of answers. Am insurance company is estopped to insist that answers to questions contained in an application for insurance of a stallion were warranties where the applicant gave true answers to the questions contained in the application and the agent of the company inserted false answers in lieu thereof.
    4. Insurance, § 663*—when finding as to truth of insured’s answers in application sustained. A finding in an action upon a policy of insurance to indemnify assured for loss by death from accident, disease, theft and fire of a stallion which was destroyed by fire by the burning of a barn in which it -was kept, that the assured truthfully answered the questions propounded in the application, and that the agent inserted false answers in lieu thereof, is sustainable where the company’s agent testified on the trial and did not deny the testimony of the assured that they gave true answers to the questions contained in the application, and the assured in making out proof of loss fully disclosed all matters truthfully just as they testified they told the agent when the application was made.
    5. Insurance, § 221*—when failure to give notice of slight injury to stallion does not avoid policy. An injury to a stallion caused by a kick received from a horse resulting in a slight scratch in the fleshy part of the hip which bled a little but which did not penetrate through the skin or create, any soreness, and which was considered so trivial that no attention was paid to it, is not an illness or accident within the meaning of an insurance policy requiring prompt notice by registered mail of any illness or accident to the animal insured so as to bar recovery on a policy for the loss of the animal by fire, especially where the scratch had nothing to do with the loss of the animal.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

6. Tkial, § 163*—when construction of contract a question of law. The construction of the terms of a contract is a matter of law ,for the court and not for the jury.


author: Mr. Presiding Justice Eldrbdge

text:
    Jennie Parker, Appellee, v. American Assurance Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Instjkance, § 704

      —when finding of court below sustained. It will be presumed on appeal that the trial court did not err in rendering its judgment in an action on a life insurance policy tried before the court without a jury, where no propositions of law or fact were submitted to the court and no question was discussed in the argument but that of whether the payment of the last premium was made under the facts shown in the evidence and the terms of the policy, and the Appellate Court had no means of knowing what the provisions of the policy were without going.to the record, which the Appellate Court could not be required to do, and appellant had not abstracted the policy.

      Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 16, 1915.
    Statement of the Case.
    Action of assumpsit by Jennie Parker against the American Assurance Company to recover as beneficiary under a policy of insurance upon the life of her husband. From a judgment for plaintiff after trial by the court without a jury, defendant appeals.
    W. O. Edwards and George E. Tilton, for appellant.
    Isaac A. Love, for appellee.

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

   Mr. Presiding Justice Eldrbdge

delivered the opinion of the court.

Scholfield, J., took no part in the consideration of this case.