author: Mr. Justice Boggs

text:
    Myrtle Richards, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Damages, § 186

      —when plaintiff as witness should not speculate on possible injuries received. In an action to recover for personal injuries, a plaintiff-witness should not be permitted, over objection of the defendant, to speculate on possible injuries he may have sustained.
    2. Damages, § 165

      —-what may be proved under specific allegations as to injuries. Where the allegations of injury in the declaration for damages for personal injuries are general, any injury that could reasonably be included in the general allegations may be proved, but where the declaration undertakes to specify a particular injury or injuries, then only such injury or injuries as are specified, or such as reasonably follow from the injuries specified, can be put in proof.
    3. Negligence, § 165

      —when evidence inadmissible as not conforming to pleadings. In an action for personal injuries alleged to be due to negligence; under an allegation of injury to the womb, testimony as to injury to the eyes should not be admitted, such injury not being reasonably referable to the injury alleged.
    4. Damages, § 186

      —when evidence inadmissible as to possible future effect of injury. In an action for personal injuries, a physician should not, over objection, be permitted to speculate upon the probable or possible future effect of the alleged injuries upon the health of the plaintiff, but his testimony should be confined to consequences reasonably certain to result therefrom.
    5. Instructions, § 88

      —when instruction on determination of preponderance of evidence erroneous. An instruction is erroneous which, in undertaking' to inform the jury as to the elements to be considered in determining the preponderance of the evidence, fails to include the element of the number of witnesses.
    6. Instructions, § 129

      —when instruction directing verdict erroneous. An instruction is erroneous which directs a verdict on the finding of facts as therein stated but fails to include an important controverted fact.
    Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 4, 1915.

      Crawford & Crawford, W. W. Barr and C. E. Feirich, for appellant; Blewett Lee and W. S. Horton, of counsel.
    James Lingle, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

This was an action on the case brought by appellee against appellant on account of personal injuries alleged to have been sustained by appellee while a passenger on one of appellant’s trains from Anna to Ullin, Illinois, on July 4, 1914. The declaration is in three counts. The first count charges that while appellee was a passenger, and while attempting to alight from the train at Ullin, the train was negligently, suddenly and violently started and moved, throwing’ appellee to the ground, resulting in appellee being greatly bruised, hurt and crippled; that the womb of appellee was thereby dislocated, bruised, and misplaced, and that appellee was permanently injured, etc.

The second count charges negligence of appellant in having the door of the coach in which appellee was riding locked and fastened so that appellee was prevented from making reasonable egress therefrom, and that servants of appellant negligently directed ap.pellee -to an egress where there was no servant of appellant to assist appellee in alighting, and no footstool for appellee to step on, it then and there being dark, and that as a result thereof appellee was injured. The injuries alleg’ed are the same as in the first count.

The third count is substantially the same as the second count. Appellant filed a plea of the general issue and a trial by a jury resulted in a verdict and judgment for appellee for $3,700 and costs.

The evidence for appellee tended to show that on July 4th there was a celebration at Anna which appellee attended, leaving Anna for Ullin, her home, about ten o’clock ori that night; that there was a large crowd there and several more passenger coaches on the train than customary; that appellee rode in a Pullman car; that the station of Ullin was called by appellant’s porter, and when the train stopped appellee found difficulty in getting out of the car, saying that the south door was locked. She, however, went through the smoking compartment of the Pullman in which she was riding and through the next day coach to the south, and while standing on the steps to get off, the train started and threw her off. She had her baby and an umbrella in her arms at the time. Appellee was allowed to testify, over objections of appellant, to numerous ailments claimed to have resulted from the fall, and she also introduced certain expert evidence on the subject which appellant contends was improper. She claimed to have had an abortion and other troubles, although in this she was contradicted by some of the physicians’ evidence on her behalf.

The evidence for appellant was to the effect that no such accident occurred, and also that several of the ailments she complained of had existed long prior to the time of the alleged injury.

Various grounds are urged by counsel for appellant as reasons for the reversal of the judgment. We shall consider but two: First, the alleged error in the admission of evidence offered on the part of appellee; and second, the error assigned on the giving of improper instructions offered on part of appellee.

On the trial of said cause appellee was permitted by the court, over repeated objection on the part of appellant, to speculate on the possible injury she may have sustained. During the direct examination of appellee, after she had described her alleged fall and following sickness, she was asked these questions:

“Have you noticed any difference in your eyesight?” Objected to by appellant on the ground that there was no claim for injury to the eyesight in the declaration. Objection overruled. “A. Why, my eyesight is hard at times. I can see sooty substances before me and that is all I can see.
“Q. I suppose when you are not affected that way you can read and see? A. I can see and read, but I can’t see the distance I did before.”

In the three counts of appellee’s declaration she makes specific claim for injury to her womb, but makes no claim for injury to her eyesight. Where the allegations of injury in a declaration are general, we understand that any injury that could reasonably be included in the general allegation may be proved, but where the declaration undertakes to specify a particular injury or injuries, that then only such injury or injuries as are specified, or such as reasonably follow from the injuries specified, can be put in proof.

There being no claim for- injury to appellee’s eyes, and the injury to the eyes not being reasonably referable to the injury charged to have been caused to appellee’s womb, proof of injury to the eyes should not have been allowed. North Chicago St. R. Co. v. Lehman, 82 Ill. App. 238.

The physicians who testified on behalf of appellee were permitted by the court to answer, over objection of appellant, various questions which allowed said physicians to speculate upon the probable or possible future effect of the alleged injury upon appellee’s health.

The jury in returning the verdict in this cas'e undoubtedly took into consideration the question' of a permanent injury to appellee, and just how much effect the evidence of appellee and her physicians may have had on the verdict, and the amount of damages assessed, it is impossible to determine.

In the case of Lyons v. Chicago City Ry. Co., 258 Ill. 75, the court in passing on this character of testimony at page 81 says: “A surgeon may testify as to the nature of a wound and as to the effects or consequences which may be reasonably expected to happen,—not merely speculative or possible. (1 Wharton on Evidence, sec. 441; Jones on Evidence (2nd Ed.) see. 378; 12 Am. & Eng. Encyc. of Law (2nd Ed.) 447, and cases cited.) If it form a proper basis for recovery it is necessary that the consequences relied on must be reasonably certain to result. They cannot be purely speculative. (Lauth v. Chicago Union Traction Co., 244 Ill. 244, and cases cited; Murphy v. Boston and Albany Railroad Co., 167 Mass. 64.) ” Again on page 82 the court says: “It may be that this improper evidence accounted for a large part of the verdict. Such an error in the admission of evidence is -not susceptible of computation, and even a remittitur, cannot cure it. Lauth v. Chicago Union Traction Co., supra; Chicago City Railway Co. v. Henry, 218 Ill. 92; Shaughnessy v. Holt, 236 id. 485.”

Again in the case of Amann v. Chicago Consol. Traction Co., 243 Ill. 263, at page 267, the court says: “A mere possibility, or even a reasonable probability, that future pain or suffering may be caused by an injury, or that some disability may result therefrom, is not sufficient to warrant an assessment of damages. It would be plainly unjust to require a defendant to pay damages for results that may or may not ensue and that are merely problematical. To justify a recovery .for future damages the law requires proof of a reasonable certainty that they will be endured in the future. Lake Shore and Michigan Southern Railway Co. v. Conway, 169 Ill. 505; Chicago and Milwaukee Electric Railway Co. v. Ullrich, 213 id. 170; Chicago City Railioay Co. v. Henry, 218 id. 92; 6 Thompson on Negligence, sec. 7318; 13 Cyc. 138-144. ’ ’

The next contention of appellee that we desire to consider is the alleged error in the giving of appellee’s second, fourth, fifth, sixth, eleventh and twelfth instructions. The error alleged as to appellee’s second instruction is that in instructing the jury as to the elements they should consider in determining the preponderance of the evidence it omits to mention the element of the number of witnesses. In a number of cases in the Supreme and in this court, instructions of this character which undertake to inform the jury as to the elements to be considered in determining the preponderance of the evidence and fail to include the element of the number of witnesses, have been condemned. Yanloniz v. Spring Valley Coal Co., 185 Ill. App. 563; Lyons v. Ryerson & Son, 242 Ill. 409; Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 621; Chicago Union Traction Co. v. Hampe, 228 Ill. 346; Andreicyk v. Chicago & E. I. R. Co., 150 Ill. App. 539.

Where the element of numbers is important, ths giving of an instruction in regard to the preponderance of evidence which omits the element of numbers has been held to be reversible error. Yanloniz v. Spring Valley Coal Co., supra ; DeJoannis v. Domestic Engineering Co., 185 Ill. App. 271. The giving of this instruction was clearly erroneous, but we would not be inclined to reverse the case solely on that ground, if there were no other errors in the record.

Appellee’s" sixth instruction directs a verdict for appellee upon proof of the facts therein stated, but this instruction omits the important element of whether or not she was a passenger on appellant’s train at the time of the alleged injury. This being a controverted question, the instruction should not have been given. (Pardridge v. Cutler, 168 Ill. 504.)

We have examined appellee’s fourth, fifth and eleventh instructions and we do not.believe that they are subject to the criticism made against them by appellant.

The objection to appellee’s twelfth instruction is that it submitted to- the jury the question of the permanent injury to appellee. We do not understand that appellant claims that this instruction is erroneous as a matter of law, if there were competent evidence in the record to support it. We think, however, that this instruction is not objectionable and there was no error in giving it.

In this case appellant controverts all the material matters on which,appellee bases her claim for damages, that is, appellant denies that appellee was a passenger on its train; that she received her injuries in the manner she claims, and further denies that the present condition of appellee’s womb is referable to the alleged injury set forth in her declaration. The evidence on these matters being conflicting, the errors pointed out were prejudicial to appellant.

The judgment is reversed and the cause remanded.

Reversed and remandéd.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    United Breweries Company, Appellee, v. Joseph S. Price, Appellant.
    Gen. No. 20,885.
    1. Corporations, § 448

      —when contract not ultra vires. A contract between a brewery company and a saloon keeper for the loaning of money, the securing of a license and the sale of liquor under certain conditions, being in furtherance of the business for which the company was organized, is not ultra vires.

      2. Intoxicating liquors, § 58

      —when contract for assignment of right of renewal of license invalid. A contract between a brewery company and a saloon keeper for the assignment by the latter to a designated third person of the alleged “right of renewal” of a saloon' license which might be issued to the saloon keeper is illegal and void, as there is no right of renewal of a saloon license.
    3. Intoxicating liquors, ‘ § 58

      —right of renewal of saloon license. There is no right of renewal of a saloon license.
    4. Intoxicating liquors, § 24

      —when person may not conduct saloon. A person cannot own and conduct a saloon under a license issued to and in the name of another.
    5. Intoxicating liquors, § 52

      —when right to saloon license nonassignahle. The right to a saloon license for an unexpired part of a license year, if a municipal ordinance gives such a right, inheres in the license already issued, and cannot be disconnected therefrom, and made the subject of a separate assignment.

      6. Contracts, § 134

      —when 'contract for operation of saloon illegal. A contract extending over a period of seven and a half years between a brewery company and a saloon keeper for the loaning of money, the sale of liquor, the loaning of the right to a saloon license for temporary use, all future rights to remain in the brewery company or a person designated by it, constitutes a contract to operate a saloon under a license owned by another, and is consequently illegal.
    7. Contracts, § 134

      —when contract for purchase of liquor illegal. A contract for the purchase of liquor by a saloon keeper from a brewery company, based upon an illegal agreement for the operation of a saloon under a license not owned or controlled by the latter, is not enforceable.
    8. Intoxicating liquors, § 269

      —when brewery loaning money to saloon Keeper may recover loan under contract. A brewery company which loans money to a saloon keeper to run his business under an illegal agreement to operate a saloon under a license not owned or controlled by the latter may recover the money loaned upon noncompliance by the latter with the terms of the contract.
    Appeal, from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed November 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Jacob O. LeBosky, for appellant.
    Ringer, Wilhartz, Louer & Concannon, 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 McSurely

delivered the opinion of the court.

Plaintiff brought suit upon a written contract. Defendant’s affidavit of defense was stricken from the files and judgment entered against him for $7,131.65. The contract, dated October 6,1913, is signed by plaintiff, therein called “first party,” and defendant, called ‘ ‘ second party, ’ ’ and is in part as follows:

“Whereas, said second party desires to conduct a saloon business at Number 156 West Van Burén Street, Chicago, Illinois, opening the same on November 1, 1913, and desires also to purchase five thousand (5,000) barrels of beer for the conduct of said saloon business, and desires to secure the sum of Five Thousand Dollars ($5,000.00) in cash, and also needs an assignment of the right to a saloon license for the City of Chicago, as a loan for temporary use for the specific purpose of obtaining a saloon license for the aforesaid premises for the period of six (6) months beginning November 1, 1913.
“Now, therefore, said first party, in consideration of the trade and purchases of said second party and of the prices to be paid as hereinafter provided, hereby agrees to supply to said second party, delivered upon said premises during customary business hours in the usual manner, Five Thousand (5,000) barrels of beer of good merchantable quality and of its usual grades and brands for the retail requirements of the aforesaid saloon alone.
“Said first party agrees also to furnish said second party with the sum of Five Thousand Dollars ($5,000.00) to be paid one-half upon the signing of this agreement, receipt whereof is hereby acknowledged by said second party, and the remaining one-half, to wit: Two Thousand Five Hundred Dollars ($2,500.00), upon the opening for business of aforesaid saloon by said second party.
“Said second party will repay to said first party the sum of Two Thousand Dollars ($2,000.00), in accordance with the terms of fourteen (14) promissory notes, aggregating the sum of Two Thousand Dollars ($2,000.00), of even date herewith.
“Said first party also agrees to furnish said second party with an assignment of the right to a saloon license for a period of six (6) months beginning Nov.-1, 1913, and said second party agrees and declares that the right to the assignment of a saloon license loaned and furnished, or caused to be loaned and furnished by said first party under this agreement is for temporary use, and all future rights thereunder are and shall remain the property and rights of said first party or of such person as may be designated by the said first party.
“Said second party agrees that immediately upon issue to him by the City of Chicago of a saloon license under the right of assignment furnished as aforesaid, he will without reservation of any kind and without consideration reassign to Carl Antonsen, or such other person as said first party may designate, the right of renewal of such license and all of the rights appertaining thereto in the form satisfactory to said first party, and failing to do so said second party irrevocably appoints Albert Hahne as his attorney to make such assignment in his name, place and stead.”

The defendant further agreed to maintain and operate continuously a saloon upon the premises and to purchase 5,000 barrels at the rate of not less than-50 per month. In the event of his failure to perform his covenants and agreements he was to pay plaintiff immediately the sum of $3,000 with interest at six per cent., and any unpaid portion of his said promissory notes should become immediately due and payable; • but if his covenants should be performed, the plaintiff should have no claim for the repayment of the $3,000. The term of the contract was fixed at five years, but by a supplemental agreement was extended to seven and one-half years.

Plaintiff in its statement of claim alleges the payment of the $5,000 and that it received defendant’s promissory notes for $2,000; that defendant has not kept his agreements in that in the month of November, 1913, he purchased only 13 barrels of' beer, and during December, 1913, only 21% barrels, and has purchased beer to be used in the above premises from persons or corporations ’other than the plaintiff. It claims as due the sum of $3,000 with interest; also the sum of $1,700 with interest, evidenced by 12 notes of the defendant remaining unpaid; also 50 cents per barrel upon 4,973 barrels of beer, being the remaining number of barrels which were to be furnished by plaintiff to defendant under the terms of the contract.

Defendant’s affidavit set up want of consideration, that the contract was ultra vires, that the notes were not yet due, and that plaintiff was a foreign corporation. The last-named defense was subsequently withdrawn. Upon the trial the notes were surrendered to the defendant.

The contract is not ultra vires. Its purpose was to advance and promote the objects for which the plaintiff corporation was organized. Kraft v. West Side Brewery Co., 219 Ill. 205, is in point.

It is claimed that this contract is without consideration in that it unlawfully provides that defendant shall conduct a saloon for seven and one-half years under a license owned by plaintiff, to be loaned temporarily to defendant but transferred when plaintiff so indicated to another person designated by it.

The term of a saloon license is one year, no longer. It is said by counsel that the license year in Chicago is divided into two periods of six months each, the first period beginning May 1st, and the second or last period beginning November 1st. This contract seems to contemplate that plaintiff would cause some one with a, license to assign it to defendant, who would thereupon take out a license for the last half of the year in his own name; but “immediately upon issue to him” he should assign to a person designated by plaintiff “the right of renewal of such license.”

It is the settled law in this State that a contract for the assignment of the so-called right of renewal of a license is void; that there is no right of renewal. People v. Harrison, 256 Ill. 102, and Bartkowiak v. Malinowski, 256 Ill. 119. It follows, therefore, that the agreement that defendant should assign “the right of renewal” of any license which might be issued to him to the Carl Antonsen named in the contract, or to such other person as the plaintiff might designate, and the power of attorney to that end, are illegal and void.

It is also the law in this State that one cannot own and conduct a saloon under a license issued to and in the name of another. Hoyt v. McLaughlin, 250 Ill. 442. Section 46 of article V. ch. 24, Cities and Villages Act, Ill. St. [J. & A. ft 1344 (46)], provides “that in granting licenses, such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses.” In section 4, ch. 43, of the Dramshop Act, Ill. St. (J. & A. 4603), it is provided that saloon licenses shall not be transferable, and in the opinion in Hoyt v. McLaughlin, supra, the court cited this section of the Dramshop Act and also a city ordinance as the basis for its holding that a person cannot operate a saloon in Chicago under a license belonging to another.

Is this a contract for defendant to operate a saloon under a license owned by some one else? We are of the opinion that it is. Plaintiff agrees to loan defendant “an assignment of the right to a saloon license * * * for temporary use, and all future rights thereunder are and shall remain the property and rights of said first party or of such person as may be designated by the said first party.” There is no substantial difference between a loan of “the right to a saloon license” for the remainder of a license year, and the loan of the license itself. The right to a license for the unexpired part of a license year, if the municipal ordinance gives such a right, inheres in the license already issued in the beginning of the year and cannot be disconnected therefrom and made the subject of a separate assignment. Practically, this contract means that plaintiff should loan a license to defendant and when a new license would be issued to him he must immediately assign it to some one else, but continue buying beer from plaintiff for use in his saloon which was to be operated for seven and one-half years apparently under no license of his own.

It is also to be noted that the provision of the contract for the reassignment of the right of renewal to Antonsen, or some other person, contains a clause that defendant shall assign to the same person “the rights appertaining” to the license issued to him, which would include the right to operate the saloon upon the premises described in the contract. In other words, defendant in the same contract has undertaken to operate the saloon for a long period of time and also to assign to another his right to operate it. The agreement of defendant to buy 5,000 barrels of beer from plaintiff is based upon the illegal agreement for the operation of a saloon under a license which he did not own or control. This contract of purchase cannot be enf orced. Hence that part of the judgment which is for beer undelivered is erroneous. This amounts to $2,470.75.

We see no reason, however, why defendant is not obligated to return the money which was loaned to him. This is not a case where both parties to the contract are engaged in a wrongful act and the rule applied that' where the parties are in pari delicto courts will not interfere. The contract is illegal in one particular, so that the operation of a saloon by defendant as contemplated cannot be carried out. Under such circumstances he is obligated to repay the money which plaintiff advanced to him for that purpose. The part of the judgment based upon the loan of $5,000 is proper.

The judgment is reversed and judgment is entered in this court for $4,660.90.

Reversed and judgment in this court.


author: Mr. Justice Baker

text:
    National Bank of the Republic of Chicago, Defendant in Error; v. Francis Cropper, Plaintiff in Error.
    Gen. No. 21,216.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by the National Bank of the Republic of Chicago, plaintiff, against Francis Cropper, defendant, on seven promissory notes for rent drawn by defendant, to order of Joseph Klor, his landlord, and by the latter indorsed in blank. From a judgment for plaintiff, defendant appeals.
    Klor was accustomed to hold checks for a long time before presenting them to the bank for payment. Cropper had been Klor’s tenant for years, and gave him a check for rent every month. All the checks so given had been paid by the bank and returned to Cropper except the seven checks sued on. Cropper closed his account with the plaintiff bank June 15, 1912, and sold his business to Stein. June 17, 1912, Klor had in his possession the seven checks in question. On that day he indorsed them in blank and delivered them to Struve, Cropper’s manager, and for them Struve gave Klor his check on the plaintiff bank for $641.62, the sum the seven checks amounted to. June 26, 1912, the check Struve gave to Klor was paid to Klor by the bank. Struve, by accident or otherwise, failed to deposit with the bank the seven checks he received from Cropper, and as a result his account was overdrawn about $615. About six months after Cropper closed his bank account with the bank, the seven checks sued on were found in the drawer of a typewriter desk in the office of the Francis Cropper Company, the suecessor in business of Francis Cropper, of which company Struve was the manager. In September, 1915, Struve gave the checks sued on to the attorneys of the plaintiff bank, and told them to give the checks to the bank as security for their claim against him.
    Abstract of the Decision.
    Bills and notes, § 451

      —when evidence sufficient to sustain finding that notes were not paid. In an action by a bank on several promissory notes against the maker, evidence held sufficient to sustain a finding that the notes had not been paid.
    There was no evidence tending to show a direct payment of the checks by Cropper. His contention was that Klor was paid for the checks by Struve out of funds in his possession belonging to Cropper. This contention was supported at the trial only by the testimony of defendant’s attorney in the cause in the Municipal Court and in this court as to an admission by Struve, and his testimony was contradicted by Struve.
    T. F. Monahan, for plaintiff in error.
    Newman, Poppenhusen & Stern, for defendant in error; Lawrence A. Cohen, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Presiding Justice MuSurely

text:
    Edwin C. Barnes, trading as Edwin C. Barnes & Brothers, Appellee, v. William E. Martin, trading as Martin & Martin, Appellant.
    Gen. No. 21,314.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Rehearing denied January 17, 1916.
    Statement of the Case.
    Action by Edwin C. Barnes, trading as Edwin C. Barnes & Brothers, plaintiff, against William E. Martin, trading as Martin & Martin, defendant, for the price of two “Edison Dictating Machines” with accessory appliances, which were sold and delivered to defendant pursuant to a written order. Upon trial by the court, plaintiff had judgment for two hundred and thirty dollars, from which defendant appeals.
    The order upon which the appliances were delivered was explicit as to prices and terms. Among other things it contained a provision that if the purchaser should for any reason be unable to use them they should be returned in ten days and full credit for them would be allowed. This order is dated July 22, 1914.
    The appliances were delivered and used, by the defendant, and it was not until September 5th that defendant notified plaintiff that the machines were not wanted.
    Defendant says he is not bound by the order for the reason that his cashier, McCallister, who signed the order had no authority to do so. The said evidence showed that the latter had general charge of the office, buying supplies, signing checks, and employing and discharging some of the employees. During defendant’s absence from the city he was apparently the general manager of the business.
    Abstract of the Decision.
    Principal and agent, § 8

      —when evidence sufficient to show relation. In an action to recover for the purchase price of goods, where the evidence shows that the person purchasing had general charge of defendant’s office, buying supplies, signing checks and employing and discharging some of the employees and acted as general manager of the business during defendant’s absence from the city, and that' such person had stated to defendant that he proposed to try the article in question to which defendant consented, evidence held sufficient to show that he acted as defendant’s authorized agent in purchasing the goods in question.
    The evidence also showed that defendant contemplated leaving the city, to be gone about six weeks, and before he left, McCallister told him that he proposed to try a dictating machine in the office, and defendant consented to this.
    Pringle & Fearing, for appellant.
    Fulton, Garey & Deutschman, for appellee.

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

   Mr. Presiding Justice MuSurely

delivered the opinion of the court.


text:
    Herschel H. Byall, Administrator, Appellee, v. F. Landon, Appellant.
    Gen. No. 21,326.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Dan W. Maddox, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed with finding of fact.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action by Herschel M. Byall, administrator of the estate of Harry Boyd King, deceased, plaintiff, against F. Landon, defendant, to recover for the death of plaintiff’s intestate. From a judgment of $1,500 for plaintiff, defendant appeals.
    The evidence shows that defendant, who is in the teaming and hauling business, at the time in question was engaged in hauling the materials of a dismantled police station through an alley which runs easterly into Market street, Chicago, between the building occupied by the Gault House on the north, and the building of the Chicago Evening Post on the south. The alley is ten feet ten or eleven inches wide, and inclines upward from the rear of these buildings towards Market street, with “quite a grade.” The materials loaded on the wagon were iron gratings and flat iron sheets about ten feet long by eight feet wide. They were loaded so as to extend an equal distance on each side of the wagon, which left a space of about eighteen inches between the edge of the load and either wall of the alley. There is evidence that the iron was tightly tied down with chains and ropes so that it could not slip.
    The deceased, King, at this time was about twenty years old, and was an assistant cashier of the Post. In the early afternoon of April 23rd with a companion he came out of the rear of the Post building into the alley and walked towards Market street, passing the loaded wagon as it stood in the alley. After standing for a time in Market street they retraced their steps down the alley way. At this time the heavily loaded wagon was moving, with four horses pulling it up the slope towards Market street. Plaintiff continued walking towards the approaching wagon and attempted to pass in the narrow space between it and the wall of the Post building. Just as he was opposite the hind wheels •a wheel struck a hole in the pavement, causing the wagon to skid towards the Post building, catching and crushing plaintiff against the wall. From the injuries thus received he died shortly thereafter. At the time of the accident the wagon was nearly out of the alley.
    Abstract of the Decision.
    Negligence, § 187

      —when evidence shows contributory negligence. In an action to recover for wrongful death, alleged to have been caused by defendant’s negligence, evidence examined and held to show the injury to have been caused by the negligence of plaintiff’s intestate.
    Calhoun, Lyford &Sheean, for appellant; Edward W. Rawlins, of counsel.
    Alden, Latham & Young, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Supreme lodge Order of Mutual Protection, Complainant. Anna E. Eckhardt, Appellee, v. Pauline Eckhardt and Beulah Eckhardt, Appellants.
    Gen. No. 21,348.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Whindes, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Interpleader by the Supreme Lodge Order of Mutual Protection against Pauline Eckhardt, Beulah Eckhardt and Anna E. Eckhardt, claimants, to a fund admitted to be due by said Lodge Order under a benefit certificate issued to Charles W. Eckhardt. Prom the decree entered on the bill awarding the fund to Anna E. Eckhardt, Pauline Eckhardt and Beulah Eckhardt appeal.
    In the original benefit certificate Beulah Eckhardt, then the wife of Charles, was named as the beneficiary. In March, 1913, Beulah brought suit for divorce in the Chancery Court of Shelby county, Tennessee, charging desertion. Defendant was served and appeared by counsel. After hearing, a decree of divorce was entered finding that the court had jurisdiction and that complainant had sustained her charges by evidence, and ordering defendant to pay complainant, $1,000 in full of alimony, which was paid. No appeal was taken and the decree is still in force. Subsequently Charles Eckhardt married Anna Marley, the other claimant herein.
    Under the |( laws of the Lodge Order a member had the right at any time to change his beneficiary, and after his marriage to Anna, Charles surrendered .his original certificate, and a new certificate was issued in which Anna Eckhardt was named as beneficiary. The fund which is the subject-matter of this litigation arises from the payment of this last certificate.
    Abstract of the Decision.
    Estoppel, § 71*—when one invoicing jurisdiction estopped, to deny it. The jurisdiction of a court of a suit for divorce cannot be questioned in a subsequent proceeding by the party at whose request and upon whose testimony as to jurisdiction of facts such court found that it had jurisdiction, especially where such party has received the benefits of the divorce litigation and rights of others have accrued thereunder, it being immaterial whether the adjudication in the divorce litigation was procured through misrepresentation of facts or misrepresentation of the law.
    Albert H. Fry, for appellants.
    Robert Van Sands, for appellee Anna E. Eckhardt.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Frick-Reid Supply Company, Appellee, v. Consolidated Adjustment Company, Appellant.
    Gen. No. 21,350.
    1. Judgment, § 672

      —when transcript of judgment insufficient to show jurisdiction in an action in foreign State. In an action in Illinois on a judgment rendered against an Illinois corporation in a foreign State, it is error to admit in evidence a transcript of such judgment, where it not only does not show either directly or by implication that defendant was transacting business in such foreign State, but the petition in the action in such State alleges defendant to be an Illinois corporation having its principal office and place of business in Illinois and maintaining no office or place of business in the foreign State nor complying with the laws of the latter as to foreign corporations doing business therein.
    2. Corporations, § 707

      —when recital in sheriff’s return insufficient to show jurisdiction. In an action in Illinois against a domestic corporation on a judgment rendered against such corporation in a foreign State, the recital' in the sheriff’s return in the latter action that he summoned defendant, “a foreign corporation, by delivering to * * * personally, Secretary of State,” of such foreign State, a copy of the summons, is insufficient to show that defendant was doing business in the foreign State.
    Appeal from the County Court of Cook county; the Hon. J. E. Hillskotter, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed.
    Opinion filed January 3, 1916.
    Delavan B. Cole, for appellant.
    Vose & Page, for appellee; Samuel H. Gilbert, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal is brought in review the record in an action of debt, brought by plaintiff in the County Court of Cook county to recover on a judgment rendered against defendant in the District Court of Washington county, Oklahoma. Upon trial by the court plaintiff’s damages were assessed at $914.46, and judgment thereon was entered.

In its declaration plaintiff averred that defendant was a corporation, organized and existing under and by virtue of the laws of the State of Illinois, and that in September, 1910, in the District Court of the county of Washington, in the State of Oklahoma, “the same being a court of general jurisdiction duly created and organized under the laws of said State,” plaintiff recovered against the defendant the sum of $698.37 with interest, and costs, “as by the record thereof remaining in the same court more fully appears, a transcript of which record is filed herewith, which said judgment still remains in full force.” To this declaration defendant filed a special plea asserting that the Oklahoma court was without power to render judgment because defendant was a corporation of Illinois, maintaining its office in Chicago; that it was not served with process and had never appeared in said action,nor did any one with authority ever appear for it; that it had no knowledge of said judgment until long after the date thereof; that it had never been authorized to transact business in Oklahoma and never had an office or agency there; that it was not engaged in the transaction of business in Oklahoma, and had never rendered itself amenable to the laws of said State as a foreign corporation doing business therein.

It is not claimed by plaintiff that defendant was served with process in Oklahoma by summons or by any method known to the laws of Illinois.

Upon the trial in the Illinois court plaintiff offered a certified transcript of the record of the Oklahoma judgment. Defendant objected to this on the ground that it showed upon its face that defendant was not a citizen of the State of Oklahoma but was a foreign corporation at the time of the commencement of the action in that State, and that it did not affirmatively show that defendant was transacting business in that State at or prior to the time the suit was brought, and that it did not show facts sufficient to confer jurisdiction on the Oklahoma court. The court admitted the transcript in evidence subject to objection, to which the defendant excepted. Thereafter defendant moved to strike the transcript from the record. The court overruled said motion and the defendant excepted, and this action of the court is assigned for error here.

We hold that the trial court was in error in its rulings upon the transcript of judgment. It does not show upon its face either directly or by implication that the defendant was transacting business in the State of Oklahoma. The petition filed in the Oklahoma court alleges that the defendant is a corporation organized under the laws of the State of Illinois, with its principal office and place of business in Chicago, and that it maintains no office or place of business in the State of Oklahoma and never has maintained such an office, and has not complied with the laws of the State of Oklahoma relating to foreign corporations doing business in that State. Such allegations did not amount to an averment that the defendant was transacting business in Oklahoma.

In Henning v. Planters’ Ins. Co., 28 Fed. 440, the allegations of the declaration and the transcript of the judgment were similar to those in the instant case, and the court there said:

“It is a general rule that a special jurisdictional fact outside the ordinary and intrinsic situation of the thing shall be specially averred in pleading, and certainly that which is contrary to the ordinary course of things should be averred, to give the court knowledge of the fact.”

In St. Clair v. Cox, 106 U. S. 350, the court speaking through Mr. Justice Field, said:

“It is sufficient to observe that we are of the opinion that when service is made within the State upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record, either in the application for the writ, or accompanying its service, or in the pleadings or the finding of the court, that the corporation was engaged in business in the State.”

In Hazeltine v. Mississippi Valley Fire Ins, Co., 55 Fed. 743, the transcript did not affirmatively show the jurisdictional fact that the defendant was “transacting business” in the State, and it was held that the provision of the statute by which substituted service is authorized to be made upon an insurance commissioner can only be supported in case the defendant “is at the time of the suit, or had previously been, ‘ doing business ’ in the State. ’ ’

The recital in the sheriff’s return that he summoned the defendant, “a foreign corporation, by delivering to Bill Cross, personally, Secretary of State, of the State of Oklahoma,” a true and certified copy of the summons, is not sufficient to establish the fact that the defendant was transacting business in the State of Oklahoma. In St. Clair v. Cox, supra, it is said: ‘ “ The certificate of the sheriff, in the absence of this fact in the record, was insufficient to give the court jurisdiction to render a personal judgment against the foreign corporation. The record was, therefore, properly excluded.” And in the Henning case, supra, is very pertinent language, as follows: ,

“The sheriff may choose to serve anybody as agent; and wherever the suit be brought he could assume that any convenient person was ‘agent’; and if that simple return imports that the foreign corporation was ‘doing business’ within the State, and that the person served was a proper ‘agent’ to represent it the whole jurisdiction would depend .upon what may be a fallacious inference; for, in the nature of the thing, it does not essentially import that fact. ’ ’

In Cunningham v. Spokane Hydraulic Co., 18 Wash. 524, the court held that the judgment roll itself must affirmatively show jurisdiction in this class of cases; and in Black on Judgments, vol. 2, see. 910, the matter is summed up as follows: .

“It is a well established rule of interstate or international law that the courts of another State will not receive, as evidence of a foreign judgment, in a suit brought upon it, any record thereof which does not show on its face that the defendant, if a foreign corporation, was doing business in that State. This is a substantive jurisdictional averment that must affirmatively appear, and not be left to any inference from the bare return of the officer that he has served an ‘agent’ of the company.”

We concede the contention of plaintiff that whatever is included in or necessarily implied from express allegations need not be otherwise averred, but as we have indicated above there is no language in the declaration or transcript from which it may be implied that defendant was doing business in Oklahoma, The transcript of the record covering the judgment of the Oklahoma court failing to show affirmatively any jurisdictional facts, except that what is shown rather tends to negative jurisdiction of the defendant by the Oklahoma court, the objection to its jurisdiction as evidence should have been sustained, and it was error for the trial court to deny the motion of defendant to strike it from the evidence. The transcript being stricken there would remain no case for the plaintiff.

Other points have been raised and discussed, but in view of our holding as above we do not think it necessary to comment upon them.

Without a sufficient transcript of the record plaintiff cannot recover; hence the judgment below is reversed and judgment of nil capiat will be entered here.

Reversed.


text:
    Ruth Whitney, by Arthur A. Whitney, Appellee, v. Frank N. Derby and William M. Derby, Jr., Appellants.
    Gen. No. 21,358.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. H. Steeling Pomeroy, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action by Ruth Whitney, by Arthur A. Whitney, her father and next friend, plaintiff, against Frank N. Derby and William M. Derby, Jr., defendants, for injuries received by the fall of a stone railing. There was a verdict for plaintiff for $1,250, which, on the suggestion of the trial court, was remitted to $650. From this judgment, defendants appeal.
    The evidence showed that plaintiff was injured by a stone railing falling on her as she was playing on the front steps of a building where she lived, which building was owned by the defendants. In her declaration she alleged that this stone railing was suffered by the defendants “to be loose, so that it was likely to fall over,” and that “while plaintiff was about to enter said premises, in passing upon and along said steps in dangerous proximity of said stone slab or railing, without any fault or negligence on her part, by reason of the carelessness and negligence of the defendants, and each of them, aforesaid, the said stone slab or railing fell or toppled against and upon the said plaintiff.” There was evidence that plaintiff “rocked” the stone back and forth, though warned of the danger at the time, and finally pulled it over on her.
    Warren Pease, for appellants.

      Abstract of the Decision.
    1. Landlord and tenant, § 230

      -—when landlord not liable for. injury to child of tenant. In an action by an infant child of a tenant against a landlord to recover for injuries by the falling of a railing, evidence examined and held to show that injury was caused by negligence of plaintiff.
    2. Damages, § 122

      —when verdict excessive. A verdict of $1,250 for scratches or abrasions on plaintiff’s leg, from which she quickly recovered, is so excessive as to indicate that the jury were moved by prejudice and sympathy, and the judgment will not be allowed to stand even though plaintiff remitted all in excess of $650.
    Coburn & Bentley, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Emil Otterbeck et al., Appellees, v. Evans Larson, Appellant.
    Glen. No. 21,368.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Suit.by Emil Otterbeck and others, beneficiaries under the will of Lauritz Mortensen, against Evans Larson, trustee under the will, for an accounting.
    On August 24, 1908, Lauritz Mortensen died. The evidence showed that by the will it was provided that after the payment of debts and funeral expenses $1,500 should be paid to defendant; that defendant should take possession of all the rest and residue of the estate and hold it in trust for a period of five years; with power to rent, repair and sell, “and to do whatever else he deems best for the interest of said estate,” compensation to be paid defendant for managing said estate at the rate of three per cent, at the end of each year on the fair cash value of said estate. He was not required to give bond. The will further provided that at the end of five years after the death of the testator said estate should be divided equally among Anna Marie Larson, wife of the defendant and niece of the testator, Lotta Nelson, a niece of the testator, Emil Otterbeck, a nephew, Edward Otterbeck, a brother, and Mathilda Otterbeck, wife of Edward. Defendant was appointed executor of the will without bond.
    On May 4, 1911, the above named beneficiaries, except Anna Marie Larson, filed their bill in chancery, charging that said defendant as trustee had received considerable sums of money of the estate and had converted the same to his own use; that he had concealed trust property and was insolvent and not under bond. They prayed among other things that he be required to set forth a true and perfect account of all the trust funds and be decreed to pay what is due from him. Answer and replication were filed, and on November 13, 1911, the court entered an order finding that the said defendant had never rendered an account of the trust property to the beneficiaries, and ordered that 'the cause be referred to a master in chancery to take an account of all the trust property. The master heard evidence and filed his report with his conclusions, and stated the account of the trustee, finding the net balance due from him to be $6,403.75. The defendant filed objections to this report, which after-wards by order stood as exceptions. The complainants filed no objections or exceptions. Subsequently the court entered a decree overruling all exceptions to the

      Abstract of the Decision.
    1. Trusts, § 222

      —when allowance to trustee for litigation improper. Attorneys’ fees and expenses of a trustee in a litigation attacking the constitutionality of the Act of 1909, bringing trusteeships under jurisdiction of the Probate Court, held not properly allowed because not for the interest of the trust estate.
    2. Trusts, § 222

      —when allowance improper. Allowance to trustee of $50 for attorneys’ fees improper where the trustee had already obtained sound and correct advice on the subject from another attorney.
    ' 3. Trusts, § 222

      —when allowance of fees in criminal proceeding against trustee improper. Allowance of atorneys’ fees in criminal prosecution against trustee properly disallowed as not being for benefit of trust estate.
    4. Trusts, § 222

      —when allowance of solicitors’ fees improper. Allowance of solicitors’ fees in proceeding made necessary by unreasonable refusal of trustee to give proper information to beneficiaries as to management of- trust estate and by his improper disposition of considerable portions of trust funds properly disallowed.
    5. Trusts, § 221

      —when credit properly not allowed to trustee. In an action for the beneficiaries against the trustee of an estate for the conversion and concealment of trust property of an estate under which he received a legacy, the fact that if defendant should account for all of the personal property of the estate there would be left, after the payment of all claims and costs, a balance applicable to the payment of his legacy, does not entitle him to be credited in his trusteeship account with the deficit between the amount of the legacy and the amount which could be credited thereto.

      report and confirmed the same except as to certain items. From this decree, defendant appeals.
    Ernest B. Fifer, for appellant; Jennings & Fifer, of counsel.
    William Reeda, for appellees; Park Phipps, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

6. Trusts, § 230 —when credit for interest improperly allowed. Credit for an overcharge for interest based on an allowance improperly made to trustee should not be allowed.

7. Equity, § 431 —when rights waived by failure to object or except. In a suit by the beneficiaries of a will against the trustee for an accounting which is referred to a master to take account of the trust property, where complainants make no objection before the master as to certain items of credit and no exceptions to the court to the allowance of these items, they cannot be questioned on appeal.

8. Trusts, § 221 —when trustee not entitled to credit for difference between the amounts collected and amounts for which sale could be made. In a suit by the beneficiaries under a will against the trustee for an accounting where it appeared that defendant sold accounts of the estate, hut that the beneficiaries objected to the sale on the ground of the amount received therefor, and that thereupon the trustee recalled the sale and subsequently was able to collect only a smaller amount, he is not entitled to a credit for the difference between the amount for which the accounts could have been sold by him and the amount collected.

9. Trusts, § 233 —when investment not exercise of reasonable discretion. Evidence examined and held to show that an investment claimed by the trustee to have been made in securities of a foreign corporation was not proven, if made, was not in exercise of sound judgment and reasonable discretion.


text:
    Alfred D. Ward and Thomas D. Warren, Appellants, v. John M. Gartside and Annie L. Gartside, Appellees.
    Gen. No. 21,383.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Alfred D. Ward and Thomas D. Warren, complainants, to foreclose a mortgage made by John M. Gartside and Annie L. Gartside, defendants. Defendants answered and Annie L. Gartside filed a cross-bill praying that the mortgage be declared void. The court decreed that the bill be dismissed for want of equity and that the prayer of the cross-bill be granted. From this decree, complainants appeal.
    The evidence showed that Lawrence J. Haughton of Asheville, North Carolina, died owning several thousand acres of land in Jones county, North Carolina. By his will E. L. Haughton and W. M. J ones were appointed executors and were given “full power to sell my plantation in Jones County known as Ravenswood and to make a deed for the same.” E. L. Haughton died before the occurrence of the transaction in question. Jones, as surviving executor, by an instrument in writing executed by him on August 28, 1909, gave to complainants, who resided in North Carolina, an option to purchase some 18,000 acres of land belonging to the Lawrence J. Haughton estate. By its terms the executor promised that upon payment to him of $100,000 on or before November 1, 1909, he would deliver a deed to the holders of the option; the option could be and was extended to January 1, 1910, under certain of its provisions. On November 16, 1909, this option was assigned by complainants to the defendant John M. Gartside, who in consideration for such assignment agreed to pay or to secure the payment of $10,000, and on December 21, 1909, a mortgage was executed by defendants and delivered to complainants, which mortgage complainants seek to foreclose.
    Abstract of the Decision.
    1. Executors and administrators, § 122

      —when giving of option not within power of executor. An executor has no power to give an option for the sale of real property of the estate.
    2. Courts, •§ 152

      —what not obiter dictum. An expression of an opinion upon a point of a case argued by counsel and passed upon by the court is not obiter dictum.

      S. Judgment, § 578

      —when decision of foreign State as to real property therein controlling. The decision of the supreme court of a foreign State on a contract made within the State between its citizens touching land within the State is controlling.
    4. Mortgages, § 412

      —when lacle of consideration defense. Where a mortgage given for an option is not enforceable against the person giving it, it is without consideration and cannot be enforced by an assignee.
    Among other matters presented by defendants’ answer and by the crossbill, it was asserted that the mortgage was void for want of consideration, in that under the laws of North Carolina, Jones the executor, had no power to give an option to purchase the lands of the Haughton estate.
    Church, Shepard & Day, for appellants; William T. Church, of counsel.
    Charles H. Aldrich, for appellees.

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

   Mr. Presiding Justice McSurely

delivered the opin-

ion of the court.


text:
    Bernard Margolis, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,385.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lookwood Honobe, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Action by Bernard Margolis, plaintiff, against Chicago City Railway Company, defendant, to recover for injuries alleged to have been received by being struck by defendant’s car. From a judgment for plaintiff for $2,000, defendant appeals.
    The evidence shows that about 10 a. m. on March 30, 1912, plaintiff while driving a horse and wagon southward- on State street near 13th, was struck by a southbound street car belonging to defendant.
    Plaintiff’s wagon had an inclosed top with doors on the front, sides and rear. Plaintiff was accustomed to driving in the streets of Chicago, and was familiar with the locality where the accident happened. Plaintiff testified that he drove into the southbound tracks, and after driving there for about four minutes the street car unexpectedly came rapidly from the north and struck his wagon as he was attempting to pull out of the tracks towards the west. Defendant contended that as the car approached 13th street the gong was being rung; that plaintiff was then driving between the southbound track and the west curb of the street; that when plaintiff reached 13th street he suddenly turned eastward into the track in front of the car, then seeing the car he attempted to turn back but before he could do so the wagon was struck and upset; that the car’s speed did not exceed six or eight miles an hour; that it stopped within a very few feet after the collision. Defendant claimed that plaintiff was guilty of contributory negligence and that it was not guilty of negligence. The court refused defendant’s request to give an instruction stating the degree of care which it was required to exercise.
    Abstract of the Decision.
    1. Street railroads, § 142

      —when instruction as to degree of care proper. In an action against a street railroad company to recover for injuries by collision with a street car, where an instruction as to the degree of care required of plaintiff and defendant has not been given, it is error to refuse defendant’s request to give an instruction that:
    “You are instructed that the crew of the car in question were not required to exercise the highest degree of care to avoid injuring the plaintiff on the occasion 'in question, but were only required to exercise ordinary care; and if you believe from the evidence in this case, under the instructions of the court, that as the car approached the place of the accident it was being operated with ordinary care, and that the motorman of the car in question, in the exercise of reasonable and ordinary care, did all he could to avoid the accident in question as soon as it was apparent or ascertainable to him, in the exercise of reasonable and ordinary care, that the wagon in question was upon the track, or getting upon or near the track into a position of danger, then the plaintiff cannot recover in this case.”
    2. Appeal and error, § 1560

      —when refusal to give instruction improper. Refusal to give an instruction requested by defendant in regard to personal interest in the case of witnesses is improper where such instructions have been given on behalf of plaintiff.
    3. Damages, § 128

      —when verdict excessive. Where the evidence tends to show in an action for personal injuries that the only injury received by plaintiff was a sprained ankle, from which he soon recovered, a verdict of $2,000 held to indicate that the jury were actuated by passion and prejudice.
    B. F. Richolson and Watson J. Ferry, for appellant.
    Morton J. Stevenson, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opin-

ion of the court.


text:
    David Greenberg et al., Appellants, v. Dietrich Reinken et al., Appellees.
    Gen. No. 21,436.
    Mechanics’ liens, § 56

      —when right enforceable by partnership containing a licensed member. The fact that a member of a plumbing partnership is not licensed in accordance with the Act of July 1, 1897 (J. & A. 1f 8530), does not operate to prevent the enforcement of a mechanic’s lien for plumbing work, where one partner was a licensed plumber.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed January 3, 1916.
    Harold J. Finder, for appellants; Robert W. Millar, of counsel.
    George W. Stock well, for appellees.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal complainants seek to have reversed a decree dismissing for want of equity their bill filed to enforce a mechanic’s lien for plumbing work.

We are not favored with any brief or argument on behalf of the defendants.

The cause was referred to a master in chancery with instructions to take and report the evidence “together with his conclusions of fact find of law thereupon.” He found and reported that David Greenberg and Abe Levinson were in business as partners; that the work in question had been performed under an agreement with them, for which they had been paid in part, and that there was a balance unpaid of $791.50 with interest; that Greenberg was a licensed plumber and that Levinson was not. The master concluded as a matter of law that because Levinson was not a licensed plumber the complainants are not entitled to recover, and he recommended that their bill be dismissed. Exceptions to the report having been overruled, the court entered a decree dismissing the bill.

Shall complainants be denied a lien because Levinson was not a licensed plumber? The act providing for the licensing of plumbers and for the inspection of plumbing, in force July 1, 1897, ch. 24, Illinois Statutes (Hurd), p. 411 (J. & A. j[ 8530), provides that “any person now or hereafter engaged in or working at the business of plumbing * * * shall first receive a certificate thereof, in accordance with the provisions of this act.” Then follow provisions for an examining board to examine any person desiring to become a plumber as to his practical knowledge of plumbing, house drainage, etc., and if the board is satisfied that the applicant is competent it shall issue a certificate to him authorizing him to engage in the business of plumbing. A penalty is provided for any violation of the act.

In Douglas v. People, 225 Ill. 536, the constitutionality of this act was upheld as an act “for the protection of the health, comfort, safety or welfare of society.”

It appears from the evidence that in the conduct of complainants’ business Greenberg had 'exclusive charge of supervising the plumbing work, making sketches for the installation and laying out the job, and had charge of the practical part of the work; that Levinson was not a plumber and never did any plumbing work and was not familiar with it and had no charge or supervision over it; that his duties were mainly connected with office work and bookkeeping, tending to the payment of bills with supply houses, keeping the pay roll book with the names of employees, and tending to the distribution of their pay envelopes; that he also did the collecting; that he had nothing to do with the actual plumbing work done by the firm, either in planning or construction.

We do not find a decision in any case in this State directly in point. In Schnaier v. Navarre Hotel Co., 182 N. Y. 83, the Court of Appeals had under consideration a case involving facts almost identical with those now before us, with the additional fact that under the New York statute it was provided that “each and every member of the firm shall have been registered. ” In that case, as here, only one of two members of the firm was registered and he attended to the plumbing work. The other member was the financial man, who was not registered. The majority of the court held that this provision of the statute was invalid, saying:

“It prohibits a business man, with financial means and business ability, and a registered master plumber, with the requisite mechanical skill, from uniting the financial and business ability of the one with the energy and mechanical skill of the other in a partnership for conducting a legitimate business. The right to form partnerships for the conduct of business has existed from time immemorial and any interference with that right must be regarded as an unwarranted interference with individual freedom condemned by the Constitution. The feature of the statute to which I have referred would deprive a firm engaged in the plumbing business, composed of half a dozen persons, from enforcing contracts and collecting their bills for work done unless they could show that each and every member of the firm was a registered plumber, and if, as in this case, it was impossible for one of them to become registered, the firm must dissolve. A law that produces such results in its operation cannot be valid.”

There is a minority opinion concurring in the judgment by the majority, but on the ground that under the facts in the case the statute did not apply, the minority opinion saying that the unlicensed partner “may contribute his capital, or his clerical services, to the business concern and become a partner and, if not a plumber, nor proposing to act as a master plumber in the undertaking of the concern, the act has no reference to him.”

On November 11, 1756, Lord Mansfield took his place as Lord Chief Justice of the Court of King’s Bench. The first case in which he pronounced judgment was Raynard v. Chase, reported in volume 1 of Burrow’s Reports, page 2. The case before the court was an action of debt for a penalty under a statute for exercising the trade of a brewer without having served an apprenticeship. In pronouncing judgment Lord Mansfield stated principles so applicable to the instant case that we quote somewhat in full. After finding that the defendant was to share the profits with his partner and was liable for the debts of the partnership but “never acted in or exercised the trade,” Lord Mansfield proceeded:

“1st. This is a penal law; 2ndly, It is in restraint of natural right, and 3dly, It is contrary to the general right given by the common law of the kingdom: I will add, 4thly, The policy upon which the act was made has from experience become doubtful. Bad and unskilful workmen are rarely prosecuted. * * * The general policy of the act was to have trades carried on by persons who had skill in them. Now here the personal skill of the defendant makes no real difference in the case. For the person who is skilful, acts everything, and receives no directions from this man; he neither did, nor was to interfere * * *. In many considerable undertakings, it is absolutely necessary to take in persons as partners to share the profits and risque the loss. And the general usage and practice of mankind ought to have weight in determinations of this sort, affecting trade and commerce, and the manner of carrying them on. It is notorious that many partnerships are entered into, upon the foundation of one partner contributing industry and skill, and the other money.”

The reasoning of these cases is based on considerations of justice. It manifestly would be unjust to deprive complainants of compensation for their work merely because one of the partners, who does only the clerical or office work, is not a licensed plumber. Complainants are entitled to their lien, and the decree is reversed and the cause remanded with directions to enter a decree giving complainants a lien in accordance with the prayer of their bill for the amount which the master found to be unpaid, with interest as stated in the master’s report.

Reversed and remanded with directions.


author: Mr. Justice Baker delivered

text:
    Bentley, Murray & Company, Plaintiff in Error, v. LaSalle Street Trust & Savings Bank, Defendant in Error.
    Gen. No. 21,091.
    1. Banks and banking, § 146

      —when payment of check on forged indorsement constitutes conversion. A bank paying a check drawn on it on a false or forged indorsement is liable to the payee, for conversion.
    2. Trover and conversion, § 11

      —when maintainable for negotiable paper. Trover may be maintained for notes and bills.
    3. Trover and conversion, § 47

      —what measure of damages for conversion of negotiable paper. In an action of trover for notes and bills, the measure of damages is, prima facie, the amount of the face value of the paper.
    4. Bills and notes, § 154

      —when forged indorsement does not pass title. A forged indorsement does not pass title to commercial paper negotiable only by indorsement and does not justify the payment of such paper.
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge,' presiding.
    Heard in this court at the March term, 1915.
    Reversed and judgment here.
    Opinion filed January 3, 1916.

      Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    William S. Miller and F. H. Bengel, for defendant in error.

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

   Mr. Justice Baker delivered

the opinion of the court.

This writ of error brings in review a judgment of nil capiat rendered in an action by plaintiff in error, a corporation, against defendant in error for the conversion of three checks, amounting in all to $354, drawn by George Kleine to the order of plaintiff on defendant’s predecessor, the LaSalle Street National Bank. The checks were the property of plaintiff and were paid by the bank on which they were drawn and returned to the drawer. They were indorsed in the name of the plaintiff by one Robertson, who had no authority to indorse the same. The custody of the checks was delivered by Kleine to the plaintiff to enable the plaintiff to introduce the same in evidence at the trial of the cause. The defendant bank took over the assets and assumed the liabilities of the LaSalle Street National Bank.

The controlling question in the case is whether the LaSalle Street National Bank, having acquired possession of the checks through false or forged indorsement, was liable to the payee for their conversion. The principal contention of defendant in error is that there was no conversion by its predecessor, the LaSalle Street National Bank, of the checks, or misappropriation of the proceeds thereof.

We are of the opinion that when Robertson handed a check to the La Salle Street National Bank and was paid the amount thereof, the bank converted such check. In McCombie v. Davis, 5 East, 538, 540, Lord Ellenborough said:

“A man is guilty of conversion who takes my'property by assignment from another who has no authority to dispose of it. For what is that but assisting that other in carrying his wrongful act into effect?”

Trover may be maintained for notes and bills, and the measure of damages is prima facie, the amount of their face. It is well settled that a forged indorsement does not pass title to commercial paper negotiable only by indorsement and does not justify the payment of such paper. Graves v. American Exchange Bank, 17 N. Y. 205; People v. Bank of North America, 75 N. Y. 547; Robinson v. Chemical Nat. Bank, 86 N. Y. 404; Shaffer v. McKee, 19 Ohio St. 526; Fine Arts Society v. Union Bank, 12 Q. B. Div. 705; Rauch v. Fort Dearborn Nat. Bank, 223 Ill. 507.

In Williams v. Wall, 60 Mo. 318, the plaintiff was the owner of a draft, which one Bailey won from him at gambling. Bailey indorsed it over to the defendant, who had knowledge of the facts. The defendant collected the proceeds of the draft and the plaintiff sued him in conversion. The statute of Missouri makes absolutely void the indorsement of negotiable instruments made in connection with gambling transactions.

The court said:

“A wrongful taking or assumption of a right to control or dispose of property constitutes a conversion; indeed any wrongful act which negatives or is inconsistent with the plaintiff’s right is per se a conversion.' * * * The authorities are not wanting * * * that the same liability attaches to the unauthorized act, whether the actor was conscious of the wrong he was committing dr not.”

To the same effect is Chapin v. Dake, 57 Ill. 295, where Dake lost in gambling two drafts for $1,000 each, indorsed the same and delivered them to Donaldson, and they subsequently came into the hands of Chapin & Gore, indorsees and bona fide holders, and it was held that the indorsement of the drafts was void, and that the property in them was still in Dake.

In Brannan’s Negotiable Instruments Law (2nd Ed.), in a note to section 189, the author refers to the case of Baltimore & O. R. Co. v. First Nat. Bank, 102 Va. 753, and says:

“A drawee bank paid and charged to the account of the drawer checks indorsed by an agent of payee who had no authority to indorse or collect checks, and who appropriated the money. Held, that the bank .was not liable to the payee in assumpsit for money had and received. * * * It would seem that the plaintiff misconceived his remedy and that he should have sued the bank for conversion of checks belonging- to him. Ellery v. People’s Bank, 114 N. Y. Supp. 108.”

The cases cited and relied on by counsel for appellee; National Bank of Republic v. Millard, 10 Wall. (U. S.) 152, First Nat. Bank v. Whitman, 94 U. S. 343, and Rauch v. Bankers Nat. Bank, 143 Ill. App. 625, are all cases where the payee of the check brought assumpsit, and it was held that because of the lack of contractual relations between the payee and drawee assumpsit could not be maintained, and have no application to a case where the payee alleges the conversion of the checks.

In our opinion the plaintiff is entitled to recover from the defendant the amount of the checks and interest thereon, and the judgment is reversed and judgment entered here for $450.35 and the costs in this court,

Reversed and judgment here for four hundred and fifty dollars and thirty-five cents ($450.35).


text:
    Chicago Savings Bank & Trust Company, Complainant. Northern Trust Company, Executor, Appellant, v. Louis M. Cohn, Appellee.
    Gen. No. 21,254.
    1. Gifts, § 30

      —what requisite to constitute gift causa mortis. To constitute a valid gift causa mortis it must have been made with a view to the donor’s death from present illness, or from external and apprehended peril, the donor must die of that ailment or peril, and there must be a delivery.
    2. Gifts, § 34

      —when delivery to third person sufficient. The delivery to a third person for the benefit of the donee is as effective as though it had been made directly to the donee.
    3. Gifts, § 34

      —when third person presumed to be trustee of donor. The third person to whom delivery is made for the benefit of the donee is presumed, in the absence of a contrary showing, to be the trustee of the donor.
    4. Gifts, § 30

      —when acceptance presumed. Where a gift is beneficial to a donee and imposes no burden upon him, acceptance by him is presumed as a matter of law.
    5. Gifts, § 30

      —when bank book subject of gift causa mortis. A savings bank book is a proper subject of donation causa mortis.

    6. Gifts, § 37

      —when evidence of written instrument and declarations by donor admissible. In a proceeding to establish a gift causa mortis of a savings bank book, a document written by the donor and placed in her safety deposit box stating a gift of the book to the claimant and evidence of declaration of the donor to a third person of the gift to the claimant, while not sufficient to establish the gift, are admissible in corroboration of other evidence tending to establish it.
    7. Gifts, § 34*—when delivery at time of gift causa mortis essential. Delivery at the time of making of the gift causa mortis is essential to establish the factum of a gift causa mortis, delivery and not possession being material.
    8. Gifts, § 37*—when circumstantial evidence admissible to show delivery of possession. Delivery of possession may be proved by circumstantial evidence in a proceeding to establish a gift causa mortis.

    9. Gifts, § 37*—when evidence insufficient to establish gift causa mortis. In a proceeding to establish a gift causa mortis of a bank book, evidence examined and held insufficient to establish a gift causa mortis.

    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed January 3, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Culver, Andrews, King & Cook, for appellant.
    Mancha Bruggemeyer, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

The question presented hy the record is the validity of an alleged gift causa mortis by Regina Watson to her brother, Louis M. Cohn. Mrs. Watson died July 31, 1913. She had on deposit in the Chicago Savings Bank & Trust Company funds amounting, with interest to the date of her death, to $2,231.56, and had a savings bank pass book in which the deposit of such funds was entered. The bank book and the fund represented thereby were claimed by Louis M. Cohn as donee and by the Northern Trust Company as executor of the will of Mrs. Watson. The Savings Bank filed its bill of interpleader against the claimants of the fund. An interlocutory decree of interpleader was entered and the claimants answered the bill, each claiming the fund and denying that the other was entitled to it. The court by its decree found that Louis M. Cohn was the owner of the fund and entered a final decree in his favor. From that decree the executor prosecutes this appeal.

Cohn introduced two items of documentary evidence and his own testimony and that of one other witness, Miss Lunt. Mrs. Watson went to St. Luke’s Hospital July 28th for an operation and died there July 3.1st. Miss Lunt testified that July 26th Mrs. Watson told her she was going to leave her house, lot and money to her brother, Louis.M. Cohn; that witness saw her but once afterwards, that was the day before she died; that she was then very low and they had no talk with each other; that after she left Mrs. Watson’s, room she went to the room of the wife of Louis M. Cohn in the hospital, and Mrs. Cohn gave witness a ring that she said Mrs. Watson had asked her to give to witness, and told her that Mrs. Watson had given her “a book, a package” to give to her husband. Mr. Cohn testified that he received the savings bank pass book from his wife at St. Luke’s Hospital immediately after the death of Mrs. Watson. The documents introduced in evidence were, first, the pass, book, and, second, the following document:

“Chicago.
‘ ‘ I give and bequeath to my brother Louis M. Cohn, of Chicago, the contents of my savings Bank Book No. 1725 of the Chicago Savings Bank & Trust Company containing the sum of Twenty-two hundred and thirty-one Dollars and Fifty-six Cents.
Regina Watson.
Witnessed by
Helen G. Carpenter,
Hubbard Woods, Ill.
Chicago, July 28, 1913.”

This document, it is admitted, was written by Mrs. Watson and placed in a safety deposit box rented by her, where it was found by the executor when the box was opened after her death.

“To constitute a valid gift causa mortis three things are essential. It must be made (1) with a view to the donor’s death from present illness, or from external and apprehended peril; (2) the donor must die of that ailment or peril; (3) there must be a delivery.” 3 Wait’s Actions and Defenses, 502. The evidence establishes two of the requisites of a valid gift causa mortis, viz.: Impending death from present ailment, and that the donor died of that ailment. The controlling question in the ease is as to the third requisite, and our conclusion must turn on the question whether the facts constitute or show a valid delivery of the property. We agree with the contention of appellee that in determining this question the following rules of law are applicable: (1) The delivery to a third person for the benefit of the donee is as effective as though it had been made directly to the donee. Devol v. Dye, 123 Ind. 321; Caylor v. Caylor’s Estate, 22 Ind. Ápp. 666, 52 N. E. 465. (2) The person to whom the delivery is made is presumed, in the absence of a contrary showing, to be the trustee of the donor. Varley v. Sims, 100 Minn. 331, 8 L. R. A. (N. S.) 828; Johnson v. Colley, 101 Va. 414. (3) When a gift is beneficial to a donee and imposes no burden on him, acceptance by him is presumed as matter of law. Varley v. Sims, supra. (4) A savings bank book is a proper subject of a donation causa mortis. Van Wagenen v. Bonnot, 72 N. J. Eq. 143, 65 Atl. 239. (5) The person to whom the delivery is made is presumed, in the absence of a contrary showing, to be the trustee of the donor. Varley v. Sims, supra; Johnson v. Colley, supra.

The document written by Mrs. Watson and placed in her safety deposit box, and the testimony of Miss Lunt as to the declaration of Mrs. Watson, are not sufficient to establish the gift, but they are admissible in corroboration of other evidence tending to establish the gift. Bidden v. Thrall, 125 N. Y. 572, 11 L. R. A. 684. There is no direct evidence in the record of a delivery of the pass book to Mrs. Cohn. She had it in her possession immediately after the death of Mrs. Watson, and Miss Lunt testified that the day before she delivered to witness a ring which she said Mrs. Watson had asked her to give to witness, and that Mrs. Cohn said Mrs. Watson had given her “a book, a package,” for her brother. Mrs. Watson was very low and unable to talk when Miss Lunt saw her the day before her death. Mrs. Cohn was her sister-in-law and occupied a room adjoining the one occupied by Mrs. Watson. She might properly have taken into her custody any article of value which Mrs. Watson had in her room, and the fact that she had in her care and custody the pass book does not prove that the book was delivered to her by Mrs. Watson.

Delivery at the time of making a gift is essential to establish the factum of a gift causa mortis. It is not the possession of the donee, but the delivery to him that is material. Dickeschied v. Exchange Bank, 28 W. Va. 340. Delivery of possession, like any other fact, may he proved by circumstantial evidence; but in this'record there is no evidence, either direct or circumstantial, that proves delivery of possession of the book or the fund thereby represented by Mrs. Watson to Mrs. Cohn, and the evidence therefore, in our opinion, is insufficient to establish a gift of the pass book as a gift causa mortis.

The decree of the Superior Court is reversed and the cause remanded to that court with directions to enter a decree that the fund of $2,325.70 deposited with the clerk of that court by the complainant, the Chicago Savings Bank & Trust Company, is the property of the Northern Trust Company as executor of the will of Regina Watson, deceased, and directing that the clerk pay over to said executor said fund of $2,325.70, and that said Northern Trust Company, executor, etc., recover of said Louis M. Cohn its costs in said Superior Court.

Reversed and remanded with directions. '


author: Mr. Justice Baker Mr. Presiding Justice McSuhely

text:
    Howard S. Gemmill, Administrator, Appellant, v. Peoples Gas Light and Coke Company et al., Defendants. Annie E. Smith, Executrix, Appellee.
    Gen. No. 21,272.
    1. Abatement and revival, § 3

      —when cause of action survives against personal representative. The cause of action under the Campbell Act survives against the personal representative of the person whose wrongful act caused the death.
    2. Abatement and revival, § 65

      —when right of action survives against surviving defendant. Under sections 12 and 13 of the Abatement Act (J. & A. If If 12, 13), in a case of two defendants, the right of action, if the cause of action survives, survives against a surviving defendant and not against the personal representative of the deceased defendant.
    McSurely, P. J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Earl J. Walker, for appellant.
    Bulkley, More & Tallmadge, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

September 26,1912, Hans Hanson was killed through the alleged negligence of Alanson D. Smith and the Peoples Gas Light and Coke Company. February 26, 1913, Gemmill as administrator of Hanson brought his action in the Superior Court of Cook county under the Campbell Act against Smith and the gas company. The gas company was not served with process until April 1, 1914. February 27, 1914, more than a year after the death of Hanson, Smith died. June 30th, plaintiff suggested the death of Smith and a summons was issued to Grundy county for his executors and served on Annie E. Smith, one of the executors of his will. She filed a plea setting up her residence in Grundy county; that Alanson D. Smith died February 24, 1914, more than a year after the death of Hanson, and while the gas company was still a defendant to the suit; that his death was suggested and brought to the attention of the court. To this plea plaintiff demurred, his demurrer was overruled, and he electing to abide by his demurrer, the suit was dismissed, and he appealed.

The cause of action under the Campbell Act survives against the personal representative of the person whose wrongful act causes the death. Devine v. Healy, 241 Ill. 34.

The only question we deem it necessary to consider is whether the plaintiff had the right to proceed in the same suit against any one except the surviving defendant. Section 12 of the Abatement Act (J. & A. ¶12) provides:

“When there are several plaintiffs, petitioners or complainants or defendants in an action, proceeding or complaint, in law or equity, the cause of which survives, and any of them die before final judgment or decree, the action, proceeding or complaint shall not on that account abate, but such death may be suggested on the record and the cause proceed at the suit of the surviving plaintiff, petitioner or complainant, or against the surviving defendant, as the case may be, in all cases as if such persons had been originally sole parties to the suit.”

In this case the plaintiff attempted to proceed; not against the surviving defendant, but against the executor of the deceased defendant. Section 13 (J. & A. ft 13) provides that:

“If in the case mentioned in the preceding section all the plaintiffs, petitioners or complainants or all the defendants die, the cause may be prosecuted or defended by or against the heir, devisee, executor or administrator to or against whom the cause survives of the last surviving plaintiff, petitioner, complainant or defendant, respectively, in like manner as if the survivor had been originally the only plaintiff, petitioner, complainant or defendant.”

Sections 12 and 13 of the Abatement Act (J. & A. Tflf 12,13) do not attempt to provide what causes of action shall survive, but relate to the right of action, and provide by whom and against whom the suit may be prosecuted in case of the death of one of the defendants, where the cause of action survives. We think that under the statute it is clear that in a case of two defendants, the right of action, if the cause of action survives, survives against the surviving defendant, and not against the personal representative of the deceased defendant.

It follows from what has been said that in our opinion the Superior Court properly overruled the demurrer of plaintiff to the plea of the defendant executrix, and the judgment is affirmed.

Affirmed.

Mr. Presiding Justice McSuhely

dissenting: I

read sections 11, 12 and 13 (J. & A. 11-13) as permissive, as indicated by the word “may” in each section. Upon the death of one defendant, plaintiff could, after dismissing as to the living defendant, proceed under section 11, or without dismissing continue under section 12. To construe section 12 as mandatory is to make it operate as a statute of abatement as to any defendant dying after one year from the death of plaintiff’s decedent; considered in connection with section 11, I do not think this- was the intention of the Legislature. Eemedial statutes are to be construed liberally.


text:
    Maud Eacutt, Appellee, v. Isaac Eacutt, Appellant.
    Gen. No. 21,281.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Bill for divorce by Maud Eacutt, complainant, against Isaac Eacutt, defendant, alleging extreme and' repeated cruelty and praying for divorce and alimony. The defendant was personally served, did not appear, and an order of default was entered for failure to appear July 8,1914. July 22nd the cause was heard and a decree of divorce entered and an order that defendant pay complainant $75 per month alimony. July 31st defendant filed his motion to vacate the decree, set aside the default of defendant and give him leave to answer. The hearing of the motion was continued, and February 15, 1915, the motion was denied, and from that order this appeal is prosecuted.
    In his affidavit in support of his motion defendant stated that the decree of divorce was entered during his absence from the State. On the hearing of the motion it was admitted that at the time of the hearing of the bill for divorce, defendant was in the court house and spoke to the witnesses. The ground on which defendant asked the court to vacate the decree of divorce was that complainant had been guilty of adultery during the marriage.
    Charles R. Napier and Elliott R. Goldsmith, for appellant.
    Brundage, Landon & Holt, for appellee.

      Abstract of the Decision.
    1. Equity, § 539

      —when decree not vacated to set up in defense matter not set up in answer. A decree will not be vacated to permit defendant to set up a defense to the bill in a matter not set up by answer.
    2. Equity, § 539

      —when decree not vacated on ground of newly-discovered evidence. Where the affidavits filed in support of a motion to vacate a decree on the ground of newly-discovered evidence fail to show that the defendant could not have discovered the testimony in time for the hearing by the use of reasonable diligence, the motion is properly denied.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Lottie E. Fish, Appellee, v. William H. Fish, Appellant.
    Gen. No. 21,295.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 3, 1916.
    Statement of the Case.
    Appeal by the defendant, William H. Fish, from a decretal order entered November 21, 1914, adjudging 'hifn guilty of contempt in failing to pay to complainant $228, the amount of alimony decreed to her July 10, 1910, at the rate of $12 per month from March, 1913. By a former order entered October 10, 1913, defendant was adjudged guilty of contempt in failing to pay the alimony decreed to complainant up to and including March, 1913. From that order he prosecuted a writ of error to the Appellate Court and the order was affirmed October 5, 1915. See Fish v. Fish, 194 Ill. App. 521.
    Abstract of the Decision.
    1. Judgment, § 648*—when judgment not merged in bond. A judgment adjudging one guilty of contempt in failing to pay alimony decreed to complainant is not merged in the bond filed thereunder, nor is the debt thereby satisfied.
    2. Appeal and error, § 709

      —when issue of writ of error does not stop further proceeding. The fact that a writ of error has been issued in a proceeding to adjudge defendant guilty of contempt in failing to pay alimony, and has been made a supersedeas, does not prevent complainant from further proceeding to collect subsequently accruing instalments of alimony.
    William H. Fish, pro se, and E. M. Seymour, for appellant.
    Fred A. Bangs, for appellee; Bichard H. Colby, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.