text:
    H. H. Halliday et al., Appellants, v. Board of County Commissioners of Pulaski County, Appellee.
    1. Counties, § 81

      —what is purpose of amendatory act of 1905 providing for levies for payment of judgments. The amendatory statute of 1905, providing for county levies for payment of judgments (J. & A. If 2781), was enacted for the purpose of enabling boards of county commissioners to take care of such claims, and is mandatory upon said boards to include such claims in determining the amount of taxes to be raised.
    2. Counties, § 81

      —necessity of tax levying power malting provision for payment of all classes of claims. A board of county commissioners cannot make provision for payment of one debt or class of claims and refuse to make any provision whatever for payment of others, even those reduced to judgment.
    3. Counties, § 81

      —noiunecessity of demand upon hoard of commissioners to make levy to pay judgment. Demand upon the board of county commissioners to make a levy to pay a judgment is not necessary, as the statute (J. & A. If 2781) requires such levy.
    4. Counties, § 81

      -—what answer in mandamus proceeding against hoard of county commissioners to compel making levy of taxes to pay judgments should contain. The answer and proof in a mandamus proceeding against a board of county commissioners to compel them to make a levy for payment of judgments should show fully and definitely the necessities and items of expenses of the county and the facts as to levy and payment, so the court can see such board was acting in perfect good faith towards creditors.
    Appeal from the Circuit Court of Pulaski county; the Hon Albert W. Lewis, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    George E. Martin, C. L. Eice and Fred Hood, for appellants. .
    C. S. Miller, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

This is a petition presented by the appellants to the Circuit Court of Pulaski county, Illinois, for a mandamus against the appellee asking that it be required to levy a tax for the payment of certain judgments described in the petition. The application was denied and petitioners prosecute this appeal.

The petition filed herein alleges that appellants recovered judgments against the appellee in the Circuit Court of Pulaski county to the total amount of $19,068.23. Said judgments were not recovered by the petitioners jointly but by them separately and for the amounts respectively due; one judgment for the amount of $398.87 was recovered at the April term, 1914, and one for the amount of $5,820.50 and another for $588.30 were recovered at the October term, 1914; another for $1,070 at the January term, 1915, and another for $861.95, and another for $2,469.65, and another for $169.67, and another for $238, and ano the i* for $595.93 were recovered at the April term, 1915, of said court, and there was another for the amount of $2,262.60, another for $2,304.23, another for $2,288.53 were recovered at the October term, 1915, of said court, and said petition sets forth in detail the names of the parties respectively in behalf of whom the several judgments were rendered. The petition further alleges that the Board of County Commissioners of Pulaski County held regular sessions of court in September, 1915, and that they met on September 28th and at that time the petitioners by their attorneys appeared before said board and demanded that said board should include among the purposes for which taxes should be raised a sum sufficient to pay said judgments, or portions thereof. That the said board adjourned until November 16,1915, but refused to levy any tax for the payment of the said judgments, or any of them, or any part thereof. The petition then sets forth a list of the appropriations made and tax levied by said court, amounting to $19,970, and then alleges that the amounts levied were at the rate of sixty-eight cents on the $100 and would produce $18,Ill.41; and avers that if the full rate of seventy-five cents on the $100 had been levied it would have produced the sum of $19,975.83; that the board finally adjourned without making any levy for the payment of said judgments or any part thereof. The petition concludes with a prayer for a writ of mandamus to be directed to the said board of county commissioners commanding it forthwith to meet and include among the purposes for which the taxes levied by said board are to be raised the payment of said judgments and to provide for the payment of said judgments and the interest thereon in equal annual instalments, not exceeding ten in number, and to include one of such instalments from the taxes to be raised for county purposes in the current year, and one each year thereafter, not exceeding ten, until all of said judgments are fully paid. Appellee filed an answer herein admitting that judgments were rendered against it in favor of the appellants respectively, as in said petition set forth, and then avers that county warrants were issued to all of said petitioners for their respective claims, and deny that any provision had been made for the payment of said judgments; also denying that there was no money in the treasury with which to pay said judgments; and deny that there was any demand made upon the county board to levy a tax for the payment of said judgments. Then avers tiv the appropriations as made and set out are wholly inadequate to pay the running expenses of the county, and avers that it has been unable to pay the expenses of the county and that such expenses will not decrease but will increase; that it will be necessary hereafter to levy the full seventy-five cents on the $100 valuation for such expenses, and that if it is compelled by the order of this court to pay the full amount of said judgments that it would leave the County of Pulaski without any money with which to run the courts and pay the salaries of the officers and other expenses. The answer also avers that in the appropriation made the county board only appropriated $600 for the State’s Attorney salary when the actual amount of the State’s Attorney salary is $1,600, and that the board neglected to provide a fund to pay the pensions of the blind, as provided by statute; and then avers that there were many other items omitted from said appropriation and that if all of the necessary items had been included it would have exceeded seventy-five cents on the $100.

It appears from the evidence in this case that after the judgments were rendered and at the September session of the court, the attorneys for appellants appeared before the board and requested that a levy be made to pay the said judgments, and while said court was in session assurances were given to the said attorneys that the judgments would be taken care of by the board. The board met on September 28, 1915, but adjourned to November 16, 1915. In the meantime the board consulted with an attorney with reference to the levying of this tax and was advised by the attorney that it was necessary for them to take some steps towards paying the judgments and that they had a right, if they desired so to do, to make payment of said judgments in ten equal payments and to make a levy each year for one-tenth part thereof. It also appears that the county was considerable in debt and that for the taxes levied in 1915 to be collected in 1916 the board was issuing warrants for debts that had been contracted and were due prior to that time, and were making efforts to make payment of certain claims that had been allowed without in fact making appropriation or specifying such in the levy. There is no definite testimony as to what the actual expenses of running the county would amount to. One of the members of the board testified in general terms that the expenses would amount to more than seVenty-five cents on the $100 but does not state with any definiteness or certainty what such expenses would consist of. It also appears that the board levied a tax of sixty-eight cents on the $100 and then adjourned without malting any levy to pay the said judgments, or any part thereof, and it also appears in the record: “On the day the amended levy was made the board said they would not consider anything of the kind at all, if the judgment creditors wanted money they could go ahead and get it by law.”

It will be observed that the answer in this case was very general, and if taken as true would not be sufficient to warrant the board in refusing to comply with the plain requirement of the law. If they were seeking to justify their conduct upon the ground it would require all of the revenue that could be raised by taxation to pay the ordinary and current expenses of the county, then they should have shown definitely that such would be a necessity and it should have appeared from the testimony that they were not levying a tax for one purpose and using the money to pay other indebtedness that had no gTeater right to be paid than the judgments in the petition mentioned. They should have itemized the expenses of the county .so the court could have seen that they were acting in perfect good faith towards these creditors. City of Chicago v. People, 215 Ill. 235.

It appears from the evidence that one of the items levied was for $2,000: “For expense of aid in the construction of State aid roads,” when there is nothing shown either by the evidence or the answer that any "steps had been taken whereby it became necessary or proper to make such an appropriation; besides, the commissioner, Hosier, who testified in the case said: ‘ ‘ The State aid road would be in the neighborhood of $1,000 or $2,000;” and again he says that the State’s Attorney fund is $1,600 and they made a levy of $600, but the evidence shows that the State’s Attorney office for the last two years has been more than paying the salary of the State’s Attorney; and he also states in his testimony concerning the sheriff’s expense fund of $500, but admits that this is paid out of the fees of the sheriff’s office, and his whole testimony shows an -uncertain and indefiniteness that cannot be taken in the courts as a reason why they should not make a levy to pay off these judgments. The appropriation as made amounted to $17,970, and it is conceded by counsel for appellee that if a levy of seventy-five cents on the $100 had been made, it would have raised a fund of $19,975.83, but the levy amounted, as he says, to $18,111.41, and if you would deduct from this the $1,000 or $2,000 State aid fund, that the commissioner is uncertain about as to the amount required, and the $600 appropriated for the State’s Attorney salary, together with the amounts appropriated where the fees were earned by the sheriff to cover expenses, it would more than pay a one-tenth of these judgments and the interest. The judgments totaled $19,068.26, to which would have to be added about $500 or $600 interest, and the one-tenth part of this would be less than the extra amount that could have been raised by the board, had it so desired. It is the duty of the board to show that it was actuated by an honest purpose to pay its legal obligations, and the statute of 1905 was enacted to enable the board to take care of such claims as had been reduced to judgments. Board of Supervisors v. People, 226 Ill. 579. Prior to the passage of the statute of 1905 it was much more difficult for judgment creditors to obtain a levy for the payment of their cl aims than it has been since the statute of 1905 was enacted. The statute that existed prior to 1905 provided: “Execution shall not, in any case, issue against the lands or other property of the county; but when judgment is rendered against a county, the county board shall direct an order to be drawn on the county treasurer for the amount of the judgment and costs, which order shall be paid- as other county debts.” In 1905 there was an amendment to this statute which provided: (a) “Whenever the county board in any county shall in any year determine the amount of all taxes to be raised for county purposes, such board shall include among the purposes for which such taxes are to be raised the payment of any outstanding judgment or judgments against such county for the payment of which no other provisions have been made, (b) The county board may provide for the payment of any such judgment or judgments and the interest thereon in equal annual installments, not exceeding, however, ten (10) in number, and may include one of such installments in the amount of taxes to be raised for county purposes each year, but the aggregate amount of all taxes to be raised for county purposes shall not in any year exceed the rate of seventy-five (75) cents on the one hundred dollars ($100) valuation of property unless authorized by a vote of the People of the county.” Hurd’s Rev. St. ch. 34, sec. 34 (J. & A. f 2781).

While it is true as contended by counsel for appellee that the issuing of the writ of mandamus is not a writ of right but can only be issued in the discretion of the court, yet this is and must be a judicial discretion exercised when the interests of the parties involved require it, and we are of the opinion that this statute is mandatory and requires the board, when it comes to the question of determining the amount of taxes to be raised for county purposes, to include judgments that have been obtained against the county. “The amendment of section 34 in 1905 was unquestionably intended to impose a positive duty upon the board of supervisors to include among the purposes for which taxes are to be raised the payment of any outstanding (judgments against the county for the payment of which no other provisions have been made. Such is its plain and unequivocal language.” Board of Supervisors v. People, supra.

It is argued by counsel for appellee that if it be required to levy the taxes to pay these judgments that it would then be deprived of any funds with which to pay the current expenses of the county, and in its answer it says that if it were required to pay these judgments that the effect would be to deprive them of any funds for current expenses. It is not sought by this petition to require the county to pay the judgments all at one time, but the petition is presented in such a manner as to give them the right to divide this up into ten equal payments. The testimony of the county clerk shows that out of the levy made in 1915, and from the taxes to be collected in 1916, that something like $12,000 in warrants had been drawn against this tax for debts that were due prior to its levy but none of them for the judgments, and the board has no right to pursue a course in the transaction of its business that will permit the payment of one debt and neglect the payment of another. A tax levying power cannot make provision for the payment of one debt or one class of claims and refuse to make any provision whatever for the payment of others, even those reduced to judgment. Board of Supervisors v. People, supra.

It is also contended by counsel for appellee that there was no demand made upon the board of commissioners to make this levy. We think the evidence fairly shows that a demand was made. It is testified to by two attorneys who appeared before the board, and also by one of the members of the board, that a request was made, and a promise upon the part of the board to take care of the judgments but it was not done. It is clear that the existence of the judgments was brought to the attention of the board at its September'meeting, and if nothing else was done then it was the plain duty of the board to proceed to make a levy for the payment of such judgments, even without any demand. The statute required it and they should have performed their duty under this statute. City of Cairo v. Campbell, 116 Ill. 309.

It is further insisted that if this levy is required to be made that the county will thereby be deprived of revenue sufficient to pay its current expenses. "We do not believe that that question arises in this case, or that it is necessary to determine whether or not that might be the effect, for under the evidence in this case we are of the opinion that if all of the creditors wére required to participate alike in the funds that the board was authorized to levy, that all could' be properly taken care of and the expenses of the county paid. We are therefore of the opinion that it was not necessary for a determination of the rights of the parties herein to hold the proposition of law submitted.

It appears to us from the reading of this record that the board of commissioners were not disposed to treat these judgment creditors the same as they were treating other creditors and were unjustly discriminating against them in the levying of the tax, and that under the law they had no right to undertake to prefer one creditor over another, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    James A. Woods and Edward Boyd, trading as Woods & Boyd, Appellants, v. Edwin Gamper and A. F. Cook, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Release, § 23

      —what plea of should contain. A plea setting up an agreement relied upon as releasing a defendant from the obligation sued on should set out such agreement definitely and certainly and not in a mere argument.
    2. Release, § 23

      —when plea of is insufficient. In an action upon a contract wherein defendants agreed to pay plaintiffs for the construction of a well upon premises which one of the defendants had leased, where plea was filed claiming under the contract a release from such obligation by reason of one of tho defendants having turned over said lease to a certain corporation as contemplated in said contract, under whose direction and employment plaintiffs continued the construction of the well as set up m the plea, held that defendants were not released from such obligation, and the statement in said plea that defendants were released was simply a conclusion of the pleader.

      Appeal from the Circuit Court of Edwards county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by James A. Woods and Edward Boyd, partners, trading as Woods & Boyd, plaintiffs, against Edwin Gamper and A. F. Cook, defendants, to recover upon a written agreement for the drilling of an oil well by plaintiffs for defendants. From a judgment against plaintiffs for costs, plaintiffs appeal.
    McGaughey & Tohill and Allen Walker, for appellants.
    John A. MacNeil and S. J. Gee, for appellees.

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

   Mr. Justice McBride

delivered the opinion of the court.


author: Mr. Presiding Justice Higbee

text:
    Artemissa Park, Appellee, v. Caroline Penn, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with statement of facts.
    Opinion filed December 12, 1916.
    Statement of the Case.
    Action by Artemissa Park, plaintiff, against Caroline Penn, defendant, to recover damages on account of injuries received by falling down a defective stairway in a house owned by defendant and rented by plaintiff’s husband and occupied by him and the family. From a judgment for plaintiff for $1,500, defendant appeals.
    Schaumleffel & Johnson, for appellant.
    T. M. Webb and W. E. Knowles, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 257 —what constitutes variance between declaration and proof in action by lessee’s wife against landlord for injuries due to defective stairway. Where, in an action by a lessee’s wife against the lessor for .damages for injuries sustained on the demised premises, the declaration alleging the lessor’s promise to repair said premises was amended after verdict for plaintiff by striking out such allegation, held plaintiff must rely upon such amended declaration to support the judgment, and that evidence in support of such allegation offered by plaintiff was incompetent under such amended declaration.

2. Landlord and tenant, § 226 —when tenant may not recover against landlord for injuries due to defective condition of premises. A tenant cannot recover against his lessor for injuries sustained by reason of a defective condition of the premises in the absence of a contract by the lessor to repair.

3. Landlord and tenant, § 242 —what are rights of wife of lessee as to recovery against landlord for injuries due to defective condition of the premises. The wife of a lessee has no different right of recovery against the lessor for injuries sustained by her on the demised premises than the lessee for injuries sustained to himself.


text:
    The People of the State of Illinois ex rel. Silas Cook et al., Defendants in Error, v. W. C. Goodall et al., Plaintiffs in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of St. Clair county; the Hon. Georoe A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Information in the nature of quo warranto by the People of the State of Illinois ex rel. Silas Cook, Edmund Goedde, Albert Diehm, J. A. Goodall, John J. Wies and William P. Launtz, petitioners, against W. C. G-oodall, Clyde D. Miller, Charles F. Merker, Alexander S. Vien, F. L. Schroeder and W. J. Miller, respondents, charging them with unlawfully exercising the offices of directors of the Bankers Accident Insurance Company and demanding that they show hy what right they claim to exercise such offices. From a judgment of ouster, respondents bring error.
    Abstract of the Decision.
    1. Quo warranto, § 56

      —when judgment of ouster is proper. The respondents to quo warranto proceedings are bound to state in their pleas and show by proof good authority for acting as officers, otherwise the relators are entitled to a judgment of ouster.
    2. Associations—when meeting is not legally organized. Where the by-laws of an association provided that the president, and in his absence the vice president, should preside at all meetings of members, and that the officers should be elected by ballot, held in quo warranto proceedings upon proof showing that neither the president nor the vice president presided over the meeting at which the respondents were elected as officers, although the vice president was present, and that such meeting was organized by a viva voce vote for a presiding officer and a secretary, that said meeting was not legally organized, and such officers elected thereat had no title to the offices claimed by them.
    James O. Miller, for plaintiffs in error.
    Dan McGlynn, for defendants in error.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois ex rel. Martin J. Qualey, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 21,989.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthiel, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Petition for a writ of mandamus by the People of the State of Illinois ex rel. Martin J. Qualey, petitioner, against the City of Chicago and others, respondents, to compel the restoration of relator to the position of detective sergeant of the police force of Chicago. From a judgment ordering that a writ issue as prayed for, respondents appeal.
    Petitioner did not set forth any ordinance creating the position of detective sergeant. The petition alleged that on August 11, 1913, charges were made against petitioner and delivered to him; that he was charged with having been guilty of conduct unbecoming a police officer, and also wilful maltreatment of a citizen; that the trial before the Civil Service Commission was set for August 20, 1913, and that he attended upon that day, but that the commission did not hold a session, and that on September 3, 1913, in the absence of the petitioner, the trial board met and he was found guilty upon,the charges made, and an order was entered that he be discharged from the police department.
    Abstract of the Decision.
    1. Mandamus, § 138

      —when petition for mandamus must set forth ordinance creating position of officer. Where a petition for a writ of mandamus for restoration of a police officer to the position of detective sergeant of the police force of Chicago does not clearly show the ordinance creating the position, the petitioner is not entitled to a writ of mandamus.
    2. Civil service, § 25

      —when presumed that police officer had opportunity to appear in defense at hearing of charges and that proceedings were properly conducted. In the absence of any averment to the contrary, in a writ of mandamus by which a detective sergeant of the police force of Chicago seeks restoration to such position, it will be presumed that the heading of the charges was continued from the day first set until the day of actual trial, that the petitioner had opportunity to appear in defense and that the proceedings were properly conducted.
    3. Civil service, § 24

      —what findings of Civil Service Commission will not he reviewed. The findings of the Civil Service Commission upon the questions of the innocence or guilt of a petitioner seeking by writ of mandamus to be restored to a position on the police force of the City of Chicago will not be reviewed.
    4. Civil service, § 28

      -^what constitutes laches in filing petition of mandamus for restoration of petitioner to office. A delay of more than six months in filing a petition of mandamus by an officer of the police force of the City of Chicago constitutes laches, and is a sufficient defense thereto.
    Samuel A. Ettelson, for appellants; Boy S. Gas-kill and John A. Cooke, of counsel.
    No appearance 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:
    Richard F. Lillis, Defendant in Error, v. City of Chicago, Plaintiif in Error.
    Gen. No. 22,502.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbor, § 788

      —when action of trial court upon motions toill not he reviewed. . The action of the trial court upon motions will not be reviewed where neither the evidence nor proceedings have been preserved for review by bill of exceptions, or otherwise.
    2. Appeal and error, § 1303

      —when presumed that evidence is sufficient to support verdict. Where neither the evidence nor the proceedings in a personal injury action have been preserved for review by the bill of exceptions, or otherwise, it must be presumed, under the pleadings, that the evidence is sufficient to support the verdict.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Rehearing denied January 22, 1917.
    Statement of the Case.
    Action by Bichard F. Lillis, plaintiif, against the City of Chicago, defendant, to recover damages for injuries received through a defective sidewalk. From a judgment for eight hundred dollars in favor of plaintiff upon trial by jury, defendant brings error.
    Samuel A. Ettelson and Charles B. Francis, for plaintiff in error; Maxwell B. Herman and Kaplan & Kaplan, of counsel.
    Earl J. Walker, for defendant in error.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Limitation of actions, § 68 —when statement of claim does not state new cause of action. The filing of a second statement of claim in an action for personal injuries, which simply states the same actionable cause with more particularity than the first statement of claim, which was stricken from the files, does not state a new cause of action so as to bar a right of recovery because of the expiration of the one-year period for the commencement of actions in such cases.


author: Mr. Presiding Justice McSurbly

text:
    F. Mayer Boot & Shoe Company, Plaintiff in Error, v. F. Grygierczyk and F. Luba, copartners, trading as Grygierczyk & Luba Company, Defendants in Error.
    Gen. No. 22,507.
    (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 October term, 1916.
    Reversed and judgment here.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Action by F. Mayer Boot & Shoe Company, plaintiff, against F. Grygierczyk and F. Luba, copartners, trading as Grygierczyk & Luba Company, defendants, to recover on two promissory notes executed by defendants to the order of plaintiff, dated October 1, 1914, the first note being for $54.03, due November 20,1914, and the second note being for $54, due December 20, 1914, and both drawing interest at the rate of seven per cent, per annum from date until paid. From a judgment for plaintiff for $29.90, plaintiff brings error.
    J. J. Moser, for plaintiff in error.
    Edward A. Biggs, for defendants in error.

      Abstract of the Decision.
    1. Appeal and ebrob, § 1078

      —When cross errors must he assigned. The action of the trial court in an action on a promissory note in finding against the defenses of lack of consideration and release from all liability cannot be considered on review where the defendants have not assigned cross errors.
    2. Bills and notes, § 451

      —when evidence insufficient to establish defense of payment. In an action by a seller of good„s against the buyers on promissory notes given for purchases made, where it appeared that plaintiff, while the indebtedness was still in the form of an account, had notified defendants not to pay money to any agent or representative of the company, except on written authority, and defendants, in spite of such notices, made payments to an agent of the seller, and subsequently an agreement was made under which the notes sued on were executed and defendants undertook to recover from the agent the money improperly paid to him, evidence held insufficient to establish the defense of payment.
    - 3. Bills and notes, § 51

      —what constitutes good consideration for notes. Where purchasers of goods, ignoring notices by the seller not to make payment to an agent of the seller, make payment on an account, and, upon the seller’s ascertaining that payment had been made to the agent contrary to its instructions, an agreement is made under which the notes are executed and the purchasers undertake to recover from the agent the money improperly paid to him, the postponement of payment constitutes a good consideration to support the notes.

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

   Mr. Presiding Justice McSurbly

delivered the opinion of the court.


text:
    Andrew Jackson, Defendant in Error, v. William A. Burns et al., Defendants. William A. Burns, Plaintiff in Error.
    Gen. No. 22,512.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Cotjetney, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Action by Andrew Jackson, plaintiff, against William A. Bums and W. Tudor ApMadoe, defendants, to recover for damages to plaintiff’s automobile received in a collision alleged to have been caused through the carelessness and improper management of defendants’ respective automobiles. From a judgment on trial by the court finding defendant ApMadoe not guilty and defendant Burns guilty and assessing plaintiff’s damages at $285, defendant Burns brings error.
    Plaintiff’s statement of claim alleged that Burns so negligently, recklessly and improperly ran his automobile that as a direct result thereof the automobile of ApMadoe and the automobile of plaintiff were brought into violent collision. Defendant Burns by his affidavit of defense denied that he so operated his automobile that, either directly or indirectly, he caused any other automobile to come in contact with or be the proximate cause of any collision between plaintiff’s automobile and any other automobile. Defendant did not ask for a more particular statement of claim, but joined issue upon the essential fact of his negligence causing the damage to plaintiff’s automobile.
    Adams, Crews, Bobb & Wescott, for plaintiff in error; Asa (¡K Adams and E. C. Tourje, of counsel,

      Abstract of the Decision.
    1. Pleading, § 466

      —when defeat in plea is cured by verdict. Where there is defect, imperfection or omission in any pleading, whether in substance or in form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.
    2. Municipal Court of Chicago, § 13

      —what statement of claim in action for negligence need not specify. In an action to recover damages for injury to an automobile due to a collision with other automobiles, it is unnecessary to specify the acts which constituted negligence in a statement of claim.
    3. Municipal Court of Chicago, § 13

      —when defendant is precluded from complaining of insufficiency of statement of claim. Where a statement of claim in an action for damages to plaintiff’s automobile alleges that one of the defendants negligently, recklessly and improperly ran an automobile, and as a direct result thereof the automobile of the other defendant and the automobile of plaintiff were brought into violent collision, which was denied by an affidavit of defense, and a more particular statement of claim is not asked, but issue is joined upon the essential fact of the negligence causing an injury to plaintiff’s automobile, the defendant whose action is alleged to have caused the injury is precluded from complaining of insufficiency of the statement of claim.

      4. Automobiles and garages, § 3

      —when evidence is sufficient to show that negligent operation of automobile of defendant found guilty was proximate cause of damage to plaintiff’s oar. In an action to recover damages for injury to an automobile received in a collision, and alleged to have been caused through the carelessness and improper management of defendants’ respective automobiles, where there was evidence tending to show that the defendant found guilty, came into the street on which the accident occurred from a cross street at a high rate of speed, and the other defendant’s automobile, in veering away to avoid such incoming automobile, collided with plaintiff’s car, evidence held sufficient to sustain a finding that the negligent operation of the automobile of the defendant found guilty was the proximate cause óf the damage to plaintiff’s car.

      William Scott Stewart, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Mo Surely

text:
    Adrian F. Sherman and R. E. Ellis, Appellants, v. Charles M. Hayes, H. A. Redding, Jr. and Chicago Motor Club, Appellees.
    Gen. No. 22,516.
    Corporations, § 124

      —when contract for turning in personal property at face value in payment of capital of proposed corporation is invalid. A contract, pursuant to which the property and good-will of an insurance exchange for the insurance of • automobiles among its members, upon a sufficient number of contracts of insurance being issued so as to produce a specified premium income, is to be turned in on the basis of such premium income at its face value in payment of the capital stock of a proposed corporation, is invalid under Hurd’s Rev. St. ch. 32, see. 4 (J. & A.' 1Í 2421), providing, with reference to capital paid, that if any proportion of the capital has been paid in property the claim should be appraised by the commissioners and the fair cash value thereof reported.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick: A. Smith, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Lewis A. Stebbins and A. A. McKinley, for appellants.
    Miller, Gorham & Wales, for appellees.

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

   Mr. Presiding Justice Mo Surely

delivered the opinion of the court.

By their bill (technically an amended and supplemental bill) complainants sought by injunction to restrain the defendants from acting contrary to the terms of a certain contract. Demurrers interposed were sustained and the bill ordered dismissed for want of equity. Complainants, appealing, ask that this order be reversed.

The bill avers a contract between the Chicago Motor Club and Hayes, its president, permitting him to organize an interinsurance exchange for the insurance of automobiles among its members; also a contract between complainants and Hayes that he should devote all his time, not occupied with his duties as president of the motor club, to the organization of this insurance exchange; that when contracts of insurance covering-three hundred automobiles, producing a premium income of $30,000, should be acquired, the good-will and going business should be deemed worth $30,000 and a corporation should be organized with capital stock of $30,000, of which $10,000 should be in the name of Hayes, $10,000 in the name of Sherman and $10,000 in the name of Ellis, or, to put it briefly, that the property of the insurance exchange should be turned in at a value of $30,000 in payment of the capital of the proposed corporation. Complainants assert the violation of these contracts and seek relief.

We hold that the contract between Hayes and complainants is repugnant to the statute and void. The statute on corporations (chapter 32, Hurd, sec. 4, J. & A. 2421), in ordering the process of incorporation says, with reference to the capital paid in: “If any proportion of the capital has been paid in property, the same shall be appraised by said commissioners and they shall report the fair cash value thereof.” The contract in question ignores this statutory requirement and attempts by the dictum of the parties to fix this “fair cash value” of the “good-will and going business” of an organization as yet without either. It provides for the payment of the entire capital of the proposed corporation by an arbitrary determination of the cash value of that which from its very nature, under the circumstances, could have only an uncertain and speculative value, if any. Intangible property or property with no ascertainable market value can be valued only at such a price as could be realized by selling it to others. In so holding we are in harmony with what was said in Gillett v. Chicago Title & Trust Co., 230 Ill. 373.

In this view of the matter it is unnecessary to note other considerations presented and argued.

For the reason that the contract in question is nonenforceable, complainants are not entitled to the relief sought. The demurrers were properly sustained, and the order dismissing complainants’ amended and supplemental bill is affirmed.

Affirmed.


text:
    Tony Rosetti and Vincent Manno, copartners, trading as Tony Rosetti & Company Labor Agency, Defendants in Error, v. Chicago, Rock Island & Pacific Railway Company et al., Plaintiffs in Error.
    Gen. No. 22,528.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Rehearing denied January 22, 1917.
    Statement of the Case.
    Action by Tony Rosetti and Vincent Manno, copartners, trading as Tony Rosetti & Company Labor Agency, plaintiffs, against the Chicago, Rock Island & Pacific Railway Company, a corporation, Rock Island Lines and the Chicago, Rock Island & Pacific Railroad Company, a corporation, defendants, to recover for breach of a contract under which plaintiffs agreed to furnish laborers, whom the defendants agreed to employ and furnish transportation to. From a judgment for plaintiffs for eighty-six dollars, defendants bring error.
    Abstract of the Decision.
    1. - Contracts, § 385

      —when evidence is insufficient to show contract with employment agency for the employment of laborers and the furnishing of transportation therefor. In an action by an employment agency against a railroad company, evidence consisting of letters written by officers of the defendant to plaintiff stating that they could use a certain number of men and that transportation would be furnished, held sufficient to show a contract for the employment of laborers and for the furnishing of transportation therefor:
    2. Master and servant, § 19

      —what names of employees must be placed upon register of employment agency. Under J. & A. fi 5322 et seg., relating to private employment agencies, only the names of those employees whose applications for employment have been accepted must be registered on the books of the employment-agencies.
    3. Master and servant, § 19

      —when person contracting for service of laborers is estopped to claim that names of rejected laborers have not been formally registered. A railroad company, defendant in an action by an employment agency to recover for breach of a contract for the furnishing of laborers, resulting in plaintiff being compelled to return registration fees to such employees, cannot avail itself of the defense that the names of such rejected employees were not placed upon the register of the employment agency so as to entitle the agency to a registration fee, where the names of such employees were not and could not legally be placed upon the register owing to the fact that defendant failed to comply with its agreement to take such laborers.

      Charles T. Schwarz, for plaintiffs in error.
    Cyrus J. Wood, for defendants in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Fred Smith, Plaintiff in Error.
    Gen. No. 22,532.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Coubt of Chicago, § 26

      —how evidence in prosecution for keeping a common gaming house may de preserved.
      Under section 23 of the Municipal Court Act (J. & A. If 3335), prescribing how evidence in cases of the fifth class may be preserved, the evidence in a prosecution for keeping a common gaming house may be preserved by a correct statement of the facts.

      Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Rehearing denied January 22, 1917.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Fred Smith, defendant, for keeping a common gaming house in the City of Chicago. From a judgment of guilty and assessing a fine of fifty dollars, the defendant brings error.
    Henry M. Seligman, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

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

   Mr. Presiding Justice Mo Surely

delivered the opinion of the court.

2. Municipal Court of Chicago, § 29 —when presumed that evidence was sufficient to justify finding of court as to keeping of common gaming house. Where an ordinance upon which a prosecution for keeping a common gaming house was not preserved in the record, it must be presumed on appeal that the evidence was sufficient to justify a finding of the trial court that defendant was guilty of keeping a common gaming house.


author: Mr. Presiding Justice Me Surely

text:
    City of Chicago, Defendant in Error, v. Tom Jones, Plaintiff in Error.
    Gen. No. 22,533.

      (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in this court at the October term, 191.6.
    Affirmed.
    Opinion filed January 8, 1917.
    Rehearing denied January 22, 1917.
    ¡Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Tom Jones, defendant, for gambling in violation of a city ordinance of Chicago. From a judgment finding him guilty, defendant brings error.
    Henry M. Seligman, for plaintiff in error.
    H. B. Miller, for defendant in error.

      Se© Blinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Me Surely

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 29 —what Appellate Court may not take judicial notice of. The Appellate Court cannotz take judicial notice of a city ordinance upon which a prosecution by the city is based where such ordinance is not preserved in the record.

2. Municipal Court of Chicago, § 29 —when presumed that trial court is justified in finding defendant guilty for violation of city ordinance. Where a city ordinance upon which a prosecution for gambling is based is not preserved in the record, it must he presumed on appeal that the trial court was justified in its finding that the defendant was guilty of engaging in gambling in violation of such ordinance.


author: Mr. Presiding Justice MoSurely

text:
    Walter Rutkowski by Mary Landowski, Defendant in Error, v. Carl Marcowska, Plaintiff in Error.
    Gen. No. 22,542.
    (Mot to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Action by Walter Rutkowski, by Mary Landowski, next friend, plaintiff, against Carl Marcowska, defendant, to recover damages for malicious prosecution and false imprisonment. From a judgment for plaintiff for five hundred dollars, defendant brings error.
    Winston & Lowy, for plaintiff in error; Frank A. Lasley, of counsel. •
    G-. Raymond Collins, for defendant in error.

      Abstract of the Decision.
    1. Malicious prosecution, § 51

      —what must he alleged. In an action to recover damages for malicious prosecution, it is essential to allege, among other things, the absence of probable cause and determination of the original proceedings in favor of the plaintiff.
    2. Municipal Court of Chicago, § 13

      —when defendant is not hound to answer statement of claim. A defendant is not bound to answer a statement of claim which does not show any liability against him, and hence cannot be in default.
    3. Municipal Court of Chicago, § 13

      —when statement of claim is fatally defective. A statement of claim in an action to recover damages for malicious prosecution which fails to allege the absence of probable cause and determination of the original proceedings in favor of plaintiff is fatally defective.
    4. Municipal Court of Chicago, § 13

      —when insufficiency of statement of claim is not waived. Insufficiency of a statement of claim in an action to recover damages for malicious prosecution, in that it fails to allege the absence of probable cause and determination of the original proceedings in favor of plaintiff; is not waived by the failure of the defendant to move for a more specific statement.

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

   Mr. Presiding Justice MoSurely

delivered the opinion of the court.


text:
    Ray F. DeLong and James F. Collins, Appellees, v. Thomas J. Hruby, Appellant.
    Gen. No. 22,563.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 866

      —What does not constante an ah* stract. A purported abstract held to be a mere index. ^
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard fin this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Action by Ray F. DeLong and James F. Collins, plaintiffs, against Thomas J. Hruby, defendant, to recover a balance of $500 of a deposit of $1,500 made by plaintiffs with defendant under an agreement for the lease of a building to be erected by the defendant. From a judgment for plaintiffs for $500, defendant appeals.
    The declaration was merely described as “Harr. Filed by and in name of Ray F. DeLong alone. Common counts, unverified.” Then follows: “Pleas of defendant, 1st, General issue; second, On July 2, 1914, plaintiff by his deed bearing date of that day, released defendant. Affidavit of meritorious defense.” There were also other deficiencies in the abstract.
    Otto L. Kolar, for appellant.
    Charles W. Stiepel and John B. Heinemann, 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.

2. Appeal and erbob, § 1752 —when judgment must he affirmed. In the absence of a sufficient abstract of record, a judgment must be affirmed.

'3. Appeal and error, § 1303 —when presumed that verdict of jury is justified from evidence. In the absence of a complete bill of exceptions showing all the testimony and evidence submitted to the jury, it must be presumed on appeal that the jury were justified from the evidence in finding that plaintiff had established his claim.


author: Mr. Justice Holdom

text:
    Owen Kelly, Defendant in Error, v. Great Lakes Dredge & Dock Company, Plaintiff in Error.
    Gen. No. 22,262.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. " Heard in this court at the March term, 1916.
    Reversed and judgment of nil capiat and for costs entered here.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Action by Owen Kelly, plaintiff, against Great Lakes Dredge & Dock Company, a corporation, defendant, to recover for breach of a contract of employment. From a judgment for plaintiff for $488.20, defendant brings error.
    Montgomery, Hart, Smith & Steers, for plaintiff in error.
    John J. Lupe, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

Master and servant, § 3 —when contract of employment is unilateral and unenforceable. A contract of employment under which the employer is bound to use the services of the employee for a specified term but the employee has the right to quit work at any time he sees fit is unilateral, lacking in mutuality, and is consequently unenforceable.


text:
    J. R. Newport and Earl L. Cook, copartners, trading as J. R. Newport Lumber Company, for use of Newport Lumber Company, Defendants in Error, v. John J. McPherson and Ralph T. McPherson, copartners, trading as McPherson Brothers. J. O. Nesson Lumber Company, Plaintiff in Error.
    Gen. No. 22,482.
    1. Attachment, § 2

      -—how proceedings for must be complied with. Attachment proceedings are purely statutory, and the statutory provisions must be at least substantially complied with in order that such remedy may be availed of.
    2. Municipal Court of Chicago, § 13

      —when statement of claim must be filed. A statement of claim in an1 attachment action must be filed within three days after the commencement, of the action in order that the court may have jurisdiction to further proceed.
    3. Municipal Court of Chicago, § 13

      —when time for filing statement of claim may not be extended. The time for filing a statement of claim in an attachment action may not be extended after the lapse of a three-day period from the commencement of the action.

      4. Garnishment, § 13

      —what proceedings may be attacked and reviewed. While mere irregularities in garnishment proceedings are not open to attack where the jurisdiction of the court to enter judgment against the defendant and the garnishee is involved, antecedent proceedings may be' attacked and reviewed.

      Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed January 8, 1917.
    Adams, Crews, Bobb & Wesoott, for plaintiff in error.
    Soboroff & Newman, for defendants in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The judgment in this record against the garnishee is sought to be reversed on a writ of error sued out by the garnishee.

Many errors are both assigned and argued, but in the conclusion to which we have come it will be unnecessary to notice any error except the one challenging the jurisdiction of the court to enter the judgment against the garnishee.

The judgment, it is contended, is invulnerable to attack as the trial court had jurisdiction of the defendants and the garnishee, the provisions of the attachment statute regulating the time when declarations shall be filed being operative in the Municipal Court. In this contention we are unable to accord our assent for reasons hereinafter to be stated.

We will briefly state the order of events in this case chronologically.

The suit is attachment, the grounds for which are. stated to be the nonresidence of defendants. The affidavit setting forth the facts relied upon to maintain the attachment was filed December 31, 1913. On the same day a writ of attachment was issued and returned by the sheriff that the defendants were not found in his county and that appellant had been served as garnishee.

On January 20, 1914, an order was entered allowing plaintiff to file its statement of claim and interrogatories to garnishee instanter and they were filed in pursuance of that order.

On March 13,1914, defendants in the attachment suit were defaulted for failure to appear, and a judgment entered against them for $1,831.71. On June 16, 1914, the garnishee filed its answer denying any indebtedness to defendants.

On December 17,1914, trial was entered upon before the trial judge and on January 18,1915, judgment was entered against the garnishee for the same amount as the judgment theretofore entered against defendants. February 10, 1915, garnishee entered a motion to vacate the judgment, which on February 16, 1915, was overruled. The order so overruling the motion was entered nunc pro timo as of January 18, 1915, and an appeal prayed and allowed to this court.

Attachment proceedings are purely statutory and are in their nature drastic. To take advantage of such an extraordinary remedy the statutory provisions must be in their essence at least substantially complied with. Such compliance must appear from the record; no presumptions not deducible from matters appearing of record can be indulged. A case of affirmative compliance with the statute must appear from the record; less will not suffice.

In the present condition of the Municipal Court Act and the rules of the Municipal Court made in pursuance of that act, the provisions of the attachment statute regulating the time in which a declaration must be filed have no application.

This case is of the first class in the Municipal Court. But for the rules of the Municipal Court hereinafter referred to, which are properly before us for interpretation, the attachment statute would be applicable in that court so far as the time for filing a declaration is concerned. But the rule abolishes the necessity of a declaration and provides that in its stead a statement of claim shall be filed. Section 28 of the Municipal Court Act (J. & A. If 3340) reads:

“That, until otherwise provided by the rules of the Municipal Court, cases of the first class mentioned in section two (2) of this act shall be commenced and prosecuted in said Municipal Court in the same manner in which similar suits and proceedings are required to be commenced and prosecuted in the circuit courts, except as is herein otherwise prescribed, and excepting also in the following particulars: * * The seventh clause of said section 28 reads:

“The plaintiff shall file his declaration within three days after the commencement of the suit, in default whereof the suit shall be dismissed unless the court by an order entered in said suit shall extend the time for filing such declaration/7 By rule of the Municipal Court it is provided that “In all cases of the first class instituted in this court on and after April 1,1910, the pleadings shall be the same as in cases of the fourth class, and they may be amended in the same manner. In' first-class cases the plaintiff shall file, in lieu of the declaration now provided for in the act and within the time allowed for the filing of such declaration, a statement of claim which shall consist * * etc..

Plaintiff filed a statement of claim and not a declaration. This was in accord with the directions of the Municipal Court Act and the rule of the Municipal Court above recited. In so doing, plaintiff recognized the fact that they were not proceeding under the attachment statute but under the Municipal Court Act and the rules of that court. We think that the time of the filing of the statement of the claim is jurisdictional, and, if filed within the three days prescribed by the Municipal Court Act and its rules, vests that court with jurisdiction to further proceed, and that a failure to so file the statement of claim robs the court of further jurisdiction except to dismiss the suit. The order granting leave to file statement of claim, entered twenty days after the attachment suit was commenced and seventeen days after the time for filing had expired, was a void order, entered without jurisdiction, and of no binding force or effect. The court had no power, by implication or otherwise, to extend the time after the lapse of three days. By analogy, the decisions that in the extension of time to file bonds on appeal and bills of exception, to be effective, such orders must be entered within the time prescribed by statute, are equally persuasive and binding as to the extension of the time in which to file statements of claim. Hill v. City of Chicago, 218 Ill. 178; Lassers v. North German Lloyd Steamship Co., 150 Ill. App. 273, affirmed in 244 Ill. 570. It follows that the court being without jurisdiction to order the declaration filed when it did, all proceedings subsequently had, including the judgment against defendants and the garnishee, were nullities and void.

It is contended that the garnishee is impotent to attack any of the proceedings anterior to the judgment against it or the judgment against defendants. In a limited sense, this may be true. Mere irregularities in the proceedings against the defendants are not open to attack, but where the jurisdiction of the court to enter the order appealed'from is involved, antecedent proceedings may be attacked and reviewed. The foundation upon which a judgment against a garnishee rests must be sufficiently secure to support it, otherwise it will fall.

In Kirk v. Elmer H. Dearth Agency, 171 Ill. 207, it is held that in order to pronounce judgment against the garnishee in an attachment suit, the court must have jurisdiction to render judgment against the attachment defendant, as the judgment against the defendant is the basis of the one against the garnishee, and also that a garnishee may inquire into the validity of all the antecedent proceedings claimed to vest the court with jurisdiction to enter judgment against the attachment defendant. To a similar effect is Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 Ill. 582.

The judgments against the attachment debtor and the garnishee are-void for want of jurisdiction in the Municipal Court to pronounce either of them.

The judgment against the garnishee in this writ of error is reversed and the Municipal Court is directed to enter an order discharging plaintiff in error as garnishee.

Reversed and remanded with directions.


text:
    Minna Sprengel, Defendant in Error, v. Arthur Schroeder, Administrator, Plaintiff in Error.
    Gen. No. 22,505.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. William Fenimobe Coopeb, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Minna Sprengel, plaintiff, against Arthur Schroeder, administrator de bonis non with the will annexed of the estate of Henry Hochbaum, deceased, defendant, to recover damages for personal injuries sustained as the result of falling through a trapdoor left open by defendant’s testator on premises rented of him by plaintiff’s husband. From a judgment for plaintiff for $4,000, defendant brings error.
    The accidént to plaintiff, damages for which are sought to be recovered in this action, happened by her falling through a trapdoor left open by defendant’s testator. The declaration consisted of two counts, in the first of which Henry Hochbaum was alleged to be in “possession and control” of the building of which the trapdoor was a part; that plaintiff’s husband was a tenant in said building, where plaintiff and her family resided; that Hochbaum negligently caused a certain trapdoor in the sidewalk in front of said premises to be and remain open, rendering said sidewalk not reasonably safe for plaintiff and others going to and from the tenements in said building, and that plaintiff while exercising ordinary care and caution on her part stepped into said trapdoor, left open by reason of Hochbaum’s negligence, and fell, receiving severe bodily injuries, internal, external, permanent and otherwise, etc. The second count was similar to the first, but alleged that plaintiff was a tenant of Hochbaum. To this declaration three pleas were filed, one the general issue, the second denying that Hochbaum owned or controlled the premises of which the trapdoor was a part, and the third denying that Hochbaum left open the trapdoor, etc.
    Abstract of the Decision.
    1. Appeal and error, § 824

      —what must he preserved in hill of exceptions. An exception to a trial court’s action in striking special pleas from file cannot he availed of where such exception is not preserved in the hill of exceptions.

      August Marx and August E. Marx, for plaintiff in error.
    Otto W. Jurgens, for defendant in error; George H. Mason, 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.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Appeal and error, § 824 —when exceptions to ruling of court must he preserved in hill of exceptions. Exceptions to the ruling of the trial court in overruling the motion for new trial and in arrest of judgment and in entering judgment upon the verdict which are contained in the record but are not in the bill of exceptions are unavailable upon review.

3. Landlord and tenant, § 10 —when relation exists. The relation of landlord and tenant exists between the occupant of premises and another person where the occupant pays to such person rent and such person receives the money as rent and such person is in possession and control of the premises.

4. Landlord and tenant, § 226 —what is duty of landlord as to keeping trapdoor in common sidewalk in repair. It is the duty of the landlord to keep a trapdoor in a sidewalk used in common by the tenants of a building in a reasonably safe condition, and failure to do so involves the landlord in a liability for resulting injuries where the injured person is in the exercise of ordinary care for his or her own safety.

5. Appeal and error, § 1456 —when striking of special pleas is harmless error. The striking of special pleas from the files, is harmless error where the matters contained therein are covered by a plea of general issue.

6. Pleading, § 100 —what is admitted hy plea of general issue. The plea of general issue in an action by a tenant against his landlord for damages for personal injuries sustained by the tenant due to the negligence of the landlord in allowing the premises to be in an unsafe condition, where the declaration avers that the defendant owns and controls the premises, admits such ownership and control.

7. Landlord and tenant, § 258 —when evidence is sufficient to show exercise of due care hy tenant using common sidewalk. In an action by a tenant against a landlord-for damages for personal injuries sustained as the result of falling through a trapdoor on the premises left open by the landlord, where it appeared that the trapdoor was located in a common sidewalk used by all the tenants of the building, evidence held sufficient to show that plaintiff was in the exercise of due care for her own safety at the time of the accident.

8. Landlord and tenant, § 234 —what care is required of tenant using common sidewalk. A tenant using a sidewalk on premises used in common by other tenants of the building is not required to be on the lookout for open trapdoors, although she may have known of the existence of such a trapdoor.

9. Landlord and tenant, § 259 —when contributory negligence cenant falling in open trapdoor in common sidewalk is question for jury. In an action by a tenant against a landlord for damages for personal injuries sustained as the result of falling through a trapdoor, which had been negligently left open by the landlord, and which was used in common by the tenants of the building, held that it was a question for the jury whether the plaintiff was guilty of contributory negligence in not observing that the trapdoor was open.

10. Landlord and tenant, § 257 —when counts in declaration for damages for personal injuries are not inconsistent. In an action by a tenant against a landlord for damages for personal injuries sustained as the result of a defective condition of the premises, held that a count alleging that the plaintiff was the tenant of the defendant was not inconsistent with another count alleging that plaintiff’s husband was a tenant of defendant. '

11. Damages, § 106 —when averment of declaration is sufficient to admit proof of fracture of the femur. In an action for damages for personal injuries, held that under an averment of the declaration that plaintiff had received severe bodily injuries, intérnal, external, permanent and otherwise, which had from the time of the injury and would for the rest of her life disable her from attending to her affairs and business, evidence that plaintiff as the result of the injury suffered an impacted fracture of the femur, with resultant permanent shortening of the leg and consequent disability, was admissible.

12. Appeal and error, § 1236 —when defendant is estopped to complain that a hypothetical question is improper. Where, in an action for personal injuries, a hypothetical question is put to plaintiff’s attending physician and no omission is pointed out by the defendant when an objection to the question is made, but he simply makes objection to the question on the ground of omitted facts, and when asked to specify any omitted fact fails to do so or to specify any fact omitted or any statement in such question which was no„t justified, he is estopped on appeal to complain that the hypothetical question was improper.

13. Evidence, § 435 —when hypothetical questions are proper. The party seeking the opinion of an expert must put his case as he claims it is proven and take the opinion of the witness thereon, leaving the jury to determine whether the case, as put, is the one proven.

14. Appeal and error, § 1540 —When reference to declaration in instruction is harmless error. It is not reversible error in a personal injury action to instruct the jury that the plaintiff is entitled to recover if they find defendant guilty of the negligence charged in the declaration, where the jury are also told that as a condition precedent to a finding against the defendant they must find that the plaintiff was at and prior to the time of the accident in the exercise of due care for her own safety.

15. Abatement and revival—when action for personal injuries does not abate. An action for personal injuries against a deceased person does not abate upon the death of the executrix of his estate, but such suit may be prosecuted against an administrator de bonis non with the will annexed who is substituted in place of the deceased executrix.

16. Damages, § 241 —when verdict of jury will not be disturbed on ground of excessiveness. The amount of damages recoverable in a personal injury action is largely a matter for the jury, and when the jury are not affected by prejudice or passion in rendering the verdict it will not be disturbed on appeal.

17. Damages, § 124 —when verdict for personal injuries is not excessive. A verdict for $4,000 in favor of a woman who suffered an impacted fracture of the femur with resultant permanent shortening of the leg and consequent disability, held not excessive.


text:
    Good Products Company, Defendant in Error, v. James J. Dwyer, Plaintiff in Error.
    Gen. No. 22,511.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment of nil capiat and for costs.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Action by Good Products Company, a corporation, plaintiff, against James J. Dwyer and Gustav Hochstadter, defendants, to recover on a contract with Dwyer whereby plaintiff agreed to perforin certain work on a building owned by Hochstadter, which was being constructed by Dwyer as contractor, and against Dwyer and Hochstadter upon an award of arbitrators. From a judgment in favor of plaintiff against defendant Dwyer, after dismissal of the case against defendant Hochstadter, defendant Dwyer brings error.
    Abstract of the Decision.
    1. Accord and satisfaction, § 1

      —what is subject of. A claim for an unliquidated amount is a proper subject of accord and satisfaction.
    2. Accord and satisfaction, § 6

      —when third person is bound by settlement. A settlement of a disputed claim for labor performed in the construction of a building by a subcontractor between such subcontractor and the owner constitutes an' accord and satisfaction as to the contractor.
    Alfred E. Barr and Frank W. Bigelow, for plaintiff in error.
    Walter S. Holden and Gr. Fred Bush, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Holdom;

text:
    James Donovan, Appellee, v. National Life Insurance Company of the United States of America et al., Appellants.
    Gen. No. 22,515.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Courts, § 63

      —when jurisdiction of not affected. Noncompliance by a court with its rules of practice does not affect its jurisdiction of the persons of the parties and the subject-matter.
    2. Judgment, § 298

      —when order of dismissal of case may not he vacated at subsequent term. The fact that a trial court did not know when it made an order dismissing a suit for failure of plain-tie to file a bond for costs that the motion made to dismiss was not in writing as required by its rules, and, if it had possessed such knowledge, would not have entered the order, does not render its action in so doing one of fact and not of law so as to warrant the vacation of such judgment after the term at which it was entered.
    Appeal from the Superior Court of Cook county; the Hon. Mascus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Action by James Donovan, plaintiff, against National Life Insurance Company of the United States of America, Werner Brothers Express & Storage Company, Albert M. Johnson, Lewis A. Stebbins, Henry M. Windsor and Oliver L. Watson, defendants. From an order vacating an order of dismissal of the suit for failure of plaintiff to file a bond for costs, defendants appeal.
    . George A. Trude and Burton P. Sears, for appellants.
    No appearance for appellee.

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

   Mr. Justice Holdom;

delivered the opinion of the court.


text:
    Arthur C. Marshall, Plantiff in Error, v. Delaware, Lackawanna & Western Railroad Company, Defendant in Error.
    Gen. No. 22,525.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court oe Chicago, § 13

      —when affidavit of defense is sufficient. In an action by a shipper against the carrier to recover damages for the negligent shipment of fruit, an affidavit of defense in which defendant denied that the fruit was delivered to the initial carrier in sound condition, that it was damaged while in its possession by any act on its part or that any damage resulted to the fruit while in its possession, and averred that the fruit was sold by defendant in a damaged condition after notice to plaintiff, and at its request, that the net amount realized from the sale, being the amount of judgment, was tendered to plaintiff and refused, that defendant acted in good faith, and that no notice of plaintiff’s claim was made within four months, as required by the terms of the contract to carry, held sufficient.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Rehearing denied January 22, 1917.
    Statement of the Case.
    Action by Arthur C. Marshall, plaintiff, against Delaware, Lackawanna & Western Railroad Company, a corporation, defendant, to recover damages for the negligent shipment of fruit. From a judgment for $99.20, being only a part of the claim, plaintiff brings error.
    Stewart Reed Brown, for plaintiff in error.
    Adams, Follansbee, Hawley & Shorey, for defendant in error.

      Soe Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tppio and section number.

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Florence E. Schaefer, Defendant in Error, v. Washington Safety Deposit Company, Plaintiff in Error.
    Gen. No. 22,531.
    1. Safe deposit companies, § 1

      —when not presumed to be liable for loss of contents of rented box. Where money is deposited in a rented safe deposit hox under a contract providing that the liability of the depositary is expressly limited to the exercise of ordinary diligence to prevent the opening of the box during the term or any extension or renewal thereof by. any person other than the renter or his duly authorized representative, and such opening shall not be inferable from the loss of its contents, the depositary is not presumptively liable from the mere fact that the money was placed in the box and six months afterwards, when the box was opened by the depositor, was not found to be there.
    2. Safe deposit companies, § 1

      —when instruction on liability of is erroneous. In an action against a depositary for the loss of money placed in a rented safe deposit box where it appeared that plaintiff’s statement of claim was defective, held that it was error for the court to instruct the jury that if they found plaintiff had by preponderance of the evidence made out her case, as alleged in her statement of claim, and if they also found that plaintiff had used ordinary care and diligence in the premises but had failed to meet and overcome such proofs, then their verdict should be for plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Samuel H. Tbude, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed January 8, 1917.
    Charles V. Barrett, for plaintiff in error; John F. Haas and Raymond M. White, of counsel.
    M. D. Dolan, for defendant in error; Freeman K. Blake, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The judgment in this case is for $1,250, rendered by the court upon the verdict of a jury after overruling motions for a new trial and in arrest of judgment.

Plaintiff rented a safety deposit box from defendant, in which she alleges she placed in current money $1,250; that the box was under the care, control and management of defendant; that the money was extracted or removed from her box some time between January 2nd and July 11, 1914, without the consent or knowledge of plaintiff and in violation of defendant’s contract to safely keep said sum.

By order of court plaintiff filed a copy of her renting contract. Among the rules and conditions appearing as a part of said contract is the following:

“The liability of the company is expressly limited to the exercise of ordinary diligence to prevent the opening of the within mentioned safe during the within mentioned term, or any extension or renewal thereof, by any person other than the renter or his duly authorized representative, and such opening shall not be inferable from the loss of any of its contents.”

In defendant’s affidavit of defense it denied that plaintiff deposited $1,250 in its safety deposit box as alleged in the statement of claim and denied that that sum or any other sum was extracted or removed from the box without the consent or knowledge of plaintiff, and averred that it had lived up to and carried out all the terms of its contract with plaintiff, and that at all times during the existence of the lease it used all ordinary diligence and care to prevent the opening of plaintiff’s box by any person other than plaintiff.

Plaintiff was allowed to file a verified reply to the affidavit of merits of defendant, in which she denied that defendant lived up to or carried out the terms of the contract or that it had used at all times all ordinary diligence and care tó prevent the opening of the box during the term of the lease by any person other than plaintiff,

On the pleadings as thus stated, the cause proceeded to trial, with the result above recited.

The cause of action proceeds upon the theory of plaintiff, as outlined in her statement of claim, that defendant is presumptively liable because the money alleged by plaintiff to have been deposited in her box in January was not there in July when she again opened the box. Such is not the presumption of law which obtains in this class of cases; but, if it were, the presumption has been effectively rebutted by defendant’s proof. The contract of defendant is to use ordinary diligence to prevent the opening of the box by any person other than plaintiff, and it is further stipulated that such opening shall not be inferable from the loss of any of the contents of the box. This being the contract of the parties, their rights, duties and responsibilities must be admeasured within its terms.

The statement of claim fails to state any cause of action, as defendant’s liability must be predicated upon acts on its part which in law would amount to negligence. No negligence of defendant is averred as the primary cause of the alleged loss of plaintiff’s alleged money. No act of negligence is alleged against defendant; neither is any act of negligence proven against it. Plaintiff’s testimony that she deposited $1,250 in her box in defendant’s vault is not only, in our opinion, highly unsatisfactory, but is in some of its aspects open to grave suspicion upon the vital question as to whether the money was in fact ever deposited in the box of plaintiff. In the first place, plaintiff asserts that she received only one key to the box. A preponderance of the evidence demonstrates that she received two keys. Plaintiff’s statement that she put $1,250 into the box lacks corroboration. That she had such an amount of money and the source from which she received it are not satisfactorily proven. Plaintiff claims she received $1,500 from her husband and attempts to support such contention by the testimony of her husband, who endeavored to account not only for his possession of the money but the source from which he received it. He testified that the one hundred dollar bills which plaintiff claims she deposited in her box were obtained by him from the Washington Park National Bank in exchange for smaller bills. While plaintiff’s husband was known at the bank, the tellers repudiated his statement and.denied that he ever had any such transaction with the bank or that he received one hundred dollar bills from either teller in exchange for small bills at the time he claims he did, or at any other time.

The case of Shoeman v. Temple Safety Deposit Vaults, 189 Ill. App. 316, is pertinent to the instant case both in law and fact. In the Shoeman case a thousand dollar bill was involved, and the proof there was, as here, that the money was placed in the box by Shoe-man, but when the box was next visited'by him it was not there to be found. While the .statement of claim in that case alleged negligence, the negligence wag not proven. This court, through Mr. Justice McSurely, held that the relation between the parties was that of bailor and bailee, and that as such bailee defendant was bound to exercise ordinary care for the preservation of the property intrusted to it, that such ordinary care was the care a prudent man would take of his own property, and then lays down the following principle of law:

“The defendant was not obliged to prove a condition of perfect safety in the management of the vault, and certainly not a condition beyond any possible speculative theory of insecurity. The case should not have gone to the jury upon the theory that unless the defendant proved its deposit boxes to be absolutely impregnable it would be held negligent. As we have said, the defendant was bound to use only ordinary care, and the evidence shows beyond any question that such a degree of care was exercised.”

While it is true that changes were made in the vaults of defendant between January and July, 1914, in the making of which the boxes were removed from one part of the vault to another, yet there is no evidence of any negligent act committed or suffered in the making of such changes and the moving of the boxes. The whole evidence considered, the case rests upon an averment that the money was placed in the box and that six months thereafter, when the box was opened by plaintiff, it was not found to be there, that therefore a case in the nature of res ipsa loquitur is made out, fixing liability on defendant without further proof, and thereby placing the burden upon defendant to exculpate itself by proof from the presumption of negligence thus said to obtain. Such, however, is not the law. On this theory the court submitted the cause" to the jury, which theory is substantially embodied in instruction number 4.

For the additional reason that no fact is stated in plaintiff’s statement of claim entitling her to maintain an action against defendant, it was error for the court to instruct the jury that if they found plaintiff had, by a preponderance of the evidence, made out her case as alleged in her statement of claim, and if they also found that defendant had used ordinary care and diligence in the premises, but had failed to meet and overcome such proof, then their verdict should be for the plaintiff.

As plaintiff has neither stated nor proven a case entitling her to recover in this action, the judgment of the Municipal Court is reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact. The court finds from the evidence that plaintiff has not proven defendant to be liable in the manner and form charged in her statement of claim, and, further, that plaintiff has failed to prove any actionable negligence against defendant in the matters set forth in her statement of claim.


text:
    Louis Rosenbluth, trading as Anchor Mills, Appellant, v. Heintz Food Company of Illinois, Appellee.
    Gen. No. 22,545.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 401

      —when evidence is sufficient to sustain claim of set-off. In an action to recover for the value of flour sold where defendant interposed a set-off claiming damages suffered by it by reason of the fact that plaintiff failed to deliver winter wheat flour as required by the contract, and in its stead had delivered corn flour, causing loss of two batches of biscuits, in the making of which the corn flour was used, evidence held sufficient to sustain the claim of set-off.
    2. Appeal and error, § 1414

      —when finding of trial court upon conflicting evidence will not be disturbed. The finding of a trial court upon conflicting evidence will not be disturbed on appeal where such finding is not contrary to the probative force of the evidence.
    Appeal from the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding. Heard in this court at the October term’, 1916.
    Affirmed.
    Opinion filed January 8, 1917.
    Rehearing denied January 22, 1917.
    Statement of the Case.
    Action by Louis Rosenbluth, trading as the Anchor Mills, plaintiff, against Heintz Food Company of Illinois, a corporation, defendant, to recover for flour sold and delivered at various times to defendant. From a judgment for defendant for $66.44 on a claim of set-off, plaintiff appeals.
    Richard T. Munzer, for appellant.
    No appearance for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    W. B. Fuller, for use of Nell E. Jordan, Appellee, v. Bridgeport Wood Finishing Company, Appellant.
    Gen. No. 22,565.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Garnishment, § 93

      —when answer must he taken as true. Where no issue is joined upon an answer in a garnishment action the averment of facts therein stand admitted and must be taken as true.
    2. Garnishment—when right of exemption is preserved hy garnishee. The assertion of the right of exemption of a debtor in an answer by the garnishee is sufficient to preserve such right to the debtor.
    3. Garnishment, § 35

      —what wages employer is required to answer for. Under section 14 of the Garnishment Act as amended in 1901 (J. & A. If 5949), the employer is not required to answer lor the wages earned by a wage earner after the service of the writ.

      Appeal from the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed January 8, 1917.
    Statement of the Case.
    Action of garnishment by W. B. Fuller, for the use of Nell E. Jordan, plaintiff, against the Bridgeport Wood Finishing Company, a corporation, defendant. From a judgment against defendant for $560 as garnishee and ordering that $167.10 thereof be recovered for the use of the beneficial plaintiff, defendant appeals.
    Elbert C. Ferguson, for appellant.
    No appearance for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Exemptions, § 5 —when wages of nonresident are exempt from garnishment. A nonresident debtor whose wages are earned in a foreign State is entitled to the exemption of the State of his residence.


text:
    I. M. Weingarden, Plaintiff in Error, v. Louis Weinberg and Isadore Weinberg, Defendants in Error.
    Gen. No. 22,728.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Apheai and erboe, § 854

      —what does not constitute a certificate of evidence. A document purporting to be a certificate of evidence is insufficient to constitute a certificate of evidence where it is not stated anywhere in it or in the certificate of the trial judge tnereto that it contains all the evidence in the case.

      Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 15, 1917.
    Statement of the Case.
    Action by I. M. Weingarden, plaintiff, against Louis Weinberg and Isadore Weinberg, defendants, to recover for breach of a contract whereby defendants agreed to receive plaintiff’s show for a certain period at a stipulated price. From a judgment finding the issues for the defendants,' on a trial before the court without a jury, plaintiff brings error.
    S. L. and Fred Lowenthal, for plaintiff in error.
    Adolph Marks, for defendants in error.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Municipal Coubt of Chicago, § 26 —how facts in a case of first class may he preserved for review. The Practice Act, sec. 81 (J. & A. If 8618), providing for preserving of facts in a cause for review by a bill of exceptions, stenographic report and certificate of evidence, governs first-class cases in the Municipal Court.

3. Municipal Coubt of Chicago § 29 —tphen presumed that judgment is sustained hy evidence. Without a bill of exceptions, certificate of evidence or stenographic report certifying that it contains all of the evidence heard upon the trial of a first-class case in the Municipal Court, unless such record is a prcecipe record, a court of review will presume that the judgment is sustained by the evidence heard upon the trial, and such judgment will not be disturbed upon review for errors of fact.


author: Mr. Presiding Justice O’Connor

text:
    D. I. Bushnell and R. W. Pommer, partners, trading as D. I. Bushnell & Company, Plaintiffs in Error, v. Henry H. Chester, trading as H. H. Chester & Company, Defendant in Error.
    Gen. No. 21,573.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1917.
    Rehearing denied January 29, 1917.
    Statement of the Case.
    Action by D. I. Bushnell and R. W. Pommer, partners, trading as D. I. Bushnell & Company, plaintiffs,, against Henry H. Chester, trading as H. H. Chester & Company, defendant, to recover the sum of $566.50 as damages alleged to have been sustained by reason of defendant’s failure to carry out a written contract for the sale of onion sets. From a judgment for costs in favor of defendant, plaintiffs bring error.

      Abstract of the Decision.
    1. Saxes, § 366

      —when fact that onion sets are not actually screened through sieve of required dimension does not bar recovery for breach of contract. Where a contract for the sale of a specified quantity of onion sets of specified varieties provides that the sets shall be screened through a sieve with a mesh of a specified dimension, the mere fact that the sets are not actually screened through a sieve with a mesh of such required dimension does not bar a recovery if the sets are of the size called for by the contract.
    2. Saxes—when contract may not be rescinded. A slight or partial neglect on the part of one of the parties to a contract of sale to observe some of the terms or conditions thereof will not justify the other party in at once abandoning the agreement.
    3. Saxes, § 373

      —when evidence is sufficient to. show that contract is substantially performed. In an action by. the purchaser of onion sets against the seller for breach of contract where it appeared that defendant agreed to sell a specified quantity of onion sets of a specified variety which were to be screened through a óne-inch mesh sieve and plaintiff refused to accept the first shipment merely on the ground that a few were too large, whereupon defendant refused to ship any more, evidence held sufficient to show that the contract was substantially complied with.
    Ashcraft & Ashcraft, for plaintiffs in error; Charles F. Eathbun, of counsel.
    Been F. Éunyan, for defendant in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Barney Nelson and Axel LeMoon, copartners, trading as Nelson & LeMoon, Defendants in Error, v. A. F. McKeown, Plaintiff in Error.
    Gen. No. 21,600.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1414

      —when finding of trial court will not be disturbed. The findings of the trial court upon conflicting evidence will not be disturbed on appeal especially where the trial court has had opportunity to see and hear the witnesses.
    2. Bailment—what compensation bailee is entitled to for storage of property. A garage proprietor with whom an automobile had originally been left for repairs and afterwards for storage, held entitled to a reasonable charge for storage of the car up to the time that the owner demanded possession of it.
    Error to the Municipal Court of Chióago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed January 17, 1917.
    Statement of the Case.
    Action by Barney Nelson and Axel LeMoon, copartners, trading as Nelson & LeMoon, plaintiffs, against A. F. McKeown, defendant, to recover for repairs and storage of defendant’s automobile and supplies furnished. From a judgment for plaintiffs for $134.68, defendant brings error.
    Edward A. Mechling, for plaintiff in error.
    S. T. Slawitsky, for defendants in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.