author: Mr. Justice Taylor

text:
    William Pumphrey, by Catherine Pumphrey, plaintiff in error, v. Chicago City Railway Company et al., trading as Chicago Surface Lines, defendants in error.
    Gen. No. 24,397.
    Action to recover for personal injuries by being struck by street ear. Judgment for defendants. Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed October 15, 1919.
    P. R. Boylan and Ben P. Richolson, for plaintiff in error. Robert J. Slater and Frank L. Kriete, for defendants in error; W. W. Gurley and J. R. Guilliams, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.


source: Caselaw Access Project

license: Public Domain

text:
    Samuel T. Chase, appellant, v. D. W. Bergey, appellee.
    Gen. No. 24,510.
    Action to recover for money loaned. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 15, 1919.
    Miller, Starr, Brown, Packard & Peekham, for appellant. No appearance for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Isabella Smith, plaintiff in error, v. City of Chicago, defendant in error.
    Gen. No. 24,538.
    Action to recover for personal injuries by fall on street, due to ice. Judgment for defendant. Error to the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed October 15, 1919.
    Joseph E.- Winterbotham, for plaintiff in error. No appearance for defendant in error.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    D. B. Federwitz, appellee, v. Temperance Beverage Company, appellant.
    Gen. No. 24,608.
    Action to recover for goods sold and delivered. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed.
    Opinion filed October 15, 1919.
    D’Ancona & Pflaum, for appellant. Baker & Holder, for appellee; William P. Schmidt, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Max Eisen, appellant, v. Max Kornreich and Jacob Rubenfeld, appellees.
    Gen. No. 24,689.
    Motion to revive judgment. Order denying motion. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed October 15, 1919.
    Max Robinson, for appellant. No appearance for appellees.
   Mr. Justice Taylor

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Warner Construction Company, plaintiff in error, v. Midland Terra Cotta Company, defendant in error.
    Gen. No. 24,891.
    Action for reimbursement for money paid under Workmen’s Compensation Act for death of employee. Judgment for defendant. Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed October 27, 1919.
    Shepard, McCormick, Kirkland, Patterson & Fleming, for plaintiff in error. Robert J. Folonie and Charles A. Scott, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Elspeth M. Conner, defendant in error, v. Borland-Grannis Company, plaintiff in error.
    Gen. No. 24,965.
    Suit to rescind contract of purchase of electric car, for breach of warranty. Judgment for plaintiff. Error to the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed October 27, 1919.
    Rehearing denied and order and judgment modified November 10, 1919.
    Isham, láneoln & Beale, for plaintiff in error; Cyrus H. Adams, Jr., of counsel. Ina M. R. Campbell, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding1 Justice McSurely

text:
    Andrew Sarna, by Mary Sarna and Oliver F. Roberts, defendant in error, v. Baltimore & Ohio Railroad Company and Baltimore & Ohio Chicago Terminal Railroad Company, plaintiffs in error.
    Gen. No. 25,009.
    Action to recover for personal injuries to child struck by train. Judgment for plaintiff. Error to the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    James M. Sheean and Charles D. Clark, for plaintiffs in error. Rose & Symmes, for defendant in error.
   Mr. Presiding1 Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    Anna L. Sears, appellee, v. Alex. Schwartz, appellant.
    Gen. No. 25,032.
    Action to recover rent. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    Louis I. Gottlieb, for appellant. Fred J. Crowley, for appellee; J. K. McMahon, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Guaranty Securities Company, appellee, v. E. Mushina, appellant.
    Gen. No. 25,055.
    Affirmed.
    Opinion filed October 27, 1919.
    Action to recover on promissory note. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in this court at the March term, 1919.
    H. Clay Calhoun, for appellant. George E. Greer, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Yellow Cab Company, appellee, v. Michael Abramoff and Harry L. Abramoff, trading as Abramoff Brothers, appellants. In the matter of the contempt of Michael Abramoff and Harry L. Abramoff.
    Contempt proceedings for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    Otto Sehusterman and Sumner C. Palmer, for appellants. D ’Ancona & Pflaum, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Continental & Commercial National Bank of Chicago, appellee, v. Oscar F. Brady and Thomas S. Brady, appellants.
    Gen. No. 25,073.
    Action to recover on promissory notes. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    Litsinger, Healy & Eeid, for appellants. Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Oscar W. Lundell, trading as Lundell Brothers, appellee, v. Chicago Arena Company, appellant.
    Gen. No. 25,104.
    Action to recover for goods sold and delivered. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    Adams, Childs, Bobb & Wescott, for appellant. S. M. Sehall, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Joseph Babka, appellant, v. Anton Wodnasky et al., appellees.
    Gen. No. 25,112.
    Suit to foreclose trust deed given to secure note. Judgment for complainant. Appeal from the Circuit Court of Cook county; the Hon. Kiekham Seanlan, Judge, presiding. Heard in this court at the March term, 3919.
    Affirmed.
    Opinion filed October 27, 1919.
    Walter True and James S. Wight, for appellant. Novak & Novak, for appellees.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Anton J. Cermak, bailiff, for use of Nicholas Hamel and Reliance Garage, appellee, v. Herman A. Muhlven et al. (defendants), on appeal of G. J. Arnold, appellant.
    Gen. No. 25,131.
    Action of debt on replevin bond. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. B. B. Hazen, Judge, presiding. Heard in this court at the March term, 1919.
    Appeal dismissed.
    Opinion filed October 27, 1919.
    Darrow, Sissman & Popham, for appellant. Sumner C. Palmer, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    North Side Buick Sales Company, appellee, v. Charles A. Straw, appellant.
    Gen. No. 25,143.
    Action of replevin. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Anton T. Zeman, Judge, presiding. Heard in this court at the June term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    P-. B. Boylan, for appellant. M. E. Gallion, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Dover

text:
    The People of the State of Illinois, defendant in error, v. Joseph Weil, plaintiff in error.
    Gen. No. 24,974.
    Prosecution for criminal conspiracy to obtain money by confidence game. Judgment of guilty. Error to the Criminal Court of Cook county; the Hon. Henry Guerin, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    Everett Jennings, D. B. Brillow and George W. McGurn, for plaintiff in error. Maelay Hoyne and Edward E. Wilson, for defendant in error.
   Mr. Justice Dover

delivered the opinion of the court.


author: Mr. Justice Dever

text:
    The People of the State of Illinois, defendant in error, v. Joseph Weil et al., plaintiffs in error.
    Gen. No. 24,975.
    Prosecution for criminal conspiracy to obtain money by confidence game and false pretenses. Judgment of guilty. Error to the Criminal Court of Cook county; the Hon. Henry Guerin, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    Everett Jennings, D. B. Brillow and George W. McGurn, for plaintiffs in error. Maelay Hoyne, Edward E. Wilson, Edwin J. Baber and Grover C. Niemeyer, for defendant in error.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    William Moore O’Connor, by Frank O’Connor, defendant in error, v. Joseph Lipinski et al., trading as Gamm Brothers, plaintiffs in error.
    Gen. No. 25,003.
    Action to recover for personal injury to hand of 6-year-old child, caught between cable and pulley. Judgment for plaintiff. Error to the Circuit Court of Cook county; the Son. Bichard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1919.
    Beversed and remanded.
    Opinion filed October 27, 1919.
    Lighthall & Carlson, for plaintiff in error Joseph Lipinski; August G. Urbanski, of counsel. Shaeffer & Foster, for plaintiff in error Isadore Sharpe. Wilkerson, Cassels & Potter, for plaintiffs in error Julius and Isadore Gamm. Sass & Hood, for defendant in error.
   Mr. Justice Dover

delivered the opinion of the court.


text:
    Carl Smedberg, appellee, v. John M. Berry, appellant.
    Gen. No. 25,076.
    Action to recover balance due for services rendered and material and money furnished defendant. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Heard in this court at the March term, 1919.
    Be-versed and remanded.
    Opinion filed October 27, 1919.
    C. Arch Williams, for appellant. Scott O. Cavette and Charles C. Spencer, for appellee.
   Mr. Justice Dover

delivered the opinion of the court.


text:
    Charles H. Dodge, appellee, v. J. J. Moser and Mrs. J. J. Moser, appellants.
    Gen. No. 25,097.
    Action on account for services rendered and material furnished by dentist. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    J. J. Moser, for appellants. Dillard B. Baker, for appellee.
   Mr. Justice Dover

delivered the opinion of the court.


text:
    Cornelius J. McAuliffe, administrator of the estate of Harry A. Doering, deceased, appellee, v. The Peoples Life Insurance Company, appellant.
    Gen. No. 25,107.
    Action of assumpsit on insurance policy. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    Rehearing denied November 10, 1919.
    MeSurely, P. J., dissenting.
    Walter H. Eckert and Warren B. Buckley, for appellant. Edward J. Kelley, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    City of Chicago, appellee, v. Chernbino Jacobucci, appellant.
    Gen. No. 25,088.
    Prosecution for violation of Chicago Municipal Code, secs. 2844-2847, for offering to sell at overweight. Judgment of guilty. Appeal from the Municipal Court of Chicago; the Hon. Hugh B. Stewart, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    Cairoli Gigliotti, for appellant. Samuel A. Ettelson and Harry B. Miller, for appellee; Daniel Webster, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Edward E. Esch, appellee, v. E. J. Schager, appellant.
    Gen. No. 25,111.
    Action to recover damages for breach of contract of purchase of personalty. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed October 27, 1919.
    Rehearing denied November 10, 1919.
    Carnahan & Slusser, for appellant. William A. Jennings, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Whitaker-Glessner Company, appellee, v. Mathis Brothers Company, appellant.
    Gen. No. 25,128.
    Action to recover for goods sold and delivered. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    William B. Jarvis, for appellant. Chapman, Cutler & Parker, for appellee; Ben M. Smith and Stanley Rich, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Leopold Cohen Iron Company, appellant, v. The Loewenthal Company, appellee.
    Gen. No. 25,148.
    Action to recover for goods sold and delivered. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    George B. Cohen, for appellant. Henry M. Goldsmith, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Higbee

text:
    Fourth District.
    John L. Anselment, defendant in error, v. Louisville & Nashville Railroad Company, plaintiff in error.
    Action to recover for personal injuries to passenger in alighting from train. Judgment for plaintiff. Error to the Circuit Court of Hamilton county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 6, 1919.
    Rehearing denied November 6, 1919.

      J. M. Hamill and C. P. Hamill, for plaintiff in error. J. S. Sneed and H. Anderson, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Union Trust and Savings Bank, appellee, v. John C. Hall et al., appellants.
    Suit to foreclose mortgage on leasehold interest. Decree for complainant. Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    T. M. Webb, for appellants. M. Millard, for appellant Hlmo Hotel Co. W. E. Hadley and W. C. Connett, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Marie Goodwin, appellee, v. Harry Gregory, appellant.
    Bastardy proceeding. Judgment of guilty. Appeal from the County Court of Wayne county; the Hon. J. V. Heidinger, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    B. F. Thomas and Richard L. Boggs, for appellant. Roscoe Forth, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Fred Ulen, defendant in error, v. Hugh Mason, plaintiff in error.
    Action to recover money paid for live stock which was not delivered. Judgment for plaintiff. Error to the Circuit Court of Pulaski county; the Hon. D. T. Hartwell, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    Charles L. Rice, for plaintiff in error. O. S. Miller, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Mary Berkovitz et al., appellants, v. Mathias Henderser et al., appellees.
    Action of debt on injunction bond. Judgment for plaintiffs. Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed as modified.
    Opinion filed November 7, 1919.
    J. B. Harris, for appellants. Harold J. Bandy, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Mark Meyerstein, defendant in error, v. St. Louis Merchants Bridge Terminal Railway Company, plaintiff in error.
    Action to recover for personal injuries and injury to automobile in collision with freight car. Judgment for plaintiff. Error to the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.

      Opinion filed November 7, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    J. L. Howell and Kramer, Kramer & Campbell, for plaintiff in error. J. M. Bandy, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Farmers State Bank of Brookport, appellant, v. R. C. Leeper et al., appellees.
    Suit to reform mortgage for misdescription, and to foreclose same. Decree for respondents. Appeal from the Circuit Court of Massac county; the Hon. D. T. Hartwell, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    Fred E. Young, for appellant. H. A. Evans, for appellee John Deere Plow Co. Mulkey & Leonard, for appellee G. S. Corley.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Lenora Turner, formerly Lenora Smith, appellee, v. Jack Halstead et al., appellants.
    Action to recover under Dramshop Act, sec. 9 (J. & A. If 4609), for death of plaintiff’s decedent from fall due to intoxication. Judgment for plaintiff against two of defendants. Appeal from the Circuit Court of Franklin county; the Hon. B. E. Hickman, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    Mooneyham & Lewis and W. P. Seeber, for appellants. Curtis Williams, G. A. Hickman and L. B. Skipper, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Catherine Ryan et al., appellees, v. Clemens Vahling et al., appellants.
    Creditor’s bill. Decree for complainants. Appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed November 7, 1919.
    Jacob Zimmerman and Byron Piper, for appellants. G. P. Denton, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    J. J. Wuellner & Sons, appellant, v. Stanard-Tilton Milling Company, appellee.
    Suit by building contractor for accounting, to declare lien and to foreclose same. Decree for complainant. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    Kinoaly & Kinealy and Burroughs & Ryder, for appellant. D. G. Williamson and J. F. Beck, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Alexander Schoumanoff, appellee v. D. R. Staikoff et al., appellants.
    Suit to enforce specific performance of contract of purchase of corporate stock, to enjoin judgment creditors from interfering with complainant’s rights in the stock, and to enjoin the corporation from issuing stock without authority of the stockholders. Decree for complainant. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed November 7, 1919.
    Opinion modified and refiled and rehearing denied December 13, 1919.
    J. C. Steele and T. T. Hinde, for appellants. Burroughs & Ryder, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    First State Bank of Mt. Carmel, plaintiff in error, v. Elbert Epler, defendant in error.
    Action by assignee to recover on promissory note. Judgment for defendant. Error to the Circuit Court of Wabash county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    Howard P. French, for plaintiff in error. Conrad Sehul, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Vincennes Bridge Company, appellant, v. Eldorado Drainage District of Saline County, appellee.
    Assumpsit to recover contract price of bridges constructed by plaintiff. Judgment against plaintiff on demurrer. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    James M. Endieott, A. E. Somers and W. C. Kane, for appellant. Lewis, Ronalds & Lewis, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    T. E. Kneedler, appellee, v. Adam Schickendanz, appellant.
    Action to recover balance due on contract price of milk. Judgment for plaintiff. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    James O. Miller, for appellant. Lester J. Grigsby, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Eagleton

text:
    The People of the State of Illinois, defendant in error, v. Silvo Pucci, plaintiff in error.
    Prosecution for selling intoxicating liquor in anti-saloon territory. Judgment of guilty. Error to the County Court of Franklin county; the Hon. Nealy I. Glenn, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed November 7, 1919.
    R. E. Smith and W. P. Seeber, for plaintiff in error. Roy C. Martin and H. E. Morgan, for defendant in error. ■
   Mr. Justice Eagleton

delivered the opinion of the court.


text:
    Caroline Heafner, administratrix of the estate of John Heafner, deceased, plaintiff in error, v. Chicago & Alton Railroad Company, defendant in error.
    Action to recover for wrongful death of a trackman by being struck by cars. Judgment for defendant. Error to. the Circuit Court of Madison county; the Hon. J. P. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    J. B. Harris, for plaintiff in error. C. E. Rope, for defendant in error; Silas H. Strawn, of counsel.
   Mr. Justice Eagleton

delivered the opinion of the court.


text:
    Sarah C. Sims, appellee, v. Central Business Men’s Association, appellant.
    Action to recover on accident policy for accidental death by fall. Judgment for plaintiff. Appeal from the Circuit Court of Madison county; the Hon. J. E. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Helmer, Moulton, Whitman So Whitman, for appellant; Prank A. Helmer, Charles R. Holton and Terry, Gueltig So Powell, of counsel. R. Guy Kneedler and Geers & Geers, for appellee.
   Mr. Justice Eagleton

delivered the opinion of the court.


text:
    John H. Joyce, administrator of the estate of Charles H. Joyce, deceased, appellee, v. East St. Louis Railway Company, appellant.
    Action to recover for wrongful death due to collision between street car and automobile in which decedent was riding. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    Dan MeGlynn, for appellant. Kramer, Kramer So Campbell and R. E. Costello, for appellee.
   Mr. Justice Eagleton

delivered the opinion of the court.


text:
    J. J. Allen, appellee, v. H. J. Bayer, appellant.
    Action to recover money paid for stolen automobile. Judgment for plaintiff. Appeal from the Circuit Court of Madison county; the Hon. J. P. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 7, 1919.
    M. R. Sullivan, for appellant. William J. Baxter, for appellee.
   Mr. Justice Eagleton

delivered the opinion of the court.


author: Per Curiam.

text:
    Louisa Storment et al., appellants, v. Aetna Insurance Company, appellee.
    Appeal from the Circuit Court of Jefferson county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded on authority of Storment v. Hartford Fire Ins. Co., ante, p. 287.
    Opinion filed November 7, 1919.
    Kagy & Vandervort, for appellants; Curtis Williams, of counsel. Charles B. Obermeyer and Norman H. Moss, for appellee.
   Per Curiam.


author: Mr. Justice McBride

text:
    Isaac Heinmann and Marx Heinmann, trading as Heinmann & Heinmann, appellees, v. Baltimore & Ohio Southwestern Railroad Company, appellant.
    Action to recover damages for injury to horse while being loaded in stock car for shipment. Judgment for plaintiff. Appeal from the Circuit Court of Wayne county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed November 7, 1919.
    Kramer, Kramer & Campbell and Creighton & Thomas, for appellant; Morrison R. Waite and William A. Eggers, of counsel. Mills & Forth, for appellees.
   Mr. Justice McBride

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Second District.
    The People of the State of Illinois, defendant in error, v. Frederick Schmidt, plaintiff in error.
    Gen. No. 6,656.
    Prosecution for selling intoxicating liquor in anti-saloon territory and for maintaining a liquor nuisance. Judgment of guilty. Error to the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Rehearing denied and opinion slightly modified October 8, 1919.
    Albert Huber, for plaintiff in error. Floyd E. Thompson, Edward L. Eagle and Benjamin S. Bell, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    J. H. Forquer, appellee, v. C. B. Thomas et al., appellants.
    Gen. No. 6,657.
    Action by real estate brokers to recover commission for sale of land. Judgment for plaintiff. Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Rehearing denied October 8, 1919.
    R. D. Robinson, for appellants. Williams, Lawrence, Green & Gale and Welsh & Zetterholm, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Carnes

text:
    Mamie Thompson, appellee, v. Chicago, Ottawa & Peoria Railway Company, appellant.
    Gen. No. 6,581.
    Action to recover for personal .injury in collision between train and carriage in which plaintiff was riding. Judgment for plaintiff. Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1919,
    Affirmed.
    Opinion filed July 18, 1919.
    Rehearing denied and opinion modified October 8, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Duncan & O’Conor, for appellant. D, R. Anderson and Butters & Clark, for appellee. ^
   Mr. Justice Carnes

delivered the opinion of the court.


text:
    American Hominy Company, appellant, v. Manhattan Farmers’ Grain Company, appellee.
    Gen. No. 6,660.
    Action to recover damages for breach of contract to deliver corn purchased by plaintiff. Judgment for defendant. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    Murphy & Anderson and Vail, Pogue & Allen, for appellant. O’Donnell, Donovan & Bray, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


text:
    B. & M., Inc., defendant in error, v. Delaware, Lackawanna & Western Railroad Company, plaintiff in error.
    Gen. No. 6,685.
    Action to recover for goods lost in shipment. Judgment for plaintiff. Error to the Circuit Court of Peoria, county;-the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    Stevens, Miller & Elliott, for plaintiff in error. Dailey, Miller, McCormick & Radley, for defendant in error.
   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Emma F. Allen, appellee, v. Estate of Henry P. Allen, deceased, appellant.
    Gen. No. 6,686.
    Claim against decedent’s estate for services rendered decedent’s wife. Judgment for claimant. Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Frank J. Bowman and Henry C. Ward, for appellant. Doerfler, Bender & McIntyre and McCalmont & Ramsay, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Joseph N. Hill, appellee, v. Dorothy Sten, appellant.
    Gen. No. 6,696.
    Action by assignee- of vendee of real property on forfeiture of contract of sale, to recover money paid under contract of purchase. Judgment for plaintiff. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    J. B. & J. B. Oakleaf, for appellant. Walter S. McClurg, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    Jacob H. Krause, appellant, v. David Goldman et al., appellees.
    Gen. No. 6,670.
    Suit to enjoin violation of contract of sale of business and goodwill. Dismissal for want of equity. Appeal from the Circuit Court of Winnebago county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    Fisher, North, Welsh & Linseott and E. M. St. John, for appellant. Reynolds & Reckhow and Charles W. Ferguson, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Herman Johnson, appellee, v. Rockford Malleable Iron Works, appellant.
    Gen. No. 6,691.
    Action to recover for personal injuries to employee not under Workmen’s Compensation Act, resulting from defective truck and premises. Judgment for plaintiff. Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    Rehearing denied November 21, 1919.
    Gallagher, Kohlsaat & Rinaker, for appellant; Samuel M. Rinaker, of counsel. Roy F. Hall, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Catherine Risk, appellant, v. Albert Sleyman, appellee.
    Gen. No. 6,625.
    Action of seduction to recover damages. Judgment for defendant. Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed October 24, 1919.
    Frank Gillespie, W. W. Whitmore and Clarence W. Heyl, for appellant; DeMange, Gillespie & DeMange; Sterling, Livingston & Whitmore and Heyl & Heyl, of counsel. Dailey, Miller, McCormick & Radley, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Alvah G. Turner, appellee, v. Fox & Illinois Union Railway Company, appellant.
    Gen. No. 6,692.
    Action to recover for injury to passenger on electric car by being thrown from car in act of alighting. Judgment for plaintiff. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed October 24, 1919.
    Mighell, Gunsul & Allen and Cornelius Reardon, for appellant. Frank H. Hayes and H. B. Smith, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Gus Stavrakas, plaintiff in error, v. Nick Stavrakas, defendant in error.
    Gen. No. 6,653.
    Assumpsit for money loaned and labor performed. Judgment against plaintiff. Error to the City Court of DeKalb; the Hon. H. W. McEwen, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed November 11, 1911.
    J. E. Matteson and A. G. Kennedy, for plaintiff in error. Faissler, Fulton & Roberts, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered -the opinion of the court,


author: Mr. Presiding Justice Miehaus

text:
    Sarah Gill, executrix, appellant, v. Archibald Kosier et al., appellees.
    Gen. No. 6,667.
    Claim against decedent’s estate for services rendered decedent. Judgment for claimant. Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed November 11, 1919.
    A. J. Clarity and Burrell & James, for appellant. Robert P. Eckert, for appellees.
   Mr. Presiding Justice Miehaus

delivered the opinion of the court.


text:
    Wayne Burnell, appellee, v. John Schroeder, appellant.
    Gen. No. 6,741.
    Action to recover damages to surrey, harness and horse in collision with automobile. Judgment for plaintiff. Appeal from the Circuit Court of Marshall county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed December 17, 1919.
    B. W. Wright, for appellant. Barnes, Magoon & Black, for appellee.
   Mr. Presiding Justice Miehaus

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Shelby Vaughn, plaintiff in error.
    Gen. No. 6,675.
    Prosecution for assault with deadly weapon. Judgment of guilty. Error to the County Court of Henderson county; the Hon. James W. Gordon, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed December 17, 1919.
    M. E. Nolan and H. A. Weld, for plaintiff in error. Albert F. Pawley and Scofield^ Hartzel & Califf, for defendant in error.
   Mr. Justice Dibell delivered the opinion of the court.


text:
    E. B. Doolittle et al., appellants, v. M. A. Kepple, appellee.
    Gen. No. 6,732.
    Action to recover commission for sale of real estate. Judgment for defendant. Appeal from the Circuit Court of Lake county; the Hon. Claire O. Edwards, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed December 17, 1919.
    Cooke, Pope & Pope, for appellants; John D. Pope, of counsel. Martin C. Decker, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Julia E. Laymon, appellee, v. Estate of Henry Francis, deceased, appellant.
    Gen. No. 6,758.
    Claim against a decedent's estate for services rendered decedent. Judgment for claimant. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge,-presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed December 17, 1919.
    F. A. Ortman and B. R Thompson, for appellant. E. A. Simmons, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.


text:
    City of Rockford, appellant, v. John T. LaForge & Sons, Inc., appellee.
    Gen. No. 6,765.
    Prosecution for violation of city ordinance relating to collecting and hauling of garbage. Judgment of acquittal. Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed December 17, 1919.
    William D. Knight and David D. Madden, for appellant; Robert New, of counsel. Roy F. Hall and I. J. Monahan, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.


author: Mr. Justice Waggoner

text:
    Third District.
    Leo W. Bredehoft and Albert Ball, trading as Bredehoft & Ball, defendants in error, v. Walter L. Ross, receiver of Toledo, St. Louis & Western Railroad Company, plaintiff in error.
    Action to recover damages for freezing of potatoes in transit. Judgment for plaintiff. Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 9, 1919.
    Rehearing denied October 14, 1919.
    C. E. Pope and H. F. Driemeyer, for plaintiff in error. Lindley, Penwell & Lindley, for defendants in error; Walter C. Lindley, of counsel. ,
   Mr. Justice Waggoner

delivered the opinion of the court.


text:
    Martha M. Logan, appellee, v. Mutual Life Insurance Company of New York, appellant.
    Action to recover on life insurance policy. Judgment for plaintiff. Appeal from the Circuit Court of Moultrie county; the Hon. G-. A. Sentel, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 9, 1919.
    Opinion modified and refiled October 15, 1919.
    Winston, Strawn & Shaw and J. L. McLaughlin, for appellant; Frederick L. Allen, Silas H. Strawn and James H. Winston, of counsel. Whitley & Fitzgerald and Mills Bros., for appellee; John A. Walgren, of counsel.
   Mr. Justice Waggoner

delivered the opinion of the court.


text:
    American Trust & Savings Bank, v. City Electric Railway Company. James J. Finn, plaintiff in error, v. Fannie O. Wetmore, defendant in error.
    Contempt for violation of order to master in chancery to turn over funds in his hands. Error to the Circuit Court of Macon county; the Hon. William K, Whitfield, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed July 9, 1919.
    Rehearing denied October 14, 1919.
    James J. Finn, per se, Redmon, Hogan & Redmon and Whitley &
    Fitzgerald, for plaintiff in error. Vail, Pogue & Allen, for defendant in error.
   Mr. Justice Waggoner

delivered the opinion of the court.


author: Mr. Presiding Justice Graves

text:
    Central Trust Company of Illinois, successor in trust of Western Trust & Savings Bank, as conservator of the estate of William H. Orendorff, appellant, v. Ulysses G. Orendorff, administrator of the estate of Mary L. Orendorff, et al., appellees.
    Bill to have certain shares of corporate stock in possession of respondent, and claimed by him as his property, to belong to the estate of plaintiff’s decedent. Decree dismissing bill for want of equity. Appeal from the Circuit Court of Fulton county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Frederick K. Gustin, Burnett M. Chiperfield, Glande E. Chiperfleld, Edward C. Craig and Donald Bi Craig, for appellant. Mayer, Meyer, Austrian & Platt and Harvey H. Atherton, for appellees.
   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Howard Vaughn, appellee, v. W. C. Bates et al., executors of the will of E. W. Bates, and Latham Coal & Mining Company, appellants.
    Bill to set aside the sale of shares of corporate stock on ground of fraud. Decree for complainant. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    James E. Miller and Beach & Trapp, for appellants. McCormick & Murphy, for appellee.
   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Joseph Pierson et al., appellees, v. O. E. Lawyer, appellant.
    Action for forcible detainer. Judgment for plaintiffs. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    Rehearing denied December 29, 1919.
    L. E. Stone, for appellant. Conkling & Irwin and John G. Friedmeyer, for appellees.
   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Charles Crowder, appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, appellant.
    Assumpsit to recover for labor and material furnished in painting building. Judgment for plaintiff. Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed October 21, 1919.

      George B. and George M. Gillespie, for appellant; Frank L. Little-ton and Vause & Kiger, of counsel. T. N. Gofer, for appellee.
   Mr. Presiding Justice Graves

delivered the opinion of the court.


author: Mr. Presiding Justice Eldredge

text:
    Edward L. Brya, executor of the estate of John Thrash, deceased, appellant, v. Perry Thrash, appellee.
    Action of trover to recover value of promissory note. Judgment for defendant. Appeal from the Circuit Court of Champaign county; the Hon. Franklin P. Boggs, Judge, presiding. Heard in this court at the October term, 1917.
    Beversed with finding of facts.
    Opinion filed October 21, 1919.
    Green & Palmer, for appellant. Dobbins & Dobbins, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    Henry J. McDonald, appellant, v. Matthew B. McDonald, appellee.
    Suit to set aside will. Dismissal of bill for failure to file cost bond. Appeal from the Circuit Court óf McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    Mr. Justice Waggoner took no part in the consideration of this case.
    E. W. Painter, J. E. Maley and B. C. Hunt, for appellant. Lybarger & Hillyer and Flack, Flack & Kerman, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Mary G. Bell, by People’s Bank, conservator, v. John H. Wood et al. John H. Wood, plaintiff in error, v. Ora Gridley, defendant in error.
    Error to the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed on authority of Gridley v. Wood, ante, p. 473.
    Opinion filed October 21, 1919.
    Sterling, Livingston & Whitmore, for plaintiff in error; Sigmund Livingston, of counsel. A. E. and B. C. DeMange, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    William P. Shade, surviving partner of P. H. Hunt & Company, appellee, v. City of Taylorville, appellant.
    Action to recover balance due under paving contract. Judgment for plaintiff. Appeal from the Circuit Court of Christian county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Edward E. Adams, for appellant. L. A. Mills and Mills Bros., for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    State Bank of Chicago, appellee, v. W. H. Whitaker, appellant.
    Action to recover on promissory notes. Judgment for plaintiff. Appeal from the Circuit Court of Shelby county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    Whitaker, Ward & Pugh, for appellant. Chafee, Chew & Baker, ■for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    T. S. Taylor, defendant in error, v. O. E. Lawyer, plaintiff in error.
    Action of replevin. Judgment for plaintiff. Error to the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    L. E. Stone, for plaintiff in error. Barber & Barber, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    William F. Sorrells, Appellee, v. Springfield Consolidated Railroad Company, Appellant.
    1. Master and servant, § 716

      —when questions of instructions to motorman and his violation thereof are for jury. In an action by an employee to recover for personal injuries received through a collision while acting” as motorman of defendant’s street car, where the evidence is conflicting as to what instructions plaintiff received regarding the operation of his car and whether he violated those instructions, such questions are for the jury.
    2. Master and servant, § 716*—when question of master’s negligence is for jury. In an action by an employee to recover for personal injuries received through the collision of the car of which he was motorman with another car of defendant, on a foggy morning, it is for the jury to determine whether defendant was negligent in the operation of such car in not holding it at an intermediate station hut running it to the end of the line and returning without stopping at such station, knowing plaintifi’s car to be somewhere ahead of it in the fog and that he expected such other car to wait at the station.
    3. Appeal and error, § 800*—when Appellate Court will not pass on ruling on motion for change of venue. The Appellate Court will not pass upon the propriety of the trial court’s ruling upon a motion for a change of venue unless the motion, the evidence heard thereon and the trial court’s decision have been preserved in the record by a bill of exceptions.

      4. Appeal and errob, § 1094

      —necessity that bridf give page of abstract where erroneous evidence appears. Where errors are urged in regard to the admission of evidence, the page of the abstract where the error appears must be referred to in the .brief.
    Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    A. M. Fitzgerald and P. B. Warren, for appellant.
    W. St. J. Wines, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee - recovered a judgment against appellant in the Circuit Court of Sangamon county in an action on the case for personal injuries for the sum of $2,500, to reverse which this appeal is prosecuted.

Appellant, at the time of the injuries complained of, operated a system of street cars in 'the ’ City of Springfield which included what was commonly known as the “Smelter line” which consisted of a single line of track running north from Sangamon avenue for a distance of over 2 miles. This line was used largely by miners who worked in several different mines located along its route. Prior- to January, 1917, appellant operated what is commonly called in the testimony a “big” car, which made the round trip from Sangamon avenue to the north end of the line and back every 30 minutes. It was found, however, that during the early hours in the morning when the miners were going to work and the late hours in the afternoon when they were returning therefrom, this car was not sufficient to accommodate the number who were required to be transported. Appellant thereupon placed in operation during those hours another

car commonly called the “little” car which, the evidence introduced for appellant tends to show, was to he a trailer to the big car, that is, a car which would follow immediately behind the big car. Appellee was the motorman of the little car. One of the stops made by .these cars was at the Devereaux mine. South of the Devereaux was another stopping place known as the Smelter or Shanty stop. At the north end of the line were the Powder Works. The little car was put in operation with appellee as motorman on January 4, 1917, and continued to operate until January 29, when the accident happened. On the morning of this day, the big car left Sangamon avenue at about 7:00 a. m., and the little car started on its trip about 7:07 a. m. It appears that a train of the Chicago & Alton Railroad Company arrived each morning a few minutes after 7 o’clock at Sangamon avenue and frequently carried a number of persons working in the mines mentioned who transferred to the cars operated by appellant to be taken thereon to the different mines where they worked. This train is called by the witnesses the “Peabody” train, and its arrival at Sangamon avenue varied on different mornings from 3 to 9 minutes after 7 o ’clock. Appellee, as motorman of the little car, instead of immediately following the big car on the morning in question^ waited until the arrival of the Peabody train at about 7:07 o’clock. The morning was very foggy and objects could be seen in front of the car for a distance of not over 30 feet. The little car started about 7 1-2 minutes after 7 and made its first stop at the Smelter or Shanty stop and was proceeding very slowly through the fog towards the second stop which would be at the Devereaux mine. The big car had gone to the end of the line and was returning and on account of the fog the two cars collided, in consequence of which appellee received the injuries complained of.

Appellant had declined to he bound by the provisions of the Workman’s .Compensation Act, and its contention in this court is that it was guilty of no negligence and that the proximate cause of the accident was the negligence of appellee in failing to operate the little car in accordance with his orders. Proofs introduced by appellant tend to show that it was the duty of appellee to immediately follow the big car on these trips keeping behind it a distance of not over 2 blocks and that appellee was never instructed to wait for the arrival of the Peabody train before starting on his trips, and it is urged that if appellee had immediately started the little car after the departure of the big car, the accident would not have happened. The proofs for appellee tend to show that, before he was assigned as motorman .of the little car, he was directed by the officers of the company to take a trip over the line and arrange with the niotorman of the big car the best way to operate the cars and that they had arranged that the big car should leave at 7 o ’clock a. m. and the little car immediately after the arrival of the Peabody train, and when the big car arrived at the Devereaux mine, it would wait until the arrival of the little car so that such passengers as might be on the little car who desired to go to the north end of the line could be transferred to the big car, which would then proceed to the north end of the line while the little- car would return from the Devereaux mine to Sangamon avenue, and that on the morning in question the big car did not wait at the Devereaux mine for the little car, but proceeded to the north end of the line and on its return trip did not stop at all at the Devereaux mine, but proceeded straight through until it collided with the little car. There is a conflict of evidence as to what th¿ instructions were as to the operation of appellee’s car, but thé fact that the cars had been operated during the entire time that the little car had been used, in accordance with the method testified to by appellee, strongly corroborates his contention in the matter. However, what the instructions to appellee were in regard to the operation of the little car and whether he violated those instructions were questions of fact to be determined by the jury, and two juries have determined them in favor of appellee. Whether appellant was negligent in the operation of the big car by not waiting at the Devereaux mine until the little car had reached there, and by proceeding to the north end of the line and returning without stopping, knowing that the little car was ahead of it' somewhere in the fog and knowing that the motorman of the little car had a right to expect the big car to wait for it at the Devereaux station, was also a question of fact which, has been determined adversely to appellant.

A motion for a change of venue from the county of Sangamon was made by appellant in the court below and was overruled. The motion was supported by several affidavits and a large number of counteraffidavits were filed by appellee. Neither the motion, the affidavits nor the decision of the court thereon had been preserved in the record by a bill of exceptions. A court of appeal cannot pass upon the propriety of a court’s ruling upon a motion of this kind unless the motion together with the evidence heard thereon and the decision of the court have been preserved in the record by a bill of exceptions. Heacock v. Hosmer, 109 Ill. 245; People v. Ellsworth, 261 Ill. 275.

It is urged that the court erroneously permitted the declaration to go to the jury. We are not referred to any page in the abstract of record where this alleged error occurs. The abstract consists of one hundred pages and there is nothing in the index thereto which would guide us in our search. We have repeatedly held, but where errors are urged in regard to the admission of evidence, the page of the abstract where the error appears must be referred to in the brief so that this court can examine the same. We do not consider the damages to be excessive for the injuries sustained. No other errors are presented for review and the judgment is affirmed.

Affirmed.


text:
    City of Mt. Sterling, Illinois, Appellee, v. John R. Buss, Appellant.
    1. Municipal corporations, § 864

      —when evidence sufficient to sustain finding of guilty wider complaint alleging keeping of stallions, etc., in violation of ordinance. Where an ordinance provides that no person “shall within the corporate limits of said city keep nor stand for breeding purposes any stallion (or) jackass * * *; and that such keeping, standing or breeding is 'declared a nuisance,” and imposes a penalty on any person who shall so keep or" breed any such animal contrary to its provisions, one who keeps stallions and jacks within the corporate limits may, be found guilty under a complaint charging him with a violation of the ordinance by keeping and standing stallions and jacks for breeding purposes, notwithstanding the evidence shows that mares were not served within the corporate limits but were taken outside for such purpose.
    2. Municipal corporations, § 868*—construction of ordinance as to penalty for violation: Where an ordinance provides that upon conviction of a violation of its provisions, a certain penalty shall be imposed for “each first offense” and a penalty for “each and every offense thereafter,” the words “each first offense” include all violations proven on the first prosecution of a person charged with having violated it, while the words “each and every offense thereafter” have reference to subsequent violations.
    3. Criminal law, § 606*—necessity to second offense of conviction for first offense. A second offense, carrying with it a severer penalty, is not committed in law until there has been a conviction for a first offense.

      Appeal from the Circuit Court of Brown county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    R. E. Vandeventer and A. Clay Williams, for appellant.
    W. V. Baker and Scofield, Hartzell & Oaliff, for appellee.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

During the month of July, 1918, and prior thereto, appellant, John R. Buss, was the owner of a bam within three blocks from the court house in the City of Mt. Sterling, in which he kept two stallions and two jacks. A family lived directly across the street from the bam, another just west from it, another in the same block, and still others in the immediate vicinity.

On June 3, 1918, appellee passed an ordinance prohibiting the standing and breeding of certain male animals, and fixing a penalty for the violation thereof. The ordinance is numbered one hundred and forty-eight, and section one provides, “that no person * * * shall within the corporate limits of said city keep nor stand for breeding purposes any stallion (or) jackass * * *; and that such keeping, standing or breeding is hereby declared a nuisance, and that any person * * * who shall so keep or breed any such animal contrary to this ordinance, upon conviction thereof, shall forfeit and pay to said city the sum of twenty-five dollars for each first offense, and the sum of two hundred dollars for each and every offense thereafter.”

On July 10, 1918, complaint was made before a justice of the peace in the City of Mt. Sterling, wherein it was charged that appellant on or about the 5th and 8th days of July A. D. 1918, did violate section one of such ordinance by keeping and standing stallions and jacks for breeding purposes.

• A warrant was issued on this complaint, a trial had before a justice of the peace, and an appeal taken to the circuit court, wherein appellee recovered judgment against appellant for fifty dollars and costs.

On the trial had in the circuit court it was stipulated, by the parties, that the ordinance was legally passed, was in full force and effect at the time of the commencement of this suit and is still in force; that from July 1, 1918, and continuously thereafter, appellant was the owner of a barn in the residential portion and within the corporate limits of the City of Mt. Sterling, in which he kept two stallions and two jacks; that mares were not served in the barn but were served outside the corporate limits of the city during that time; that the stallions and jacks would be taken from the bam to a place outside the corporate limits, mares would be served by them, and then the stallions and jacks would be returned to the bam.

The evidence showed-that men would bring mares to appellant’s place, unhitch and take them into the bam for the purpose of determining whether or not they were in season. ' If in season the mare and a stallion or jack would be brought from the barn, and taken out of the corporate limits of the city, where the service would be had and the stallion or jack brought back. Appellant would ride to and from the place of service in the conveyances of the owners of the mares. People living in the vicinity of the barn testified to noises being made by the stallions when mares were taken into the barn, and that the jacks brayed day and night.

Appellant submitted to the court propositions to be held as the law, one of which was that the only keeping of a stallion in the city that would constitute a violation of the ordinance would be where the consummated act of breeding takes place within the corporate limits. Under such a construction of the ordinance stallions could be kept, for service, in the thickly-settled parts of a city or village, and the inhabitants would have to be annoyed by the indecent noises and other offensive accompaniments, which have been declared by the court to be offensive to the public sense of decency, detrimental to public morals and a source of annoyance and discomfort to others (Hoops v. Village of Ipava, 55 Ill. App. 94 [97]), and be without remedy if the service is deferred until the owners of the stallion and of the mare take the animals just outside the corporate limits. According to appellant’s idea of decency he can continue such practice, as he has been engaged in, from day to day and as often each day as mares are brought by patrons to his barn without violating the provisions of the ordinance in question, and that an effort to prevent his so doing is an infringement of his rights. In this he is mistaken.

The ordinance does not flatly prohibit the keeping of a stallion or jack within the corporate limits of the city, and appellant is not charged, in the complaint upon which a warrant was issued in this case, with so doing, but the ordinance does prohibit the keeping of such animals for breeding purposes, and the complaint charges appellant with keeping stallions and jacks within the corporate limits of the city, for breeding purposes. Under the stipulation and evidence in this ease it was proper .to render a judgment in favor of appellee.

Appellant says in his brief that he might have been fined twenty-five dollars for the first offense and two hundred dollars for the second offense, but never fifty dollars.

The words “each first offense” include all violations of the ordinance proven on the first prosecution of a person charged with having violated it. The words “each and every offense thereafter” have reference to subsequent violations. The penalty for such subsequent violations is eight times greater than that prescribed for each first offense, and is only to be imposed in cases where the lesser penalty was ineffectual. A second offense, carrying with it a severer penalty, is not committed in law until there has been a conviction for a first offense (8 R. C. L., p. 275), and the appellee could not have been fined twenty-five dollars for a first offense and two hundred dollars for a second offense, in this case, but was fined twenty-five dollars for each of two first offenses charged in the complaint, or fifty dollars.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Barnes Mr. Presiding Justice Matchett :

text:
    Sol Segal, by David Segal, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 24,735.
    1. Street railroads, § 75

      —when running car at speed of 10 mites an hour does not constitute negligence. In. an action to recover for injuries to a child struck by a street car while playing in paving material piled near the track which concealed him from sight until the car was only a few feet away, it cannot be said that it was negligence to run the car at a rate of 10 miles an hour in the middle of the block, neither roadway of which, by reason of paving repairs in progress, was being used for traffic.
    2. Street railroads, § 69*—when motorman’s failure to ring gong does not constitute negligence as to child. It cannot be said that a motorman operating a street car at a rate of 10 miles an hour in the middle of a block, neither roadway of which is being used for traffic, on account of paving repairs being in progress, is guilty of negligence, as to a child struck by the car, in failing to have rung the car gong, where the child was not visible, owing to the fact that he was concealed by the paving material, until too late for the accident to have been averted.
    3. Street railroads, § 69*—when motorman is not required to anticipate child’s presence near track. A motorman operating a car in the middle of a block which is being paved and is not being used for traffic is not required to anticipate that a child will be playing in the piles of paving material piled close to the rails.
    4. Street railroads, § 74

      —motorman not required to look in one place all the time. While it is a motorman’s duty to look along the whole line of the street to guard against collision with any one likely to come in the way of the car, he is not called on to look in any one place all of the time.
    5. Street railroads, § 131*—when evidence in action for injuries to child is insufficient to support finding of negligence. In an action to recover for injuries to a child struck by a street car while near the track, where it appears that the child, who was a few months under 8 years old, was playing between or about piles of paving material piled close to the track, that the block was not being used for traffic, by reason of repairs, and the car was going at about 10 miles an hour, that the child was not seen by passengers standing on the front platform until the car was within 15 to 25 feet of him, and not by the motorman, who was sitting, until the car was within 10 feet of him, field, that such evidence is insufficient to support a finding that the motorman would, by ordinary and reasonable care, have discovered the child in time to have stopped the car, or that defendant was negligent in operating the car or in omitting any duty owed the boy.
    6. Appeal and error, § 1300*—when plaintiff presumed to have *presented best evidence that he had, etc. On appeal, it will be assumed, in the absence of any adverse ruling precluding him from producing it, that plaintiff either presented the best evidence that he had or presented such evidence as he was willing to go to trial upon.
    7. Appeal and error, § 1803*—when Appellate Court will not, on reversing judgment for plaintiff, remand for new trial. On reversing a judgment for plaintiff, the Appellate Court will not remand the cause for a new trial merely because the record supports the inference that additional evidence favorable to him may be procured.
    8. Appeal and error, § 1810*—when final judgment will be entered on reversal. Where a reversal is predicated not on an error of law, but on a finding of fact which precludes recovery, there is no justification for remanding the cause for a new trial, and a final judgment will be entered reciting the fact as found.
    (Opinion of Hatchett, P. J., non-concurring on duty to remand.)

      Appeal from the Superior Court of Cook county; the Hon. Joseph H. Pitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with finding of fact.
    Opinion filed December 2, 1919.
    Charles Le Boy Brown, for appellant; John B. Duilliams and Egbert J. Slater, of counsel.
    James C. McShane, for appellee.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment for personal injuries received by a minor from having his hand run over by the wheels of one of appellant’s street cars while it was running south in Wentworth avenue, Chicago, at about the middle of the block between 37th and 38th streets, the latter, however, not extending west of Wentworth avenue. Paving work was in progress between,36th and 38th streets. The old pavement had been removed in the vicinity of the place of the accident west of the street car tracks and piles or rows of sand, crushed stone and gravel had been deposited between the west track and the west curb from 37th to 38th street. Neither the roadway east nor west of the track was in use for traffic. Much of the material had been dumped from automobile trucks while on the car track with their back wheels against the west rail of the track, thus dumping the material close to the west track. These piles were irregular in size and shape and extended from near the car track nearly over to the curb. In places they were 3 to 4 feet high and tended to obstruct the view along the street. They came close together at their base and in some places were from 2% to 5 feet apart. Plaintiff was then about 7 years and 9 months of age, and was playing between piles of this material near the west track.

As usual in cases where witnesses are called on to state their recollections of what occurred in a brief space of time they differed in details, especially with respect to the boy’k position with reference to the piles. They agreed that he was bending or stooping over or squatting down playing with the sand and pebbles, some testifying that his back was towards the car track, others that he was facing either south or towards the street car.' Six witnesses placed him on the ground between two piles close together, another on a north side of a pile, another on the south side of a pile', and another, a little boy less than 7 years of age at the time of the accident, in the middle of the slope of a' pile towards the track changing his position from time to time. Taking the evidence all together we think it tended 'to show that whatever way he was facing and whether at the bottom or on the side of a pile he was in a position not to be seen by the motorman until the car was in close proximity to him. Most of the testimony on that- subject was consistent with that of three witnesses standing at the time on the front platform of the. car to the effect that though they were looking in the direction it was going they did not see the boy until the car was within 15 to 25 feet of him, and the testimony of the motorman, who was sitting, that he did not see the boy until the oar was within 10 feet of him.

Just before discovery of the boy the motorman had thrown off the power to slow the car as it approached the workmen at a mixer about 125 to 150 feet away. The evidence indicates that the car was running about 10 miles an hour when the accident occurred, and it is undisputed that at such speed the car would run at least 50 feet before it could make an emergency stop. As, therefore, the. car could not, after the motorman saw the boy, have been stopped before practically its entire length had passed him, the motorman, thinking him far enough away from the car in any event not to be hit—as there was much evidence tending to show— did not ring the gong for fear of startling the boy and causing him to expose himself to greater peril. Whether the boy was hit by the overhanging portion of the car or in some manner slipped or fell towards it, as some evidence tends to show, cannot be said to have been established with any degree of certainty, and would be immaterial provided a preponderance of the evidence shows, as we think it does, that he was in such a position with reference to the piles of material as not to be discoverable until the- car was too near him to avert the accident. The rear wheels of the car ran over his hand, and it was after the front of the car passed the boy that a jar was noticed by the witnesses on the car and the motorman, which led the latter then to apply the emergency brake. When the car stopped its rear was about 20 feet beyond the boy.

Considering the place and circumstances, it certainly cannot be said if the car was going in the middle of a block only about 10 miles an hour and if the boy was not visible to the motorman until too late to avert the accident that there was negligence in operating the car either in the rate of speed-or in not ringing a warning bell. To say that he should have anticipated the presence of the child in such a place would be to require a higher degree of care under the circumstances than the law imposes.

While it was the motorman’s duty to look' along the whole line of the street to guard against collision with any one likely to come in- the way of the car, he was not called on to look in any one place all the time; and if those standing near him and looking forward did not see the boy before the car was within 15 to 25 feet of him, it must have been because his position between said piles prevented seeing him; and presumably the motorman, sitting as he was below their plane of vision, could not see him before, if as soon as, they did. We have carefully scrutinized the evidence in this case and think the great weight of the testimony is against the theory that the motorman would by ordinary and reasonable care have discovered the boy before it was too late to stop the car running at a reasonable rate of speed or that defendant was negligent as charged either in operating the car or omitting to perform any duty it owed to the boy under the circumstances.

Reaching this conclusion we need not consider the question of contributory negligence nor analyze the evidence more closely merely to discuss other inferences from detached portions of the evidence given by plaintiff’s witnesses who occupied less advantageous points of view and whose testimony as a whole is weakened by much uncertainty and considerable contradiction. Suffice it to say that comparing the character, intelligence and apparent reliability of the witnesses, their opportunities for observation, and the consistency of their testimony, we think the preponderance of the evidence is clearly against the verdict thus necessitating, in the exercise of our powers and duty, a reversal of the judgment with a finding of fact that there was no negligence on the part of appellant.

After filing an opinion substantially as above, ap- " pellee petitioned for a rehearing, insisting that the verdict was warranted by the evidence, but after a thorough review of the same in the light of his contentions our convictions remain unchanged.

But appellee further contends that in case of reversal we should remand the cause for a new trial, saying that as the evidence shows there was “a large number of men employed on the street close to the place of the accident, who did not testify, * * * it is probable that upon another trial additional witnesses could be procured.”

Even if the record supported the inference—and it does not—that additional evidence favorable to plaintiff might be procured, yet we must assume, in the absence of any adverse ruling precluding him from producing it, that he either presented the best evidence he had or at least such as he was willing to go to trial on. To remand on the mere possibility of procuring additional evidence would be contrary to the policy of the law. To warrant a new trial on such ground, even a trial court would require a showing of due diligence to procure all evidence obtainable at the time of the trial. (Graham v. Hagmann, 270 Ill. 252.)

Besides the reversal being predicated on our finding of a fact that precludes recovery and not on an error of law, we find no justification under our practice for remanding the cause for a new trial. The Supreme Court has not only said it is the “bounden duty” of Appellate Courts to consider the assignment of error that the verdict is-against the weight of the evidence, and “correct errors of fact” (Voight v. Anglo-American Provision Co., 202 Ill. 462, 465) “to weigh the evidence and determine whether the verdict is against the weight of the evidence” (Illinois Cent. R. Co. v. Smith, 208 Ill. 608, 620) and ‘‘ to reverse the judgments of trial courts' and the verdicts of juries where, upon consideration of the testimony, they find said judgments and verdicts are clearly against the weight of the evidenee” (Chicago & A. R. Co. v. Heinrich, 157 Ill. 388, 394), but it has clearly indicated the impropriety of remanding a cause for a new trial when the Appellate Court in the exercise of such duty reaches a conclusion of fact different from the finding of the trial court that would preclude recovery. In Senger v. Town of Harvard, 147 Ill. 304, it said: “Under the facts as found, if no recovery could be had against the defendant there was no necessity for remanding the cause, and the court was under no obligation to do so.” (p. 307.) In Hawk v. Chicago, B. & N. R. Co., 147 Ill. 399, it said: “Here the Appellate Court found the facts different from the finding in the Circuit Court, and in obedience to the section of the statute, supra, the facts as found were recited in the judgment of the Appellate Court.” (p. 402.) In Borg v. Chicago, R. I. & P. Ry. Co., 162 Ill. 348, it justified “a refusal to remand the case for successive trials which must necessarily be followed by successive reversals.” In each of the more recent cases of Delta Bag Co. v. Kearns, 253 Ill. 365; Dixon v. Smith-Wallace Shoe Co., 283 Ill. 234; and Miles v. International Hotel Co., 289 Ill. 320, the Appellate Court reversed 'the judgment of the trial court without remanding and without a recital of facts. [211 Ill. App. 323.] But it appearing from the opinion of the Appellate Court that its reversal was predicated on the result, wholly or in part, of a finding of facts different from the .finding of the trial court, the Supreme Court remanded the cause to the Appellate Court with directions to the effect that if a reversal by that court should again be predicated on such ground, it should enter a final judgment properly reciting- the facts in accordance with section 120 of the Practice Act (J. & A. If 8657).

In the case at bar, the reversal being predicated on a finding of fact different from the finding-of the trial court which would preclude a recovery, we conceive it to be our duty to end the litigation by entering a final judgment reciting the fact as found.

Reversed with a finding; of fact.

Mr. Presiding Justice Matchett :

Finding of fact. We find that appellant, Chicago City Railway Company, was not guilty of the negligence charged in the declaration or any count thereof.


author: Mr. Justice Barnes

text:
    Lyle D. Taylor, Appellee, v. Arthur L. Currey, Appellant.
    Gen. No. 24,769.
    1. Assumpsit, action of, § 44

      —what is main inquiry in action of assumpsit for money had and received. The main inquiry in an action of assumpsit for money had and received is whether defendant holds money which ex cequo et bono belongs to the plaintiff.
    2. Assumpsit, action of, § 50*—lohen fraudulent representations are immaterial in action of assumpsit for money had and received. In an action of assumpsit for money had and received, it is immaterial that the representations of defendant by which plaintiff was induced to invest the money in certain stock were fraudulent, unless defendant actually received or held such money, as otherwise plaintiff could not waive the tort and bring such action.
    3. Assumpsit, action of, § 56*—when action of assumpsit for money had and received mil not lie against agent. An action of assumpsit for money had and received will not lie against one who received from plaintiff money in payment of a subscription to the stock of a corporation' as agent for delivery to the corporation, which thereupon issued to plaintiff therefor shares of its capital which were not reissued stock and in no way belonged to defendant, even though plaintiff’s subscription was made upon fraudulent representations of defendant.
    4. s Assumpsit, action of, § 56*—when person interested in sale of corporate stock not liable in action of assumpsit for money had and received. That shares of its stock purchased by one from a corporation had originally been issued by the corporation to another does not constitute the transaction a purchase from the latter where it appeared that the latter neither paid any money for the stock when it was issued to him nor received any when he returned it to the corporation, so as to render such other liable in an action of assumpsit for money had and received brought by the purchaser, even though he may have profited by the .purchaser’s transaction with the corporation.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with finding of fact.
    Opinion filed December 2, 1919.
    Rehearing denied December 17, 1919.
    Abel L. Allen and George W. Hess, for appellant.
    Morrill, Shannon & Triska, for appellee; Nahum Morrill, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This was an action upon the common counts. The claim as set forth in the bill of particulars is that plaintiff is entitled to $1,500 paid by him for 15 shares of the capital stock of the South Farm Company, a corporation, sold-to him, as alleged, by the defendant under certain false and fraudulent misrepresentations. Defendant filed the plea of general issue. The case was heard without a jury, the court finding, the issues for plaintiff and assessing his damages at $1,883.25.

On a former trial there was a judgment in favor of defendant, the trial court at the close of plaintiff’s case having excluded his evidence on the theory that recovery could not be had on the common counts. On appeal therefrom, a branch of this court held that upon such evidence an action on the common counts would' lie, and because of the error in excluding it reversed the judgment and remanded the cause for another trial. (192 Ill. App. 502.) The court at first directed a reversal and entry of judgment here, and its opinion was prepared, with reference to such a conclusion. While it did not modify its opinion except as to the change ” of order, it is apparent that in view of that change the decision was predicated on the error of the trial court in excluding plaintiff’s evidence, thus necessitating a new trial on the merits and rendering much that was said in the opinion mere dictum. The record now before us contains evidence submitted on both sides and thus presents what was not before the court on the prior appeal—the merits of the controversy.

As the main inquiry in an action of assumpsit for money had and received is whether the defendant holds money which ex aequo et bono belongs to the plaintiff (Belden v. Perkins, 78 Ill. 451; First Nat. Bank of Springfield v. Gatton, 172 Ill. 627), no other point need be considered if, as we think, the evidence fails to support such a claim. On this point the essential facts are undisputed.

The San Luis Land & Cattle Company, a corporation, owning and operating a large estate in Mexico, entered into a contract with one John M. Dutton to sell him 100 acres of its land for $16,500 and to take back a lease thereof for 10 years. The South Farm Company, a corporation, was organized under the laws of New Jersey, with a capital stock of $25,000, manifestly for the purpose of taking over Dutton’s interest under said contract which he assigned to it in consideration of $25,000 made up of 145 shares of the South Farm Company’s stock at par value of $100 a share and $10,500 cash which it had received from subscriptions for the remaining 105 shares of its stock. Dutton caused the deed of the land to be made direct to the South Farm Company, and a lease on the proposed terms to be executed by the latter to the San Luis Land & Cattle Company, and carried out his contract with the latter company by turning over to it the cash aforesaid and 60 shares (par value $6,000) of said stock.

Included in the $10,500 subscribed and received for the South Farm Company’s stock, was the $1,500 paid by appellee Taylor, which he seeks to recover from appellant. That he w'as induced to subscribe for such stock by representations of appellant cannot be doubted, but- whether such representations- were fraudulent does not figure in this form of action unless appellant actually held or received money which ex cequo et bono belongs to appellee. (Arnold v. Dodson, 272 Ill. 377.) For, as said in the case cited:.- “A plaintiff cannot waive a tort and declare in assumpsit for money had and received unless money has actually been received by the defendant.” (p. 381.)

Outside of the question of fraud, the facts on which appellee predicates his claim of money had and received are as follows: To pay for the stock Currey offered to loan Taylor the $1,500 required. Taylor accepted the offer and gave his note therefor payable to his own order. He subsequently paid the note and it was returned by Currey bearing the indorsement “A. L. Currey, Gray Trustees.” Currey testified, and it was not controverted, that he represented the “Gray Estate” in that transaction, both in making the loan and collecting it. The evidence indicates that instead of handing the money so borrowed directly to Taylor, Currey handed it to the treasurer of the South Farm Company, and that 15 shares of its capital stock were then issued therefor directly to Taylor.

But regardless of whether said Gray estate or Currey made the loan, or whether Currey or some one else handed the money over to the company, the material facts are that the $1,500 went directly into the treasury of the South Farm Company in payment of its capital stock that was issued directly to appellee, and that it was not a reissue of stock, or stock subscribed for or in any way belonging to or contracted for by Currey. As tending to show appellee’s recognition of this fact, he gave his receipt to Miss Hammond, its treasurer, for money which he referred to as interest “on money handed to her to invest in stock of the (South Farm Company.” He had no other stock than that in question, and there was no proof tending to show that the stock so sold or subscribed’for was Currey’s or that he ever had any interest therein.

Currey’s connection with the matter appears r,c have, been entirely in the capacity of agent. He was the mere medium through whom appellant’s money was in fact had and received by the South Farm Company. He was not even an officer of it. As such agent he could not. be sued for money had and received. As said in Chitty’s Pleadings, p. *365 (16th Am. Ed.):

“In general, if money be delivered to a servant or a clerk, or agent, to be paid over to a third person, being his principal, no action for money had and received, to recover it back, can be sustained against the former, although he still had the money in his hands * * * and there should be a privity of at least implied contract between the plaintiff and the defendant.”

And again on page *366:

“And if a party receive money for a principal and he be merely the collector or bearer of the money, and bona fide pay it over before notice of the claim of the true owner, the action should be brought against the principal and not the servant. ’ ’

It matters not, therefore, whether Currey, received the money for the company as its agent, or delivered it to the company for Taylor as his agent. In either case it was manifestly a subscription contract by appellee to purchase stock from the company and not a contract to buy from appellant.

In Arnold v. Dodson, supra, the defendant induced the plaintiff to loan $5,000 to a corporation. The loan was subsequently paid to defendant for plaintiff. For that money the latter was then induced by fraudulent representations of the former to purchase from him capital stock of said corporation. While the cause of action was sustained for money had and received to plaintiff’s use in such sale, the court said'with reference to the loan: ‘ ‘ The statement recited that the defendant induced the plaintiff, by means of false and fraudulent representations, to make a loan of $5,000 to a corporation, and if there had been resulting damage the action for such damage would have been in tort, because it appeared that the defendant acted as an agent and personally received nothing.” And so here, the defendant having received the money in question as an agent for delivery to the ’South- Farm Company in payment for its stock, the action for money had and received cannot lie against him even though plaintiff’s subscription or purchase was made upon fraudulent representations by defendant.

Appellee lays some stress upon the facts that 85 shares of the stock of the South Farm Company, transferred to Dutton as aforesaid, were, by his direction, reissued to various parties, and that 18 shares thereof were reissued to appellant. It also appears that said 18 shares were indorsed by appellant for the purpose of being reissued to other parties, and that he neither paid for nor received any money for such stock. Even if it may be inferred that he profited from the transaction with appellee, yet that fact would not of itself tend to show that the contract for the sale of stock to appellee was one between him and appellant and not with said company.

Reaching the conclusion, therefore, that the contract for the purchase of the stock was one between appellee and the South Farm Company, and that it and not Currey received the money in question, the judgment, regardless of other points urged, must be reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact. We find that in the transaction upon which this action is based no money was had, held or received by appellant, Arthur L. Currey, to the use of appellee, Lyle D. Taylor, and that the money so sued for was paid for stock sold to appellee by the South Farm Company, a corporation, and not by appellant Currey.


text:
    Philip Gollner Company, Appellant, v. Walter R. Gillette et al., Appellees.
    Gen. No. 24,807.
    1. Equity, § 539

      —when party petitioning for vacating of decree is entitled to hearing as matter of right. Where no motion is made in the trial court to strike a petition under section 19 of the Chancery Act (J. & A. If 899) to vacate decree and the petition makes the showing required under such section, the petitioner becomes entitled as a matter of right to be heard in the case.
    2. Mechanics’ mens, § 200*—effect of dismissal of hill to foreclose lien. Where, after a decree pro confesso and sale of the premises, a bill to foreclose a mechanic’s lien against premises owned by two persons is properly dismissed on the demurrer of one of such owners, both of whom filed petitions under section 19 of the Chancery Act (J. & A. If 899), praying that" the decree be opened and they be heard, an end is put to the whole proceeding to establish the lien, regardless of any defect in the petition filed by the other owner.
    3. Equity, § 539*—construction of statute relating to vacating of decrees. Section 19 of the Chancery Act (J. & A. If 899) is remedial and should receive a liberal construction to eSect the purposes which it has in view.
    4. Equity, § 539*—right, under statute relating to vacating of decrees, to file demurrer. The hearing contemplated by section 19 of the Chancery Act (J. & A. 1f 899) is not limited to one upon the merits, and defendant is not required to raise issues by answer, but may file a demurrer if he be so advised.

      5. Mechanics’ liens, § 156

      —when suit to foreclose lien is barred by limitations. It is a proper ground in bar to a suit to foreclose a mechanic’s lien that the bill was not brought within the 2-j ear period of limitation.
    6. Mechanics’ liens, § 200*—when bill to foreclose lien is properly dismissed. In a suit to foreclose a mechanic’s lien, where a demurrer filed by the owners of the property which sets up the statute of limitations is sustained, the bill is properly dismissed, since complainant could have no equities against the other defendants if it had none against the owners.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 2, 1919.
    Edward H. Morris, for appellant.
    Gurdon Williams, for appellees.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

The bill in this case was brought to foreclose an alleged mechanic’s lien on premises averred to be owned by appellees, Walter B. and Floyd B. Gillette. Service by publication was had on them and all other defendants except three. All were defaulted, and pursuant to a decree pro confesso the premises were sold and a master’s deed issued to appellant, purchaser at the sale. Before the expiration of three years the Gillettes presented their respective petitions under section 19 of our Chancery Act (J. & A. ft 899), praying to be heard touching the matters involved in said proceeding, and orders were entered granting them leave to “appear in the cause and answer the complainant’s bill of complaint and be heard touching the matters involved in this proceeding, and that thereupon such proceedings may be had herein as if this defendant had appeared in due season and no decree had been made. ”

The Gillettes forthwith appeared and specially demurred to the bill on the ground that it was not brought within the twó-year period of limitation for such an action. The demurrer was sustained and complainant electing to stand by its bill, it was dismissed. From the order of dismissal this appeal is taken.

Only two points for reversal are urged: (1) that section 19 of our Chancery Act (J. & A. ff 899) icon-templates that an answer shall be filed and a hearing had upon the merits; and (2) that Floyd R. Gillette’s petition pm-ports to be made before a notary public of another State without due proof of the notary’s authority to administer an oath.

As to the second point, it is sufficient perhaps to say that the statute in question does not expressly require that the petition be under oath. However, it does not appear that appellant raised below the question of any formal defect. He made no motion to strike the petition, and as both petitions made the showing required under said section, the petitioners became entitled as a matter of right to be heard in the case. (Trustees of M. E. Church v. Field, 135 Ill. 112.) And, too, if the bill was properly dismissed on the demurrer of Walter R. Gillette, one of the alleged owners of the property, it put an end to the whole proceeding to establish a lien regardless of any defect in Floyd R. Gillette’s petition. (McCarthy v. Neu, 93 Ill. 455, 457.)

Appellant seeks a strict construction of the words of said section “that the person so petitioning may appear and answer the complainant’s bill,” and urges that the “hearing” therein provided for contemplates one upon the merits. The statute is remedial in character and should, therefore, receive a liberal construction to effect the purposes it has in view. It reads: “The person so petitioning may appear and answer the complainant’s bill, and thereupon such proceedings shall be had as if the defendants had appeared in due season and no decree had been made.” Taking the entire section together and its manifest purposes, we think it contemplated putting the defaulted party back in the same position as if no default had been taken. In that case he could have demurred, and that was the view expressed in Trustees of M. E. Church v. Field, supra, where the court said: “The defendant should have been allowed to file a written answer setting up its defense, or a demurrer if it should be so advised.” It would be anomalous to construe the language of said section so as to compel the petitioner to raise issues by answer and go to a useless hearing when on the same ground the action could be defeated by a demurrer, especially in view of the language “that thereupon such proceedings shall be had as if the defendants had appeared in due season,” etc. It was evidently the view of the Supreme Court that the word “answer” was not to be so construed as to deprive the party appearing of the right to plead as he might have done had he “appeared in due season.” Hence we think there was no error in allowing the demurrer to be filed; and it set up a proper ground in bar to the suit. (Gunton v. Hughes, 181 Ill. 132, 134.)

That the bill was properly dismissed as leaving nothing to be decided by the court can hardly be questioned, it being perfectly clear that the complainant could have no equities against the .other defendants if it had none against the owners of the property. (Griffiths v. Griffiths, 198 Ill. 632.) The decree will be affirmed.

Affirmed.