text:
    Winfield F. Rexroat, Appellee, v. Arthur Ford et al., Appellees. Charles W. Van Syckle, Appellant.
    1. Appeal and error, § 408

      —what objections may not be first raised on appeal. Objections that do not raise jurisdictional questions cannot be raised for the first time on appeal where their nature is such that if they had been specifically made in the trial court they could have been remedied.
    2. Equity, § 255*—original bill as part of amended bill. An original bill is still a part of the complainant’s bill although an amended bill does not include all of its allegations.
    3. Landlord and tenant, § 97*—what does not constitute tenancy at will. If the lessee has, under the terms of the lease, the right of possession of premises for any fixed time, even although the lessor has the right to terminate it by notice, yet if it can only be terminated by giving notice a certain fixed time before its termination, the lease is not a tenancy at will.
    4. Landlord and tenant, § 2*—when lease is a chattel real. A lease terminable only on the giving of a thirty-day notice by either party, held a chattel real.
    5. Mortgages, § 375*—when strict foreclosure proper. Where mortgaged property worth less than the amount of the mortgage had been abandoned by the mortgagor, who had become insolvent, and the mortgagee was willing to take the property in full satisfaction of the debt, held that a strict foreclosure was proper, as a judgment creditor who had a junior lien could in no way benefit from an ordinary foreclosure.
    Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement by the Court. Winfield F. Rexroat on April 10, 1915, filed a bill against Arthur Ford, Leoni Ford and the Chicago, Burlington and Quincy Railroad Company, alleging that on November 18, 1910, Arthur Ford executed and delivered to complainant a mortgage on a grain elevator on the right of way of the said railroad, the same being the north elevator in the Town of Walnut Grove, and on Lot 1 in Block 4 in the said Town of Walnut Grove, in McDonough county. The bill further alleges that the mortgage secures a note for $5,000 with interest at six per cent, per annum, due three years after date; that Arthur Ford is insolvent ; that the said lot is worth not to exceed $1,000 and is subject to the homestead rights of Leoni Ford, the wife of Arthur Ford; that the mortgaged premises are wholly insufficient to pay the amount due complainant and that Ford has abandoned the grain elevator. The complainant offers to take said mortgaged premises in payment of the amount due, including his costs and reasonable solicitor’s fees.
    On May 21, 1915, complainant filed his amended and supplemental bill, which, after setting forth the allegations concerning the making of the note and mortgage, alleges that the grain elevator is located on the right of way of said railroad; that the mortgage is not a lien on the right of way other than the right to maintain the elevator thereon under a certain lease from said railroad company; that after the filing of the bill of complaint herein, Charles W. Van Syckle began a suit in attachment against Arthur Ford and the writ therein was levied upon the premises, described in the mortgage to complainant; that judgment had been rendered against said Ford and said property attached and that Van Syckle is claiming to have a lien prior to that of complainant but which in fact is subject to the lien of complainant under his mortgage.
    Van Syckle answered the amended and supplemental bill admitting that the elevator is on the right of way of said railroad company, and that after the filing of the original bill he had begun his attachment suit, and insisting that a judgment rendered in the attachment suit in his favor for $1,325, against Ford, is a first lien on the elevator. The answer denies that the mortgage is a lien on the elevator or right of way or a leasehold interest on said right of way, and insists that the elevator and leasehold interest are chattels personal and not chattels real, and that the mortgage is not acknowledged as a chattel mortgage is required to be acknowledged. The other defendants were defaulted. Issues were joined and the cause was referred to the master in chancery to report the evidence with his conclusions.
    The master found that there was due on the note and mortgage $6,275, and also a solicitor’s fee of $250; that Van Syckle had recovered a judgment in the attachment suit against Ford for $1,325, but that the lien of said judgment is subject to the lien of the mortgage; that the lot was and still is occupied by Leoni Ford, wife of Arthur Ford, as a homestead; that Leoni Ford did not join in the execution of the mortgage and that it is invalid and not a lien on the homestead; that the elevator is worth not to exceed $4,000; that Ford is insolvent and that complainant is entitled to a strict foreclosure. The master overruled objections filed by Van Syckle to his findings.
    On the trial the objections before the master by agreement of the parties were permitted to stand as exceptions. The court overruled all the exceptions except the one concerning the finding as to the amount due and reduced that finding to $4,462.96 and the $250 allowed as a solicitor’s fee, and entered a decree of strict foreclosure against the elevator property, unless redemption should be made within ninety days.
    Van Syckle appeals and relies on the three alleged errors as cause for a reversal: (1) that the elevator in question is personal property and not a chattel real and that it was error to decree that Eexroat had a prior lien to that of Van Syckle; (2) that it was error to decree a strict foreclosure for the reason there is no allegation in the amended and supplemental bill that Ford is insolvent; and (3) that it was error to enter a decree of is strict foreclosure and exempt the residence house and lot for the reason there is no proof that the same constituted the homestead * * * on November 18, 1910,” and there is no allegation in the.pleading with reference to homestead rights, and that when the homestead is not exempted the mortgaged property is worth more than the mortgage debt.
    Flack & Lawyer, for appellant.
    Miller & Walker, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

There is no assignment of error in the record under which either of the last two errors relied upon can be raised, neither of those questions were raised by any objection before the master to his findings, nor is there any exception before the trial court concerning such findings by the master. The evidence does show that the elevator is worth not to exceed $4,000 and that the lot with the residence thereon is worth from $600 to $800 and is the homestead of Leoni Ford, the wife of appellee, Arthur Ford.

The original bill alleges the insolvency of Ford, that the lot described in said mortgage as Lot 1, in Block 4, is worth not to exceed $1,000 and is subject to the estate of homestead therein owned by Leoni Ford, wife of Arthur Ford, and that the elevator is worth not to exceed $4,500, and said mortgaged premises are wholly insufficient to pay the amount due on the note and mortgage. The amended supplemental bill does not repeat any of these allegations and makes no reference to them, further than that it alleges that Rexroat is willing to take said mortgaged premises, leasehold interest and property subject to the estate of homestead therein in full satisfaction of the amount due. If either of these two questions, now presented for review, which are only technical questions, had been raised in the trial court in any way, a simple amendment would have obviated the questions now raised for the first time. Objections that do not raise jurisdictional questions cannot be raised for the first time in this court, where their nature is such.that if they had been specifically made in the trial court they could have been remedied.

It has also been held that the original bill is still a part of complainant’s bill, although the amended bill does not include all of its provisions. Lewis v. Lanphere, 79 Ill. 187; A. J. Lindemarnn & Hoverson Co. v. Advance Stove Works, 170 Ill. App. 423; 1 Encyc. of Pl. & Pr. 505.

The remaining question, and the only meritorious one presented, is, whether the elevator property is a chattel real or is personal property. The answer to that question depends on the nature of the lease to that part of the right of way upon which the elevator was located. The lease was made January 1, 1911, between the Chicago, Burlington & Quincy Railroad Company and Arthur Fordi It describes by metes and bounds the part of the right of way leased, and the period of time for-which the lease was made as follows: “To have and to hold the same from January 1, 1911, until such time as this contract shall have been terminated as hereinafter provided.” The rental is $5 per year payable in advance, and the premises leased are to be used for the location of a g'rain elevator. “It is further agreed that either party may terminate this lease any time upon giving the other thirty days’ notice of such termination; provided, however, that rent shall be paid by said lessee to the date of termination fixed by said notice; and if rent has been paid in advance the proportionate amount for the unexpired term shall be returned to the lessee.”

Appellant admits that if the elevator is a chattel real, then the lien of the mortgage is superior to that of his judgment, but contends that the elevator was personal property because there was no fixed term in years and that the lessee had under the terms of the lease only a tenancy at will.

A strict tenancy at will “has only the rights of an ancient tenancy at will, being in fact little more than a license to be upon the land, determinable by entry or demand, and does not render the occupant liable in use and occupation for rent or entitle him to notice to quit.” A general tenancy at will “confers the rights which tenancies at will subsequently acquired such as a reasonable notice to quit and subjects the occupant to all the liabilities of tenants, proper such as for use and occupation.” Taylor’s L. & T., sec. 60; 38 Cyc. 124. At common law a tenant at will was not entitled to notice to quit before he could he ejected although a demand for possession was required.

Under the lease by which Ford occupied the part of the right of way leased to him, the lease could only he terminated by either party giving the other thirty days’ notice of such termination. There was a fixed tenancy for thirty days and it could only be terminated at the end of that notice. The case of Knapp v. Jones, 143 Ill. 375, is very similar to the present case. It involved a lease of a part of a right of way, originally for a year, from a railroad company to a party to erect and operate an elevator thereon. The lease expired and was renewed for two years with'the right to terminate it upon sixty days’ notice. In a controversy between a mortgagee and judgment creditors, the elevator was held to be a chattel real. A similar ruling was made in Cross v. Weare Commission Co., 153 Ill. 499. If the lessee has under the terms of the lease the right to possession of the premises for any fixed time* even although the lessor has the right to terminate it by notice, yet if it can only be terminated by giving notice a certain fixed time before its termination, the lease is not a tenancy at will. The Knapp ease, supra, is conclusive of this case, that the mortgage was on a chattel real and the trial court properly decreed that appellee’s mortgage was a valid first lien and the lien of the attachment was subject thereto.

The appellant does not contend that the elevator property was worth more than $4,000. The argument is that if appellee takes the residence property at its value then there would be something left in the elevator property to apply on his judgment. The mortgage was not a lien on the residence because its value was less than $1,000 and it was a homestead. The mortgage created a lien only on the elevator property. “While it is a general rule that, where there are other creditors, strict foreclosures are not favored in equity, yet the rule is not an arbitrary one. A strict foreclosure may be allowed where there are other creditors and the property is of less value than the debt, the mortgagor is insolvent and the mortgagee is willing to take the property in discharge of his debt. ” Barnes v. Ward, 190 Ill. App. 392, and cases cited. When there is no possibility of any benefit accruing to the judgment creditor from an ordinary foreclosure, there is no reason why a holder of a first lien should be penalized by being made to pay unnecessary and useless costs, when the property is vacant and unoccupied, and there is no possibility of his being reimbursed. There was no error in granting a strict foreclosure. The decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Elsie Buchan, Appellee, v. Collin Buchan, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Equity, § 425

      —when conclusions of master advisory only. In matters other than stating an account, a master in chancery’s conclusions are simply advisory and only prima facie correct, and the court may modify or reject the report if it is erroneous, defective or against the weight of evidence.
    2. Husband and wife, § 264*—when evidence sufficient to show that separation is fault of wife. Evidence in a suit for separate maintenance, showing among other things that the complainant attended dances and associated against her husband’s wishes with persons of questionable character, held to show that the separation was the fault of the complainant.

      Appeal from the Circuit Court of Champaign county; the Hon. Fbanklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1915. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Bill for separate maintenance by Elsie Buchan, plaintiff, against Collin Buchan, defendant. From a decree for complainant, defendant appeals.
    Dobbins & Dobbins and Green & Palmer, for appellant.
    Herrick & Herrick and Joseph P. Gulick, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

3. Husband and wife, § 264*—when evidence insufficient to show that offer of wife to live with husband made in good faith. In a suit for separate maintenance where, after leaving her husband without due cause, the complainant, two days before filing her bill, and after having consulted with her attorney in regard to bringing suit, went to her husband’s house in company with a person whom her husband had objected to her associating with and offered to live with him if he would do what was right, meaning thereby to be allowed to do things which her husband justifiedly objected to, held insufficient to sustain a finding that such offer was not made in good faith, and a decree in her favor should be reversed.


text:
    The People of the State of Illinois ex rel. Martin L. Gorman, Appellee, v. Will T. Thomas, Appellant.
    1. Quo warranto, § 27

      —what need not be part of petition. There is no requirement that a petition for leave to file an information in the nature of a quo warranto shall be “In the name and by the authority of the People of the State of Illinois,” and conclude, “against the peace and dignity of the same,” that requirement applying only to the information itself.
    2. Quo warranto, § 56*—when judgment of ouster proper. Where an election contest was had in a County Court and an appeal taken by one of the defeated parties, and, on reversal and remandment, the petition was dismissed as to both successful parties below, in accordance with the directions of the Supreme Court, held that a judgment of ouster rendered in a quo warranto proceeding, instituted by the party who had taken the appeal against the occupant of the office, to which the party who had not taken an appeal had been declared elected, was proper, as on the holding of the Supreme Court that the County Court was without jurisdiction to proceed in the election contest, the judgment rendered therein was void.
    Appeal from the Circuit Court of Montgomery county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.

      Hill & Burlington, for appellant.
    J. Earl Major, for appellee.
    D. R. Kinder, for relator.

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

   Mr. Justice Thompson

delivered the opinion of the court.

On July 14, 1913, there was presented to one of the Judges of the Fourth Judicial Circuit by the State’s Attorney of Montgomery county, a petition for leave tó file an information in the nature of a quo warranto against Will V. Thomas, praying that Thomas be required to show by what right or authority he claimed to hold and execute the office of Commissioner of Highways of the Town of Bois d’ Arc in Montgomery county, Illinois. The Judge indorsed on the petition: ‘ ‘ The clerk will docket this cause, file the information and petition herein and issue summons, returnable on July 20, 1914.”

The petition alleges that at an election in April, 1913, in the Town of Bois d’ Arc, for the purpose of electing among other officers a supervisor and a highway commissioner, Martin L. Gorman and W. K. McWilliams were candidates for the office of supervisor and commissioner of highways, respectively, and G. C. Browning and Will V. Thomas were candidates for those offices, respectively, on another ticket. The election returns showed that Gorman and McWilliams were elected.

Browning and Thomas filed a joint petition in the County Court of Montgomery county to contest the election of both Gorman and McWilliams. The County Court assumed jurisdiction and adjudged that Browning and Thomas were elected to the offices of supervisor' and commissioner of highways, respectively. The petition for quo warranto alleges that the County Court was without jurisdiction to entertain and hear said election contest and that all proceedings before it were void; that Gorman appealed from said judgment to the Supreme Court where the judgment was reversed and the cause remanded to the County Court with directions to dismiss the petition; that the cause was reinstated and, in conformity with the mandate of the Supreme Court, the petition was dismissed and judgment was rendered against contestants for costs. The petition avers that notwithstanding the County Court had no jurisdiction to try said contest, Thomas claims that he was elected, and insists upon acting as commissioner of highways and has usurped and unlawfully holds said office, wherefore petitioner presents herewith an information, etc.

Respondent filed a plea “to said information and the several counts thereof,” setting up the judgment in the County Court in the election contest an.d that McWilliams excepted to that judgment, and prayed an appeal therefrom but did not perfect the same, and that he acquiesced in said judgment. To this plea a replication was filed: that the contest was a joint proceeding by McWilliams and Thomas; that the appeal was joint and several, that Gorman perfected an appeal and the Supreme Court rendered judgment therein and directed that the petition to contest the election be dismissed and adjudged that said County Court had no jurisdiction and that its order was void. Another replication sets forth that on an appeal the judgment of the County Court was reversed and the cause remanded with directions to dismiss the petition, and such proceedings were had therein that it was dismissed. Issues were joined on these replications. The matter was tried by the court without a jury and the court found that respondent was usurping the said office and entered a judgment of ouster. The respondent appeals.

The only contentions of appellant are ‘ that the petition filed was fatally defective because it did not con-elude ‘against the peace and dignity of the same,’ in accordance with requirements of the Constitution,” and that because McWilliams did not appeal from the judgment in the election contest that adjudication is binding on him in this proceeding.

The order indorsed on the petition for leave to file an information shows that an information was presented with the petition. The verified petition recites that an information was presented to the court with it. The pleas filed by appellant also show that there was an information consisting of several counts filed. The first alleged error argued is that the petition is fatally defective. The information is the pleading upon which judgment was rendered ousting the appellant. The petition was only the sworn application for leave to file the information. There is no requirement that the petition for leave to file an information shall be: “In the name and by the authority of the People of the State of Illinois;” and conclude: “Against the peace and dignity of the same.” That requirement applies only to the information. In the absence of any showing to the contrary, it will be presumed the information was sufficient. The appellant has failed to have the information incorporated in the record, and of course the abstract does not show what the information contained. There is no merit in the contention of appellant that the petition is defective, for the reason the petition is only the sworn application for leave to file the information.

There was offered in evidence the pleadings and judgment of the County Court in the election contest; the judgment and remanding order of the Supreme Court in that proceeding; the notice to reinstate the election contest in the County Court and the judgment of the County Court dismissing the petition as commanded by the Supreme Court. The remanding order of the Supreme Court is entitled:

“G. C. Browning and Will V. Thomas, Appellees. No. 9151. vs. Martin L. Gorman and W. K. McWilliams, Appellants.”

‘‘ February 21,A.D.1914. Appeal, from County Court of Montgomery County. ’ ’

The remanding order reversed the judgment of the County. Court of Montgomery county and remands the cause with directions to dismiss the petition. The opinion of the Supreme Court appears in 261 Ill. 617, and holds that: “The election of a supervisor and commissioner of highways cannot be contested in the same proceeding. The court was without jurisdiction to proceed, and the motions to dismiss should have been allowed.” The order and judgment of the County Court adjudging that McWilliams was elected supervisor and Thomas highway commissioner was a void judgment. The petition or statement in the election contest was afterwards dismissed. It was not dismissed as to McWilliams only. Thomas was present in the County Court and objected to the petition being dismissed. His objection was overruled and it was dismissed as to both contestants. It clearly appears- that appellant showed no right to the office of commissioner of highways; there was no error in the judgment of ouster. The judgment is affirmed.

Affirmed.


text:
    George B. Maston, Appellee, v. J. C. Ross, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the Octoher term, 1915:
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Action in assumpsit by George B. Maston, plaintiff, against J. 0. Boss, defendant. From a judgment for plaintiff, defendant appeals.
    The action was originally brought against the defendant and his wife, and ' resulted in a judgment against both defendants. After the granting of a new trial as to the wife, because of lack of evidence to support a judgment against her, the plaintiff dismissed as to her and, without amending his declaration, proceeded against the other defendant, against whom a judgment was rendered. On appeal the case was reversed and remanded on the ground that it was error to render a judgment against one defendant in an action in assumpsit brought against two defendants without amending the declaration when the action had been dismissed as to one defendant because there was no evidence against her and not because of a personal defense, such as infancy, bankruptcy or the like. Maston v. Ross, 185 Ill. App. 57. On the case being reentered in the Circuit Court, the declaration was amended so that the action stood against the husband only, and resulted in a judgment against him.
    A. R. Hall and O. M. Jones, for appellant; Halt. & IIoladay, of counsel.
    Dyer & Dyer, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

Dismissal, nonsuit and discontinuance, § 29*—what does not constitute discontinuance of entire action. The dismissal of an action in assumpsit as against one of two defendants sued jointly, because of lack of evidence to support a judgment against such defendant, held not a discontinuance of the entire action, the • plaintiff having a right to amend his declaration and to state a cause of action and proceed against the other defendant.


text:
    Fred Morrison, Appellee, v. J. Ed. Dazey and W. J. Elzy, Appellees. First National Bank of Findlay, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Suit for an accounting by Fred Morrison, complainant, against J. Ed. Dazey, W. J. Elzy, and the First National Bank of Findlay, defendants. From a decree in favor of complainant, the defendant bank appeals.
    The decree found that $2,535.35 was due the complainant on a note dated October 15, 1910, executed by W. J. Elzy to the complainant in payment for steers sold by the complainant to Elzy, the note being secured by a chattel mortgage on the steers. The steers were later sold and the proceeds of the sales deposited in the defendant’s bank. On a former appeal, 190 Ill. App. 374, the'case was reversed and remanded to the trial court with instructions to state an account as to the amount due and unpaid on the note, and to render a decree for the balance due to be paid by the defendant bank out of the proceeds of the sale of the steers.

      Abstract of the Decision.
    1. Evidence, § 469

      —what weight given to. Testimony as to the particular words used in a conversation which occurred long prior to the trial should be received with great caution.
    2. Account, § 35*—when burden of proof on defendant. In an action for an accounting against the maker of a promissory note secured by a chattel mortgage to the plaintiff and a bank, in which the proceeds of the sale of the mortgaged property had been deposited to the credit of the mortgagor, held that the burden of proving the hank’s contention that the note had been fully paid was upon it.
    3. Account, § 35*—when evidence sufficient to sustain decree. In a suit for an accounting of the amount due on a promissory note, evidence held to support a decree rendered in favor of the complainant.
    Whitaker, Ward & Pugh, for appellant.
    Chapee, Chew & Baker, Brown & Burnside and George B. Rhoads, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Henry Ermovich, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of Christian county; the Hon. C. A. Prater, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Henry Ermovich, defendant, for illegal sale of intoxicating liquor in anti-saloon territory. To review a judgment against defendant, the latter prosecutes a writ of error.
    Abstract of the Decision.
    1. Evidence, § 138

      —when notice to produce original document not necessary. In a prosecution for illegal sale of intoxicating liquor in anti-saloon territory, it is not necessary that the State prove that it cannot produce an original internal revenue tax stamp in order to entitle it to introduce secondary evidence of its contents.
    2. Intoxicating liquors, § 140*—when subpoena duces tecum and notice to produce tax stamp erroneously admitted, in evidence. Where, on a prosecution for illegal sale of intoxicating liquor in anti-saloon territory, the only evidence connecting the defendant with the sale was that the location of cluhrooms in which the liquor was sold was in a building adjoining his store and that his name appeared on membership cards and on tickets sold by the club and which were exchanged for liquor, and, as president of the club, in an internal revenue tax stamp issued to it, held that a subpoena duces tecum served on the defendant commanding him to produce such stamp on the trial and the sheriff’s return thereon, and a notice to produce the stamp, were improperly admitted in evidence.
    3. " Intoxicating liquors, § 147*—when evidence insufficient to sustain conviction for illegal sale of. Evidence introduced on a prosecution for the illegal sale of intoxicating liquor in anti-saloon territory, showing merely that the location of cluhrooms in which the liquor was sold was in a building adjoining a store of the defendant, and that his name appeared on the club’s membership cards and tickets sold by it and exchanged for liquor, and as president of the club in an internal revenue tax stamp issued to the club, held insufficient to sustain a conviction when there was no evidence that the defendant had any knowledge of such use of his name.
    John E. Hogan and E. E. Dowell, for plaintiff in error.
    Harry B. Hershey, for defendant in error.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Evelyn Boland, Appellee, v. George J. Gay, Appellant.
    (Fot to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Action "by Evelyn Boland, plaintiff, against George J. Gay, defendant, to recover for personal injuries sustained by the plaintiff while riding in a taxicab belonging to the defendant. From a judgment for plaintiff, defendant appeals.
    Defendant insisted that the chauffeur of the taxicab was not acting within the scope of his employment and on his master’s business at the time of the accident. He admitted that Small was employed by the week to run the machine in the nighttime, and that it was his duty to go where the business required. He also admitted that when he left on a trip he authorized Small to go ahead with the business, and that while his hours were from two o’clock in the afternoon to two o’clock in the morning, he some nights ran until three and at times up to four, o’clock in the morning, and that he would accept what was earned. The taxicab office was in the defendant’s hotel and whoever answered the telephone calls in the hotel had authority to take the call. Plaintiff, by telephone from Lyons, called the hotel for the taxicab about 2 a. m. and the taxicab appeared to have been sent in response to the call. Small stated he went with the machine to Lyons for a ride without being called by telephone, and that he was going to keep the fare collected and not pay it to defendant. Small employed a lawyer to prosecute a claim against the defendant for injuries he sustained at the time of the accident, and received one hundred dollars from the hands of his attorney.
    Abstract of the Decision.
    1. Carriers, § 484

      —when instruction on liability of taxicab carrier correct. In an action for personal injuries sustained by a passenger riding in a taxicab, an instruction that “common carriers of persons for hire are required to do all that human care, vigilance and foresight can reasonably do, consistent with the character and mode of conveyance adopted and the practical prosecution of the business, to prevent accidents to passengers while being carried by them,” held to state the correct rule as to the liability of a carrier of passengers by taxicab.
    2. Carriers, § 8a*—who is common carrier. In an action for personal injuries sustained by plaintiff while riding as a passenger in the defendant’s taxicah, evidence held to show that the defendant held himself out as a common carrier of passengers.
    3. Principal and agent, § 8*—when evidence sufficient to show acts by servant within scope of employment. In an action for personal injuries sustained by the plaintiff while riding as a passenger in the defendant’s taxicab, evidence held to show that the defendant’s chauffeur was acting within the scope of his employment at the time of the accident.
    Dwyer & Dwyer, for appellant.
    Thomas A. Graham, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Pioneer Stock Powder Company, Appellant, v. Charles Washburn, Appellee.
    (Wot to be reported in full.)
    Abstract of the Decision.
    1. Trial, § 74

      —when evidence properly admitted out of order. In an action on a promissory note, admission of evidence of a, conversation between the defendant and one claimed by him to have been the agent of the plaintiff at the time of the execution of the note, on the promise of the defendant to show that an agency existed, held not error where, though the defendant introduced no such evidence, the evidence introduced by the plaintiif tended to show the existence of the agency so as to make the question one of fact for the jury.
    2. Bills and notes, § 421*—when evidence as to other signatures

      inadmissible. In an action on a promissory note, an objection to a question asked a witness, who had testified as to the dissimilarity of the signature on the note to that of admitted genuine signatures of the maker in his possession, as to whether he had any signatures anything like the signature to the plea, held properly sustained as calling for matters immaterial to the issue.

      Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Action by the Pioneer Stock Powder Company, plaintiff, against Charles Washburn, defendant, on a promissory note alleged to have been executed by the defendant. Prom a judgment for defendant, plaintiff appeals.
    Sterling & Whitmore and Murray & Morrissey, for appellant.
    Herrick & Herrick and De Mange, Gillespie & De Mange, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

3. Bills and notes, § 421*—when evidence as to other signatures inadmissible. Where the genuineness of a signature to a promissory note sued upon was in issue, held that an objection to proof that conceded genuine signatures of the maker were different from the signature to the oath attached to the defendant’s plea was properly sustained as immaterial and incompetent.

4. Bills and notes, § 408*—when burden of proof on plaintiff. In an action on a promissory note, the burden of proof of the genuineness of the maker’s signatures held to be on the plaintiff.

5. Bills and notes, § 460*—when genuineness of signature question for jury. In an action on a promissory note, the question of the genuineness of the signatures of the maker held for the jury.

6. Appeal and error, § 1514*—when remark of counsel harmless error. A remark by counsel to the jury that when a client goes to his lawyer he tells him the truth, held not reversible error.

7. Appeal and error, § 523*—what objections to instructions insufficient to preserve question for review. General objections to the giving and refusal of instructions are not sufficient to preserve the question of the correctness of such rulings thereon for review.


text:
    Loal Williams, Defendant in Error, v. R. F. Henkle, Plaintiff in Error.
    1. Arbitration and award, § 64

      —when party estopped from claiming that award is void. Where a plaintiff, who has agreed to submit matters in dispute to arbitrators, appears before them after the time fixed in such, agreement as the time when the award should be made and takes part in the proceeding, he cannot maintain’ that the award made thereafter is void as not having been made within the time fixed.
    2. Arbitration and award, § 64*—when parties estopped from litigating matters passed on in award. Parties to an agreement to arbitrate, held precluded from litigating further the matters considered and passed upon in the arbitration.
    3. Partnership, § 417

      —when face value of shares of stock properly charged against partner. In a suit for an accounting between partners who had turned their stock of merchandise over to a corporation, held that the face value of shares of stock which had been received by a partner from the corporation, in part payment of the stock, should he charged against him.
    4. Partnership, § 417*—when partner should not he charged with face value of shares of stock. In a suit for an accounting between partners who had turned their stock of merchandise over to a corporation, held that a partner should not be charged with the face value of stock subscribed by him and sold by him where the notes received therefor were turned over to the partnership and by it turned back to the partner and charged to him on the books of the partnership.
    5. Partnership, § 417*—when partner should not he charged with face value of corporate stock. In a suit for an accounting between partners who had turned over their stock of merchandise to a corporation, held that stock subscribed by a partner and turned back to the corporation by him in payment of the difference between the face value of the total stock issued in payment of the merchandise and the inventoried value of such merchandise should not be charged against him unless he be credited with the face value of the stock.
    6. Partnership, § 417*—when partner should he charged only for price received for corporate stock. In a suit for an accounting between partners who had turned their stock of merchandise over to a corporation in return for the corporation’s stock, held that stock issued to a party who did not take it up, but which was taken up by a partner, who sold it to another party, should, there being no contention of fraud or bad faith in the transaction, be charged to such partner only at the price he received for it.
    7. Partnership, § 422*—when personal decree may he rendered against partner in suit for accounting. In a suit for an accounting, before a personal decree can he rendered against a partner, there must he a complete adjustment of the partnership accounts, ‘ leaving nothing for subsequent settlement.
    Error to the City Court of Canton; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Jesse Heylih, for plaintiff in error.

      A. E. Taff, for defendant in error.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

Upon the hearing on the bill of Loal Williams for an accounting of the partnership affairs of Williams & Henkle with his former partner, E. F. Henkle, the trial court sustained an exception of defendant and overruled other exceptions to the report of the master. The sum of $291.76 was found to be due from defendant to complainant and a decree entered for that sum against the defendant with an order for an execution. The defendant has sued out a writ of error to review that decree.

There is no dispute over the following facts. On March 1, 1908, complainant and defendant formed a partnership, under the firm name of Williams & Henkle, to conduct a retail implement and harness business. Henkle put into the business a stock of goods of the value of $3,800. Williams put nothing into the business. They were to share profits and losses equally. Williams was the manager of the business and agreed to devote all his time to it. Henkle appears to have kept the books. In December, 1911, the partnership was dissolved by selling the stock of merchandise inventoried at $7,782.20 to the Fulton Farmers’ Co-Operative Company, a corporation.

On December 5,. 1911, Williams, Henkle, Gf. M. McMillan and B. F. Barnes made the following agreement, the last four paragraphs of which are very ambiguous :

‘‘ That whereas the said parties hereto, for the purpose of organizing a company to be known as the Farmers’ Co-Operative Co., the same to be incorporated with capital stock of $12,000.00 and named as above, and for the purpose of conducting an implement, vehicle and harness business, propose taking over the present stock of Williams & Henkle amounting to Seventy-seven hundred eighty-two and 20-100 ($7,782.20) Dollars and continue the business under the name adopted and to be incorporated under therefore.

“It Is Mutually Agreed between all parties hereto that Loal Williams subscribe for $500.00 stock and the same shall be deducted from the amount of the original invoice from Williams & Henkle and be treated as $500.00 fully paid up capital stock of the Farmers’ Co-Operative Company and B. F. Barnes subscribes for $500.00 stock which said amount shall also be deducted from the amount of the invoice from Williams & Henkle and considered as $500.00 fully paid up capital stock of the Farmers’ Co-Operative Company, that G-. M. McMillan subscribe for $3,500.00 of the Farmers’ Co-Operative Company, giving his personal note to Williams & Henkle for the same, and the same shall be treated as fully paid up stock of the Farmers’ Co-Operative Company, that B. F. Henkle subscribe for $3,500.00 capital stock of the Farmers’ Co-Operative Company and the same shall be considered fully paid up capital stock of the said Company making in all a total amount subscribed and fully paid up $8,000.00.

“It Is Further Mutually Agreed between all parties hereto that the said Farmers’ Co-Operative Company shall be incorporated with capital stock of $12,000.00 in shares of $100.00 each, and that stock shall be sold as rapidly as possible for the welfare of the said Company and that subscriptions for stock be paid to B. F. Henkle, as the same are subscribed and paid in, to amount of $3,000.00 and that stock for the $3,000.00 shall be issued to the subscribers from the stock of said B. F. Henkle and his holdings reduced in that amount.

“It Is Further Mutually Agreed that all amounts received on stock subscriptions in excess of $3,000.00 shall be applied on the note given by said Gr. M. McMillan to Williams & Henkle until the further amount of $3,000.00 shall have been applied on said note, and the stock for said amount shall be issued from the stock of the said Gr. M. McMillan and reduce his holdings of stock in the amount so sold making the holdings of McMillan, Loal Williams, B. F. Barnes and Henkle $500.00 each. . The remainder,'or $4,000.00 of capital stock to be sold and the funds paid into the treasury .of the Farmers’ Co-Operative Company as the same is received.

“It Is Further Understood and Agreed that R. F. Henkle and G. M. McMillan shall each pay into the treasury of the Farmers’ Co-Operative Company the sum of $108.90 out of subscriptions for stock received by them which said amount so paid in making $217.80, is the difference between the invoice price and the stock of merchandise $7,782.20, of Williams & Henkle and $8,000.00 the amount of stock issued under this agreement.

“It Is Further Agreed that there shall be paid out of the business of the said Farmers’ Co-Operative Company six per cent, interest on the sum of $8,000.00 computing interest from this date to such time as payments are made and until the whole amount of $8,000.00 is paid into the treasury of the Farmers’ Co-Operative Company.”

The evidence shows that eighty shares of capital stock were issued to the parties to the agreement. Of the stock so issued, $500 was issued to Williams and charged to him on the partnership books; $3,500 was issued to Henkle; $3,500 was issued to McMillan, for which he gave his note to the partnership; and $500 was issued to Barnes. McMillan testified that he paid his note of $3,500 and interest. Williams & Henkle paid face value for the $8,000 of stock issued for the merchandise sold to the corporation, when the $217.80 was returned.

Barnes did not pay for the stock subscribed for by him and it was reissued to Henkle. Henkle testified that the stock issued to him was only taken by him as security for debts of the partnership for which he was personally liable and because Williams was not financially responsible. He also testified that ten shares of the McMillan stock were sold for $1,000; that fifteen shares of the stock issued to him were sold to third parties for $1,500; that he sold twenty-two shares of the stock issued to him, including the stock subscribed by Barnes, to McMillan for $2,000; that he conveyed to the corporation two shares on the $217.90 difference between the $8,000 of capital stock and the stock of merchandise brought from the partnership, and that he still has one share. He gave the names of the purchasers of the fifteen shares and the number of shares sold to each. These parties gave notes for the par value of the stock sold to them. Notes to the amount of $1,300 made by these parties dated March 3, 1913, for the respective amounts of stock severally taken by them are charged to Henkle on the books of the partnership on that date.

No reason is presented why McMillan should pay into the treasury of the corporation $108.90, one-half the difference between the $8,000 stock issued in payment of the merchandise of the value of $7,782.20 bought of the partnership. McMillan had no interest in the partnership. Williams, the partner, naturally should have repaid one-half of said sum to the corporation and counsel for complainant state he did pay his half.

Williams and Henkle disagreed about the settlement of some of the partnership matters and on March 28, 1913, they executed an agreement under which they “mutually agree to submit all their matters in difference of every kind and character concerning the partnership affairs of the undersigned doing business as Williams & Henkle as well as all other matters to the determination and award of * * * as arbitrators to hear and determine the same and make their award in writing on or before the 7th day of April, 1913, * * * a majority finding of the arbitrators shall be binding on the parties hereto.”

There is nothing in the submission from which it can be discovered what were the matters in difference between Williams and Henkle. On May 15, 1913, the arbitrators made an award, which from its tenor is only an audit of the books and accounts and an allowance to Henkle of $650 as extra compensation. While, ordinarily, extra compensation is not allowed to partners for services in winding up a partnership, it may be allowed under special circumstances. Maynard v. Richards, 166 Ill. 483; 30 Cyc. 697.

It is contended on behalf of Williams that the award of the arbitrators is void because it was not made within the time limited in the submission. The record shows that Williams appeared before the arbitrators after April 7th, and took part in proceedings before them, without making any claim that the submission was revoked. By such action he consented to the action of the arbitrators after the time limited by the submission. The parties are precluded from litigating further the matters considered and passed upon in the arbitration. Buntam v. Curtis, 27 Ill. 374; Merritt v. Merritt, 11 Ill. 565.

The award makes no mention of the stock of merchandise on hand at the time of the dissolution, or of the capital stock received for such merchandise from the corporation, further than charging complainant with $500 of the stock, which had been charged to him on the books of the partnership. One of the arbitrators testified that neither the* stock on hand at the time of the dissolution, nor the capital stock received for it, was considered in the arbitration, but only the items charged to the partners. It does not appear from the record that there was any controversy over the capital stock received for the sale of the merchandise at the time of the arbitration. The controversy concerning the disposition of the capital stock, and the collection of notes and accounts has arisen since that time, and with the question of whether the award is binding on the parties, appears to be the only matters concerning which they disagree.

The master in stating the account starts with the balance sheet made by the arbitrators to April 3, 1913: “Accounts of R. F. Henkle:

Cash merchandise and notes charged $7,115.41 Credits, including Howard stock at $3,800 $7,198.28 “Accounts of Loal Williams:

Cash and merchandise charged $3,203.56 Five Shares Fulton Farm Stock 500.00 $3,703.56 Credits $ 667.00”

The master then undertakes to state the transactions occurring since April 3, 1913, in winding up the partnership. In doing so he charges Henkle with $3,500, the face value of the capital stock subscribed by him and applied on the sum due the partnership from the corporation. From the evidence it appears, $1,300 of the $7,115.41 cash, merchandise and notes charged to Henkle were notes charged to him March 3, 1913, which had been taken for the sale of thirteen shares of the thirty-five shares of the capital stock issued to him. Counsel for Henkle argue .that fifteen shares of the stock had been sold and the proceeds charged to him in the award. We do not find in the report of the arbitrators two of the $100 notes, which were taken for two shares of the stock, charged to Henkle. Henkle should not be charged with the capital stock and also notes taken for stock charged to him, unless he is given credit, for the return of the stock, which does not appear to have been done.

The agreement states that the holdings of stock of the four signers were to be reduced to $500 each. Henkle should be charged with that amount at its face value. He should not be charged with any of the $3,500 of stock subscribed by him which was sold and the notes turned over to the partnership, and by the partnership turned over to Henkle and charged to him on the books of the partnership, nor should he be charged with any of that capital stock returned to the corporation in payment of the $217.80 unless he is credited with such payment. The question of whether he should be charged by the partnership with what the remainder of the $3,500 of stock which was sold to McMillan was sold for, or its face value, has not been argued and we express no opinion concerning that question.

The $500 of stock issued to Barnes was not paid for, and this was resold to McMillan by Henlcle. He should only be charged with what was actually received on the sale of these five shares, unless bad faith is shown in the transaction.

The decree does not settle the rights of the parties. The bill was filed February 19, 1914. The master reported from the evidence presented that it is impossible to state the account between the parties subsequent to January 8, 1914, and that at the time of making the report there were numerous accounts due the partnership which should be collected, and both parties testified that there are outstanding accounts which should be collected. The decree entered adjudges that the “ defendant herein is indebted to the said Loal Williams as of, and on January 8, 1914,” although the bill was filed February 19, 1914.

On a bill for an accounting between partners, it is not proper to render a personal decree against one partner for the excess of his receipts over his disburse-" ments until his interest in the firm assets has first been exhausted (Rosenstiel v. Gray, 112 Ill. 282); there should be a complete adjustment of the partnership accounts and a disposition of all partnership property leaving nothing for subsequent settlement. (Randolph v. Inman, 172 Ill. 575; 15 Encyc. of Pl. and Pr. 1105.) One partner cannot maintain an action against his co-partner for an accounting as to particular items or transactions, but partners may make a partial settlement by arbitration at any time. 30 Cyc. 687.

The complainant should take the necessary steps and make such proof as will enable the court to fully settle the partnership, otherwise the bill should be dismissed. The decree is reversed and the cause is remanded because of the errors indicated.

Reversed and remanded.


text:
    John Pugh, Appellee, v. Frank M. Palmer, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Chattel mortgages, § 44

      —when execution of question for jury. In an action in trover for the conversion of a cow claimed by the defendant to have been mortgaged to him by the plaintiff as security for the payment of a promissory note executed by him, held, where the evidence was conflicting, that the question whether the plaintiff executed the mortgage and note was a question for the jury.

      Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action in trover by John Pugh, plaintiff, against Prank M. Palmer, defendant, for the conversion of a cow. Prom a judgment for plaintiff, defendant appeals.
    The defendant traded a Jersey cow for a black cow belonging to the plaintiff and claimed the plaintiff executed a promissory note secured by a mortgage on the Jersey cow covering the amount due the defendant, at the time, in settlement of accounts between them. The plaintiff denied the execution of the note and mortgage.
    Lemon & Lemon, for appellant.
    W. F. Gray, 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 Thompson

delivered the opinion of the court.

2. Appeal and error, § 1618*—when error in admission of evidence cured. In an_ action in trover for the conversion of a cow by the defendant, held that an objection to a question put to the plaintiff as to whether he was the owner of the cow in question was improperly overruled as calling for a conclusion, but that the error was obviated by the answer to another question that he traded another cow for her before the time in question.

3. Evidence, § 262*—when statement of account inadmissible. A statement of an account, as it was claimed to have existed at the time of a certain settlement, which was not made up at the time of the settlement but compiled later from books kept by the party offering it in evidence, held inadmissible.

4. Trover and conversion, § 38*—when statement of account inadmissible. In an action in trover, a statement of account between the defendant and plaintiff held inadmissible since, even if the property was wrongfully converted, a set-off could not be pleaded or proved against the damages or value of the property taken.

5. Trover and conversion, § 8*—when action lies. Where property has been wrongfully converted the owner may bring an action in trover and need not bring an action in such form that accounts may be adjusted between the parties.

6. Contracts, § 276*—when agreement may not be rescinded. Where the defendant in an action in trover for the conversion of a Jersey cow claimed that he traded the cow for a black cow belonging to the plaintiff under an agreement that the plaintiff should execute a mortgage on the Jersey cow, held that though the plaintiff had not executed the mortgage, the defendant nevertheless had no right to rescind the trade unless he returned the black cow.


author: Mb. Justice Thompson

text:
    Ernest A. Ibbetson, Appellant, v. E. A. Knodle, Appellee.
    1. Vendor and purchaser, § 209

      —what effect of recording of deed. The recording of a deed is only constructive notice and preserves the rights of the grantee in such deed and does not affect the rights of the grantor and a subsequent grantee as to covenants of warranty between the parties.
    2. Covenants, § 31*—when recovery for "breach of not denied. Mere knowledge on the part of the covenantee of facts that will constitute a breach of covenant will not prevent a recovery for the breach.
    3. Deeds, §' 82*—what effect of provision of Mining Act as to extent of title to land under statutory warranty deed. The provisions of sections 6 and 7 of chapter 94 of the Mining Act (J. & A. ¶¶ 7538, 7539), providing that mining rights in land may be conveyed by deed and that when they are conveyed separately from the land such rights and the land itself shall be assessed separately, have no bearing as to the extent or quality of title deemed to have been conveyed by warranty deed in fee simple in statutory form as provided by section 9 of the Act entitled “Conveyances” (J. & A. ¶ 2240).
    4. Covenants, § 29*—what constitutes breach of warranty of title and against incumbrances. A conveyance by deed of coal underlying land together with the right of removing it, and such other material as might be necessary to properly mine it, held a breach of warranty of title and against incumbrances in a subsequent deed conveying the land in fee simple by warranty deed in statutory form.
    Appeal from the Circuit Court of Moultrie county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Victor Hemphill and F. M. Harbaugh, for appellant.
    E. J. Miller and Lane, Dryer & Brown, for appellee.

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

   Mb. Justice Thompson

delivered the opinion of the court.

This is an action of covenant brought by Ernest A. Ibbetson against E. A. Knodle. The declaration contains two counts substantially alike, and avers that on April 2, 1913, defendant conveyed to plaintiff by a warranty deed, in statutory form, a certain described tract of two hundred acres of land in Montgomery county for the consideration of $8,000, and that the defendant by said deed for said consideration covenanted that the land so conveyed was free and clear of all other grants, sales and incumbrances. It further avers that in February, 1913, the defendant, then being the owner of said land in fee simple, did for a valuable consideration sell and convey by a deed to Robert R. Hammond all coal, below the depth of one hundred twenty-five feet under the surface of said land, with the right to mine and remove the same, and such other material as might be necessary in order to properly mine and remove said coal under said land, all without liability for damage to the surface, as will appear by said deed filed for record in the recorder’s office of Montgomery county on February 6, 1913; that such interest in said land, so conveyed to said Hammond, was at the time of the execution of the deed to plaintiff and still is outstanding in said Hammond, and is valid and enforceable against the said land and the owner thereof; that said interest so conveyed to Hammond in said land and the coal so underlying has never been reacquired by defendant, and that the right to mine and remove said coal, without liability for damages to the surface conveyed by said deed to said Hammond, is a covenant running with the land and its title, and constitutes a valuable estate and interest in said land of the value of $2,000, and so plaintiff says defendant has broken his covenant to the damage, etc.

The defendant demurred to the declaration and for. special cause states that the title to the coal has been severed from the title to the surface before the making of the deed to plaintiff.

The court sustained the demurrer and plaintiff abiding by his declaration, judgment was rendered that plaintiff take nothing by Ms suit. The plaintiff* appeals.

Appellant contends that a general warranty deed, in the form prescribed by the statute, is a conveyance in fee simple with covenants on the part of the grantor; that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple; that the covenant of seizin in a warranty deed is as, broad as the conveyance, and extends to all such things as should pass by a conveyance of the freehold, and if things, wMch are a part of the land which would properly pass by the conveyance are not owned by the grantor, there is a breach of the covenant.

The contention of appellee is that by reason of the prior conveyance of all the coal and mining rights to Hammond, which was known to appellant, as set forth in the declaration, the appellee by his act had severed the title and estate in the coal from the title and estate in the surface “and that as a matter of law a subsequent conveyance of the surface of said lands by warranty deed, in statutory form, would not convey or purport to convey the entire estate,” and that by the deed to appellant, the appellee is not deemed and held to have conveyed in fee simple the coal and mining rights below the surface of the land described, with covenants of seizin and for possession of the coal.

Appellee assumes that appellant had actual notice of the prior deed to Hammond. There is no averment that appellant had such notice. The averment is that the deed was recorded on February 6, 1913. The recording of a deed is only constructive notice and preserves the right of the grantee in such deed and does not affect the rights of the grantor and a subsequent grantee as to covenants of warranty between the parties. Mere knowledge on the part of the covenantee of facts that will constitute a breach of a covenant will not prevent a recovery for such breach. Beach v. Miller, 51 Ill. 206; Weiss v. Binnian, 178 Ill. 241; Wadhams v. Swan, 109 Ill. 46; note to Brown v. Taylor (Tenn.) 4 L. R. A. (N. S.) 309; Herzog v. Marx, 202 N. Y. 1.

Section 9 of the Act (J. & A. ¶ 2240) entitled “Conveyances” provides that warranty deeds substantially in the form prescribed by the statute, “when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.”

Sections 6 and 7 of chapter 94 (J. & A. ¶¶ 7538, 7539) entitled “Mines,” provide that mining rights in land may be conveyed by deed, and when a mining right has been conveyed then the mining rights and the surface shall be assessed separately. These provisions do not control the provisions of the statute regarding the manner of making conveyances. The ownership of the surface and the mineral rights are severed by a conveyance by the owner, in which he either conveys the mining rights only, or conveys the surface and reserves the mining rights from the effect of the conveyance.

“ ‘Coal in place underlying land and constituting a substratum of the real estate is itself real estate, which may be severed from the surface, and the title thereto may be in one person while the right and title to the surface are in another. In case of such a severance there are two separate estates, each of which may be conveyed by deed or devised by will, or may pass to the heir under the statutes of descent. ’ Brand v. Consolidated Coal Co. of St. Louis, 219 Ill. 543; Ames v. Ames, 160 Ill. 599.

“The covenant of seizin in a warranty deed is as broad as the conveyance, and if things, which are apparently part and parcel of the land, so as to come within the description of the granted premises, and which would properly pass by the conveyance, are not owned by the grantor, there is a partial breach of the covenant. 8 A. & E. Encyc. of Law 92; Tone v. Wilson, 81 Ill. 529; Lloyd v. Sandusky, 203 Ill. 621. Covenant is ‘an assurance that the grantor has the very estate in quantity and quality which he purports to convey.’ 8 A. & E. Encyc. of Law 90.”

The deed to appellant did not limit the property conveyed to the surface of the land. It would have conveyed and vested the title to the coal under the land conveyed in appellant, except for the fact that the grantor had previously conveyed his title to the coal by a deed to Hammond which had been recorded. Appellee by the deed to appellant covenanted that he had an indefeasible estate in the whole of the premises described. He had devested himself of the title to the coal which constituted a part of the premises conveyed. The conveyance of the coal constituted an incumbrance on the title. Strambaugh v. Smith, 23 Ohio St. 584.

In Lloyd v. Sandusky, 203 Ill. 621, s. c. 95 Ill. App. 593, Lloyd brought suit against Sandusky to recover damages for a breach of a covenant of seizin upon the ground that the title to the soil and the minerals had been severed, and the latter sold to another. A judgment for a nominal sum was affirmed, when the defense was, that the consideration was paid for the surface only.

The deed, which is the foundation of this suit, conveys the land described when the appellee had previously conveyed the coal thereunder which is a part thereof. The conveyance to Hammond was a breach of the covenant of warranty. The declaration stated a good cause of action and it was error to sustain the demurrer. The judgment is reversed and the cause remanded with instructions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Nels Sunnes, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Ford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Neis Sunnes, plaintiff, against the Illinois Central Railroad Company, defendant, for damages sustained 'by the plaintiff to his person and to his automobile at a railroad crossing. From a judgment for plaintiff, defendant appeals.
    Cloud & Thompson, for appellant; J. G. Drennan, of counsel.
    Schneider & Schneider, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of tlie Decision.

1. Railroads, § 706 —burden of proof on plaintiff. In an action for injuries sustained by the driver of an automobile at a highway crossing aver a railroad track, held that the burden of proof was on the plaintiff to show that he was in the exercise of ordinary care for his own safety when approaching the crossing.

2. Railroads, § 738*—when evidence sufficient to show contributory negligence of driver of automobile. In an action for injuries sustained as the result of a collision with a railroad train at a public crossing, the plaintiff’s admission that he knew of the crossing and that he ran the automobile in which he was riding at from eighteen to twenty miles an hour over a very rough road up to within fifty feet of' the crossing, which was in plain view and of which he was aware, by the side of a hedge which he could not see over, although he testified that he looked until he was satisfied that no train was coming, held an admission of facts which showed a want of ordinary care amounting to gross negligence which would prevent a recovery.

3. Railroads, § 672*—what degree of care required of driver of automobile approaching partially obstructed track. In an action for injury sustained by an automobilist at a highway crossing over a railroad track, held that the fact that the plaintiff knew the track was partially obstructed by a hedge along the side of the highway required care on his part in proportion to the known danger.


author: Mr. Presiding Justice Thompson

text:
    Milton R. and Samuel E. Livingston, Appellees, v. Harry J. Frey, Appellant.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed May 3, 1916.
    Statement of the Case.
    Action for forcible detainer by Milton R. and Samuel E. Livingston, plaintiffs, against Harry J. Frey, defendant. From a judgment for plaintiffs, defendant appeals.
    The evidence showed that on May 1, 1905, the defendant leased the described premises for the term of five years from Emma B. and William II. Brown at a rental of $145 per month, payable monthly in advance on the first day of each month. The lease contained a provision for an extension for a like term, upon the same terms and conditions, upon a written notice being-given by the lessee on or before March 1, 1910.
    On March 3, 1910, an extension of the lease for five years from May 1, 1910, was executed by the parties. There was no further extension of the lease. On June 18, 1914, William H. Brown, who had become sole owner of the premises, made a lease of the premises to plaintiffs at $225 per month, to begin May 1, 1915, the day that the extension of defendant’s lease expired.
    Emma Brown was the mother of William II. Brown. She died June 11, 1914. The contention of defendant was that in a conversation with him, Mrs. Brown told him that he might continue in possession of the premises after the expiration of his extension, as long as she lived, and that the suit should have been brought in the name of William H. Brown, the present owner, and not by his lessees. The court sustained an objection to the offer made by defendant to prove the conversation between Mrs. Brown and himself, waiving the requirement of notice in writing by the lessee.
    Abstract of the Decision.
    1. Evidence, § 319

      —varying lease by parol evidence. The terms of a lease under seal cannot be varied by parol evidence.
    2. Forcible entry and detainer, § 74*—when parol evidence inadmissible. In an action of forcible detainer against a lessee after the expiration of his term, * evidence that one of the lessors who had died before the expiration of the term had told the lessee that he could occupy the premises as long as such lessor lived, held inadmissible.
    3. Forcible entry and detainer, § 45*—who proper party plaintiff to maintain action. A lessee whose term was to commence at the expiration of the term of a prior lessee, held the proper and only party entitled. to maintain an action of forcible detainer to obtain possession of demised premises from the prior lessee holding over.
    4. Forcible entry and detainer, § 91*—when direction of verdict for plaintiff proper. In an action of forcible detainer by a lessee against a prior lessee in possession, where the evidence clearly proved thfe plaintiffs’ right to the possession and there was no evidence tending to show that the defendant was entitled thereto, held that a peremptory instruction to find in favor of the plaintiffs was proper.
    5. Forcible entry and detainer, § 9*—what does not constitute justification for withholding of possession. Where, in an action of forcible detainer by a lessee against a prior lessee, the plaintiffs’ right to possession'was clearly shown, held that the fact that plaintiffs obtained their lease without notice to the defendant and that the latter had no other course open to him than to hold on until he had secured a suitable location, constituted no justification for the defendant taking an appeal from a decision against him.
    De Mange, Gillespie & De Mange, for appellant.
    Livingston & Bach, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


author: Mr. Justice Graves

text:
    W. B. Patterson, Appellee, v. John F. Denton, Tax Collector, and S. D. Burton, County Collector, Appellants.
    1. Appeal and error, § 16

      —when right to appeal exists. An appeal can only be taken where the right to do so is conferred by statute.
    2. Appeal and error, § 17*—how statutes on right of appeal construed. Rev. St., ch. 110, sec. 123 (J. & A. ¶ 8661), authorizing an appeal from an interlocutory order denying motion to dissolve a temporary injunction, must be construed in connection with section 118 of the same chapter (J. & A. ¶ 8655), limiting appeals to the Appellate Court to cases in which the validity of a statute or the construction of the Constitution are not involved and which do not relate to the revenue, and in which the State is not interested as part or otherwise.
    3. Appeal and error, § 198*—when Appellate Court no jurisdiction on appeal. The Appellate Court has no jurisdiction to entertain an appeal from an order denying a motion to dissolve a temporary injunction, restraining a tax collector from collecting 'taxes levied pursuant to an order of a board of review, where the bill alleges that the statute under the authority of which the board acted is unconstitutional.
    4. Appeal and error, § 309*—when appeal does not lie. Rev. St., ch. 110, sec. 123 (J. & A. ¶ 8661) does not authorize an appeal to the Supreme Court from an interlocutory order denying a motion to dissolve a temporary injunction.
    5. Courts, § 138*—when case not transferred to Supreme Court. An appeal to the Appellate Court from an order denying a motion to dissolve a temporary injunction, restraining tax collectors from collecting taxes levied pursuant to an order entered by a board of review, where the bill. challenged the validity of the statute under which such board acted, is properly dismissed and not transferred to the Supreme Court, inasmuch as there is no provision for an appeal to .such court in such a case.
    6. Courts, § 138*—when case not transferred to Supreme Court. Where the Appellate Court has no jurisdiction to hear an appeal the case will not be transferred to the Supreme Court under Rev. St., ch. 110, sec. 102 (J. & A. ¶ 8639) if that court has no jurisdiction to hear the appeal.
    Appeal from the Circuit Court of Moultrie county; the Hon. George A. Sentee, Judge, presiding. Heard in this court at the April term, 1916.
    Appeal dismissed.
    Opinion filed May 3, 1916.
    Rehearing denied June 30, 1916.
    E. J. Miller and C. B. Patterson, for appellants.
    Jennings & Elder, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court overruling a motion to dissolve a temporary injunction issued on a bill filed by appellee to restrain the defendant, John F. Denton, tax collector for the Township of Sullivan, in Moultrie county, Illinois, and the defendant, S. D. Burton, treasurer and county collector in and for the said county, and each of them and their deputies and agents from collecting from appellee the sum of $470.68, levied as taxes against appellee, pursuant to an order entered by the Board of Review of Moultrie County on the 6th day of August, 1915. The bill alleges, among other things, that the statute under the authority of which the said board of review acted in entering the order in question is unconstitutional and void.

An appeal can only be taken where the right to do so is conferred by statute. Sharpies v. Baker, 100 Ill. App. 108.

The order appealed from is interlocutory. The only statute authorizing an appeal from an interlocutory order denying a motion to dissolve a temporary injunction is found in section 123 of chapter 110, Rev. St. (J. & A. ¶ 8661), by the terms of which, appeals from such orders to the Appellate Court are authorized; but that section must be read and construed in connection with section 118 of the same chapter (J. & A. ¶ 8655), which expressly limits appeals to the Appellate Court, to cases in which the validity of the statute or the construction of the constitution are not involved, and which do not relate to the revenue, and in which the State is not interested as a party or otherwise.

The Appellate Court has no jurisdiction to entertain an appeal or determine a question relating to the revenue: People v. Cosmopolitan Fire Ins. Co., 246 Ill. 442; Sumner v. Village of Milford, 112 Ill. App. 623; People v. Sisson, 5 Ill. App. 558; Mix v. People, 7 Ill. App. 224; Johnson v. Eliel, 9 Ill. App. 520; or where the validity of the statute is involved: Village of Morgan Park v. Knopf, 111 Ill. App. 571; Botts v. Botts, 142 Ill. App. 216; A. H. Woods Production Co. v. Chicago, C. & L. R. Co., 147 Ill. App. 568; People v. Hyer, 151 Ill. App. 593; Patten v. Faithorn, 152 Ill. App. 426; Schaller-Hoerr Co. v. Gentile, 153 Ill. App. 458; Gillespie v. Patrick, 146 Ill. App. 290.

The bill in this case relates to the revenue, and expressly challenges the validity of the statute under which the board of review acted in entering the order of August 6,1915. This court, therefore, has no jurisdiction to entertain this appeal.

Section 102 of chapter 110 (J. & A. ¶ 8639) provides in part that:

“In the event any case is. taken by appeal or writ of error to either the Supreme or Appellate Court and it is found or adjudged that the case was wrongfully appealed, or taken to such court, it shall be the duty of such court, immediately on so finding or adjudging, to direct the clerk to transmit the transcript and all files therein with the order of transfer to the clerk of the proper court. * * *”

Section 123 of chapter 110 (J. & A. ¶ 8661), already referred to as the only statute authorizing appeals from interlocutory orders denying motions to dissolve temporary injunctions, does not authorize appeals from such orders to the Supreme Court. In the case of Craig v. Craig, 246 Ill. 449, an order was entered by the Appellate Court of the Second District trailsferring an appeal from an interlocutory order denying a motion to dissolve a temporary injunction to the Supreme Court. That court refused to entertain that appeal, and said:

. “The order of the Circuit Court overruling the motion of the defendants to dissolve said injunction was an interlocutory order and one from which no appeal would lie to this court. * * * The Practice Act of 1907 (sec. 123, J. & A. ¶ 8661) provides for the review by the Appellate Court of interlocutory orders overruling motions to dissolve injunctions. That section of the statutes provides, however, that no appeal shall lie or writ of error be prosecuted to review the judgment of the Appellate Court on any such appeal.”

It follows that no provision is made in our law for the review by appeal of interlocutory orders overruling motions to dissolve temporary injunctions where the validity of the statute or the construction of the constitution is involved, or that relates to the revenue, or in which the State is interested as a party or otherwise.

Neither the Supreme Court nor this court having jurisdiction to hear and determine this appeal, there is nothing left for this court to do but to dismiss it, which is accordingly done.

Appeal dismissed.


author: Per Curiam.

text:
    W. H. Birch, Appellee, v. John F. Denton, Tax Collector, and S. D. Burton, County Collector, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. Geobge A. Sentel, Judge, presiding. Heard in this court at the April term, 1916.
    Appeal dismissed.
    Opinion filed May 3, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    The facts material to the determination of the questions presented by this appeal are identical with those in the case of Patterson v. Denton, ante, p. 382, and are controlled thereby.
    E. J. Miller, and C. R. Patterson, for appellants.
    Jennings & Elder and J. L. McLaughlin, for appellee.
   Per Curiam.


text:
    Robert Griffin, Appellee, v. Yontz Bonnett, Appellant.
    1. Covenants, § 19

      —when grantee liable for improvements under terms of existing lease. A grantee of a lessor who, by the terms of a lease, had agreed to pay the lessee, on the expiration of the term, the value of certain improvements to be put upon the premises by the lessee, and also for grain raised by such lessee at a certain stipulated price, held liable for the value of such improvements at the expiration of a renewal of the lease made by him to such lessee and for the stipulated price of the grain raised by the lessee, after the grantee’s purchase of the premises.
    2. Appeal and error, § 1769*—when judgment affirmed upon entering remittitur. In an action in assumpsit, a judgment entered on a verdict awarding an amount on an item in excess of the amount claimed thereon in a count filed with the declaration was ordered affirmed on condition that the plaintiff remit such excess.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed June 10, 1916.
    W. W. Whitmore and Oglevee & Franklin, for appellant.
    James L. Loar, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit in assumpsit begun in January, 1915, by Robert Griffin against Yontz Bonnett. The declaration contains two special counts and the common counts. The first special count avers that in January, 1911, a lease in writing was made by the terms of which one Julius Funk, agent of George W. Funk, leased to Robert Griffin, plaintiff, one hundred and sixty acres of land from March 1, 1911, to February 28, 1914, on which Griffin was to raise com, all of which the landlord was to take and for which he agreed to pay the tenant seventeen cents per bushel for all the com raised, except the corn on twenty acres of which each party was to have one-half; that Griffin was to furnish at his own expense a house and such other outbuilding as may be necessary for his use, and Funk agreed on the termination of the lease to purchase such improvements on an equitable basis to be decided by appraisement; that in pursuance of the agreements in the lease plaintiff erected a house on said leased premises of the value of $795; that in May, 1912, Bonnett purchased the premises from Funk and as a part of the purchase price accepted the terms and conditions of the lease and agreed to abide by its terms; that plaintiff complied with the terms of the lease on his part, has had said improvements appraised at $795 and has demanded payment of defendant and he refuses to pay.

• The second count contains a further averment that, prior to the expiration of said lease, the defendant renewed arid extended it from March 1,1914, to March 1, 1915, and agreed at its expiration to pay the plaintiff the value of said improvements in consideration of his remaining on said premises for the extended period.

The ad damnum in the original declaration was $1,129. After the verdict was returned, leave was given to amend by interlineation to increase the ad damnum in $1,275. The declaration was not amended. The defendant filed a plea of the general issue, and three pleas to the special counts, setting up the Statute of Frauds, that the agreement was not in writing and (1) was not to be performed within a year; (2) was an agreement for the sale of lands; and (3) was a promise to answer for the. debt of another.

Issues were joined on the pleas and a trial was had before a jury, which returned a verdict that the plaintiff is entitled to recover of the defendant $1,275, made up of $735 for improvements, $300 balance due for com in 1913, and $240 balance due for corn in 1914. The court overruled a motion for a new trial, and rendered judgment for the plaintiff for $1,275. The defendant prosecutes this appeal.

The principal contention of appellant is that the agreement in the lease, between Funk and appellee, under which Funk was at the termination of the lease to purchase, on an equitable basis to be decided by appraisement, the improvements put on the leased land by appellee, is not a covenant that runs with the land and that there can be no recovery against appellant, by virtue of the covenant, for the improvements. The appellee insists that under section 15 of the Landlord and Tenant Act (J. & A. ¶ 7053) enacted in 1873, which provides: “The lessees of any lands, their assigns or personal representatives, shall have the same remedy, by action or otherwise, against the lessor, his grantees, assignees or his or their representatives, for any breach of any agreement in such lease, as such lessee might have had against his immediate lessor; Provided, this section shall have no application to the covenants against incumbrances, or relating to the title or possession of the premises demised,” that appellant, as the grantee of the lessor of appellee, is liable for the value of the house and other outbuildings erected by appellee on the leased premises under the covenant in the lease. The trial court, in the instructions given for appellee, adopted his theory and instructed the jury that if the appellant purchased the land from the lessor before the termination of the lease and appellee remained in possession of the demised premises the entire term of'said lease, and that if appellant has now and has had since his purchase the title of said land, and is the grantee of appellee’s lessor, then appellee is entitled to recover the reasonable value of said improvements. The Supr'eme Court of this State has recently reviewed a similar provision in a lease and the construction to be given to section 15 of the Statute, and held, that a grantee of a landlord, during the existence of a lease, is liable to a lessee for improvements made under such a covenant in a lease, where the covenant in the lease provided for improvements which are essential for the enjoyment of the property for the purpose for which it is leased. Purvis v. Shuman, 273 Ill. 286. The admitted facts bring the case within the terms of the statute, and there was no error in the rulings of the court on instructions.

The only other question presented for review by appellant is the claim that the great preponderance of the evidence shows that the amounts found to be due on the different items are excessive and that there had been a settlement between the parties, and appellee was not entitled to recover anything for corn raised. While the evidence tends to show a full settlement for the corn, the evidence leaves the claim for the $300 for the year 1913 in such doubt that we cannot say that that part of the verdict cannot be sustained.

In the declaration as originally filed and appellee’s statement of account on which the suit was tried, appellee claimed $795 for improvements and only $325 due for raising corn. Appellee in his evidence claimed $300 for corn raised in 1913, $25 for wheat, $7.70 for labor and $123 for corn raised in 1914. The verdict returned found $540 to be due to appellee for raising corn, a sum clearly in excess of the amount claimed by appellee in his.evidence and in his statement of the account filed with the declaration. The appellee should be held to the amount claimed to be due in his statement of the account. If the appellee enters a remittitur of $215 within five days, the judgment will be affirmed in the sum of $1,061 at the cost of appellee. Otherwise, it will be reversed and remanded because it is excessive.

Affirmed on remittitur; otherwise reversed and remanded.


text:
    Henry McDermott, Appellee, v. Rex Electric Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whititeld, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed June 10, 1916.
    Statement of the Case.
    Action for personal injuries by Henry McDermott, plaintiff, against the Rex Electric Company, defendant. From a judgment for plaintiff, defendant appeals.
    Defendant was a subcontractor doing the electric wiring of a building and the plaintiff was a subcontractor doing some calcimining therein. Both these subcontractors were at work on the same floor of the building. The employees of defendant were working with a three-quarter inch conduit pipe in which was an elbow. Plaintiff had occasion to pass over this pipe while it was lying on the floor near a door. One of defendant’s employees, in raising part of the pipe up to another employee, who was standing on a ladder, raised the elbow in the pipe from the floor just as plaintiff was stepping over it and thereby tripped plaintiff, causing him to fall and injure his knee on the floor, which was made of concrete.
    Buckingham, McDavid & Monroe, for appellant.
    J. R. Fitzgerald and Fred Hamilton, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Negligence, § 135 —what does not constitute variance. Proof of mere negligence is sufficient to sustain a judgment in an action in tort though the declaration charges wilfulness.

2. Master and servant, § 868*—when negligence of servant of defendant question for jury. In an action for personal injuries sustained by a subcontractor alleged to have been caused by the negligence of an employee of another subcontractor, working in the same building, in lifting up a pipe from the floor as the plaintiff was about to step over it, the question of negligence of the defendant’s employee held to be for the jury.

3. Master and servant, § 868*—when contributory negligence of plaintiff question for jury. In an action for personal injuries sustained by a subcontractor alleged to have been due to the negligence of an employee of another subcontractor, working on the same building, in lifting up a pipe from the floor as the plaintiff was about to step over it, the question whether the plaintiff was in the exercise of due care held for the jury.

4. Master and servant, § 867*—when evidence in action for negligent injuries sufficient to sustain judgment. In an action for personal injuries sustained by a subcontractor alleged to have been due to the negligence of an employee of another subcontractor, working on the same building, in lifting up a pipe from the floor as the plaintiff was about to step over it, evidence held sufficient to sustain a judgment for the plaintiff.

5. Instructions, § 19*—when properly refused. The refusal to give argumentative instructions is not error.

6. Negligence, § 211*—when instruction properly refused. As the doctrine of comparative negligence no longer obtains in this State, it is not error to refuse to give an instruction thereon.