author: Me. Justice Keener

text:
    L. A. Mason, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 34,886.

      Opinion filed October 9, 1931.
    Nelson J. Wilcox, Nelson Trottman and I. C. Belden, for appellant.
    No appearance for appellee.
   Me. Justice Keener

delivered the opinion of the court.

Plaintiff sued defendant to recover for loss and damage alleged to have been caused by reason of delay in the shipment of a car of cattle from Wakefield, Nebraska, to the Union Stock Yards, Chicago. The case was tried before the court without a jury. Finding for plaintiff and judgment against the defendant for $375.35. To reverse this judgment the defendant has appealed. Plaintiff has not appeared or filed a brief in this court.

The statement of claim sets up a contract entered into at Wakefield, Nebraska, on or about September 27, 1927, whereby defendant undertook to carry within a reasonable time a car of live stock from Wakefield, Nebraska, to the Union Stock Yards, Chicago; the delivery of the car to the carrier; the failure of the carrier to deliver the shipment at destination within a reasonable length of time; the allegation that the car should have arrived for the market of September 29, 1927, in good condition, but did not arrive until September 30, 1927, greatly reduced in weight; and the damages, which are alleged to have amounted to $375.35. The defendant’s affidavit of merits alleges that the shipment was transported and delivered at destination promptly, without negligence, without unreasonable or unnecessary delay and strictly on schedule time; and that the shipment was not due to arrive in time for the market of September 29, 1927, and was not due at destination until the time it did arrive.

It appears from the evidence that Wakefield is about 50 miles west of Sioux City, Iowa, on a branch of the Chicago, St. Paul, Minneapolis and Omaha Railroad. September 27, 1927, at about 4 p. m., plaintiff loaded a car of about 18 cattle for shipment to the Union Stock Yards, Chicago. The car moved from Wakefield that same afternoon on the regular train, and arrived at Sioux City the same day at 7:10 p. m.; that evening it moved out on the defendant’s Sioux City division train No. 254, scheduled to leave Sioux City at 7:45 p. m. to Maple River, Iowa, and thence to Boone, Iowa. The schedule of the Sioux City division shows that this train No. 254 was the first available train to leave Sioux City in the evening after the arrival of the car in question. From Maple River to Boone, the schedule shows this train as No. 354, and shows it was scheduled to leave Maple River at 2:55 a. m. and to arrive at the Boone freight yards at 5:45 a. m.; it arrived at Boone at 5:22 a. m. At Boone it was broken up, inspected, classified and consolidated with train No. 122, which came from Omaha and the west. These trains after being consolidated, were operated from Boone to Clinton as the second section of train No. 254, and scheduled to leave Boone at 6:15 a. m. and to arrive at Clinton, Iowa, at 4:15 p. m. This was the first available train to Boone after 5:45 a. m. On the day the car arrived at Boone, there was a delay at that point but not sufficient to cause the car to miss the next connection at Clinton, or in any way to affect the time of ultimate arrival. It took four hours to reclassify trains 354 and 122 at Boone, and make them into second 254. The time necessary to classify each train would ordinarily be about one hour and a half. On this day, train second 254 left Boone at 9:50 a. m. and it arrived at Clinton at 6:50 p. m. two and a half hours after the schedule time. The Federal Statutes (section 1, ch. 3594) require live stock to be unloaded for feed, water and rest once every 36 hours; this was done at Clinton, and after being fed, watered and rested, reloaded. The first available train out of Clinton after 4:15 p. m. for Chicago was scheduled to leave at 8:00 p. m. so that the shipment arrived at Clinton in time to make that connection had it been transported from Clinton to Chicago without being unloaded at Clinton. From Clinton the shipment was transported to defendant’s terminal yards near Chicago, and from the terminal yards, by usual switching operations, to the Union Stock Yards, arriving at 3:15 a. m. September 30, 1927.

It appears from the testimony of plaintiff and seven other shippers that the usual and customary time for delivery at destination was in time for the second morning’s market; that in certain specified instances, five of which were in prior years, and six in subsequent years, cars of cattle have been moved from Wakefield without being unloaded and in time for the second morning’s market; that the ordinary and usual customary time required to move a car from Sioux City to the Union Stock Yards wq.s from 30 to 35 hours. The schedule time from Sioux City to the yards was 35 hours and 30 minutes. A car loaded at 7:00 p. m. might overrun 36 hours. It also appears from the evidence that where special circumstances or the volume of business justifies the operation of extra trains, or where conditions are favorable, there are instances where particular shipments may be moved faster than the schedule; that schedules are made to take care of the general normal traffic with a view of fitting train movements in with the proper operation of the railroad and represent the average running time from day to day and from year to year along the lines of practical railroad operation and are made up on the basis of normal operations. It also appears from the evidence that while trains 354 and 122 were being broken up and consolidated at Boone, two trains left Boone, one at 7:15 a. m. and the other at 9:25 a. m. The train which left at 7:15 a. m. was a solid fruit train which was classified as a “main tracker,” that is a train which had already been classified so that it was only necessary at Boone to change the crew and engine, and that it would not have been practical to have placed a car of stock in this- train. The other train left at 9:25 a. m. and was the first section of No. 254 which carried 56 cars. This was also a “main tracker” originating at Council Bluffs and was operated thereafter without reclassification.

Plaintiff proceeds on the ground of negligence in that he alleges that defendant undertook to carry the cattle within a reasonable time and that the defendant breached this obligation. It is the duty of a common carrier to transport live stock within a reasonable time. This was an interstate shipment and was governed by federal law, and where negligence is charged the negligence must be established affirmatively by the plaintiff. (New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367.) In the case of Murphy v. Illinois Cent. R. Co., 238 Ill. App. 553, 558, it was said that “the burden of proof was upon appellee to show a ‘delay’ caused by the negligence of appellant.” Negligence is a positive wrong, and the burden rests upon the party averring it to establish the fact through direct evidence or by giving in evidence such facts and circumstances as will afford a reasonable inference to that effect.

Plaintiff testified that he had shipped a good many shipments over a period of 13 years; that the usual and customary time was from 34 to 36 hours. Other shippers testified for the plaintiff as to particular shipments. No showing was made as to the conditions under which they were made, nor whether the conditions and circumstances at the time of these shipments were comparable with the conditions and circumstances existing at the time plaintiff’s shipment moved. The cattle arrived at the Union Stock Yards on September 30, 1927, at 3:15 a. m. which, according to plaintiff’s contention, was 22 hours late. This condition of the record did not tend to show that the defendant'was guilty of any negligence in failing to have the shipment go forward sooner than it did. To render a carrier liable the delay must result from the carrier’s negligence. In Mason v. Chicago & Alton R. Co. (Mo. App.), 247 S. W. 243, 244, the court said:

“Plaintiff did not show affirmatively that the delay in the transportation was caused by any negligence of the defendant, but merely contented himself with the showing that there was a delay, without showing any facts from which it could be reasonably inferred that the delay was due to defendant’s negligence.” And in Parsons v. Chicago, B. & Q. R. Co. (Mo. App.), 300 S. W. 324, 325, it was said: “No negligence whatever was proved in connection with this delay and we think that the mere fact that the shipment was delayed from six to seven hours and fifteen minutes between North Judson and Croxton, in view of the great distance between these two points, is not of itself sufficient to make out a prima facie case of negligence on the part of defendant although the delay was not explained by the defendant.” (See also Fairley v. Chicago, R. I. & P. Ry. Co., 32 S. W. [2d] 109.)

The plaintiff having failed to establish a breach of defendant’s duty as a carrier, by affirmative proof of negligence, we are of the opinion that the defendant is not liable, and that the judgment appealed from cannot stand.

For the reasons stated the judgment of the municipal court will be reversed with a finding of fact.

Beversed with a finding of fact.

Finding of fact: We find as a fact that defendant was not negligent in the transportation of the car of 18 cattle from Wakefield, Nebraska, to the Union Stock Yards, Chicago.


source: Caselaw Access Project

author: Mr. Justice Keener

license: Public Domain

text:
    Mayme Bethke, Appellee, v. Cosmopolitan Life Insurance Company, Appellant.
    Gen. No. 34,933.

      Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.
    Rufus M. Potts, 0. W. Armstrong and F. X. Brickley, for appellant.

      Ader & Ader, for appellee; David B. Bothstein, of counsel.
   Mr. Justice Keener

delivered the opinion of the court.

Plaintiff sued defendant in the municipal court of Chicago on two life insurance policies in which Otto J. Bethke, her husband, was the insured. The case was tried by the court without a jury. Judgment was entered against the defendant for $2,476.40, being the amount of the policies and interest, from which the defendant appealed.

Plaintiff in her statement of claim alleged that June 20, 1927, the American Benefit Life Insurance Company issued to Otto J. Bethke its two policies of insurance in the sum of $1,000 each, payable to plaintiff; that July 1, 1929, the defendant, in consideration of the acceptance by the insured of its policies upon the life of Otto J. Bethke, in lieu of policies issued by the American Benefit Life Insurance Company, agreed by the terms therein stated to pay plaintiff $1,208 on each of said policies, if the death of Otto J. Bethke occur within, one year after July 1,1929; that March 4, 1930, Otto J. Bethke died; that at the time of his death all premiums had been paid; that plaintiff gave notice of said death to defendant and furnished proof thereof ; that the insured during his lifetime faithfully performed all the terms and conditions of the policy; that plaintiff fulfilled all of the conditions of the policy and that defendant has refused to pay plaintiff the sum provided for in each of said policies.

Defendant did not deny the payment of premiums and the furnishing of proof of death, but claimed as a defense that the policies were null and void because the statements made by the insured in his application for the1' American Benefit Life’Insurance Company’s policies pertaining to his physical condition and state of health were false; that the insured accepted defendant’s policies in lieu of the American Benefit Life Insurance Company’s policies and the applications therefor became and were a part of the defendant’s policies and became and were warranties in and to the defendant’s policies; that it relied on the truth of said warranties and that the insured had been guilty of fraud in making the claimed false statements.

The facts show plaintiff is the widow of Otto J. Bethke, who died March 4,1930; that on June 20,1927, the American Benefit Life Insurance Company, which for brevity we shall hereafter designate as the American Company, issued its two policies to Otto J. Bethke to which were attached the applications of Otto J. Bethke in which he represented he had never been treated for a large number of specified diseases and that he was in good health. The policies contained a provision that they shall be incontestable after they have been kept in continuous force for one full year during the life of the insured, except for the non-payment of assessments, misstatement of age, and suicide. April 29, 1929, the defendant entered into an agreement with the American Company in which it assumed the outstanding policies of the American Company and agreed it would be liable in the same manner as the American Company, notwithstanding any differences in the printed conditions in the forms of policies issued by the two companies. July 1, 1929, the defendant issued to Otto J. Bethke the two policies sued on, each of which recited that it was issued in lieu of the policies of the American Company and that the payment of the premium should constitute substitution and acceptance by the insured of the policies for the policies issued by the American Company, and recited that the policies and the applications, copies of which were attached thereto and made a part of the contract, constitute the entire contract between the parties. To these policies were attached photostatic copies of the applications made by the insured to the American Company. The insured made no application for insurance to the defendant, and the defendant did not require of the insured any new representations or warranties as to the state of his health at the time the policies in question were issued or to the truth of the representations or warranties in the applications made to the American Company. Otto J. Bethke had not in any way solicited or contracted. with the defendant for insurance, excepting the statement in the policies in question, that payment of the premium would constitute substitution and acceptance. The policies issued by the American Company were in the possession of the plaintiff from the date of their issue up to the time of the death of the insured and were, on the trial of the case, offered and received in evidence over the objection of the defendant. The two policies issued by the defendant were received by the plaintiff and they, too, were in her possession at the time of the assured’s death and were received in evidence without objections. The agreement between the American Company and defendant was received in evidence over the objections of the defendant. Thereupon the' plaintiff rested her case. The defendant then offered to show that the assured in 1919 had been treated by a physician for influenza and had suffered from bladdér trouble and gonorrhea and that from March, 1929, to the time of his death, he was in bad health, to which plaintiff objected and the objection was sustained.

It is argued, and the principal contention of the defendant is, that the agreement between the defendant and the American Company was a contract "of reinsurance which indemnified the American Company against the risk it had already assumed and that it created no privity of contract between the defendant and the insured. Reinsurance has been defined to be a contract that one insurer makes with another to protect the first insurer from a risk he has already assumed, and it operates solely between the insurer and the reinsured, and creates no privity whatever between the' reinsured and the person originally insured, the reinsurer being in no respect liable to the person originally insured. (Vial v. Norwich Union Fire Ins. Soc., 257 Ill. 355.) For a proper solution of the instant case it will be necessary to construe the agreement between the American Company and the defendant. The defendant in Sutton v. North American Accident Ins. Co. (Mo. App.), 208 S. W. 499, issued its policy of insurance to the assured under a reinsurance agreement with the insuring company in which policy it recited that the policy was issued in consideration of the representations and warranties contained in the application made to the insuring company which application was made a part of the policy. The policy of the insuring company, as well as the policy of the reinsuring company, each contained a provision that the insurer would not be liable under its policy unless the last illness of the insured was contracted after the delivery of the policy. The last illness of the assured was contracted after the delivery of the insurers’ policy and before the delivery of the reinsurer’s policy. The reinsurer contested its liability, on that ground'. The court, on page 501, said:

“Our reason for holding” that plaintiff was entitled to recover as a matter of law is that it is apparent from the policies, the application, and the contract between the two companies that the policy of insurance issued by the defendant was merely a reissuance of the policy of insurance issued by the Western Company, and that the provision in the policy issued by the defendant that defendant should not be liable for the amount sued for under the policy unless the sickness from which death resulted was ‘ contracted and begins after the date hereof’ is simply a restatement of a similar provision in the policy issued by the Western Company. As the sickness from which insured died began after the date fixed in the policy issued by the Western Company as the date after which the sickness might begin from which insured died, to make the Western Company liable, then defendant is likewise liable under its policy.”

In Cahen v. Continental Life Ins. Co., 69 N. Y. 300, the court held that since the reinsurance policy was issued under a reinsurance agreement, the insured having made no application for insurance to the reinsurance company, it could not contest its liability under its policy because of false answers in the application since it agreed to assume the outstanding risks of the insuring company and the insuring company would have been liable under its policy. See also Shoaf v. Palatine Ins. Co., 127 N. C. 308; Whitney v. American Ins. Co., 127 Cal. 464, 59 Pac. 897; s. c., 6 Cal. Unrep. Cases 220, 56 Pac. 50; Empire Life Ins. Co. v. Landman, 213 Ala. 248; Barnes v. Hekla Fire Ins. Co., 56 Minn. 38. We believe that the agreement is not merely a contract of reinsurance, but is one in which the defendant assumed the policies by the American Company and agreed to pay the losses of parties indemnified by the policies issued by the American Company. By the agreement, the defendant agreed upon the receipt of certain papers and data it would ipso facto assume the risk, i. e., the policies issued upon the life of Otto J. Bethke, and that it would be liable in the same manner as the American Company, and the assured had the same rights against the defendant that he had against the American Company. Such an agreement is valid and, when made, the reinsuring company is bound. (Weil v. Federal Life Ins. Co., 264 Ill. 425.) By assuming the policies the defendant undertook to discharge the obligations of the American Company to its policyholders, and the beneficiaries might sue the reinsuring company. (Weil v. Federal Life Ins. Co., supra.) The agreement was properly admitted in evidence.

It is also urged that the policies issued by the American Company did not affect or control the rights of the plaintiff or the liability of the defendant and were therefore improperly admitted in evidence, the defendant claiming it issued its policies on the strength of the applications attached to its policies and in lieu and substitution for the American Company policies, the policies being distinct, separate and independent contracts, and cite Lamb v. Mutual Reserve Fund Life Ass’n, 106 Fed. 637; Finley v. New Brunswick Fire Ins. Co., 193 Fed. 195; Equitable Life Assur. Society v. Stough, 45 Ind. App. 411, 89 N. E. 612; Larsen v. Thuringia American Ins. Co., 208 Ill. 166; Schroeder v. Trade Ins. Co. of Camden, 109 Ill. 157, and other cases. We have examined all of the cases cited; they are not applicable to the facts as disclosed by the record in the instant case. In none of the cases cited did the reinsurer enter into an agreement to assume the outstanding risks of the insuring company. In Lamb v. Mutual Reserve Fund Life Ass’n, supra, there was a formal cancellation of the first certificate. Finley v. New Brunswick Fire Ins. Co., supra, was in assumpsit on a fire insurance policy which had been canceled and a new policy substituted; in Equitable Life Assur. Society v. Stough, supra, the insured had voluntarily rescinded his contract of insurance and surrendered his policy; Schroeder v. Trade Ins. Co. of Camden, supra, was an original fire insurance policy and the application contained a statement that the property was unencumbered. The facts show it was encumbered. In Larsen v. Thuringia American Ins. Co., supra, a fire insurance policy was -canceled and the insured accepted another policy in lieu of the canceled policy. There was no reinsurance agreement between the two insuring companies. The warranties and representations in the applications in the instant case were made to the American Company to induce it to issue the policies and were not made to the defendant. The defendant did not require any statement from the insured that the warranties and representations were true when made, or at the time of the issuance of the policies of the defendant. Furthermore, when the defendant assumed the outstanding policies of the American Company and agreed to be liable in the same manner as the American Company, its liability was the same as that of the American Company (Sutton v. North American Accident Ins. Co., sufra), and it could not defeat its liability on its policies in the instant case by inserting new provisions (York v. Central Illinois Mutual Belief Ass’n, 256 Ill. App. 8), and so that the court might be properly advised in the contents of the American Company’s policies, they were properly admitted in evidence, and in so ruling the court committed no error.

It is next contended the defendant should have been permitted to prove that the insured had been treated in 1919 for influenza and had suffered from bladder trouble and was not in good health at the time of the issuance of the defendant’s policies. The policies issued by the American Company were issued on June 20, 1927, and provided that they would be incontestable one year after date, except for nonpayment of assessments, misstatement of age and suicide. In the agreement of April 29, 1929, between the American Company and the defendant, the defendant assumed the policies issued to the assured and agreed that it would be liable in the same manner as. the American Company, notwithstanding any difference in the printed conditions in the forms of policies issued by the two companies. The American Company could not have offered the evidence offered by the defendant, as the period for contesting the policy had run, and the defendant was in no better position than the American Company. (Monahan v. Metropolitan Life Ins. Co., 283 Ill. 136; Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592.) There was no error in sustaining the objection to this testimony.

It is finally contended that it was incumbent upon plaintiff to prove the assured was in good health on July 1, 1929', the date of the policies. The plaintiff proved the issuance and acceptance of the policies; the death of the insured; that she was his widow and the beneficiary named in the policies, and alleged the payment of the premiums and the furnishing of proofs of death,' which was not raised as an issue in this cause. Under this state of the recoyd she has shown a prima facie right to recovery. (Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Hatch v. Royal League, 233 Ill. App. 598, and Benes v. Bankers’ Life Ins. Co., 282 Ill. 236.)

Finding no reversible error and believing the judgment was right it is affirmed.

Affirmed.

Gridley, P. J., and Scahlah, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Peter Koegel, Plaintiff in Error.
    Gen. No. 34,991.
    Opinion filed October 9, 1931.

      Daniel Webster, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Henry T. Chace, Jr., Otho S. Fasig and Edward E. Wilson, Assistant State’s- Attorneys, of counsel.
   Mr. Justice Keener

delivered the opinion of the court.

By this writ of error plaintiff in error, Peter Koegel, seeks to reverse a judgment of the municipal court which adjudged him guilty of carrying a revolver concealed on his person and imposed a sentence.

It appears from the record that the plaintiff in error was arrested without a warrant and taken before the court and by leave of court an information was filed charging that Peter Koegel on November 21, 1930, at the City of Chicago, unlawfully carried a pistol or revolver concealed on or about his person, in violation of Cahill’s St. ch. 38, ¶ 141 (4); ch. 38, section 155 (Smith & Hurd). He was arraigned, -entered a plea of not guilty, waived a jury trial, and the cause went to trial before the court. Thereupon the court heard the evidence and arguments of counsel and found plaintiff in error guilty of carrying a revolver concealed on his person as charged in the information, and he was sentenced, a motion to vacate the judgment and grant a new trial having- been overruled. Counsel representing the plaintiff in error in this court did not appear for him in the trial court.

There are some preliminary points made by plaintiff in error to be disposed of before we reach the main question in the case. It is urged as a ground for reversal the bill of exceptions shows that two, and possibly three, witnesses were not sworn before they testified. This contention is not sustained by the record. The bill of exceptions shows that the witnesses Harold J. Shinnick, Peter Koegel, Nick Borsa and Mrs. N. Borsa, were sworn and in whose behalf they testified. The testimony of officer Matthew Cunningham commenced with an iiiterrogation by the State’s attorney. The testimony of Sam Merle, a witness for plaintiff in error, commenced with a question propounded by the court and finally the bill of exceptions shows that the attorney for plaintiff in error propounded the following question: “ (To Officer) When you took them out of his pocket (referring to the revolvers) you took them out in his presence?” The record does not show that these witnesses were not sworn and there is nothing in the bill of exceptions from which it can be said that these witnesses were not sworn. It has been held that where the bill of exceptions recites that a witness testified, in the absence of any showing to the contrary the presumption of law is that he testified under oath or averment — in other words, that he was sworn. (People v. Krotz, 341 Ill. 214, 219.)

It is next contended that the guilt of the plaintiff in error was not proved beyond a reasonable doubt, and it is argued that there was no proof that the weapons found in the possession of the plaintiff in error were concealed on or about his person. We think the evidence is to the contrary, and have no doubt of his guilt. He admitted on the stand that there were two guns found in his pocket, and officer Cunningham testified that the guns were loaded; and the officer, interrogated by the plaintiff in error’s attorney, testified that the guns were taken out of plaintiff in error’s pocket. But it is argued that this evidence does not prove that the guns wefe concealed on or about his person and it is suggested that the guns might have been shot guns, machine guns, large massive coast defense guns or rifles, which it would be impossible to conceal in a pocket. To this contention it is sufficient to say that it appears from the record that the guns were shown to the court, and that counsel for the plaintiff in error in the examination of Nick Borsa, a witness for plaintiff in error, described the weapons as “pistols.” This court will not reverse a judgment on competent evidence unless it clearly appears that there is a reasonable doubt of guilt, because the trial court has the advantage of seeing the witnesses and from all the surrounding circumstances is better able to reach a correct conclusion than a reviewing court. (People v. Reed, 287 Ill. 606, 610.)

Now, as to the important question in the case that the venue was not proved as laid in the information, the plaintiff in error arguing, that the defendant in error failed to prove that the offense of carrying concealed weapons was committed in the City of Chicago. It appears from the record that the information was filed in the municipal court of Chicago and charged the plaintiff in error with unlawfully carrying concealed on or about his person, a pistol or revolver, in the City of Chicago on November 21, 1930, and that from the evidence presented to the trial court, he found the plaintiff in error guilty, in manner and form as charged in the information. An examination of the evidence shows that the plaintiff in error testified that he went to a party with a friend, in a cab, “up north”; stopped to see another friend and got these guns on the street. Sam Merle, a taxicab driver, testified that he picked up the plaintiff at “Ogden and North Avenue” and was told to drive to “3730 Broadway.” Nick Borsa testified he met Koegel “on the sidewalk in front of a restaurant,” and that they went up to some place on “Broadway” and then to “Division and Clark Street. ’ ’ During the trial plaintiff in error said the guns were found by the officer at the “bureau.” It is apparent from this testimony that there was no direct evidence that “up north,” “Ogden and North Avenue,” “3730 Broadway,” “Division and Clark Street,” or the “bureau” were in the City of Chicago. Proof of the venue as laid is as essential as the averment of it and must be made by the State as a part of its case in order to warrant a conviction. (Dougherty v. People, 118 Ill. 160; Moore v. People, 150 Ill. 405.) But it has also been held that it is sufficient proof of venue, if the evidence as a whole leaves no reasonable doubt as to the act having been committed at the place laid in the indictment, even though no one testifies, in express words, where the offense was committed. (Weinberg v. People, 208 Ill. 15; People v. Schmidt, 292 Ill. 127; People v. Shaw, 300 Ill. 451.) Evidence of a fact may be derived from inference, although there be no positive statement of its existence. Judges are allowed to use their common sense and common observation and general knowledge in considering evidence and drawing the proper inference from it. (Robbins v. People, 95 Ill. 175.) The venue of an offense may be proven like any other fact, in a criminal case. It need not be established by positive, testimony nor in the words of the information. It is sufficient if from the facts appearing in evidence the only rational conclusion which can be drawn is that the offense was committed in the county alleged. (Weinberg case, supra, citing Weinecke v. State, 34 Neb. 14.) In the Weinecke case the court said, page 24: “It will be presumed that the trial court and jury knew the boundaries of the county where the trial took place and that the town of Chapman was in such county. ” In Sullivan v. People, 122 Ill. 385, it was held that proof that a crime was committed in Chicago is proof that it was committed in Cook county, as the court will take judicial notice that Chicago is in Cook county. In People v. Suppiger, 103 Ill. 434, the court said “it will take judicial notice that the town of Highland is situated in the county of Madison.” Courts will take judicial notice without proof of whatever ought to be generally known within the limits of their jurisdiction. (Lanfear v. Mestier, 89 Am. Dec. 658, 661.) In Jones v. United States, 137 U. S. 202, 214, the court said: “All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer,” and in the case of The Appollon, 22 Wheaton 372, the court, speaking through Mr. Justice Story, said: “It has been very justly observed at the bar, that the court is bound to take notice of public facts and geographical positions. ’ ’ A court will generally take notice of whatever ought to be generally known within the limits of its jurisdiction (Gunning v. People, 189 Ill. 165), and will take notice of the streets (Brady v. Page, 59 Cal. 52), and the situation of the streets, squares and public grounds. (Prince v. Crocker, 166 Mass. 347.)

In State v. Ruth, 14 Mo. App. 226, the information charged the defendant with petit larceny and alleged that the offense was committed in the City of St. Louis. The evidence showed the names of several streets in the City of St. Louis, but there was no positive testimony that those streets were in that city. The court said:

“It is true that no witness says in so many words that the offense was committed in the city of St. Louis. But this is not necessary. It is enough if the testimony was such as ought to have satisfied the trier of the fact that the place of the offense was that laid in the information. . . . But we need have no difficulty in judicially recognizing the fact that Washington Avenue, Morgan Street and Christy Avenue are old, established, and well-known streets of St. Louis — the city in which we sit as a court, — and that this knowledge prevails generally throughout the city, and must have been possessed by the trier of the fact in the present case. There can be no doubt from the evidence that the offense spoken of by the witnesses is spoken of as having been committed in the city of St. Louis, though they do not expressly name the town.”

In State of Missouri v. Burns, 48 Mo. 438, the defendant was charged with having committed murder within the county of St. Louis. The proof showed that it was committed in Mullanphy street. The witnesses all spoke of the murder as taking place on Mullanphy street, but it was not expressly stated anywhere that Mullanphy street was in the county or City of St. Louis. The court said, p. 439:

“The jurisdiction of the Criminal Court extends over the county of St. Louis, and the Legislature has recognized the city of St. Louis as being within the county of St. Louis. If there was evidence to reasonably satisfy the jury that the crime was committed in the city, that was sufficient. In criminal trials it must always be shown that the offense of which the prisoner is convicted was committed within the jurisdiction of the court. . . .

“But the question of venue or jurisdiction is always a question of fact, and may be proved like any other fact. If the evidence raises a violent presumption that the offense for which the prisoner is indicted was committed in the county where he was tried, it is sufficient.” (See also State v. West, 69 Mo. 401.)

Plaintiff in error calls our attention to Dougherty v. People, 118 Ill. 160, and People v. O’Gara, 271 Ill. 138, in which it was said that there is no rule of law that requires the court to judicially know that certain streets and numbers are in Chicago, where the record does not affirmatively show that the offense charged was committed as laid in the indictment. We believe those cases are distinguishable from the instant case and that the applicability of the rule announced in those cases is limited to the cases tried in courts of general jurisdiction. The court in the Dougherty and O’Gara cases, supra, had jurisdiction over the entire county and the county contains many cities and villages, all within the jurisdiction of the court. The evidence there mentioned streets by name and gave house numbers, and so the court said it would not take judicial notice that a certain street named is in any particular city named in that county; the instant case however was tried by a city court, having jurisdiction only in the City of Chicago. The case of People v. Savage, 220 Ill. App. 32, also cited by plaintiff in error, was tried in the city court of Mattoon, but the facts there distinguish it from the facts in the instant case. The question in the Savage case was as to the exact boundaries of anti-saloon territory. As part of the city was in such.territory and part was without, and as the evidence failed to show in which part of the city the act took place, the court held that the venue was not properly proven.

We believe, after mature consideration, in view of the authorities and precedents cited, that the evidence, taken as a whole, leaves not the slightest doubt, and the only rational conclusion which can be drawn is, that the offense was committed in Chicago, and the judgment will be affirmed.

Affirmed.

Gtridley, P. J., and Scanlan, J., concur.


text:
    Builder’s Bond & Mortgage Company, Appellant, v. John H. Bickley et al., Appellees.
    Gen. No. 35,000.

      Opinion filed October 9, 1931.
    Rosenberg, Corlett & Toomin, fo.r appellant.
    Edwin Terwilliger and George L. Pilkington, for appellees.
   Mr. Justice Keener

delivered the opinion of the court.

On December 21, 1928, the complainant, Builder’s Bond & Mortgage Company, filed its bill to foreclose a trust déed dated September 1, 1926, executed by defendants John H. Biekley and Letta M. Bickley, his wife, given 'to secure the note of the defendants for $20,000, payable in instalments of $400 each for 23 months commencing January 1, 1927, and the balance due on December 31,1928, with interest at six per cent per annum, payable monthly on the whole amount remaining from time to time unpaid. The property secured by the trust deed was at 2200 Rosemont avenue, Chicago, and was known as the Rosemont property. In the trust deed the defendants covenanted to pay prior incumbrances and interest thereon at the time and place when due and payable, and agreed that in the event of a breach of any covenant of the trust deed the whole of the indebtedness secured by the trust deed would at the option of the legal holder become immediately due and payable, and might he recovered by foreclosure. The bill alleged failure to pay principal and interest due December 15, 1928, on a prior incumbrance securing an indebtedness of $76,000 and to pay complainant $2,148.87 accrued principal and interest due February 1,1928, and to make principal payments of $200 each, due on the first day of October, November and December, 1928, respectively, with interest on the balance of the principal of the note remaining on said dates unpaid. Defendants answered, admitting the execution of the note and trust deed and alleged that only $17,000 had been received on the $20,000 note, the difference being retained as an usurious commission; alleged an agreement reducing payments of the instalments to $200 each and denied that they had defaulted in failing to pay principal and interest due December 15, 1928, on prior incumbrance, by averring, that the holders of the prior incumbrance had extended payment of the amount due 90 days; denied default had occurred February 1, 1928, in failure to pay accrued principal and interest of $2,148.87, but admitted that the October, November and December instalments of $200 each were due and unpaid, and averred that on December 11, 1928, complainant by resolution of its board of directors resolved that there should be no action taken to foreclose the trust deed.

The cause was referred to a master to take the testimony and report his conclusions of law and of fact. The master filed his report, in which he found that when payments of $606.75 and $330.50 were made by the defendants to complainant, said payments so made were made upon the agreement that nothing would be done until the mortgage matured, in order to give defendants time to complete a loan which they were making for the purpose of paying the balance due complainant; that defendants were not in default; that $3,000 was charged defendants for making the loan, which charge constituted usury, and that no action prior to the filing of the bill was taken by the complainant declaring the whole amount due, and recommended the bill be dismissed for want of equity. Objections to the report were ordered to stand as exceptions, which were overruled and a decree entered dismissing the bill for want of equity. To reverse the decree complainant has appealed.

It appears from the evidence that the complainant is a corporation engaged in the real estate mortgage loan business and defendant John Biekley, a real estate broker, was one of its incorporators and directors and its president from 1926 to the date of his resignation as such president and director some time in December,-1927; that the defendant John Biekley, Edward Sager and Neis Johnson constituted a committee whose duty it was to pass on loans made by the complainant. Edward Sager was Biekley’s attorney and he submitted the loan involved in the instant case to this committee, but it was not submitted to the board of directors until after the money had been paid in checks drawn at Bickley’s office and sent to the treasurer for his signature, when it was accepted by the complainant. The note executed by the defendant was for $20,000, payable in monthly instalments of $400 each, commencing on January 1, 1927, with interest at six per cent per annum, payable monthly, on the whole amount of principal remaining from time to time unpaid', the balance being payable on December 31, 1928. Only $17,000 of the loan was actually paid by complainant. During the month of December, 1927, Bickley resigned his office in the complainant corporation and surrendered his stock to the complainant for which he received a credit of $5,000, and by agreement between the parties the defendant was credited with $1,760.22 on the loan in the instant case, the balance of the $5,000 being credited among other loans that he had with complainant. Some time between November 1, 1927, and January 1,1928, it was agreed by the parties that the monthly instalments to be paid on account of the note be reduced from $400 to $200 a month, the $200 a month payments to commence February 1, 1928. From the date of the loan up to and including December 1, 1928, the defendants paid complainant on account of the note the sum of $7,169.41. The interest computed to December 21,1928, the date of the filing of the bill, on the whole amount of principal remaining from time to time unpaid, assuming the loan to be $17,000 and not $20,000, amounts to $1,960.93, which sum deducted from $7,169.41, the amount actually paid, leaves the defendants a credit of $5,208.48.

It further appears that the premises were encumbered with a first mortgage for $76,000; that on December 15, 1928, there became due thereon a principal payment of $2,000 and interest amounting to $2,970; that defendants paid $500 on account' and the balance of $4,470 was past due and unpaid on December 21, 1928, and complainants in order to protect the lien of its junior trust deed, after the filing of the bill, on January 30, 1929, paid $1,500 and on February 27, 1929, $470 upon said' prior incumbrance.

Before proceeding to a discussion of the contentions of the parties it will be necessary to arrive at a decision as to whether or not the loan is tainted with usury. It is conceded that at the time the loan was made by complainant Biekley was its president and director and that complainant paid and the defendants received $17,000 on the $20,000 note, the balance appearing on the books of complainant as a commission. Biekley testified he did not submit the loan to the board of directors because it was his mortgage and he did not think it was the proper thing to do; Sager testified that at a meeting of the board of directors the president read the financial report of the company which set forth the making of the loan and the board voted then to accept the making of the loan. Neis Johnson, secretary and director of the complainant, testified that Biekley reported to the board that the loan had been made, and the board accepted the loan. Joseph Hallner, a director, testified there was no authorization by the board of directors to make the loan; the loan was made by Biekley and then submitted to the company after it was made. John N. Wietor, treasurer and director, testified that the first he knew the loan had been made was after Biekley and Sager had told him about it, when Biekley called upon him to sign a check; that the loan was discussed at a meeting of the board of directors after it had been made. There is no escape from the conclusion, that Biekley acted as the agent of complainant in loaning to himself the company’s money, and the question arises will the loan under such circumstances be tainted with usury and the complainant punished by the imposition of the penalty of loss of interest. An unlawful and corrupt intent is the very essence of an usurious transaction (Boylston v. Bain, 90 Ill. 283; 28 R. C. L. 208), and whether a contract is usurious depends upon the intention of the parties. (Clemens v. Crane, 234 Ill. 215; Curtis v. LeMoyne, 248 Ill. App. 99, 103.) We are of the opinion that the evidence in the instant case fails to show an unlawful and corrupt intent to charge the defendants with an usurious interest. Furthermore, the defendants are in no position to raise that question, because of the fiduciary relationship existing between Bickley and the complainant. It would be unconscionable for Bickley as the trusted agent, president and director of the complainant to draw it into an usurious transaction and then insist upon the imposition of a penalty. Illustrative of the principle involved we desire to quote Mr. Chief Justice Marshall in Short v. Skipwith, 1 Brockenbrough’s Reports 103, in which he said, p. 115:

‘ ‘ There is another part of this claim, which the Court touches with real reluctance. The contract of loan being for six per centum interest, when the legal interest was only five, was evidently usurious. The Court cannot decree a larger interest than the law allows, whatever may be the contract of the parties. But the person who drew the plaintiff into this contract, having been himself the agent, it would be against conscience, that he should derive any advantage to the prejudice of the plaintiff from this circumstance. The Court, therefore, allows the legal interest of five per centum. ’ ’

Gund v. Ballard, 73 Neb. 547, was an action in equity between stockholders of a bank in the process of liquidation and its former president and director, in which he sought to set aside a judgment on his note given to the bank on the ground it was usurious. It appeared he was in general charge of the transaction and had supervision of its affairs. The court said, p. 568:

“We are of the opinion that the law will not permit him, .acting in the dual capacity in which he was, and in a sense the agent of his principal, the bank, to enter into a usurious contract with himself and his principal, and thereby escape all liability for the payment of interest on the principal sum of the indebtedness for which he thus became obligated. It must be accepted, we think, as fundamentally correct that he could not be permitted to profit by his own wrongful action, nor by the action of the bank on the one part and himself on the other, to the prejudice of the stockholders, he holding, as he did, the fiduciary relations then existing between him and the corporation and those it represented. Sternberg v. Callanan, 14 Ia. 251; Oliver v. Lansing, 48 Neb. 338. On the other hand, a court of equity will not enforce a usurious contract prohibited by law. A court of equity, it seems to us, should require him to do equity, and this demands of the plaintiff that in order to discharge his liability to the bank, he must pay the principal indebtedness, together with the legal rate of interest accruing thereon during the time of the running of the debt.”

•Moreover, the defendant before the master did not ask for the statutory penalty for usury, but stated that in the event the master finds that a decree should be entered, that such decree should find that there is due from defendants the sum of $17,000 with interest at six per cent per annum. A party litigant cannot try a case on one theory in the trial court and on another theory in the court of review. (Lewy v. Standard Plunger Elevator Co., 296 Ill. 295, 304.) We conclude the defendant should be charged with interest at six per cent per annum on $17,000 from September 1, 1926.

Defendants in arguing for an affirmance say they were not in default as there was nothing past due when the bill was filed because the law applies all interest paid on an usurious loan to the principal. We have already indicated that the transaction was not usurious. However, even if all the interest charged to the loan was applied to the principal the defendants were in default on December 21, 1928. The aggregate of the payments made by the defendants amounts to $7,169.41. Had the defendants promptly paid the instalments provided for by the note at $400 a month from January 1, 1927, up to and including January 1, 1928, and the reduced payments of $200 a month from February 1, 1928, to December 1, 1928, they would have paid $7,400, and as they have paid but $7,169.41, it is apparent they were in default at the date of the filing of the bill. In addition, however, the premises were encumbered with a first mortgage for $76,000 and on December 15, 1928, there became due thereon the principal payment of $2,000 and interest amounting to $2,970; defendants paid $500 'on account and the bah anee of $4,470 was past due and unpaid on December 21, 1928. In the trust "deed in the instant case defendants covenanted to pay this prior incumbrance and the interest at the time and place when due and payable. Their failure to pay was a breach of the covenant and they were in default on December 21, 1928. And there was no evidence of any extension granted defendants of the holders of this prior incumbrance.

The next contention is that in consideration of defendants making certain payments no action would be taken to foreclose the trust deed until its maturity, and is based upon the testimony of Sager who testified that at a meeting of the board of directors during the month of December, 1928, it was agreed that if he (Biekley) made one payment of three hundred and some dollars, no action should be taken or would be taken on that particular mortgage which was due January first or second, 1928. This contention cannot be maintained. In the first place, Biekley testified he did not make the payment of $330.50 (being the payment referred to by Sager in his testimony), on the note in the instant case; second, we have examined the record and are of the opinion that the preponderance of the evidence fails to establish any snch an .agreement.

It is also claimed the bill was filed id direct violation of the orders of the board of directors. There is no merit in this contention. The bill was signed and verified by the treasurer. He testified that at a meeting of the board of directors he was instructed to declare the entire amount due on the note and to employ an attorney for foreclosure proceedings. Neis Johnson testified that at a meeting of the board shortly before December 20, 1928, Mr. Rosenberg was authorized to proceed with the foreclosure of all mortgages which were in default and that the mortgage in the instant case was part of the authorization. John N. Wietor testified that a meeting of the board of directors was held in December, 1928, at the office of Joseph Rosenberg at which the board was authorized to employ Joseph Rosenberg to foreclose Biekley’s mortgages. Harry Luebbe testified he was present at the meeting of the board on December 20, 1928, at which a resolution was adopted to commence foreclosure proceedings against the Biekley mortgages. There was no evidence to the contrary.

After considering the entire record and the remaining arguments of counsel, we are of the opinion that the decree of the superior court should be reversed and the cause remanded with directions that the superior court enter a decree of foreclosurexin favor of complainant in proper form, finding that there was due complainant on April 15,1930, the date of the master’s report, $15,011.68, in which is included $1,000 solicitor’s fees, the master in his report having found that the complainant has engaged a solicitor to bring and prosecute these foreclosure proceedings and that the fair, reasonable, usual and customary fee for the services rendered is $1,000, to which no objections were filed by the defendants. In the new decree to be entered the account should be stated as follows:

Principal loan.......................$17,000.00
Accrued interest to Dec. 21, 1928...... 1,960.93
$18,960.93
Less amount paid by defendants....... 7,169.41
Balance due for principal and interest at date of filing of bill................ 11,791.52
Money advanced on Jan. 30, 1929, on account of first mortgage indebtedness 1,500.00
Interest thereon from Jan. 30, 1929, to Apr. 15,1930, being the date of the report, at 7% per annum.............. 126.88
Amount advanced Feb. 27, 1929, on account of first mortgage indebtedness 470.00
Interest thereon from Feb. 27, 1929, to Apr. 15, 1930, the date of the report, at 7% per annum.................. 37.28
Amount advanced for foreclosure minutes ..-............................ 86.00
Solicitor’s fees ...................... 1,000.00
$15,011.68

Reversed and remanded with directions.

Gridley, P. J., and Scanlah, J., concur.


text:
    In re Estate of Max Tauber, Deceased. Foreman-State Trust & Savings Bank, Administrator of the Estate of Frances Tauber, Deceased, Appellee, v. Joseph Tauber, Executor of the Estate of Max Tauber, Deceased, Appellant.
    Gen. No. 35,055.

      Opinion filed October 9, 1931.
    Samuel J. Shaeffer and George H. Foster, for appellant.
    Lederer, Livingston, Kahn & Adler, for appellee; Sigmund Livingston, Harry H. Kahn and Archie H. Siegel, of counsel.
   Mr. Justice Keener

delivered the opinion of the court.

Appellee, administrator of th'e estate of Frances Tauber, deceased, filed a claim in the probate court of Cook county against the estate of Max Tauber, deceased, alleging, that on February 7, 1924, before they were married to each other, Max Tauber and Frances Bleier entered into a written antenuptial contract, by the terms of which each released all manner of claim and right in the other’s property, and in this contract Max Tauber agreed to “settle and assure the said Frances Bleier the sum of $20,000 in cash, to be paid to her by his executors within 60 days after his death, provided, however, that the said Frances Bleier shall survive the said Max Tauber”; that the parties were married and lived together as husband and wife until December 29, 1928;' that on December 29, 1928, Max Tauber shot and killed Frances Tauber and then shot himself and as a result died December 30,1928, that by said unlawful act Max Tauber wilfully and fraudulently intended to profit thereby in making it impossible for Frances Tanber to survive him and thereby.he prevented Frances Tauber from surviving him; that the $20,000 mentioned in the antenuptial agreement had not been paid to Frances Tauber, and that the estate of Max Tauber is indebted to the claimant in said amount. The claim was allowed in the probate court and an appeal taken to the circuit court of Cook county, where the cause was tried de novo without a jury, resulting in a finding in favor of claimant and assessing the damages at $20,000. Judgment was entered on the finding, from which judgment an appeal was taken to this court.

The material facts are that on February 7,1924, Max Tauber and Frances Bleier entered into an antenuptial agreement which provided that each should relinquish all right of dower and homestead and claim to the estate of the other; that Frances Tauber irrevocably constituted Samuel J. Shaeffer and Max Tauber her attorneys in fact to execute in her place and stead and to sign her name to and properly acknowledge any deed, or any other indenture, releasing all right, title and interest in the real and personal property of Max Tauber, and that in consideration of "the marriage of the parties, Max Tauber for himself and his executor agreed with Frances Bleier, in case the marriage shall be consummated, to settle and assure the said Frances Bleier the sum of $20,000 in cash, to be paid to her by his executor within 60 days or as soon as possible after the date of his death, provided, however, that the said Frances Bleier shall survive him. After the execution of this agreement they were married and lived together as husband and wife until December 29, 1928, when Max Tauber killed his wife; he then shot himself, but lived till the following day.

Appellant contends that as the action is based solely on the antenuptial agreement under which $20,000 is to be paid to Frances Tauber if she survive Max Tauber, and as she did not survive him, there can be no recovery, and in arguing for a reversal counsel for appellant state that the contingency that Max Tauber might kill Frances Tauber was not anticipated nor provided for in the antenuptial agreement, and if she saw fit not to provide for such a contingency and was content with the agreement that she was to receive the money only in the event she survived him, an action based on the contract cannot be successful, and that the fact that Max Tauber made it impossible for Frances Tauber to survive him by killing her, cannot avail the claimant. Counsel cite no authority for this bold contention.

The judgment in this case must be affirmed because it has repeatedly been held that where one party to a contract shows that the other party has deliberately made it impossible for the contract to be performed by some act of his done prior to the time that performance was to be made, such act, in law, amounts to a prevention of performance (Levy & Hipple Motor Co. v. City Motor Cab Co., 174 Ill. App. 20, and cases cited), and this rule applies to an antenuptial agreement. (Collins v. Phillips, 259 Ill. 405, 411; Landes v. Landes, 268 Ill. 11, 20.) Further illustrative of the principle applicable to the instant case is Logan v. Whitley, 114 N. Y. S. 255, where John Whitley and Elizabeth Logan entered into a contract in contemplation of marriage which provided that Elizabeth Logan should receive $10,000 in lieu of any claim to Whitley’s estate in the event she should survive him. After their marriage, Whitley killed his wife and then committed suicide. Her personal representative filed suit to recover $10,000 from Whitley’s estate. It was contended that the $10,000 was not to be paid except on the contingency that the wife survive the husband, and the court, on page 257, said:

“So far as the plaintiff’s intestate was concerned, it had been wholly executed, and she had become entitled to the snm of $10,000 upon the contingency that she survived her husband. That claim was in the nature of a debt against his estate. Matter of Baker’s Estate, 83 App. Div. 530, 82 N. Y. Supp. 390, affirmed 178 N. Y. 575, 70 N. E. 1094.

“A party to a contract cannot set up the failure of a condition caused by his own fault. Gallagher v. Nichols, 60 N. Y. 438; Risley v. Smith, 64 N. Y. 576. In this case, the happening of the contingency upon which the payment was to be made was prevented by the wrongful act of the promisor, and hence neither he nor those, claiming under him can defeat an action on the promise by showing that the contingency did not happen. ’ ’

It is also contended that there is no evidence that Frances Tauber would have survived Max Tauber had he not wilfully killed her. Suffice it to say that where a contracting party shows that the other prevented the performance of the contract, it is to be taken as prima facie true that he would have accomplished it if he had not been so prevented. (Levy & Hipple Motor Co. v. City Motor Cab Co., supra.) A prima facie case with nothing to, rebut it is a case made out.

It is next claimed that Frances Tauber violated her agreement to execute and sign all documents and mortgages and she could not have recovered under the contract. This contention is based upon the fact that in the antenuptial agreement Frances Tauber agreed she would, upon the request of Max Tauber, join with him in the execution of any quitclaim deed, deed, mortgage, lease or other indenture, instrument or document, concerning the property of Max Tauber. Mátt Kretzman testified that in December, 1928, he had a conversation with Max Tauber; after this conversation Max Tauber handed the witness a paper, the witness then presented this paper to Mrs. Tauber and said: “Mrs. Tauber, will you please sign this paper for Max Tauber? She said, No Kretzman, I won’t sign anything for him or you. ’ ’ In his conversation with Mrs. Tauber he did not say it was a mortgage or trust deed. Three days later he called again, took the same paper out of his pocket, telling her it was a mortgage on a piece of property on the avenue, and asked her to please sign the paper and she answered she would not sign. Ben Newmark testified that in July, 1928, he called at the Tauber home and saw a paper there. Mr. Tauber asked Mrs. Tauber to sign the paper, telling her it was a contract or deed. Tauber said, “this paper is for the — regarding the land, the farm down in Crown Point, whereby the party next door wants to exchange ten feet of land on either side of the farm with me and demands your signature as well as mine.” “She said ■ — I won’t sign anything.” The point is not well taken, as there was no evidence that she refused to join with him in the execution of any deed concerning the property of Max Tauber. Furthermore, in the antenuptial agreement Frances Tauber waived all right of dower and homestead in his real property and appointed attorneys in fact to execute and sign in her behalf any deed or other indenture releasing all right, title and interest in the real and personal property of Max Tauber.

The last proposition of law contended for is that the claim is a contingent claim and the probate court did not have jurisdiction to allow it, and Union Trust Co. v. Shoemaker, 258 Ill. 564, and Chicago Title & Trust Co. v. Corporation of Fine Arts Bldg., 288 Ill. 142, and other cases are cited. We have examined all the cases cited. These cases hold that the holder of a contingent claim is not a creditor of the estate and that a contingent claim cannot be allowed under ch. 3, par. 68, sec. 67, Cahill’s Revised Stats. 1931, p. 62, but these cases do not hold that an obligation which was contingent in character when it was incurred, may not be filed and allowed if the obligation has matured. If such a claim has become a matured obligation it must be filed in the probate court within a year from the time letters testamentary are issued, otherwise it is barred. When Max Tauber deliberately killed his wife he made it impossible for her to survive him, and thereby waived the condition of survivorship and the obligation to pay $20,000 became absolute, the claim a matured obligation, and the probate court had jurisdiction of the subject matter.

Appellant’s counsel also argue that Frances Tauber had no claim against Max Tauber; that she was never a creditor of his estate and could not have maintained an action and consequently her personal representative cannot do so, in other words, that this was not such an action as survived. This point cannot be maintained. The claim in the instant case is upon a contract. Contract actions survive at common law (Stow v. Robinson, 24 Ill. 532, and ch. 3, par. 125, sec. 123, Cahill’s Revised Stats, p. 71.)

The judgment being just and no error appearing it is affirmed.

Affirmed.

Gridley, P. J., and Scanlan, J., concur.


text:
    Patrick J. O’Connor, Plaintiff in Error, v. William B. Brower, Defendant in Error.
    Gen. No. 35,069.

      Opinion filed October 9, 1931.
    John F. Denissen, for plaintiff in error.
    Edward T. Howe, for defendant in error.
   Mr. Justice Keener

delivered the opinion of the court.

Plaintiffs sued to recover damages sustained by reason of the failure of defendant to return a promissory note, secured by a trust deed. The cause was submitted to the court without a jury on a stipulation of facts. Finding for defendant and judgment against plaintiff for costs. To reverse the judgment plaintiff sued out a writ of error. Under the pleadings and the stipulated facts the questions presented are solely questions of law.

The stipulation of facts on which the cause was sub-, mitted to the court in substance is that plaintiff proved the execution and delivery of a $3,250 note and the trust deed given to secure it; that he paid the note in full to the defendant, who then resided in New Jersey, and requested its return; that defendant failed to return the note, he having lost or destroyed it; that the premises were encumbered by a prior mortgage, securing $5,000 due June 16, 1928, and, in order to make certain improvements and to pay the prior mortgage at its maturity, plaintiff in error obtained from Wallace Brothers a mortgage loan of $7,000 bearing interest at six per cent per annum from June 16, 1928; that after payment of the $3,250 note plaintiff applied to the trustee for a release of the trust deed securing said note but the trustee refused to execute a release without production of the note or, in the alternative, a corporate surety bond to indemnify it in releasing the trust deed in the absence of the note; that thereupon plaintiff was advised regarding the attitude of the trustee and correspondence was exchanged over a period of several months, finally culminating in a definite refusal by defendant to pay the cost of the bond demanded by the trustee; that thereupon plaintiff, in order to save further payment of interest on the $5,000 mortgage, obtained the required bond and, on July 24, 1928, the trustee executed a release of the trust deed securing the $3,250 note; that, before executing the bond, the surety company requested an affidavit and, at the request of plaintiff, defendant furnished such an affidavit, acknowledging therein that the $3,250 note had been paid in full; that the premium paid by plaintiff for the bond was $100 and the interest on the $5,000 mortgage, from its maturity to the date of payment, amounted to $36.94 and was paid by plaintiff.

The trial court held that the act of the trustee in refusing to release the trust deed without production of the note was illegal and wrongful and the proximate cause of plaintiff’s injury, and the defendant contends here -that the securing of the indemnifying bond on the demand of the trustee was not the natural result of the loss of the note and that the act of the trustee in demanding the indemnifying bond before releasing the trust deed was a new, independent and immediate cause of the injury.

It is conceded that plaintiff suffered a loss of $136.94 ; whether that loss be attributed to defendant because of his failure to return the note or to the trustee because of its refusal to execute a release of the trust deed without production of the note, or in the absence of the note, a bond to indemnify it in doing so, the plaintiff is the innocent victim of the act of another over which he had no control. The proximate cause of any injury is that act or omission which immediately causes and without which the injury would not have happened, notwithstanding other conditions or omissions concurred therewith (Miller v. Kelly Coal Co., 145 Ill. App. 452); it must be that which in a natural and continued sequence, unbroken by any new and independent cause produces the event and without which it would not have occurred. (Cleveland, C., C. & St. Louis Ry. Co. v. Lindsay, 109 Ill. App. 533.) The mere fact that the failure of the defendant to produce the note was more remote in point of -time, does not establish that his act was not the proximate cause of the injury. There can be no question that the loss or destruction of the note by defendant produced his failure to return it to plaintiff and that failure in turn produced the inability of .plaintiff to exhibit the note canceled to the trustee, and this inability induced the refusal of the trustee to release the trust deed unless protected in so doing by an indemnifying bond. In other words, the trustee was the intervening agency and was set in motion by the loss or destruction of the note by defendant and his consequent failure to return it to plaintiff, and this chain of events culminated in the injury to plaintiff.

The defendant, however, argues that he could not have reasonably anticipated the act of the trustee in demanding the indemnifying bond. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence (Seith v. Commonwealth Electric Co., 241 Ill. 252, 259), and the wrongdoer will be liable if the injury was such as a reasonably prudent man might, by the exercise of ordinary care, have foreseen would occur although he might not have foreseen the particular accident that did occur. (Hartnett v. Boston Store, 265 Ill. 331 and O’Rourke v. Louisville & Nashville R. Co., 197 Ill. App. 45, 52.) Defendant was charged with a knowledge of the law that upon payment of the note plaintiff would be entitled to possession of it and would be entitled to have it canceled as evidence of the existence of the lien on his property. (Stiger v. Bent, 111 Ill. 328, 339.) We are of the opinion that a reasonably prudent man, charged with a knowledge of the law, would anticipate that some injury would result from his failure to return the note to the party entitled to receive it. We are also of the opinion that the fact that the act of the defendant resulted in the loss or destruction of the note did not excuse his act as the proximate cause, for the reason that -where successive acts cause or produce a loss or injury, in determining responsibility for the injury the law applies the practical rule, that the predominating cause in producing a given effect must be looked to rather than a subordinate or dependent cause, and to entitle the defendant to exemption because of the fact that there was a more immediate cause of loss, he must show not only that the same loss might have happened, but that it must have happened, although the act attributable to him had not been done. (17 Corpus Juris, sec. 72, pages 735, 736.) Had defendant returned the note, as he was legally obligated to do (Stiger v. Bent, supra), there could have been no legal refusal by the trustee to release the trust deed nor could the trustee have required an indemnifying bond. Moreover, to relieve the defendant by reason of the intervening act of the trustee it must appear that such intervening act was independent of the act of the defendant and was wrongful and illegal. In Chicago & Great Western R. Land Co. v. Peck, 112 Ill. 408, it was held a trustee has no power to release the trust deed except upon the surrender and cancellation of the bonds it was given to secure. The note in the instant case was negotiable and if it were outstanding in the hands of a bona fide purchaser for value, before maturity, the trustee would be liable to such holder for a violation of its trust, in releasing the trust deed wfithout surrender and cancellation of the note. Therefore the act of the trustee in demanding the indemnifying bond before releasing the trust deed was not wrongful or illegal.

For the reasons indicated the judgment of the municipal court is reversed and judgment will be entered here in favor of plaintiff, Patrick J. O’Connor, and against defendant, William B. Brower, in the sum of $136.94, defendant to pay all costs in this court.

Reversed and judgment here against defendant for $136.94.

Gf ridley, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Scanlan

text:
    First District.
    W. C. Handley, appellee, v. Aleck McAlonan and David S. Davidson, defendants, on appeal of David S. Davidson, appellant.
    Gen. No. 34,658.
    Opinion filed May 19, 1931.
    Howard Ames, for appellant.
    John B. King and Forest A. King, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Ridgeland State Bank, appellee, v. M. J. Boyle & Company, appellant.
    Gen. No. 34,685.
    Opinion filed May 19, 1931.
    Rehearing denied June 1, 1931.
    John M. Bryant and Daniel A. Roberts, for appellant.
    Adolph Marks, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Minnie I. Wood, administratrix of the estate of Frank F. Wood, deceased, appellee, v. William V. Tyler, appellant.
    Gen. No. 34,721.
    Opinion filed May 19, 1931.
    Rehearing denied June 1, 1931.
    Guy Guernsey, for appellant; Henry Roth, of counsel.
    E. R. Hartigan, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. John P. Cassidy, plaintiff in error.
    Gen. No. 34,928.

      Opinion filed May 19, 1931.
    Rehearing denied May 29, 1931.
    John J. Byrne, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Otho S. Fasig, Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Lithuania Building and Loan Association of Cicero, appellant, v. Pinkert State Bank, appellee.
    Gen. No. 34,664.
    Opinion filed May 19, 1931.
    Anthony A. Slakis and Thomas C. Hollywood, for appellant; Theodore A. Spence, of counsel.
    Chapman & Cutler, for appellee; Charles M. Thomson, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court..


text:
    A. F. Phillips, appellee, v. Murray & Nickell Manufacturing Company, appellant.
    Gen. No. 34,709.
    Opinion filed May 19, 1931.
    Campbell, Clithero & Fischer, for appellant.
    Edgar J. Sehoen, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Peter Mester, appellee, v. Michael Mester, appellant.
    Gen. No. 34,718.
    Opinion filed May 19, 1931.
    Green & Rice, Harry J. Blake and W. O. Burns, for appellant; Lawrence A. Rice, of counsel.
    Edward Sager and Julius S. Neale, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Nellie Kirby, as executrix of the last will and testament of Frederick A. Matthews, deceased, appellant, v. Percival B. Coffin, as administrator of the estate of Ida Marcoux, deceased, appellee.
    Gen. No. 34,727.
    Opinion filed May 19, 1931.
    Rehearing denied June 1, 1931.

      Nat M. Kahn, for appellant.
    Sehroeder & Metzger, for appellee; Werner W. Sehroeder, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Fred W. Rentz and Augusta Rentz, appellants, v. William E. Meyers and George J. Jank, trading as W. E. Meyers & Company, appellees.
    Gen. No. 34,752.
    Opinion filed May 19, 1931.
    Walter Hamilton, for appellants; John E. Erickson, of counsel.
    Morris K. Levinson, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Reliance Bank & Trust Company, appellee, v. Stella Skamski and Sollie Dolinsky, defendants, on appeal of Sollie Dolinsky, appellant.
    Gen. No. 35,042.
    Opinion filed May 19, 1931.
    Baraneik & Dolin, for appellant.
    Kirkland, Fleming, Green & Martin, for appellee; William H. Symmes and Emil F. Meier, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Kerner

text:
    G. A. E. Kohler, trading as Kohler Brothers, appellant, v. Irving I. Stone, appellee.
    Gen. No. 34,524.
    Opinion filed May 19, 1931.
    Rehearing denied June 1, 1931.
    Winston, Strawn & Shaw, for appellant; Edward W. Everett and George T. Evans, ofl counsel.
    Jones, Addington, Ames & Seibold, for appellee; Thorley Von Holst, W. Clyde Jones, Jr. and Arthur B. Seibold, Jr., of counsel.
   Mr. Justice Kerner

delivered the opinion ,of the court.


text:
    Kazimer Kelpszas and Anna Kelpszas, appellants, v. The White Eagle Building and Loan Association et al., defendants. Frank J. Heitmann, appellee.
    Gen. No. 34,619.
    Opinion filed May 19, 1931.
    Charles E. Carpenter and Cummings & Wyman, for appellants; Austin L. Wyman, of counsel.
    Sherman C. Spitzer, Norbert B. Tyrrell, Walter V. Faekler and Rathje & Connor, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


author: Mr. Justice Kernel1

text:
    Richard E. Schmidt et al., trading as Schmidt, Garden & Erikson, appellees, v. Y. M. Doodokyan, appellant.
    Gen. No. 34,649.
    Opinion filed May 19, 1931.
    Thomas P. Burke, for appellant.
    Rosenthal, Hamill & Wormser, for appellees; Willard L. King, of counsel.
   Mr. Justice Kernel1

delivered the opinion of the court.


author: Mr. Justice-Kernel1

text:
    Eva Boitano, appellee, v. Inland Supply Company, appellant.
    Gen. No. 34,688.
    Opinion filed May 19, 1931.
    Oassels, Potter & Bentley and Silber, Isaacs, Silber & Woley, for appellant; Ralph E. Potter, Claud D. Raber, Samuel Levin and Donald N. Clausen, of counsel.
    Royal W. Irwin, for appellee.
   Mr. Justice-Kernel1

delivered the opinion of the court.


text:
    St. John Cantius Building and Loan Association, appellant, v. Kazimir Pazdan, appellee.
    Gen. No. 34,706.
    Opinion filed May 19, 1931.
    Prank E. Konkowski, Jr., and Max C. Liss, for appellant; Max C. Liss, of counsel.
    Joseph P. Elward and Joseph Andrew Lasecki, for appellee; Joseph P. Elward, of counsel.
   Mr. Justice Kernel1

delivered the opinion of the court.


text:
    Clara D. Watson, defendant in error, v. Edward Trinz and Rosalie K. Trinz, plaintiffs in error.
    Gen. No. 34,724.
    Opinion filed May 19, 1931.
    John A. Bloomingston, for plaintiffs in error.
    Joseph D. Ryan, for defendant in error; W. W. Patterson, of counsel.
   Mr. Justice Kernel1

delivered the opinion of the court.


text:
    Mary Harvey Wendorf O’Day, administratrix of the estate of Victor J. O’Day, deceased, appellee, v. City of Chicago, appellant.
    Gen. No. 34,730.

      Opinion filed May 19, 1931.
    Samuel A. Ettelson, Corporation Counsel, and William D. Sal tie!, City Attorney, for appellant; Hyman B. Ritman and Robert G. Lewis, Assistant City Attorneys, and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Édwin D. Lawlor, for appellee; Edwin Walsh, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Timothy Mojonnier, appellee, v. Emil Geest, appellant.
    Gen. No. 34,739.
    Opinion filed May 19, 1931.
    Rehearing denied June 1, 1931.
    Benjamin H. Black, for appellant.
    Charles C. Bartlett, for appellee; Norman P. Willard, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Ahlbell Battery Container Corporation, plaintiff in error, v. Snyder & Hay, Inc., defendant in error.
    Gen. No. 34,749.
    Opinion filed May 19, 1931.
    Rehearing denied May 29, 1931.
    James R. Quinn, for plaintiff in error.
    Lewis W. Parker, for defendant in error.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Christian Gross, defendant in error, v. Virginia R. H. Gross, plaintiff in error.
    Gen. No. 34,768.
    Opinion filed May 19, 1931.
    Thomas Hart Fisher, for plaintiff in error.
    Cantwell So Cantwell, for defendant in error.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Thomas Murgatroyd, appellant.
    Gen. No. 34,785.

      Opinion filed May 19, 1931.
    Frances E. Spooner, for appellant.
    Samuel A. Ettelson, Corporation Counsel and Frank Peska, Prosecuting Attorney, for appellee; David H. Brill, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    R. I. Davis and Charles A. Koepke, as trustee, complainants. Chicago Title & Trust Company, as receiver, appellee, v. Charles Sedman et al., appellants.
    Gen. No. 34,799.
    Opinion filed May 19, 1931.
    Rehearing denied June 1, 1931.
    Wm. H. Tuttle and Herbert A. Hoffman, for appellants.
    Myer N. Rosengard, for appellee; Irving L. Block, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Minnie Olson Hogert, administratrix of the estate of Kenneth Olson Hogert, deceased, appellee, v. Agata Bojnowski, appellant.
    Gen. No. 34,801.
    Opinion filed May 19, 1931.
    Nicholson, Crandall & Snyder, for appellant.
    John H. Kay, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Theodore Hawkins, appellant, v. Hawkins & Loomis Company, appellee.
    Gen. No. 34,805.
    Opinion filed May 19, 1931.
    Adams, Hawley, Brown & Adams, for appellant; Ralph E. Brown, of counsel.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Gregory Walker, administrator of the estate of Donald E. Bush, deceased, appellee, v. City of Chicago, appellant.
    Gen. No. 34,811.
    Opinion filed May 19, 1931.

      Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Robert G. Lewis and Matilda Eenberg, Assistant City Attorneys, and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Eugene C. O’Reilly and Charles C. Spencer, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Bertha Anderson, appellee, v. Cosmopolitan Life Insurance Company, appellant.
    Gen. No. 34,825.
    Opinion filed May 19, 1931.
    Rehearing denied June 1, 1931.
    Rufus M. Potts, C. W. Armstrong and E. X. Brickley, for appellant.
    Joseph G. Sheldon, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    W. J. Ray, assignee of F. E. Hummell, trustee in bankruptcy of V. M. Kimball, trading as Lake Shore Electric Company, appellee, v. M. Hvid, appellant.
    Gen. No. 34,834.
    Opinion filed May 19, 1931.
    A. N. Lustig, for appellant.
    No appearance for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


author: Mr. Presiding Justice Matehett

text:
    Adolph Lindstrom Company, appellee, v. Elmgate Manor Building Corporation et al., defendants, on appeal of Herman Hahlbohm and Charles Lament, appellants.
    Gen. No. 35,200.
    Opinion filed May 26, 1931.
    Needham, Hubbard & Mulks, for appellants.
    Anderson & Anderson, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr, Justice O ’Connor

text:
    Charles Bendler, appellee, v. Louis Kaplan, appellant.
    Gen. No. 35,192.
    Opinion filed May 26, 1931.
    Morris K. Levinson, for appellant.
    Edward N. Sherburne and Max M. Marine, for appellee.
   Mr, Justice O ’Connor

delivered the opinion of the court,


author: Mr. Presiding Justice Wilson

text:
    Mary Dausch, defendant in error, v. Hotel La Salle Company, plaintiff in error.
    Gen. No. 34,323.
    Opinion filed June 15, 1931.
    Rehearing denied June 25, 1931.
    Charles Hudson, for plaintiff in error.
    Albert Sabath, for defendant in error.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Agnes Vlamynck, plaintiff in error, v. Henry Schmidt et al., defendants in error.
    Gen. No. 34,617.
    Opinion filed June 15, 1931.
    Golden, Kagan & Whiteside, for plaintiff in error.
    Philip Goth-berg, William H. A. Rust and Ernest C. Reniff, for defendants in error.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Florence Kuss, appellee, v. Bird-Sykes Company, appellant.
    Gen. No. 34,743.
    Opinion filed June 15, 1931.
    Alex Markels and Roy A. Whiteside, for appellant.
    Rose & Symmes, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Diana Vukasovich, appellee, v. Paul Dragel, appellant.
    Gen. No. 34,817.
    Opinion filed June 15, 1931.
    Louis M. Bloom, for appellant.
    John A. .Swanson, State’s Attorney, for appellee; Edward E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Albert Staufenbiel, appellee, v. Edwin Palm, appellant.
    Gen. No. 34,824.
    Opinion filed June 15, 1931.
    Joseph G. Sheldon, for appellant.
    F. D. Shobe, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Grant Fortney, plaintiff in error.
    Gen. No. 34,878.
    Opinion filed June 15, 1931.
    L. A. Wheeler and Harris F. Williams, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Otho S. Fasig, Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Joseph Levinson and Harry Levinson, trading as Levinson’s Loan Bank, plaintiffs in error, v. The Fidelity & Casualty Company of New York, defendant in error.
    Gen. No. 34,337.
    Wilson, P. J., dissents.
    Opinion filed June 15, 1931.
    Cassels, Potter & Bentley and Tannenbaum, Polikoff & Schmidt, for plaintiffs in error; Ralph F. Potter, George C. Bunge and Raymond W. Hamill, of counsel.
    Winston, Strawn & Shaw and Hans L. Howard, for defendant in error; Edward W. Everett and Geo. T. Evans, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The Brady Conveyors Corporation, plaintiff-appellee, v. E. H. Edwards Company, defendant-appellant.
    Gen. No. 34,626.
    Opinion filed June 15, 1931.
    Marx Loehwing, for appellant; G. A. Buresh, of counsel.
    E. W. Clark, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Joseph Levinson and Harry Levinson, trading as Levinson’s Loan Bank, appellees, v. The Fidelity & Casualty Company of New York, appellant.
    Gen. No. 34,630.
    Opinion filed June 15, 1931.
    Winston, Strawn & Shaw, for appellant; Edward W. Everett and George T. Evans, of counsel.
    Cassels, Potter & Bentley, for appellees; Ralph F. Potter, Kenneth B. Hawkins and George C. Bunge, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Alice Boakes, appellee, v. Gus Fredrickson, appellant.
    Gen. No. 34,683.
    Opinion filed June 15, 1931.
    Cavender, Milehrist & Kaiser, for appellant.
    John A. L. Siegler and C. Helmer Johnson, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Ida Etchingham, appellee-plaintiff, v. Theresa Becker, appellant-defendant.
    Gen. No. 34,710.
    Opinion filed June 15, 1931.
    Preston Clark and John Clark, for appellant.
    James R. Quinn, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Fred Routh for the use of, etc., appellee, v. Broadcaster Corporation, appellant.
    Gen. No. 34,722.
    Opinion filed June 15, 1931.
    Aaron Soble, for. appellant.
    Norman R: Goldstein, for appellee; Maurice L. Davis, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    James Cullen, appellee, v. Louis Eisenberg, appellant.
    Gen. No. 34,740.
    Opinion filed June 15, 1931.
    . Gallagher, Shulman & Abrams, for appellant; Meyer Abrams, of counsel.
    Eugene F. O’Riordan and Francis E. Croarkin, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Wilbur Burde, a minor, by William Burde, his father and next friend, defendant in error, v. Wilcox Transportation Company, plaintiff in error.
    Gen. No. 34,759.

      Opinion filed June 15, 1931.
    B. M. Shaffner, for plaintiff in error.
    V. Russell Donaghy, for defendant in error; Stuart B. Krohn, of counsel.
   Mr. Justice Friend

delivered the opinion, of the court.


text:
    The People of the State of Illinois ex rel. Emily Benka, appellee, v. David Mizner, appellant.
    Gen. No. 34,787.
    Opinion filed June 15, 1931.
    Joseph H. Nicolai, for appellant.
    John A. Swanson, State’s Attorney, for appellee; Otho S. Fasig, Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Leona Wilbur, appellee, v. Kabo Corset Company, appellant.
    Gen. No. 34,829.
    Opinion filed June 15, 1931.
    Fyffe & Clarke, for appellant.
    No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    Frank Mera, appellee, v. Philip J. Kealy, appellant.
    Gen. No. 34,599.
    Opinion filed June 15, 1931.
    J. Arthur Kealy, for appellant.
    Lome D. Milne, for appellee; Ernest C. Reniff, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Marcella Kaider, appellee, v. Jacob Kaider, appellant.
    Gen. No. 34,608.
    Opinion filed June 15, 1931.
    Charles A. Churan, for appellant.
    M. L. Berkemeier, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Harold L. Larsen, appellee, v. Western Plumbing Supply Company, appellant.
    Gen. No. 34,623.

      Opinion filed June 15, 1931.
    John E. Owens, for appellant; Clyde C. Fisher, of counsel.
    Kamfner & Halligan, for appellee; Arthur J. Goldberg, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    S. Frager and D. Saperstein, trading as Albany Bargain House, appellees, v. S. Birkenstein & Sons, Inc., appellant.
    Gen. No. 34,668.
    Opinion filed June 15, 1931.
    Wm. S. Hewburger, for appellant; James J. Danaher, .of counsel.
    Moses, Kennedy, Stein & Bachrach, for appellees; J. H. Oppenheim, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Tony Tallarico, appellee, v. Union Assurance Society, Ltd., of London, England, appellant.
    Gen. No. 34,692.
    Opinion filed June 15, 1931.
    Hicks & Folonie, for appellant.
    Livingston & Kaufman, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Anderson and Lind Manufacturing Company, appellee, v. Michael Busa et al. Madison & Kedzie State Bank, Trustee, appellant.
    Gen. No. 34,707.
    Opinion filed June 15, 1931.
    Isaac B. Lipson, for appellant; Randolph Thornton, of counsel.
    Cohon & Goldstein, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Eugene Lufman et al. for the use of R. Sukert, appellant, v. Careful Cleaners, Inc., appellee.
    Gen. No. 34,716.
    Opinion filed June 15, 1931.
    Kessler, Tobin & Miller, for appellant.
    Cochrane & George, for appellee.
   Mr. Justice Hebei

delivered, the opinion of) the court.


text:
    Peter Stamper, a minor, by John Stamper, his father and next friend, appellee, v. City of Chicago, appellant.
    Gen. No. 34,728.
    Opinion filed June 15, 1931.
    Samuel A. Ettelson, Corporation Counsel, and Joseph Rubens, City Attorney, for appellant; Matilda Eenberg, Assistant City Attorney, and Roy S. Gasldll, Assistant Corporation Counsel, of counsel.
    Quin O’Brien and Maurice G. Walsh, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Joseph E. Menrath and Carl H. Upmeyer, defendants in error, v. Samuel J. Richman et al., plaintiffs in error.
    Gen. No. 34,614.
    Opinion filed June 22, 1931.
    Rehearing denied July 6, 1931.
    George H. Kriete, for plaintiffs in error.
    Hoyne, O’Connor & Rubinkam, for defendants in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Albin O. Horn, appellee, v. Howard D. Salins, trading as Howard D. Salins Golding Printing Machinery, Not Inc., appellant.
    Gen. No. 34,953.
    Opinion filed June 22, 1931.
    Haffenberg, Kopald & Burns, for appellant; Joseph Rosenbaum, of counsel.
    J. Kendall S. Mitchell, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Howard D. Salins, trading as Howard D. Salins Golding Printing Machinery, Not Inc., appellee, v. Albin O. Horn, appellant.
    Gen. No. 34,954.
    Opinion filed June 22, 1931.
    Haffenberg, Kopald & Burns, for appellant; Joseph Rosenbaum, of counsel.
    J. Kendall S. Mitchell, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Eva Karon Schur, Inc., appellee, v. Jacob Katz and Mrs. Jacob Katz, appellants.
    Gen. No. 34,976.

      Opinion filed June 22, 1931.
    Rehearing denied July 6, 1931.
    Max Lurie, for appellants.
    Samuel G. Rautbord, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: .Mr. Presiding Justice O’Connor

text:
    Nick Kalata and Mary Kalata, defendants in error, v. Merchants and Manufacturers Securities Company et al., plaintiffs in error.
    Gen. No. 35,044.
    Opinion filed June 22, 1931.
    Mort D. & Frank Goldberg, for plaintiffs in error; Frank Goldberg and Jack Lasky, of counsel.
    Thomas M. Poynton, for defendants in error.
   .Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Sofia Snellman, appellant, v. Evald Snellman, appellee.
    Gen. No. 35,103.
    Opinion filed June 22, 1931.
    Rehearing denied July 6, 1931.
    Alois S. Knapp, for appellant.
    Michael B. Roderick, for- appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    George Gibbons, trading as Gibbons Lumber & Material Company, appellee, v. Eddie Jones, appellant.
    Gen. No. 35,118.
    Opinion filed June 22, 1931.
    Arthur M. Rawers, for appellant.
    J. Edward Jones, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    E. J. Morgan, appellee, v. Chicago Body & Equipment Company, appellant.
    Gen. No. 35,121.
    Opinion filed June 22, 1931.
    John E. McCoy, for appellant; Herbert Bebb, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice O ’Connon

text:
    C. B. Van Zee, appellee, v. Chicago Body & Equipment Company, appellant.
    Gen. No. 35,122.
    Opinion filed June 22, 1931.
    John E. McCoy, for appellant; Herbert Bebb, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice O ’Connon

delivered the opinion of the court.


text:
    Valarie Morris, appellee, v. Claude W. Morris, appellant.
    Gen. No. 35,155.
    Opinion filed June 22, 1931.
    Harold Engstrom, for appellant.
    Petit, Olin & Overmyer, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Thomas R. Finley, appellee, v. Carlos Ames et al., appellants.
    Gen. No. 35,178.
    Opinion filed June 22, 1931.
    Samuel A. Ettelson, Corporation Counsel, and Francis J. Vurpillat, Special Assistant Corporation Counsel, for appellants.
    Daniel F. 'Murphy, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    The People of the State of Illinois ex rel. Leo H. Lowe, director of trade and commerce of the State of Illinois et al., complainants, v. Marquette National Fire Insurance Company et al., defendants, on appeal of H. U. Bailey, as liquidator of the Marquette National Fire Insurance Company, appellant.
    Gen. No. 34,788.
    0 ’Connor, P. J., dissents.
    Opinion filed June 22, 1931.
    Schuyler, Dunbar & Weinfeld, for appellant; Cairo A. Trimble, Edward J. Hennessy and C. Ernest Heaton, of counsel.
    Silber, Isaacs, Silber & Woley and W. Rufus Kendall, for appellees; Samuel Levin, W. Rufus Kendall and Norman A. Miller, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Wilson & Scott Company, appellant, v. Medical & Dental Building Corporation, appellee.
    Gen. No. 34,818.
    Opinion filed June 22, 1931.
    Fred B. Houghton, for appellant.
    Alden, Latham & Young, for appellee; W. L. Quinlan, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    The Ault & Wiborg Company, appellee, v. American Bread Wrapper Company, appellant.
    Gen. No. 34,969.
    Opinion filed June 22, 1931.
    West & Eekhart, for appellant; Lewis C. Jesseph and John Neal Campbell, of counsel.
    Loeseh, Scofield, Loeseh & Burke, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    W. C. Handley, appellant, v. Roy Olson et al., appellees.
    Gen. No. 34,985.
    Opinion filed June 22, 1931.

    John B. King and Forest A. King, for appellant.
    James E. Lyons and Elwyn E. Long, for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Aline Mason, appellee, v. Washington Fidelity National Insurance Company, appellant.
    Gen. No. 34,998.
    Opinion filed June 22, 1931.
    R. J. Wetterlund, for appellant; H. N. Lukins, of counsel.
    J. Ernest Wilkins, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Aline Mason, appellee, v. Washington Fidelity National Insurance Company, appellant.
    Gen. No. 34,999.

      Opinion filed June 22, 1931.
    R. J. Wetterlund, for appellant; H. N. Lukins, of counsel.
    J. Ernest Wilkins, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Acacia Mutual Life Association, complainant, v. Helen Marie Thomas et al., defendants. Helen Marie Thomas, plaintiff in error, v. Bertha Electa Thomas, defendant in error.
    Gen. No. 35,034.
    Opinion filed June 22, 1931.
    Edward H. Taylor, for plaintiff in error; Charles M. Haft and Robert B. Ardell, of counsel.
    McKinley & Sehmauch and Beach & Beach, for defendant in error; W. W. Sehmauch, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Edward Ellendt, appellant, v. Richard Espeland, appellee.
    Gen. No. 35,115.
    Opinion filed June 22, 1931.
    Alexander K. Gembick, for appellant; William Rif kind, of counsel.
    Goodnow, Allah en & Snewind, for appellee; Charles D. Snewind, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    William E. Cloyes, appellant, v. Great Lakes Finance Corporation, appellee.
    Gen. No. 35,146.
    Opinion filed June 22, 1931.
    Roland J. Klingler, for appellant.
    William McKinley and Paul E. Price, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.