text:
    Parisian Novelty Company, Appellant, v. Advertisers Manufacturing Company, Appellee.
    Gen. No. 32,321.
    Opinion filed March 26, 1928,
    Rehearing denied April 9, 1928,

      Fischel, Kahn, Heart & Epstein, for appellant.
    Heineman, Eonan & Langsett, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff is a resident corporation, a manufacturer, jobber and seller of advertising specialties and novelties. Defendant is a Wisconsin corporation manufacturing cloth advertising novelties at Eipon, Wisconsin.

On July 31, 1925, plaintiff with defendant’s assistance sold to the Eagle Picher Lead Company 500,000 caps at $44.95 per thousand. For this service defendant paid plaintiff a commission of $1.75 per thousand. The order was confirmed August 4,1925, at which time defendant wrote plaintiff, inclosing in the letter a circular described as “Commission Payment Policy and-Special Information for Salesmen.” Item No. 2 of this circular states:

“Full commission will be paid on re-orders coming direct from the customer, as long as the salesman continues actively selling our line.”

On July 24, 1926, the Eagle Picher Lead Company gave another order to defendant for 400,000 caps at a price of $37 per thousand, and plaintiff in this suit claims that it is entitled to a commission on this sale on the theory that it was a re-order and also on the theory that it assisted in getting the business.

The cause was tried by the court without a jury, and at the close of all the evidence the court made a finding for defendant and entered judgment thereon. It is claimed the finding and judgment are against the evidence. There is little, if any, conflict in the evidence upon material facts.

On December 31,1925, the defendant wrote plaintiff, in reply to a claim of plaintiff for commission on an order from the Johnson Wax Company, the following:

“We wish to advise that it will be impossible for ns to allow you a commission on this order as it never occurred to us at the time to allow any salesman’s commission.

“Tu order to get this business it was necessary to quote a very close price, which we did. We will bear this matter in mind, however, and on any future business received through the Eagle-Picher Lead Co. we will see that there is a substantial allowance for you.”

On January 4, 1926, defendant wrote plaintiff:

“We certainly regret that our decision in the matter of the cap order received from the Johnson Wax Company of Eacine is not satisfactory to you.

“If you had expected to obtain a commission on this business and if the Eagle-Picher Lead Co. intended that you should, it would seem as if they would have referred the inquiry to you instead of sending it direct to us.

“We understand the way you feel in this matter and hereafter we will see that you are given full benefit of all orders which are developed through the EaglePicher Lead Co.”

On January 15, 1926, defendant wrote plaintiff asking as to the possibility of placing an order of the Cudahy Packing Company and asking if there was any possible way defendant could help. In this letter defendant further stated:

“We certainly are pleased to note that Mr. Stanton is pleased with the services which we have rendered and can assure you we have done everything we possibly could to maintain this account for both of us for years to come.”

Mr. Stanton was a representative of the Eagle Picher Lead Company.

On April 29, 1926, plaintiff wrote defendant, stating facts with reference to several orders which it hoped to obtain from proposed customers:

“I was up to Eagle Picher the other day and Mr. G-oudy, who is quite a nice fellow, was ‘kidding.’ At the close of his conversation he stated that you had never come up to see him. The next time you are in Chicago I would suggest that you call on Mr. G-oudy, take him out to lunch and ‘pay him a little attention’ as he appreciates it. Heretofore most of my efforts have been directed towards Mr. Stanton, from whom I get my orders. However, G-oudy felt a little hurt; so I asked him out to lunch the other day. Now everything is O. K. with Eagle Picher and I feel absolutely sure that a repeat order will be coming forth sometime in July.”

On May 1, 1926, defendant wrote plaintiff:

“We note that the Eagle Picher Lead Company is feeling very neglected and I regret that I have been unable to get into Chicago to see Mr. Goudy or Mr. Stanton. However, I will do so very shortly. We appreciate the fact that it is these little personal touches that pulls and cements business of this kind.”

July 19, 1926, plaintiff wrote the defendant stating that the writer had been to see Mr. G-oudy of the Eagle Picher firm, and after relating a number of other matters, said:

“G-oudy further stated that he would be ready to place their order for next year about the first of August, so would advise you be in the city about that time in order to facilitate matters.”

July 30, 1926, defendant wrote:

“There is not any profit in this figure for us as you can readily understand from the price, and in fact it will barely cover overhead expense. When you consider the fact that the order has to be made up a considerable time in advance of the day of shipment and carried for many months, you will understand that the order represents a heavy loss when carrying charges are taken into consideration. We certainly regret this situation very much but under the circumstances there is nothing that can be done. The Kemper-Thomas Company are simply out to show us a thing or two and we are meeting them with very heavy competition on every large contract which is placed.”

August 10, 1926, defendant wrote plaintiff:

“Your letter of August 9th is at hand and we wish to advise that our letter of July 30th covers the EaglePicher Lead situation entirely and that we have nothing more to offer.

“This business was placed by the writer direct and at a very close figure. We are not able to allow you any commission on this transaction much as we would like to. You certainly should realize that at a price of $37.00 per thousand there is absolutely no room for a salesman’s profit.”

Mr. Kahn testified for the plaintiff that he first met Mr. Bumby, the representative of the defendant, in the summer of 1925 at the time Bumby came to Chicago to help close the Eagle Picher order. He said that Mr. Stanton of the Eagle Picher Company at that time stated that he preferred that the order be handled direct instead of being jobbed through plaintiff, and the witness said to Mr. Stanton that that would be all right with Mr. Bumby, to which Mr. Bumby replied, “Yes.” He further testified that Bumby did not to his knowledge know the Eagle Picher Lead Company prior to this time and that from the time the first order was taken up to the time of the lawsuit plaintiff tried to sell to Sears, Boebuck & Company and to the Western Electric Company, and to arrange with Bumby to come in and close the order, and that he communicated from time to time with Bumby. He further said that between the time when he first met Mr. Bumby and the time the second Eagle Picher order was closed plaintiff attempted to sell a number of other orders but did not sell any; that after the second order was placed they secured two other orders.

Mr. Bumby for defendant testified that he came to Chicago in 1925 at the request of Mr. Kahn to aid him in placing the Eagle Picher order; that there was no conversation at that time as to re-orders; that as to the order of July 24, 1926, he received a telegram on July 19th asking him to go to Chicago and stating that the Eagle Picher Company was intending to place the order; that he took a sleeper to Chicago, got there the morning of July 20th and had a conversation with Mr. Stanton and Mr. Groudy of the Eagle Picher Company. He further testified that the two orders received through the plaintiff after the order of July 24, 1926, were for 1,000 and 250 caps respectively; that defendant was still sending literature to Mr. Kahn and sent him the price list. He says that by the statement, “We will bear this matter in mind” in one of the letters, “I meant that we would keep the matter in mind on any business developing through the Eagle Picher Lead Co.; we would refer the inquiry to Mr. Kahn and would quote them on the business. We would not quote anything but the net price to the person making ■ the inquiry.” He said that on the first order.he added the amount of Mr. Kahn’s commissi on to the price of the goods but did not tell this to Mr. Stanton. He said that he came to Chicago on July 20th in response to a telegram from the Eagle Picher Lead Company; that he did not receive plaintiff’s letter of July 19th until he got back to Milwaukee; that he went to Chicago and got back to his office before July 24th but told nothing to Mr. Kahn and didn’t inform him until July 30th, when the witness sent a check to balance up the former transactions.

The plaintiff submitted findings of fact and propositions of law and moved that the court write upon each of these findings and propositions the word “held” or “refused.” The court in each instance declined so to do, but as to the findings of fact the court marked the first finding “refused,” “with the statement that said refusal was to stand as a blanket refusal to each and every one of the findings of fact following the same and bound in the. same sheaf. ’ ’ Likewise, the first proposition of law was marked “refused” with a similar statement as to the other propositions of law tendered. The plaintiff urges that the court erred in refusing to write “refused” or “held” upon each of these findings and propositions as requested.

Section 61 of the Practice Act (see Cahill’s St. ch. 110, Ü 61; Smith-Hurd’s Ill. Rev. St. 1927, p. 2078) provides:

“Upon, a trial by the court either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the court shall write ‘refused’ or ‘held,’ as he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court. In any case so tried the court shall find specially upon any material question or questions of fact which shall be submitted in writing by either party before the commencement of the argument.”

In Levy v. Burkstrom, 174 Ill. App. 276, and Alexander County Savings Bank v. Murray, 224 Ill. App. 559, this court held that it was mandatory upon the trial judge to indicate his disposition of the submitted propositions of law by writing thereon, following the rule as laid down in Mann v. Learned, 195 Ill. 502, and Western Valve Co. v. Wells, 127 Ill. App. 655. This ruling seems to be in harmony with the views of the Supreme Court as expressed in Bradish v. Yocum, 130 Ill. 386, and Babbitt v. Grand Trunk Western Ry. Co., 285 Ill. 267. In Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago Ry. Co., 300 Ill. 162, the Supreme Court held that the Appellate Court might not decline to consider the merits of a suit at law tried without a jury merely because no propositions of law were submitted to the trial court, as the decision of the trial court to the sufficiency of the evidence was not final and binding on the Appellate Court in such case even though no question of law was raised in any manner, and that decision explained Babbitt v. Grand Trunk Western Ry. Co., supra, and Bradish v. Yocum, supra, as not necessarily applicable to practice in the Appellate Court.

In Pressed Steel Equipment Co. v. Thornburgh Pressteel Co., 312 Ill. 359, the Supreme Court held that where there were no propositions of law submitted, no motion made to find for the plaintiff, and no question raised as to the admission and exclusion of evidence, a question of law was not presented in the Supreme Court after the Appellate Court had affirmed the judgment of the trial court, and overruled contrary expressions in Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago Ry. Co., supra. In National Can Co. v. Weirton Steel Co., 314 Ill. 280, the court again adhered to the rule as last laid down, but stated that it did not mean that upon such a record in no event could the correctness of the judgment, when challenged by proper assignments of error, be reviewed; that where the record was insufficient to sustain the judgment, the Supreme Court was authorized to entertain assignments of error which would question the validity of the judgment on that ground, citing American Exchange Nat. Bank v. Chicago Nat. Bank, 131 Ill. 547.

In Madison & Kedzie State Bank v. Garfield Park Storage Co., 324 Ill. 222, the court again quotes with approval National Can Co. v. Weirton Steel Co., supra; Pressed Steel Equipment Co. v. Thornburgh Pressteel Co., supra; American Exchange Nat. Bank v. Chicago Nat. Bank, supra; Bolton v. Johnston, 163 Ill. 234; Mutual Protective League v. McKee, 223 Ill. 364; and Babbitt v. Grand Trunk Western Ry. Co., supra.

We think, therefore, that it cannot be said that the ruling of the court upon findings of fact and propositions of law under section 61, Cahill’s St. ch. 110, ff 61, is a matter of indifference, but that the provision of the statute is mandatory; that the trial court should not have refused to mark the propositions of law either as “held” or “refused.” Failure to comply with the statute in this regard may be reversible error. There is a clear distinction between cases in which a court refuses to comply with section 61, Cahill’s St. ch. 110, If 61, of the statute and cases such a,s Marks v. Knofsky Co., 233 Ill. App. 293; Foreman Bros. Banking Co. v. Dudeck, 233 Ill. App. 364; Folsom v. Northern Trust Co., 237 Ill. App. 419; People v. Oberby, 240 Ill. App. 112; Bright v. Riedy, 243 Ill. App. 314; Bitzer v. Southern Surety Co., 245 Ill. App. 295, in which questions as to the rules applicable in Appellate Courts where no propositions of law had been submitted were considered.

However, irrespective of these findings, we think that under the undisputed facts the court erred, for, whether upon the theory that the order of July 24, 1926, was a re-order within the meaning of defendant’s circular, or upon the theory that the plaintiff actively participated in securing the order with the acquiescence and consent of the defendant, we think the defendant is liable, and that such is the necessary inference from the whole transaction as shown by the correspondence and the testimony. The finding against the plaintiff and in favor of the defendant is against the manifest preponderance of the evidence, and the judgment is therefore reversed with a finding of facts and judgment here in favor of the plaintiff for $700.

Reversed with finding of facts and judgment here.

Finding of facts: We find as facts that on July- 24, 1926, the defendant sold to the Eagle Pich'er Lead Company 400,000 caps at the price of $37 per thousand ; that plaintiff, with the acquiescence and consent of the defendant, assisted in the making of said sale; that under an agreement between the plaintiff and defendant, plaintiff is entitled to a commission of $1.75 per thousand upon said caps so sold, and that there is due from the defendant to the plaintiff on account of said commission the sum of $700.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    M. B. Okun, Appellee, v. Charles Rotstein, Appellant.
    Gen. No. 32,330.

      Opinion filed March 26, 1928.
    Alex C. Lawrence and L. L. Smith, for appellant.
    Herman Waldman and Paul J. Donovan, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of the plaintiff upon an instructed verdict at the close of all the evidence in an action for forcible entry and detainer.

The evidence tends .to show without dispute that the defendant was in possession under a lease executed on December 6, 1926, by the Chicago Eapid Transit Company, demising the premises for a term which would expire on December 31, 1928. On June 15, 1927, the lease was assigned to the plaintiff by the lessor,'the assignment transferring all interest in the indenture. The lease by its terms provided that it could be terminated by the lessor at any time before its expiration by giving the lessee five days’ notice in writing. It further provided that it was made subject to the approval of the Illinois Commerce Commission and subject to the right of that commission to terminate the same at any time when in the opinion of the commission the public interest and convenience required it.

On June 18, 1927, plaintiff as assignee gave notice that the lease would be terminated as of June 30, 1927, and requested the defendant to vacate and deliver up possession to the plaintiff. Defendant refused to do this and remained in possession, paying the rent for the month of June and tendering the rent for July, which plaintiff refused to accept because of the de-mand for possession.

The defendant first urges that plaintiff cannot recover because he neither set up nor offered evidence tending to prove such facts in connection with the assignment of the lease as would show compliance with section 18 of the Practice Act. (See Cahill’s St. ch. 110, if 18; chapter 110, section 18, Smith-Hurd’s 111. Eev. St. 1927.) Numerous cases construing that section of the statute are cited. They are not in point since section 14 of chapter 80, Cahill’s St. ch. 80, if 14, is controlling. Springer v. Chicago Real Estate Loan & Trust Co., 202 Ill. 17; Barr v. Florentine Alabaster Co., 174 Ill. App. 256.

It is next urged that the lease is void as it was not made to appear that section 27 of the Public Utilities Act, Cahill’s St. ch. 111a, if 42, was complied with. However, the title is not involved in this proceeding but only the right of possession. Moreover, it is elementary that a tenant is estopped to deny his landlord’s title.

It is next urged that plaintiff as lessee of the transit company has no reversionary interest and therefore cannot maintain the suit. Markin v. Whitaker, 26 Ind. App. 211, is cited to this point.

However, the lease considered in that case had expired by its own terms and the lessee therefore had no further interest which would entitle him to maintain the suit. That is not the case here.

The judgment is just and is affirmed

Affirmed.

O’Cohhor and McSurelt, JJ., concur.


author: Mr. Justice McSurely

text:
    In re Estate of William G. Bennett, Deceased.
    Gen. No. 32,016.
    Opinion filed March 26, 1928.
    Goldman, Allshouse & Healy, for plaintiff in error; Robert G. Dreffein, of counsel.
    Walter T. Stanton, for defendant in error; Michael W. Kaveney, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

By this writ of error the administrator of the estate of William G. Bennett, deceased, seeks the reversal of an order entered in the circuit court dismissing a proceeding whereby it was sought to hold respondent, Richard Stark, as a copartner of William G. Bennett, deceased.

From the meager abstract we gather that an order was entered in the probate court upon a citation to discover assets of the estate against Richard Stark directing him to file a partnership inventory covering a transaction known as the Van Burén street job; that respondent Stark appealed from said order to the circuit court; that the matter came on for trial in the circuit court and a jury being waived and testimony having been heard, the court found that it could not determine whether the decedent and the respondent were copartners. The order stated that the proceedings should be brought by the administrator by a bill in equity, and it was thereupon ordered that the matter be dismissed without prejudice to the administrator to secure the accounting by proceedings in equity or otherwise. No bill of exceptions is in the record.

The argument of plaintiff in error seems to be that the probate court has jurisdiction to compel the surviving partner to account to the administrator, and that such a proceeding is in the nature of a chancery proceeding and that it is the rule that the party in whose favor a decree in chancery is entered must preserve the evidence upon which such decree is based, otherwise the decree will be reversed.

Without discussing the other points raised, it is sufficient to say that the rule requiring a party who desires to sustain a decree to furnish the evidence upon appeal does not apply to the instant case. While the proceedings are in some respects equitable in their nature, they are a special statutory proceeding. Pick v. Diecks, 218 Ill. App. 295. In proceedings under sections 81 and 82 of the Administration Act, Cahill’s St. ch. 3, lili 82, 83, when the question of title is involved, the parties brought into court are entitled to have the facts determined by a jury. Bates v. Lutz, 220 Ill. App. 54. The right of trial by jury was specifically provided by the amendment of sections 81 and 82, in force July 1, 1925. Where the parties are entitled to a trial by jury, the party seeking to have an order, judgment or decree reversed must present the evidence to the reviewing court. French v. French, 302 Ill. 152; Feyerabend v. Feyerabend, 312 Ill. 559.

In the absence of a bill of exceptions we must assume that the order of the circuit court was proper, and it is affirmed.

Affirmed.

Matchett, P. J., and O’C'ohhor, J., concur.


author: Mr. Justice MoSurely

text:
    Bessie Veselsky, Appellee, v. The Bankers Life Company, Appellant.
    Gen. No. 32,371.
    Opinion filed March 26, 1928.
    Montgomery, Hart & Smith, for appellant.
    Taylor, Miller, Busch & Boyden, for appellee; Preston Boyden, of counsel.
   Mr. Justice MoSurely

delivered the opinion of the court.

Plaintiff, as beneficiary in an insurance policy issued by the defendant upon the life of her husband, Joseph Veselsky, brought suit alleging that he had died on or about July 19,1924, while the policy was in force. At the conclusion of the plaintiff’s case the defendant moved that the jury be instructed to return a verdict in its favor, which motion was denied. Defendant did not present any evidence. The jury returned a verdict for the plaintiff and judgment was entered against defendant for $10,000, from which it appeals.

The sole controverted question is whether there was sufficient evidence from which the jury could properly conclude that Joseph Veselsky had come to Ms death from drowmng on or about July 19,1924.

There is little, if any, dispute as to the facts. Joseph Veselsky was born in Bohemia, and in the summer of 1924 was about 50 years old. He was married to plaintiff in October, 1894, in Traverse City, Michigan, where they lived for about four years after their marriage and then moved to. Chicago. About 1916 or 1917 they moved to Lake Forest, where he opened a ladies’ tailoring establishment. The family at tMs time consisted of Mr. and Mrs. Veselsky and a son, Leslie. The home and the shop were together. Plaintiff assisted her husband in his tailoring business, doing the lighter work pertaimng to dresses.

Witnesses describe Veselsky as a man steady in Ms work, of good morals,- industrious and sober, not of a gloomy trend of mind but rather of a bright temperament, looking on the bright side of tMngs. From the time the business was started there was always plenty of work to do. In April, 1924, the plaintiff and her son moved their home to Berwyn, plaintiff testifying that they separated the home from the shop; that she moved just to get away from the shop. After tMs, plaintiff went to Lake Forest twice a week, on Wednesdays and Saturdays, assisting her husband in the work. Veselsky also went to Berwyn, usually once a week, on Saturdays, although if he were very busy he would omit a Saturday. The relations between Mm and his wife were pleasant. There seems to have been no domestic friction or disagreement between them.

In the summer of 1923 Yeselsky had been in the habit of swimming in Lake Michigan. In the daytime he went to the regular public beach where there was a guard, but in the evening went to Woodland avenue, which is approximately half a mile north of the regular public beach. When he went in at night at Woodland avenue, he would not wear a bathing suit. He was not an expert swimmer. He could swim some, about 30 feet, and then go down. It was his habit to undress at the beach at the foot of Woodland avenue.

On Saturday, July 19, 1924, plaintiff and her son Leslie visited the insured at his shop in Lake Forest, arriving there about two o’clock. They made some deliveries to customers for him and spent the remainder .of the afternoon in conversation. They noticed nothing unusual about the insured’s conversation. He did not complain about his health or the condition of his business but was engaged in his usual work of tailoring and pressing. Plaintiff changed the bedding on her husband’s cot before she left for Berwyn. Her husband gave her $63 with which to pay her rent. She and her son left Lake Forest about seven o’clock in the evening.- There is no evidence that the insured was seen by anyone after this time.

On the following Monday, about noon, the superintendent of an estate adjacent to Lake Michigan found some clothes on the beach about 30 or 40 feet from the water under some bushes. They were men’s clothes consisting of a suit, shoes, underwear and a straw hat. There was a belt with the insured’s initials on it. In the coat was a card containing the name of J. B. Yeselsky and indicating that he was a member of the Highland Park Chapter of the Masonic Order. The police were notified, the clothes were taken to the station and Mrs. Yeselsky notified. Sunday night was stormy. One witness describes it as a very stormy night with considerable rain, thunder and lightning. Plaintiff went to the tailor shop of her husband on Monday and talked to the police officers who showed her the articles of clothing which she identified as her husband’s. She said that she found at the shop all the other clothes that her husband owned. There was nothing missing. The cot on which her husband slept had not been touched since plaintiff left it on Saturday. She stated that her husband usually cleaned the shop Saturday evening and she noticed on Monday that it appeared cleaner than when she had left there Saturday. She did not make any search for her husband beyond going to the morgue, the coroner’s office and the police and watching the papers. She says she relied on the police, “that sometime, somewhere the body will be found” and had hopes of this until the following spring. Her husband had two sisters, one in Chicago and the other in Traverse City, Michigan. She was somewhat uncertain as to their present residence but this was the last of which she knew. He had no father or mother living that she knew of. She did not attempt to communicate with her husband’s relatives. In the early spring of the next year she saw something in the paper regarding the recovery of a body from the lake and went to the coroner’s office and the morgue in an attempt to identify it, but it was not the body of her husband.

A police officer of Lake Forest testified that he dragged that part of Lake Michigan with a boat and grab line all day Monday and Tuesday, covering the territory for 400 feet each way from Woodland avenue and out for about half a mile, but no body was found. There was testimony indicating that at this point there was an undertow at times. The bank balances of the insured showed nothing unusual or different from the average balances.

Death, like any other fact, may be proved by circumstantial evidence alone, Fidelity Mut. Life Ass’n v. Mettler, 185 U. S. 305, and the presumption of the continuance of life prevails until facts are shown which make the presumption of death more reasonable. Where there is no legal presumption of death arising from a disappearance for seven years, the presumption which will justify the conclusion of death must arise from evidence of circumstances tending to prove this fact. Donovan v. Major, 253 Ill. 179.

A great variety of cases have been cited in the briefs of respective counsel. In some of these, contrary conclusions are drawn from substantially similar facts. Defendant cites Nelson v. Masonic Mut. Life Ass’n, 57 App. Div. 214, 68 N. Y. S. 290, in which Nelson was last seen by a person to whom he spoke of his intention to go swimming. He was never seen nor heard of again. On the following morning his clothing was found in the locker of a beach bathhouse. The court concluded that the evidence was not sufficient to raise a presumption of death, basing its conclusion upon the fact that, when last seen, he was in a safe place — his own office in New York City — which is some distance from Brighton Beach where his clothes were found.

Plaintiff’s counsel refer to Lesser v. New York Life Ins. Co., 53 Cal. App. 236, in which case Lesser left his hotel during the forenoon, saying that he was going to the beach. Later in the day he was seen in his street clothes within a few feet of a bathhouse talking and laughing with another man. He was never seen again. ' During that evening his clothes were found in one of the beach bathrooms. No body identified as his was ever recovered. The judgment for the plaintiff was affirmed. In its opinion the court referred favorably to the reasoning in Tisdale v. Connecticut Mut. Life Ins. Co., 26 Iowa 170, where it was held that evidence that one who had lived a long life as an honored and upright citizen, in domestic felicity, fond of his friends, with no disconcerting habits or affections, and who disappears in a distant city, raises a presumption of death, for “absence from any other cause, being without motive and inconsistent with the very nature of the person, is improbable.” The opinion in the Lesser case concludes: ‘1 The very nature of such cases is to the effect that the weight of the evidence is a question for the jury. ’ ’

In the opinion in Northwestern Mut. Life Ins. Co. v. Stevens, 71 Fed. 258, is a well-reasoned statement of the general circumstances to be considered in such cases. It was there very properly said that two cases of disappearance in which the facts are exactly alike will probably never arise, and the strength of the presumption of either life or death will never be the same in any two cases; that while there is a presumption that one continues to live for seven years after his disappearance, this presumption is not conclusive but may be overcome when all the facts and circumstances of the case and the possible motives, if any, for disappearing or returning to his family are considered, and if these take the case out of the category of an ordinary disappearance and are such as would lead the unprejudiced minds of reasonable men, exercising their best judgment, to the conviction that death had intervened before the expiration of seven years’ disappearance, the presumption of continued life is overcome.

Counsel for defendant asserts that the correct rule in this State is stated in Donovan v. Major, 253 Ill. 179, where a youth named Wright had disappeared for something less than seven years. It was there said that disappearances of individuals are not uncommon and no legal presumption of death arises from the disappearance alone; that such presumption must arise from circumstances such as where the absentee was exposed to some specific peril like sailing in a vessel which had never been heard from, or being a passenger on an ocean steamer in mid-ocean at night, threats of suicide or the desperate condition of his health. Defendant argues that this establishes the rule that before an absentee can be presumed to have met death before the lapse of seven years, the evidence must show that he was in some position of peril where the chances were that he had succumbed to the peril. We do not read this opinion as deciding what particular set of circumstances may raise the presumption of the death of an absentee, but rather as indicating, in general, the type of circumstances which may give rise to such a presumption. However, it can truthfully be said that an indifferent swimmer, as Veselsky was, in Lake Michigan would be in a place of peril.

Applying as nearly as possible the general principles stated in the foregoing and other like cases to the instant facts, we conclude that the question of whether Joseph Veselsky came to his death by drowning on the date alleged was a question of fact for the jury to determine. When a person’s clothes are. found on a lonely beach and no one is seen either on the land or in the water to whom they belong, the mind instinctively suspects that the owner has drowned. This would be the usual and a reasonable suspicion. If the clothes are subsequently identified as belonging to a nearby resident, who is never seen again even after a lapse of years, and there is nothing in his domestic or business relations to furnish a motive for voluntary disappearance, the suspicion first entertained ripens into a belief that the absent one came to his death by drowning.

That Mrs. Veselsky was calm is said to indicate that she knew her husband was alive. If she were a party to such a fraud, one would expect her to simulate excessive grief. Her restraint argues her honesty. Emotional reactions do not appear in fixed forms. Sadness does not always wear the same garment. There are sorrows “that do often lie too deep for tears.”

That she did not notify her husband’s relatives may be explained by the fact that she had not been in touch with them for a long time and was evidently somewhat uncertain as to where they lived.

It is argued that the presumption that the insured was drowned rests upon the presumption that he was swimming or in the water and that one presumption cannot rest upon another. This is not a ease of two presumptions. There is simply one general presumption — that he lost his life in the water. Fanning v. Equitable Life Assur. Soc. of United States, 264 Pa. 333, 107 Atl. 715.

Considering all the circumstances, we cannot say that the verdict is manifestly against the weight of the evidence. The judgment is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


text:
    Frances C. Hobbs, Appellant, v. City of Chicago, Appellee.
    Gen. No. 32,432

      Opinion filed March 26, 1928.
    E. H. Arnold and Charles H. Mitchell, for appellant.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellee; E. Marshall Amberg and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal plaintiff seeks the reversal of an adverse judgment upon a directed verdict on the trial of a suit brought by her to recover compensation for injuries received, owing, as she alleges, to the negligence of defendant with reference to its sidewalk in front of number 8718 South Morgan street, Chicago.

In the first count of her declaration plaintiff alleged that the city negligently suffered a longitudinal depression at or near the center of the sidewalk and that water and falling snow would accumulate therein and freeze, causing this portion of the sidewalk to become slippery, and that plaintiff, while in the exercise of due care for her own safety and lawfully upon the walk at the place aforesaid, fell by reason of said slippery, icy and dangerous condition of the sidewalk, receiving injuries. The second count charged generally that defendant suffered the sidewalk in question to be in bad repair and slippery from snow and ice.

Plaintiff testified that on the morning of March 7, 1926, she was passing on the sidewalk in front of number 8718 South Morgan street; that the sidewalk there was “in bad condition, cracks and bad depressions and ice had formed there”; that the morning was blustery and snowy; that she tried to step over the ice, when a strong wind came, and in trying to keep her balance she slipped “on this hummock of ice there” and fell; that her cape blew up so that it prevented her seeing and that she threw up her arm to protect her hat from blowing off, when she lost her balance. She testified that the ice there was “a saucer-shaped depression in the sidewalk that held this ice moisture”; that the surface of this ice was smooth like glass.

Another witness testified that at this point there were “distinct depressions in the sidewalk” and that water froze in these depressions. Thomas N. Kelly was the first one to reach and assist plaintiff after she fell. He said that the entire sidewalk was not covered with ice, but that there was a patch of ice, apparently “two or three feet.” Plaintiff also testified that the walk was not all covered with snow.

Injuries to persons caused by slipping and falling on the ice or snow on sidewalks are not infrequent and have given rise to a considerable number of lawsuits. The opinions in these are not altogether harmonious but they seem to agree as to one or two general principles: First, that mere slipperiness of a sidewalk occasioned by ice and snow is not such a defect as will make a municipality liable for damages occasioned thereby. City of Chicago v. McGiven, 78 Ill. 347; King v. Swanson, 216 Ill. App. 294; City of East Dubuque v. Brugger, 118 Ill. App. 421; City of Chicago v. McDonald, 111 Ill. App. 436; City of Aurora v. Parks, 21 Ill. App. 459; Village of Gibson v. Johnson, 4 Ill. App. 288. But where the ice forms hillocks or ridges amounting to ati. obstruction, and the city, after due notice, suffers this condition to continue, it is liable. City of Quincy v. Barker, 81 Ill. 300; Eppley v. City of Chicago, 221 Ill. App. 111; Dracass v. City of Chicago, 193 Ill. App. 75; Powers v. City of Chicago, 20 Ill. App. 178; City of Macomb v. Smithers, 6 Ill. App. 470.

It has also been held that it is immaterial, so far as freedom from liability of a city is concerned, whether or not the slipperiness is caused by natural or artificial means. Miklaszewski v. City of Chicago, 194 Ill. App. 614; Metzger v. City of Chicago, 103 Ill. App. 605; Mareck v. City of Chicago, 89 Ill. App. 358; 28 Cyc. 1374.

In Barker v. City of Rockford, 239 Ill. App. 528, the plaintiff recovered a judgment for damages from injuries because of a fall on a slippery sidewalk. The condition was aggravated by the downspouts from an adjoining building which discharged water from the roof across the sidewalk to the gutter. The opinion, after stating the law as above and citing many cases, reversed the judgment on the ground that the slippery condition did not amount to an obstruction and was not in hillocks or ridges. Plaintiff relies on Loyd v. City of East St. Louis, 235 Ill. App. 353, where it appeared that the owner of the property which abutted on the sidewalk maintained a downspout which threw rain from the roof directly on the sidewalk, which consisted of cinders, and that the force of this water washed out depressions across the walk; that the plaintiff slipped on ice concealed by a slight sprinkling of snow in one of these depressions which was several inches deep and at least a foot wide. There the judgment against both the city and the abutting owner was sustained on the ground that the property owner maintained a nuisance in front of his property and the city was liable for failing to abate said nuisance. We think that counsel for the defendant has correctly distinguished this case as being based on the charge in the declaration that the city failed to abate a nuisance, and not on the theory that water freezing in a depression in the sidewalk, causing smooth ice, constitutes liability. This opinion is not in conflict with the rule that cities are not liable for the mere slippery condition of the sidewalk.

Applying these considerations to the instant case, there was a small patch of smooth ice on the sidewalk running two or three feet with the sidewalk. There is no evidence as to its width or depth. It did not amount to an obstruction and was not in the form of hillocks or ridges. There is no evidence as to how long the patch of ice at this place had existed. Plaintiff testified that it had been snowing just a short while before she fell. This ice was in plain view of the plaintiff who was walking around it when a high wind caused her to loose her balance and slip. In the wintertime such bits of smooth ice on the sidewalks in Chicago are almost universal. It would be unconscionable to hold the city liable to everyone who might be injured by slipping and falling because of them. From the very nature of the case, the city cannot be held liable for the slipperiness of the ice on the sidewalk and could not possibly prevent such patches.

Under the law there is no liability in this case, and the peremptory instruction to find the defendant not guilty was proper and the judgment is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    Mandel Brothers, Inc., Appellee, v. Daniel Cohen and Nathan Cohen, Appellants.
    Gen. No. 32,199.
    Opinion filed March 26, 1928.
    Pritzker & Pritzker, for appellants; Clyde C. Fisher, of counsel.
    Albert S. Louer, for appellee; Arthur Abraham, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

On February 5, 1927, plaintiff caused a judgment by confession for $7,238.45 to be entered in its favor against the defendants on promissory notes made by the defendants. On February 28th defendants moved that the judgment be vacated and set aside. The motion was continued from time to time, and came on for hearing April 1, 1927, when an order was entered denying the motion. This appeal is prosecuted to reverse that order.

Daniel Cohen, one of the defendants, filed his affidavit in support of defendants’ motion to vacate the judgment, and the question here for decision is the sufficiency of the affidavit. It set up that the defendants had a good and meritorious defense to the whole of the plaintiff’s claim, which was that on August 16, 1926, written contracts were entered into between plaintiff and defendants, copies of which were attached to and made a part of the affidavit; that on the same date the notes upon which judgment was confessed were executed; that $3,400 was paid in cash by the defendants to the plaintiff in part payment for the work done by plaintiff for the defendants as specified in the contract; that by the contract plaintiff was to paint, decorate, etc., for the defendants, the building known as the New Green Mill Café; that the work was to be done in a good and workmanlike manner and completed not later than September 10, 1926. The affidavit further states that as a part of the consideration for the notes plaintiff was to hang two pictures in front of the room on either side of the stage, but that in hanging the pictures the plaintiff failed to protect the same with rods so that they endangered the life and limb of patrons entering the café; that the reasonable value of hanging the pictures as agreed in the contract is $200; that plaintiff was to drape the sides of the stairs leading to the stage, and that this was not done; that certain posts furnished by the plaintiff were broken and of no use whatsoever and injurious to the defendants ’ business on account of the broken condition of the posts; that under the terms of the contract plaintiff was to drape all of the walls and ceiling of the premises and that same was not done; that it was also to furnish light shades on all posts, which was not done; that the carpet mentioned in the contract was to he “Axminster” carpet, and that samples were shown to the defendants at the time the order was given; that the carpet furnished was not Axminster but was of an inferior grade; that plaintiff was to furnish railings on the balcony and stairs which were to be bronzed and lacquered in an antique gold effect; that this was not done, but the railings were finished in ordinary paint; that plaintiff was to wash and retint the office but did not do so. As to each item the affidavit specifies the amount of the damage and the total of these items is $7,500.

Under the law an affidavit in support of a motion to vacate a judgment entered by confession must state facts which constitute a meritorious defense, and on such a motion the affidavit is to be construed strictly against the party presenting it. The motion is addressed to the sound legal discretion of the trial judge. In the instant case the record discloses that the defendant Daniel Cohen filed three affidavits on three different dates, the first on February 28,1927, the second on March 11, 1927, which the record states was withdrawn on account of certain typographical errors made by the stenographer in transcribing her notes, and the third affidavit was filed on April 1, 1927, and is the one we have above discussed. The first affidavit did not specify the defendants’ claimed damages. The second set up that defendants were damaged $300 by reason of plaintiff’s failure to furnish the light shades and $300 for failure to furnish the Axminster carpet. In the third affidavit these amounts are laid at $3,000 each, and counsel for the defendants states this discrepancy is due to a typographical error, but a reading of the affidavit discloses that the amounts were written out in full as well as in figures. Moreover, the third affidavit is uncertain, indefinite and defective. It states that under the contract plaintiff was required to hang two pictures. We have been unable to find such a provision in the contract which is attached as an exhibit to the affidavit. There is also an allegation that plaintiff was to drape the sides of the stairs, but we are likewise unable to find basis for this in the contract. There are other discrepancies between the affidavit and the contract.

Counsel for defendants also points out in his brief that the affidavit puts the cost of replacing the Axminster carpet at $3,000, while the price defendants were to pay for the carpet as shown by the contract was but $1,890.60. We think the affidavit was too uncertain and was contradictory of the contract in a number of respects. In view of this fact we think we would not be warranted in holding that the trial judge abused his legal discretion in failing to vacate and open up the judgment.

We do not agree with counsel for plaintiff when they say that had plaintiff made default under its contract, this would be no defense to a suit on the note. In support of this contention counsel cite the case of Gage v. Lewis, 68 Ill. 604, and other cases which refer to that case as authority. We think the Gage case is not in point. In that case it appeared that one member of a firm purchased the firm assets and gave a bond of indemnity to his copartner conditioned that he would pay all the firm debts due or to become due. The obligor did not pay all of the firm debts and suit was brought on the bond on account of such breach. In one of the pleas filed it was averred that the bond was given in consideration of the obligee retiring from a certain line of business in Chicago and that he would not thereafter compete with other persons in such business; that immediately upon execution of the bond the obligee breached his agreement and proceeded to form a new company and go into the same line of business in Chicago. This plea was held bad for a number of reasons not necessary to be mentioned here. The court there said (p. 616):

11 Treating the representations alleged in the plea as amounting to a contract between the plaintiff and the defendant, we fail to perceive a want or failure of consideration. * * * These representations and promises, then, were the consideration, and the misfortune with the defendant is, not that he did not have them, or that anything has since transpired whereby he is not permitted to resort to them, but merely that he has not received the benefit from them which he was authorized to expect.”

In the instant case we are of the opinion that the consideration for the notes was the material to be furnished and the work to be done by the plaintiff, and if it appeared that the material was not furnished and the work not done as agreed, this might show a failure or partial failure of consideration and be interposed as a defense on the notes. Liberty State Bank of Bloomington v. Aulgar, 231 Ill. App. 498, and authorities there cited. But in any event we hold that we would not be warranted in saying that the trial judge abused his discretion in refusing to vacate the judgment on the ground that the affidavit filed was insufficient.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Justice O’Cokkor

text:
    Northwestern Fruit Exchange, Appellee, v. Erie Railroad Company, Appellant.
    Gen. No. 32,265.
    Opinion filed March 26, 1928.
    Follaksbee, Shorey & Schupp, for appellant; Clyde E. Shorey and Louis W. Becker, Jr., of counsel.
    J. V. De Lakey, for appellee.
   Mr. Justice O’Cokkor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover damages claimed to have been sustained by it by reason of the failure of the defendant, a common carrier, to heat the car in which apples were being transported from Chicago to New York, on account of which failure some of the apples were frozen, resulting in damages which were stipulated to be $89.80. The case was tried before the court without a jury and there was a finding and judgment in plaintiff’s favor for $89,80,

The record discloses that on January 11,1924, plaintiff loaded a standard refrigerator car with 742 boxes of apples to be transported by the defendant to New York. When the car arrived in New York it was found that 147 boxes of apples had been damaged by frost. Plaintiff’s position seems to be that it was the duty of the railroad company to heat the car so as to, prevent the apples from freezing. On the other hand, the defendant railroad company’s position is that it was not obligated to heat the car and that in fact it was not authorized, under the law, to do so.

Substantially all of the facts were stipulated, from which it appears that the apples were transported and cared for by the defendant under and pursuant to the terms and provisions of the classifications, tariffs and rate schedules duly published and filed with the Interstate Commerce Commission and also pursuant to the terms, provisions and conditions of a bill of lading which was contained in and was a part of the classification filed by the defendant with the Interstate Commerce Commission. The bill of lading issued to the plaintiff for the apples was the “Uniform Domestic Straight Bill of Lading,” as prescribed by the Interstate Commerce Commission. Certain rules of the classifications provide:

“Eatings provided for freight in carloads do not obligate the carrier to furnish heated cars, nor to maintain heat in cars, for freight requiring such protection, except under conditions which the carriers’ tariffs provide. * # *
“Stoves, used in cars, and the fittings and fuel therefor, must be furnished by shipper, * * *.
‘ ‘ Shippers must provide men to care for fires. With shipments of fresh fruit or fresh or green vegetables * * & ? >

There is no provision in the classifications requiring the carrier in such case to provide heaters in the cars where perishable fruit or vegetables are being shipped,

The hill of lading states that the apples were to be shipped subject “to the classifications and tariffs in effect on the date of the issue of this original bill of lading.” The evidence further shows that the ear furnished was a proper one and that the transportation of the apples to New York was in due time.

We are of the opinion that since the classification filed with the Interstate Commerce Commission required that the heating be done by the shipper, there was no warrant for the entry of the judgment against defendant.

A case in point is W. H. Blodget Co. v. New York Cent. R. Co., — Mass. —, 159 N. E. 45. In that case it was held that where perishable goods were frozen in transportation the railroad company was not liable under the common law for failure to heat the car; that under the Interstate Commerce Act, and the tariffs filed with the Interstate Commerce Commission pursuant to that act, the railroad company had no legal right to heat the car; that if it had done so it would have given the shipper a preference not allowed to others, which preference is prohibited by the Interstate Commerce Commission Act. We are in entire accord with the law as announced by the Massachusetts court and think it is controlling here. •

The judgment of the superior court of Cook county is reversed.

Reversed,

Hatchett, P. J., and MoSurely, J., concur.


text:
    Walter R. Hanneman, Appellee, v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company, Appellant.
    Gen. No. 32,277.
    Opinion filed March 26, 1928.
    John L. MoInerney and Edward H. Murnane, for appellant.
    Bryant, Meneely, Irrmann & Lews, for appellee; Harry W. Meneely and John A. Irrmann, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action for false arrest and malicious prosecution against the defendant. He obtained a verdict and judgment for $4,500 and the defendant appeals.

The record discloses that in September, 1925, the defendant had in its employ at Enderlin, North Dakota, a man named Walter B. Hanneman, and at that place on September 24,1925, it issued to him its time certificate, which was in the nature of a check for 43 cents, apparently being in payment for some services he had rendered defendant. Afterwards Walter B. Hanneman presented that check for payment at the defendant’s Chicago office, the amount of the check having been raised to $100.43. On October 7, 1925, it was paid. Shortly thereafter, when the defendant learned that the check had been raised and had been paid in Chicago, it sent its special agent, F. H. Slivenick, from Minneapolis to Chicago to investigate the matter. He made an investigation and learned that a Walter B. Hanneman had at one time been in the employ of the Chicago & Northwestern Bailway Company in Chicago as a brakeman, and further learned that Hanneman lived at 3401 Fulton street, Chicago. He called at the State’s attorney’s office, Chicago, and explained the situation to one of the assistants, who advised that a complaint be filed against Hanneman in the municipal court. Such a complaint was prepared at the detective bureau, charging that Walter B. Hanneman had feloniously obtained from the defendant $100 by means of a false and bogus check, and further charging that he obtained the money by means of a confidence game. This complaint was sworn to by Slivenick, who took it to a judge of the municipal court who after examination ordered a warrant issued for Hanneman’s arrest. The warrant was given to the police officers and they went to Hanneman’s home on Fulton street, having been given that address by Slivenick. Not finding bim at home, but having learned that he was employed at a shoe store on West Madison street, one of the officers went to the store and placed plaintiff under arrest. This was on October 30, 1925. He was taken downtown to the detective bureau on La Salle street by the officers. When they arrived at that place the officers notified Slivenick to come in and identify Hanneman. Slivenick had never seen Hanneman but he brought with him Burrows and Freund, employees of the defendant, Burrows being the man who was with Walter R. Hanneman when he cashed the check above mentioned in Chicago, and who identified Hanneman to Freund, the cashier of the defendant company, who cashed the check. The three arrived in about 45 minutes after plaintiff had been taken to the detective bureau. Upon seeing him Burrows and Freund immediately said that he was not the Hanneman who cashed the check and Slivenick thereupon advised the police officers that they had arrested the wrong man. The testimony shows that the officers thereupon told Hanneman, the plaintiff, that he could go home, but that he refused to do so, stating as a reason that some one would have to pay for having him arrested. It further appears that the plaintiff was then locked up at the detective bureau. He testified that on a number of occasions that night he was brought out, together with other prisoners, for the purpose of having citizens who called to see whether they could identify the plaintiff as the person who was charged with an offense ; that he was taken to the police station on South Clark street, where his finger prints were taken and the next morning was taken to the South Clark street police court when the matter was called before the judge about nine o’clock; that Slivenick appeared there and stated that Hanneman was not the man that was wanted and that he did not care to press charges against him, but that he had been requested by the assistant State’s attorney to request that the matter be continued, as the State’s attorney wished to do some investigating concerning Hanneman. The court thereupon continued the case until November 13th and plaintiff was allowed to go, upon himself and his wife signing his bond. When the matter came up on November 13th Slivenick again appeared, told the court there had been a mistake in arresting Hanneman, and the prosecution was dismissed.

Defendant contends that the judgment should be reversed because the record discloses that Slivenick, the agent of defendant, made a full, fair and impartial investigation; that he reported the result thereon to the assistant State’s attorney, who advised the filing of the complaint against Hanneman, and that this is a complete defense. Further, that regardless of the fact that Slivenick had acted on advice of the State’s attorney, there was no malice on the part of defendant or Slivenick. Counsel for both sides concede that it is the law that where one in good faith submits the facts fairly to the State’s attorney or his assistant and obtains his advice in reference to a person who is supposed to have committed some offense, and the party acts upon the advice given by the attorney and institutes proceedings of a criminal nature against the party and he is arrested and prosecuted, these facts will constitute a complete defense to an action for false arrest and malicious prosecution although the person charged is not in fact guilty. Whether the person making the charge explained all the matters in good faith is often a question of fact for the jury. In the instant case the question was submitted to the jury by an instruction given at plaintiff’s request. It found in favor of the plaintiff, and we think it unnecessary to say whether this is against the manifest weight of the evidence because the judgment must be reversed for another reason. We are clearly of the opinion there was no malice on the part of defendant or its agent, Slivenick, and therefore plaintiff was not entitled to punitive but only compensatory damages.

Plaintiff contends that the law is firmly established that a jury may imply malice from the want of probable cause, and it is stated that in the instant case there is no cause at all for believing that plaintiff is guilty of the offense charged against him in the municipal court, and that since this is admitted, malice on the part of the defendant in instituting the criminal proceeding will be presumed. While it is true that the courts have held that the jury may infer malice from the want of probable cause, and that this question is generally one for the jury, yet it is not of universal application because the law will not permit the presumption that there was malice when all the evidence shows the contrary. In the instant case it is clear that there was no malice on the part of the defendant against the plaintiff when the criminal proceedings were instituted. It is undisputed that a party who stated he was Walter B. Hanneman cashed a check that had been raised and was thereby guilty of an offense. It is likewise undisputed that plaintiff in the instant case was ■not that person. The undisputed evidence shows that the defendant, before instituting the criminal proceeding, investigated the matter and explained the situation to the assistant State’s attorney and acted upon Ms advice. The only thing that might be charged against the defendant is that its representatives were negligent in failing to go with the police officers when they made the arrest. Upon a careful examination of all the evidence in the record, we are clearly of the opinion that the evidence disclosed that, as a matter of law, there was no malice on the part of the defendant and it was error for the court to give instructions that plaintiff was entitled to vindictive damages or smart money. Grinnell v. Weston, 95 App. Div. 454, 88 N. Y. S. 781; Eshelman v. Rawalt, 298 Ill. 192.

The judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Justice O’Cohhor

text:
    Merchants and Manufacturers Securities Company, Appellee, v. Charles E. Graydon, Sheriff of Cook County, Illinois, et al., Appellants.
    Gen. No. 32,375.
    Opinion filed March 26, 1928.
    Fred A. Gariepy, for appellants.
    Walter A. Myer, for appellee; Philip D. Hoeemah, of counsel.
   Mr. Justice O’Cohhor

delivered the opinion of the court.

Plaintiff brought an action of replevin against the sheriff and “John Doe” to recover possession of two taxicabs which the sheriff had in his possession by virtue of an execution issued under a judgment rendered in the superior court of Cook county. The taxicabs were taken from the sheriff and delivered to the plaintiff. Afterwards the two Cunninghams intervened as defendants, the case was tried before the court without a jury, the court found that plaintiff was entitled to possession of the taxicabs, assessed its damages for the detention of the taxicabs at one cent, judgment was entered on the finding and the defendants appeal.

Plaintiff claimed to be entitled to the possession of the taxicabs by reason of two chattel mortgages. There is no dispute as to the facts but the defendants contend that the chattel mortgages were invalid because not acknowledged as required by the statute.

The evidence shows that Edward G. Bennett of No. 3808 Grand boulevard, Chicago, on March 11,1926, made his promissory note for $2,250, payable to himself and by him indorsed, and on the same day executed a chattel mortgage conveying one of the taxicabs in question to the Moller Sales Company to secure payment of the $2,250 note. On April 3rd Bennett, the mortgagor, appeared before E. M. Grove, a notary public, who certifies that said Bennett “is personally known to me to be the same person whose name is subscribed to the foregoing mortgage, appeared before me this day in person and acknowledged that he signed, sealed and delivered the said instrument,” etc. This acknowledgment by the notary is printed on the back of the chattel mortgage. On the face of the chattel mortgage, which is the ordinary printed form, is the following paragraph:

“The undersigned hereby appoints Eoy Borg as attorney-in-fact to appear for the undersigned before the Clerk of the Municipal Court of Chicago * * * and acknowledge the execution of this instrument in the náme of the undersigned' for all purposes as the undersigned could do with the same force and effect.” Then follows the date and the signature of Bennett.

It further appears that on May 18,1926, Bennett, by Borg, his attorney in fact, acknowledged the chattel mortgage before the clerk of the municipal court of Chicago and that it was afterwards recorded in the recorder’s office of Cook county. The note was indorsed by the Holler Sales Company, the mortgagee, and it assigned the mortgage to the plaintiff.

The defendants contend that the mortgage is invalid because, it is said, the appointment of Borg by the mortgagor Bennett, as the latter’s attorney in fact, was not acknowledged as the statute requires; that the acknowledgment by Bennett was an acknowledgment of the chattel mortgage and not of the appointment of the attorney in fact. We think this contention cannot be sustained. The preparation of the chattel mortgage and the acknowledgment of the appointment of an attorney in fact are very badly done. All that was necessary for the mortgagor to do was to appoint Borg as his attorney in fact and acknowledge such appointment before a notary public, but he purported to acknowledge the chattel mortgage before the notary. This was a nullity because the statute requires that chattel mortgages made in Chicago be acknowledged before the clerk of the municipal court or a deputy of that court. But we think the acknowledgment in question was an acknowledgment of the appointment of the attorney in fact because it states that the mortgagor who subscribed to the “foregoing mortgage” acknowledged ‘the said instrument.’ ’ The ‘ ‘ said instrument’ ’ was the chattel mortgage and the appointment of the attorney in fact. We hold that the acknowledgment was valid as to the appointment of the attorney in fact. We do not mention the other note and chattel mortgage because they are substantially the same as the one which we have discussed.

This case is unlike the case of Krysiak v. Egan, 243 Ill. App. 310, which is relied upon by the defendants. In that case the chattel mortgage was followed by a certificate of acknowledgment and later there was added the appointment of a person as an attorney in fact, authorizing the attorney in fact to acknowledge the mortgage. The acknowledgment there referred to the “foregoing instrument” and it was held that the “foregoing instrument” was the chattel mortgage and not the appointment of the attorney in fact. In the instant case the acknowledgment is of the “said instrument” and said instrument was the chattel mortgage as well as the appointment of the attorney in fact. We hold that the acknowledgment, although badly arranged, complies with Cahill’s St. ch. 95, If 2.

A further point made seems to be, as stated by counsel, that “plaintiff here was estopped from recovering on his taking possession after the mortgagor Bennett was in default, and, as such, we contend their action was a fraud on the creditors of the mortgagor”; that the default was for a period of six days before replevin was brought. Obviously there is no merit in this point because Cahill’s St. ch. 95, if 4, states that a chattel mortgage is a good lien for a period of 90 days after default.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Hatchett, P. J., and HcStjbely, J., concur.


author: Me. Justice O’Connor

text:
    Elinor Burns, Administratrix of the Estate of Robert E. Burns, Deceased, Appellee, v. City of Chicago, Appellant.
    Gen. No. 32,394.

      Opinion filed March 26, 1928.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Charles M. McDonnell, Assistant City Attorney, and Rot S. Gaskill and E. Marshall Amberg, Assistant Corporation Counsel, of counsel.
    Charles C. Spencer and Arthur A. House, for appellee.
   Me. Justice O’Connor

delivered the opinion of the court.

Elinor Burns, as administratrix of the estate of Bobert E. Burns, deceased, brought suit against the defendant to recover for the wrongful death of Bobert E. Burns, who will hereinafter be referred to as the plaintiff. At the close of the plaintiff’s case the defendant moved for a directed verdict in its favor. The motion was overruled. The defendant stood by its motion, and the cause was then submitted to the jury which returned a verdict in favor of the plaintiff for $4,000. Judgment was entered on the verdict and the defendant appeals.

The record discloses that about 8: 30 o’clock on the evening of August 28,1924, plaintiff, a boy eight years and three months of age, was playing with other boys around a steel tubular pole which was owned and controlled by the City of Chicago. The pole was about 26 feet high and from its top was suspended an electric wire and lamp, the lamp being used for lighting the street. The pole was in the street near the curb a short distance from where plaintiff lived. The boys had some street car transfers which in their play they used as money. They were betting who could climb the pole and bet that the plaintiff could not climb the pole and touch the lamp. Plaintiff accepted the challenge, climbed the pole and came in contact with the electric wdre near the top, which carried about 3250 volts of electric current, received an electric shock, fell to the ground and was killed. The evidence further tends to show that for a considerable time prior to the accident the boys in the neighborhood had been climbing the pole, although apparently they had not climbed more than 15 feet from the ground.

The pole was tubular, about 26 feet high, and the wire with which plaintiff came in contact was about 25 feet above the ground. There was a collar at the base of the pole about a foot in height. About 3% feet above this collar there was a hole in the pole, which had originally been closed with a door, but the door had been removed some years before. Five feet 1 inch above this hole was a bracket extending from the side of the pole and from that point to the top there were brackets on each side of the pole which were used by the employees of the city as steps when taking care of the lamp in question. The evidence shows that the plaintiff used the collar at the base of the pole as a step, then put his hand in the hole and climbed up and when he reached the brackets or steps he used them in climbing to the top.

The defendant contends that no recovery can be had because “plaintiff was injured solely because of being a trespasser on the pole, without being lured or invited thereon by attractive or convenient appliances or fixtures,” and in support of this a case is cited from Missouri and one from Kentucky. No Illinois authority is cited, and while the authorities cited by defendant we think sustain its contention, we are of the opinion that the law announced in Missouri and Kentucky is not in accord with the law as laid down by our Supreme Court. We think the question whether the plaintiff in climbing the pole, as disclosed by the evidence, was guilty of negligence, was a question for the jury. Stedwell v. City of Chicago, 297 Ill. 486; Denning v. City of Chicago, 321 Ill. 341; Flis v. City of Chicago, 247 Ill. App. 128; Holmberg v. City of Chicago, 244 Ill. App. 505. The city was bound to know the dangers incident to the maintenance of the pole in question used in the lighting of its streets with electricity and to guard against accidents by the exercise of a degree of care commensurate with the danger. Hausler v. Commonwealth Electric Co., 240 Ill. 201. In the Hausler case it was said: “Electricity is a silent, deadly and instantaneous force, and a person or company handling electricity is bound to know the dangers incident to its use in a public street or alley, and is bound to guard against accident by a degree of care commensurate with the danger incident to its use.”

In the instant case the accident happened in a public street, and therefore plaintiff was not a trespasser at the time he was injured. Stedwell v. City of Chicago, supra; Deming v. City of Chicago, supra; Flis v. City of Chicago, supra. Whether the pole in the street, with the hole in it a few feet above the base, with steps on each side of the pole a few feet above the hole, was so attractive to children in their sports as to suggest the probability of such an accident, and whether the city was negligent in maintaining the wires as it did, were questions for the jury. Deming v. City of Chi-, cago, supra. While the question of liability in this case is a close one, yet we think that under the authorities above cited the case was one for the jury.

The defendant contends that the court erred in giving plaintiff’s instruction No. 4, in that the instruction defined the care plaintiff was required to exercise as “such care as was required of a child of his age, experience and intelligence,” and that the instruction was wrong because it omitted the element of the capacity of the child. We think this contention is hypercritical and without merit. Plaintiff was eight years and three months old, and before a recovery could be had the jury must believe from the evidence that at the time in question he exercised such care and caution for his own safety as a child of his age, intelligence and experience would ordinarily exercise under similar circumstances. We think the word “intelligence” as used in the instruction includes the element of capacity. Illinois Cent. R. Co. v. Slater, 129 Ill. 91; City of Chicago v. Keefe, 114 Ill. 222. In Punk and Wagnall’s New Standard Dictionary of the English language one of the definitions given of the word “intelligence” is “capacity to know or understand,” and Webster defines the word “intelligence” as “the capacity to know or apprehend.” We think the instruction was not improper and are clearly of the opinion that the omission did not prejudicially affect the defendant in the instant case.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Matchett, P. J., and McStjrely, J., concur.


author: Mr. Justice Jones

text:
    H. R. Cox and A. B. Cox, Trading as Cox Jewelry Company, Appellees, v. The Aetna Casualty & Surety Company of Hartford, Connecticut, Appellant.
    Gen. No. 7,736.

      Opinion filed March 23, 1928.
    John E. Cassidy and Stafford, Schoede & Stafford, for appellant.
    Connelly, Weld, Walker, Searle & Crampton and P. R. Ingelson, for appellees; H. A. Weld, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.'

This suit was instituted on a policy of insurance against loss by robbery. The maximum liability of the insurer was $20,000 and the premium was $80. The policy period extended from December 18, 1923, to December 18, 1924, and insured against loss only between the hours of 7:00 a. m. and midnight of each day. The robbery complained of is alleged to have occurred on December 21, 1923, between the hours of 11 o’clock p. m. and midnight, three days after the policy became effective and one hour before midnight. A jury trial was had which resulted in a verdict in favor of appellees for $22,383.71. Judgment was rendered on the vefdict and this- appeal followed.

A declaration, consisting of one count, was filed September 5, 1924. It set out the policy, also the alleged robbery, and that appellees had fully complied with all the terms of the policy. Subsequently, two additional counts were filed, but were withdrawn before issue was joined. A third additional count was filed on February 22, 1926, under leave of court. The latter count avers that the policy of insurance was issued December 20,1923, in consideration of a premium of $80, $40 of.which was to be paid on December 18, 1923, and the remaining $40 on January 31, 1924. It also avers that appellees performed all the terms, requirements and conditions imposed upon them by the policy up to the time of the alleged robbery and up to the commencement of this suit, excepting the provisions of sections “D” and “F” of the policy, which it is averred were waived by appellant.

Section “,D” requires the insured to give immediate notice of any loss to the home office of the company in Hartford, Connecticut, or to the general agent or manager, who countersigned the policy, also to the company’s local authorized agent and the public police authorities having jurisdiction; and it provides that the assured shall forward to the company full written details of the nature of the loss. Section “F” requires that every claim for loss or damage shall be made forthwith in writing, subscribed by the assured and certified to in the manner and on a form to be furnished on demand by the company, but it is provided that the delivery of such form shall not be held to be a waiver of any provision or condition of the policy or any forfeiture thereof, and that any act of investigation shall not be considered as a waiver.

To this additional count, appellant filed a plea averring that the policy contains a condition to the effect that no action shall lie against the company to recover under the policy, unless brought within two years after the date of the occurrence resulting in such loss and that the cause of action mentioned in said count did not accrue at any time within two years before the filing of said additional count. To this plea a demurrer was sustained and appellant elected to stand by its plea.

The first count avers full compliance with all the terms of the policy. The additional count did not aver full compliance with the conditions of the policy but relied upon a waiver of certain of those conditions. A different cause of action was stated by it — one which could be availed of only when brought within two years after the date of loss. (Feder v. Midland Casualty Co., 316 Ill. 552; Carbone v. Pennsylvania Fire Ins. Co., 222 Ill. App. 560; Zelden v. Commercial Union Assur. Co., 238 Ill. App. 644.) The matters contained in the plea constituted a complete bar to the cause of action as set out in the third additional count.

Appellees contend that even though it was error to sustain the demurrer to appellant’s plea, such error was harmless because the right to recover was fully proved under the first count of. the declaration. On page 14 of their brief, appellees say, “The original declaration set up the insurance policy and averred full performance with all its terms, and that is the count that we stand on in this case.” Still, appellees requested, and the court gave, instructions 6 and 7, both of which were predicated on the theory of waiver as averred in the said third additional count. The error in the ruling on the demurrer to the plea was therefore carried into the instructions.

As a further claim that the sustaining of the demurrer was harmless, appellees say that their additional replication to the fifth plea set up the alleged waiver and although the plea to which it was filed was afterwards withdrawn, the replication stood as a reply ; and that they were entitled to make proof of waiver under that replication. The fifth special plea set out a failure to comply with condition “F” of the policy and the replication to it averred a waiver of that condition. The said plea amounted to nothing more than the general issue because the matters set up by it could have been shown under a plea of the general issue. But notwithstanding this, the special plea was withdrawn and the replications to it had no function or office thereafter. They could have no effect as pleadings because they could not aid in forming any issue. The only, good count in the declaration averred performance of all the conditions of the policy. The general issue denied such performance. A replication to a special plea which had been withdrawn could not by any rule of pleading be taken to contradict the averments in the declaration.

Appellant’s first special plea averred that books of account were not kept by the assured so that the loss could be accurately determined therefrom by the company as provided by paragraph A, section 7 of the policy. The third replication to that plea averred that appellant examined the books and accounts of appellees, and afterwards on January 21, 1924, accepted from appellees the $40 balance of the premium due on the policy; and that appellees relied on such acceptance as a recognition that the policy was in force and as an estoppel of appellant to deny it. A demurrer to this replication was overruled and defendant elected to stand by its demurrer. The plea set up as an absolute defense, unless it was waived or the company was estopped from interposing it, that an insurance company has the right to require the one it insures, who is carrying on a mercantile business, to keep books of account correctly detailing purchases and showing sales, ready to be produced in the event of a loss so that the amount of such loss can readily be ascertained. It is also a familiar principle of pleading, that when the consideration of the defendant’s contract is executory or its performance is to depend on some acts to be done or forborne by the plaintiffs or on some other event, the plaintiffs must aver the fulfilment of the condition or show some excuse for the nonperformance. (Feder v. Midland Casualty Co., supra.) The rule in this State and elsewhere, pertaining to waiver in insurance cases, requires that the conduct of the party, against whom such a waiver is claimed, must be such as to cause the other party to change his position by lulling him into a false security, thereby causing him to delay or waive the ascertainment of his rights to his damage. (Dickirson v. Pacific Mut. Life Ins. Co., 319 Ill. 311; Buysse v. Connecticut Fire Ins. Co., 240 Ill. App. 324.) No such showing is here made. This is not a case where an insurance company is seeking to have a policy declared forfeited because of the failure of the assured to comply with some provision of the policy. In such a case, acceptance of premiums is generally held to constitute a waiver. The insurance company claims no forfeiture, and does not claim the policy was terminated. So far as it now appears, the company may have treated the policy as remaining in full force, throughout its term. If so, it would have been entitled to the full premium and its acceptance of it would not waive such a condition as the one mentioned in the first special plea. The matters set up in the replication do not amount to a waiver by appellant, and it was error to overrule the demurrer.

It is urged by appellant that there was no robbery, but that this suit is in furtherance of a conspiracy between H. H. Cox and Ben Cox, copartners, doing a jewelry business under the firm name of Cox Jewelry Company, and one James Burns, an ex-convict, to unlawfully obtain money from appellant. Proof of this conspiracy was furnished in part by the testimony of Mabel Burns, ah alleged former wife of James Burns. Her testimony tended to show an arrangement between the Cox brothers and Burns to rob the store and collect insurance from appellant. It is claimed that Burns, impersonating “Santa Claus” was the “holdup” man. Burns was dead at the time of the trial and Ben Cox did not appear as a witness in his own behalf.

Appellees claim that Mabel Burns was incompetent to testify to acts and conversations of Burns which implicated him, H. H. Cox and Ben Cox in the alleged robbery, because she was the wife of James Burns. To meet this objection appellant introduced in evidence a properly certified copy of a decree of the District Court of the Thirteenth Judicial District, County of Bock, State of Minnesota, declaring the alleged marriage between Mabel Burns and James Burns to be void and of no effect. The date of the decree was April 24, 1923, and prior to any of the acts or conversations to which she testified. But appellees contend that the decree itself is incompetent. The objections made to the decree are that it does not appear (1) that the court which entered it had jurisdiction of the parties or the subject matter of the suit; and (2) that the court had the right to grant the relief it attempted to afford the plaintiffs. It is sufficient to say that the district courts of the several States where they exist are presumed to be courts of general jurisdiction. In the absence of any showing to the contrary, we must presume that the district court of Bock county, Minnesota, had jurisdiction of the subject matter of divorce and annulments of marriages. That court, by a recital of facts, found that the defendant was duly served, as required by the laws of Minnesota. Such finding of a court of a foreign State may be attacked, but the burden of showing the insufficiency of service is upon the one who assails it. In this instance no attempt was made by proof or otherwise to show any insufficiency of service. Whether the district court erred or not in its conclusions of law as to the relief granted Mabel Burns is a question which cannot be raised collaterally by anyone. It can only be raised in a direct proceeding and then only by parties to the suit and their privies. Under the circumstances, we think that Mabel Burns was a competent witness. On cross-examination and over appellant’s objection, this witness was subjected to a rigid cross-examination concerning her private life and domestic relations. The matters were wholly collateral and were brought out for the obvious purpose of humiliating the witness and prejudicing the jury against her testimony. Such conduct of counsel was improper and prejudicial. (Moore v. People, 108 Ill. 484, 487; Sconce v. Henderson, 102 Ill. 376, 378; Lake Erie & W. R. Co. v. Morain, 140 Ill. 117, 122.)

It is contended by appellees that the testimony of the witnesses, Voight and Bell, concerning statements made to them by James Burns was incompetent. No cross error was assigned by appellees as required by the rules of this court and therefore that contention will not be considered.

The first instruction given on behalf of appellees referred the jury to the declaration or some count thereof. As we have heretofore noted, there was but one good count in the declaration, i. e., the first, or original count. The other count, the third additional count, was not properly in the record and therefore the verdict may have been based solely upon the third additional count. It was error to give that instruction.

Appellees’ second given instruction told the jury that if they believed from a preponderance of the evidence that plaintiffs kept accurate books of account so far as their diamonds were concerned and from which the loss of diamonds could be accurately determined by the company, and that the diamonds lost by the robbeiy exceeded the total amount of insurance, then it was immaterial whether other articles were lost in the same robbery, as to which no sufficient books were kept. A large quantity of jewelry besides diamonds is claimed to have been stolen in the same transaction. The policy provided that there should be no liability unless books and accounts were kept by the assured and the loss could be accurately determined therefrom by the company. The instruction contravenes that provision of the policy. Such provisions in insurance policies not only serve to determine the amount of a loss, but, if proper books are kept, they will assist the insurer in obtaining the description of the articles stolen and other information, which might materially aid in their recovery. Such recovery would reduce the amount to be paid by the insurer under its liability. This is a substantial right of pecuniary advantage to the insurer, and one which cannot lawfully be taken away from it without its consent. Such a provision in a policy of insurance is not unreasonable, and where the insured with full knowledge of the conditions of the policy enters into a contract of this character, it is one with which he must comply. (Niagara Fire Ins. Co. v. Forehand, 169 Ill. 626.) The giving of the second instruction was erroneous.

One of the issues in this case was whether there was a conspiracy among H. B. Cox, Ben Cox and James Burns to defraud appellant by staging a fake robbery. There can be no recovery in this ease if either partner was a party to the alleged robbery. The third instruction given on behalf of appellees told the jury that in determining the question of whether an unlawful eonspiracy existed between James Burns and H. R. Cox to defraud defendant, they could not take into consideration anything said by Burns to Voight or Bell out of the presence of H. R. Cox, unless such conspiracy is shown by the evidence. The instruction is somewhat misleading because the jury might well believe it would first have to find a conspiracy existed only between H. R. Cox and Burns, and independent of Ben Cox, notwithstanding the averment of the plea that Ben Cox was involved in it. Where a conspiracy is once established, every act and declaration of each member, in furtherance of the common design, is in contemplation of law the act and declaration of all the members and is therefore original evidence against each of them. (People v. Small, 319 Ill. 437.) But in view of the tenth instruction given on behalf of appellant,' which tends to obviate the objection pointed out, we merely say that the third instruction should not have been given.

The fourth instruction given on behalf of appellees gives undue prominence to certain named witnesses by singling them out. It is misleading and its tendency would be to make the jury believe they could find there was a conspiracy only from certain evidence.

Appellees’ fifth instruction tells the jury that if it has been shown that H. R. Cox bore a good reputation for being an honest and law-abiding citizen previous to the alleged robbery, they should take that fact into consideration in passing upon the question of whether he entered into the unlawful conspiracy charged. Such evidence could only be considered by the jury in connection with all the other evidence in the case on the charge of conspiracy. It gave undue prominence to that testimony and tended to mislead the jury in thinking it overcame all the other evidence.

The sixth instruction directs a verdict and embraces the theory of a waiver by appellant as averred in the third additional count. As this count was improperly before the jury, it follows that the instruction was erroneous. It is subject to the further criticism that it fixed the amount of recovery at such sum as will indemnify appellees for their loss not exceeding $20,000. The policy provides the company shall not be liable for any loss in excess of the market value of the property at the date of the event causing the loss, and the instruction should have conformed to that provision. It further assumes that proof of loss was furnished without leaving that question to the jury. One of the issues was whether proofs of loss were furnished in compliance with the terms of the policy. The seventh instruction also directs a verdict and is equally erroneous.

We do not think the court erred in refusing to allow the filing of appellant’s eighth special plea which averred failure of appellees to comply with certain provisions of clause “Gr” of the policy. The matter set up in the plea could be proven under the general issue.

For the errors above mentioned the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. William Olive, Plaintiff in Error.
    Gen. No. 7,744.

      Opinion filed March 23, 1928.
    Ellis & Westbrooks, for plaintiff in error; Richard E. Westbrooks, of counsel.
    Josee T. Skinner, State’s Attorney, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.

An information consisting of eight counts was filed in the county court of Bureau county, charging the defendant with violating certain provisions of the Prohibition Law, Cahill’s St. ch. 43, If 1 et seq. The first two counts were nolle prossed by the State’s attorney. The remaining six counts charge sales of “moonshine whisky. ’ ’ The defendant was found guilty on each count. A motion for a new trial was overruled and judgment was rendered upon the verdict. The defendant was fined $200 on the third count and $100 on each of the remaining five counts and ordered to pay the costs. He was also sentenced to the Illinois State Farm at Vandalia for a term of 60 days and to stand committed to the State farm until such fine and costs were paid on the third count.

The first assignment of error is that the information was insufficient and should have been quashed. It is urged that the name of the purchaser of intoxicating liquor should be set forth in the information or indietment, if known, or if unknown, that fact should be stated. A number of cases from other States are cited in support of this contention. However, section 39 of the Illinois Prohibition Act, Cahill’s St. ch. 43, fí 40, expressly provides that it shall not be necessary in any affidavit, information or indictment to give the name of the purchaser. (People v. Brush, 324 Ill. 261; People v. Zalapi, 321 Ill. 484; People v. Tate, 316 Ill. 52.)

The defendant contends that section 39 of the Prohibition Act, Cahill’s St. eh. 43, if 40, is unconstitutional as dispensing with an essential element of the crime attempted to be created under the act. The constitutionality of a law cannot be considered by this court and by seeking a review of the cause here he waives the question. (Hill v. Thomas B. Jeffrey Co., 292 Ill. 490; People v. Leoni, 198 Ill. App. 376.)

The information is not insufficient because it fails to charge that the liquor was sold for beverage purposes. It charged the sale of intoxicating liquor. In such case it is not necessary to state that the liquor was fit for beverage purposes or sold for beverage purposes. (People v. San Filippo, 243 Ill. App. 146; People v. Alfano, 322 Ill. 384; People v. Cioppi, 322 Ill. 353.) In an information charging a violation of section 3 of the Illinois Prohibition Act, Cahill’s St. ch. 43, If 3, the information need not specify the particular variety of intoxicating liquor sold, the nature of the compound, whether medicated or not, its alcoholic content or its fitness for beverage purposes. If the offense is stated in the language of the statute, and so plainly that the nature of the offense may be easily understood by the jury, it is sufficient. (People v. Alfano, supra.)

It is contended that the information is insufficient because it does not allege that the place conducted by plaintiff in error was a soft drink parlor. The case of People v. Lewis, 319 Ill. 154, is cited in support of this claim. In that case a large quantity of liquor called “stomach bitters” and claimed to be “patent” or “proprietary” medicine was found in a soft drink parlor. The opinion laid down the requisites of an information under sections 4 and 5 of the Prohibition Act, Cahill’s St. ch. 43, [Hi 4 and 5, as applied to such a state of facts, but the case is not in point here. It is not charged in the information in the case at bar-that the liquor sold came under the provisions of either section 4 or section 5 of the Prohibition Act. Under the settled rules as announced by both the Supreme Court and Appellate Courts in this State, the information is sufficient.

No error was committed in the admission of evidence over objection of defendant of other sales on dates not charged in the information. When the time of the commission of an offense is not of its essence, it need not be precisely laid and it is sufficient if it be laid at any time before the filing of the information and within the period of limitation. Proof that the offense was committed on any day within that period prior to the filing of the information is sufficient. (Kettles v. People, 221 Ill. 221; People v. Robinson, 243 Ill. App. 637.) When proof of other offenses tends to prove the charge in the information, such proof is admissible. (People v. Reed, 287 Ill. 606.)

Defendant claims it was reversible error to admit opinion evidence of two witnesses as to the alcoholic content of the liquor sold. One who has drunk whisky and who is familiar with the taste and smell can give opinion evidence as to whether the beverage sold and drank was whisky, and can unquestionably give his opinion as to its alcoholic content. (Blakemore on Prohibition [2nd Ed.], pp. 141-143; Strada v. United States, 281 Fed. 143.) Furthermore, in one instance the opinion expressed by the witness was not objected to and therefore that testimony cannot be complained of here for the first time.

It is next objected that the whole proceeding is void because the information was verified by the sheriff who admitted on cross-examination that he had never seen the defendant sell liquor to anybody. It is claimed that although the verification was in positive language, the proof shows it to have been upon information and belief only, and was therefore void. Courts will not look beyond a positive verification to ascertain in the first instance whether the accusation is upon information and belief. If the verification is positive, it is a sufficient warrant for further proceedings. In the trial court the defendant did not question the sufficiency of the information on account of the alleged void verification either by motion to quash or in arrest of judgment. We are of the opinion that the objection was waived and cannot be urged in a court of review.

The trial court properly denied a motion of the defendant to vacate the judgment of sentence and to stay its further execution. A motion for a new trial had been overruled, judgment and sentence of the court had been entered, and the warrant of commitment had been returned as executed on August 10, 1926. On September 4, 1926, after the defendant had been delivered to the Illinois State Farm at Vandalia and had served nearly a month of his sentence, his counsel filed the motion to vacate the judgment. An order was then entered granting the defendant 60 days in which to file a bill of exceptions. A motion to stay further execution of the judgment and sentence pending application for supersedeas and to fix bond on the stay was then made and also denied. As a general rule a court retains jurisdiction over the judgment' during the term at which it is rendered and may, for proper cause, vacate the judgment during the term. But in a criminal ease the court can only vacate or change the judgment while it remains unexecuted, and it is without jurisdiction to vacate or change the judgment after the prisoner has begun to serve his sentence. (People v. Leinecke, 290 Ill. 560; People v. Whitman, 277 Ill. 408; People v. Turney, 273 Ill. 546.) The claim that People v. Jones, 308 Ill. 125, authorizes the court to grant such a motion cannot be sustained. The court on page 127 approves the doctrine laid down in the three cases above cited.

Complaint is made of alleged improper cross-examination of the defendant and his witnesses by the State’s attorney and of "the restriction of the defendant’s cross-examination of certain witnesses; also because, it is said, the conviction rests entirely upon the testimony of paid investigators. It is not practicable to review these matters in detail, but it is sufficient to say that we do not think any of these contentions are well grounded.

Criticism is made of each instruction given on the part of the People. After examining them, we are of the opinion that they contain no reversible error. Under the rule announced in People v. Lemen, 231 Ill. 193, the objection made to the form of verdict as given by the court and returned by the jury is untenable.

We find no reversible error in the record and the judgment is affirmed.

Judgment affirmed.