text:
    Chicago Title & Trust Company, as trustee, appellee, v. Celle Becker et al., defendants. Celle Becker, appellant.
    Gen. No. 33,685.
    Opinion filed December 31, 1929.

      William A. Rogan, for appellant; William C. Burns and R. Hamlin Petty, of counsel. Sonnenschein, Berkson, Lautmann & Levinson and Walter V. Faekler, for appellee; Roger S. Bloch and J. B. Hugg, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Abner T. Bowen et al., appellees, v. Peter Croarkin, appellant.
    Gen. No. 33,736.
    Opinion filed December 31, 1929.
    Rehearing denied January 10, 1930.
    Edward McTiernan, for appellant; Francis E. Croarkin, of counsel. Franklin Raber, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Rollin Coleman, appellee, v. Michael Wrobel et al., defendants, on appeal of Builders Bond & Mortgage Company, appellant.
    Gen. No. 33,960.
    Opinion filed December 31, 1929.
    Joseph Rosenberg, for certain appellant; Philip R. Toomin, A. L. Stein and Everett Lewy, of counsel. Pritzker & Pritzker, for appellee; R. L. Freeman, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Wilson

text:
    Frieda Goessele, appellant, v. Federal Life Insurance Company, appellee.
    Gen. No. 33,389.
    Opinion filed January 2, 1930.
    William McKinley and Paul E. Price, for appellant. Loucks, Eckert & Peterson, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Estelle K. White, appellant, v. Universal Real Estate Improvement Corporation, appellee.
    Gen. No. 33,467.
    Opinion filed January 2, 1930.
    Byron Tyler and Hugh W. Housum, for appellant. Peden, Kahn & Murphy, for appellee; Gerald Ryan, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Nellie Corrigan and Martin Corrigan, appellees, v. Edward L. England et al., defendants, on appeal of Edward L. England, appellant.
    Gen. No. 33,476.
    Opinion filed January 2, 1930.
    Rehearing denied January 15, 1930.
    Homer A. Dodge, for appellant; Edward F. O’Toole, of counsel. No appearance for appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the "court.


text:
    Christina Pearson, appellee, v. Ridgewood Cemetery Company, appellant.
    Gen. No. 33,485.
    Opinion filed January 2, 1930.
    Rehearing denied and opinion slightly modified January 15, 1930.
    Brundage, Landón & Holt, for appellant; Floyd E. Britton, of counsel. Thomas J. Finnegan, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Paul Stitniky, plaintiff in error.
    Gen. No. 33,502.
    Opinion filed January 2, 1930.
    Trainor & Trainor, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    Auburn Chicago Company, appellee, v. Merchants & Manufacturers Securities Company, appellant.
    Gen. No. 33,549.
    Opinion filed January 2, 1930.
    Rehearing denied January 15, 1930.
    Walter A. Myer and Philip D. Hoffman, for appellant. Pruitt & Grealis, for appellee.
   Mr. Presiding Justice

Wilson delivered the opinion of the court.


text:
    William L. Voss, appellant, v. Gust G. Boysen, also known as Gust G. Boozas et al., appellees.
    Gen. No. 33,558.

      Opinion filed January 2, 1930.
    O. I. Lewis and John A. Verhoeven, for appellant; John A. "Verhoeven, of counsel. Kern, Stiefel & Stiefel, for appellees; Jacob J. Kern and Charles W. .Stiefel, Jr., of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Peter Conroy, appellee, v. Reliance Elevator Company et al., appellants.
    Gen No. 33,576.
    Opinion filed January 2, 1930.
    George A. Schneider, for appellants; Stanley L. Shetler, of counsel. No appearance for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Martin Urbaitis, otherwise known as Martin Urbutis, appellee, v. Valeria Urbaitis, otherwise known as Valeria Urbutis et al., defendants. Frank Statikus, appellant.
    Gen. No. 33,988.
    Opinion filed January 2, 1930.
    William A, Rogan, for appellant; William C. Burns and R. Hamlin Petty, of counsel. No appearance for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Benjamin G. Pollard, appellant, v. William E. McCoy, trading as The Grand Hotel, appellee.
    Gen. No. 33,491.
    Opinion filed January 2, 1930.
    George W. Lawrence, for appellant; George W. Lawrence and James E. Wright, of counsel. Campbell & Fischer, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


author: ^Mr. Justice Ryner

text:
    R. Williams, appellee, v. Mrs. Philip R. O’Brien, appellant.
    Gen. No. 33,336.
    Opinion filed January 2, 1930.
    Hicks & Folonie, for appellant. Julius L. Handelman, for appellee.
   ^Mr. Justice Ryner

delivered the opinion of the court.


author: Mr. Justice Ryner

text:
    Morris Forman, trading as Forman’s Furniture Store, appellee, v. Frank Balsamo, appellant.
    Gen. No. 33,348.

      Opinion filed January 2, 1930.
    Myron E. Wisch, for appellant; Sidney B. Tarkoff and Nathan Einhorn, of counsel. Crow & Loeff, for appellee; Hyman Reeder, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Wallace System, Inc., appellee, v. David Riordan, appellant.
    Gen. No. 33,392.
    Opinion filed January 2, 1930.
    Rehearing denied January 15, 1930.
    Clark & Clark, for appellant; Russell S. Clark, of counsel. Charles Daniels, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Meyer L. Gordon, trading as Meyer L. Gordon & Company, defendant in error, v. Frances R. Sullivan, plaintiff in error.
    Gen. No. 33,415.
    Opinion filed January 2, 1930.
    Alexander W. Jamieson, for plaintiff in error. No appearance for defendant in error.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    S. I. Tarlow, appellant, v. Yo-Ho Fure Food Products Company, appellee.
    Gen. No. 33,440.
    Opinion filed January 2, 1930.
    Lewis E. Jacobson, Roy C. Merrick and Sidney C. Nierman, for appellant. Michael B. Morris and Harry A. Riley, for appellee; E. C. Mapledoram, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    William D. Fitzgerald, appellee, v. Edward J. McArdle, appellant.
    Gen. No. 33,452.

      Opinion filed January 2, 1930.
    Joseph D. Ryan and Patrick L. McArdle, for appellant. Burt A. Crowe and Albert C. Wenban, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Anna Wrablewski, appellee, v. Lithuanian Benefit Club of Keistutis, appellant.
    Gen. No. 33,470.
    Opinion filed January 2, 1930.
    John T. Zuris, for appellant. No appearance for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    McKey & Poague, Inc., appellant, v. Sam Krisolofsky, appellee.
    Gen. No. 33,479.
    Opinion filed January 2, 1930.
    Langworthy, Stevens, McKeag & Hurley, for appellant. Morris A. Weinberg and Samuel Sehmetterer, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Gust Pappas, plaintiff in error, v. John E. Reckrodt and Elenore Reckrodt, defendants in error.
    Gen. No. 33,506.
    Opinion filed January 2, 1930.
    Daniel M. Dever and B. M. Shaffner, for plaintiff in error; B. M. Shaffner, of counsel. Charles R. Napier, for certain defendant in error.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    The People of the State of Illinois, appellant, v. M. Solomon, appellee.
    Gen. No. 33,539.
    Opinion filed January 2, 1930.
    A. L. Israel, for appellant.
    No appearance for appellee.
   Mr. Justice Ryner

delivered the opinion qf the court.


text:
    Millard R. Powers and Wilbur F. Powers, appellants, v. Arthur N. Powers et al., appellees.
    Gen. No. 33,214.
    Opinion filed January 2, 1930.
    Lloyd C. Whitman and Percival E. Thompson, for appellants; Lloyd C. Whitman, of counsel. Millard R. Powers, pro se. Townley, Wild, Campbell & dark, for appellee Arthur N. Powers; Morris Townley, of counsel. Isham, Lincoln & Beale, Charles LeRoy Brown, Jacob Logan Fox and Lyman, Adams, Bishop & Dupee, for certain other appellees; Charles LeRoy Brown, Howard F. Bishop and Charles D. Albright, of counsel.
   Statement by court.


author: Mr. Presiding Justice McSurely

text:
    William Kotsakis, appellee, v. Peter Orphan, trading as Chicago Packing House, appellant.
    Gen. No. 33,422.
    Opinion filed January 6, 1930.
    William A. Bither, for appellant; Luella M. Either, of counsel. Harry S. Cowen, for appellee; John B. King, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Ernest Recher, plaintiff in error, v. Julius Swanson, defendant in error.
    Gen. No. 33,508.
    Opinion filed January 6, 1930.
    John C. Eieh and Harry Goodman, for plaintiff in error. Marston, Friedlund, Tone & Friedlund, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Ethel D. Kewley, defendant in error, v. Irving Knapp and Irving Knapp, trading as I. Knapp & Company, plaintiff in error.
    Gen. No. 33,513.
    Opinion filed January 6, 1930.
    Levinson & Levinson, for plaintiff in error. J. B. Luse, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Harry Kapust, appellee, v. Carl Eber, appellant.
    Gen. No. 33,577.
    Opinion filed January 6, 1930.
    Schuyler, Weinfeld & Parker, for appellant; Carl J. Appell and Howard D. Moses, of counsel. Blanksten, Freeman & Freeman, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    John A. Belskey, appellee, v. Anna Belskey, appellant.
    Gen. No. 33,595.
    Opinion filed January 6, 1930.
    Aaron Soble, for appellant. No appearance for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Anton Szymczyk and Konstancya Szymczyk, appellees, v. Joseph Andrew Lasecki, appellant.
    Gen. No. 33,598.
    Opinion filed January 6, 1930.
    Joseph F. Elward, for appellant. Harold L. Feigenholtz, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Morris Jacobson, appellant, v. Louise B. Allen and John E. Traeger, appellees.
    Gen. No. 33,635.
    Jacob Levy, for appellant; James M. Gwin, of counsel. John B. FruchtI, for appellees; Jay J. McCarthy, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Charles Caldwell, plaintiff in error, v. Chicago Title & Trust Company, as administrator de bonis non with the will annexed of Hugh A. Cole, deceased, defendant in error.
    Gen. No. 33,662.
    Opinion filed January 6, 1930.
    Rehearing denied January 20, 1930.

      James Rosenthal, for plaintiff in error; Howard M. Oberndorf, of counsel. Lucius, Buehler & Lucius, for defendant in error; Edward B. Lucius, Ernst Buehler and Philip Horton Newman, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Fred C. Best, Receiver, defendant in error, v. George Hughes and Jean Willson Hughes, plaintiffs in error.
    Gen. No. 33,673.
    Opinion filed January 6, 1930.
    Harry C. Kinne, for plaintiffs in error. F. F. & J. V. Norcross, for defendant in error; J. V. Norcross, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Stanley Waranowski, plaintiff in error.
    Gen. No. 33,683.
    Opinion filed January 6, 1930.
    Louis Greenberg and Eugene C. O’Reilly, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Harold Fandorf, by Walter Fandorf, his father and next friend, defendant in error, v. Lawrence Quirici and The Whistle Bottling Company, defendants, on writ of error of Lawrence Quirici, plaintiff in error.
    Gen. No. 33,689.
    Opinion filed January 6, 1930.
    Meek & McDonald, for plaintiff in error. Daniel M. Dever and James T. Moore, for defendant in error; Daniel V. Gallery, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v Mary Stefaniuk, plaintiff in error.
    Gen. No. 33,719.
    Opinion filed January 6, 1930.
    F. H. Novak, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    R. L. Irvin & Company, appellee, v. Wadsworth V. Holmes, appellant.
    Gen. No. 33,773.
    Opinion filed January 6, 1930.
    Tinsman & Bloeki, for appellant; Harry E. Heeren, of counsel. John William Chapman, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Elizabeth Kellum, appellee, v. Chicago Railways Company et al., appellants.
    Gen. No. 33,553.
    Opinion filed January 6, 1930.
    George W. Miller and Arthur J. Donovan, for appellants; Prank L. Kriete and Warner H. Robinson, of counsel. William H. Haynes, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Albert Bartolai, appellee, v. The Willett Company, appellant.
    Gen. No. 33,586.
    Opinion filed January 6, 1930.
    Ralph Rosen, for appellant. Rathje & Connor, for appellee; Emmet J. Cleary, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Raymond Moore, appellee, v. Margaret D. Bliss and Jay P. Bliss, appellants.
    Gen. No. 33,616.
    Opinion filed January 6, 1930.
    Harold O. Mulks, for appellants. Albert E. Lake, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Julian J. Fisher, appellee, v. American Sand & Gravel Company, appellant.
    Gen. No. 33,625.

      Opinion filed January 6, 1930.
    Schall & Schall, for appellant; S. M. Sehall and Wallace S. Schall, of counsel. Joel C. Carlson, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. John Cannon, plaintiff in error.
    Gen. No. 33,717.
    O’Connor, J., dissents.
    Opinion filed January 6, 1930.
    Jay J. McCarthy and John B. Fruehtl, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Taylor Washing Machine Company, appellee, v. John Schaschl, appellant.
    Gen. No. 33,724.
    Opinion filed January 6, 1930.
    Bernstein & Gordon, for appellants; Maxfield Weisbrod, of counsel. No appearance for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    James A. Carter, appellee, v. Will Howell & Associates, appellant.
    Gen. No. 33,755.
    Opinion filed January 6, 1930.
    Allen E. Hoban, for appellant.' William L. Kelley, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Theron P. Cooper, plaintiff in error, v. John A. Anderson, defendant in error.
    Gen. No. 33,407.
    Opinion filed January 6, 1930.
    Hall, Spitz & Rooks, for plaintiff in error; Irvin Rooks and Edward Blackman, of counsel. Alden, Latham & Young, for defendant in error; Charles Martin, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Harry Korshak, defendant in error, v. Louis Asher, plaintiff in error.
    Gen. No. 33,523.
    Opinion filed January 6, 1930.
    Rehearing denied January 20, 1930.
    Arnold M. Ehrlich, for plaintiff in error; Elwyn E. Long, of counsel. Irving G. Zazove, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Foreman Trust & Savings Bank, appellee, v. Frank Demeter, appellant.
    Gen. No. 33,550.
    Opinion filed January 6, 1930. Rehearing denied January 20, 1930.
    Charles Waldman, for appellant; Clyde C. Fisher, of counsel. Harry Z. and Bernard Perel, for appellee; Abraham H.. Maller, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Nathan Solomon, appellant, v. M. Garber, trading as M. Garber, Company, appellee.
    Gen. No. 33,559.
    Opinion filed January 6, 1930.
    Rehearing denied January 20, 1930.
    Joseph Rosenberg, for appellant; Philip R. Toomin, of counsel. Osborne, Kline & McGurren, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    William R. Campbell, complainant, v. Carl A. Starck, defendant. The People of the State of Illinois, appellee, v. In re Contempt of Carl A. Starck, appellant.
    Gen. No. 33,604.
    Opinion filed January 6, 1930.
    John J. Kelly and Frank M. Kelly, for appellant; Edwin J. Buckley, of counsel. No appearance ¿or appellee. '
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Central Scientific Company, appellant, v. Rogers Park Hospital, appellee.
    Gen. No. 33,613.

      Opinion filed January 6, 1930.
    Culver, Andrews & King, for appellant; William B. Gilmore, of counsel. McCormick, Octigan, Kirk & Stone, for appellee; Howard H. McCormick, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Denney & Company, appellant, v. Michigan Central Railroad Company, appellee.
    Gen. No. 33,638.
    Opinion filed January 6, 1930.
    Rehearing denied January 20, 1930.
    O’Connell, McGlinn & 0’Gallagher, for appellant; J. V. De Laney, Leo H. McGlinn and Kieran P. O’Gallagher, of counsel. Winston, Strawn & Shaw, for appellee; A. W. Sexton and F. J. McManus, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. L. L. Boule, appellant.
    Gen. No. 33,661.
    Opinion filed January 6, 1930.
    Rehearing denied January 20, 1930.
    Follansbee, Shorey & Schupp and Irving E. Read, for appellant; Clyde E. Shorey, Robert W. Schupp and John E. Gavin, of counsel. Samuel A. Ettelson, Corporation Counsel, and Leon Hornstein, Assistant Corporation Counsel, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Amber Furniture Company, appellee, v. Herman Lamm et al., appellants.
    Gen. No. 33,676.
    Opinion filed January 6, 1930.
    Harry D. Knight, for appellants. Myer N. Rosengard, for appellee; Irving L. Block, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Carroll, Schendorf & Boenicke, Inc., defendant in error, v. I. Gittler, plaintiff in error.
    Gen. No. 33,692.

      Opinion filed January 6, 1930.
    Kaplan & Kaplan, for plaintiff in error. Henry M. Hagan, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The Merchants and Manufacturers Securities Company, appellant, v. George W. Ford et al., appellees.
    Gen. No. 33,732.
    Opinion filed January 6, 1930.
    Mort D. & Frank Goldberg, for appellant; Frank Goldberg and Harry G. Hershenson, of counsel. Geo. W. Wilbur, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Chicago Vitreous Enamel Product Company, appellee, v. Germer Stove Company, appellant.
    Gen. No. 33,565.
    Opinion filed January 27, 1930.
    Culver, Andrews & King, for appellant; Orville R. Seiter, of counsel. Harris, Reinhardt & Russell and McKay, Resa & Russell, for appellee; Herbert Bebb, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Pioneer Realty Company, defendant in error, v. George Staszak, plaintiff in error.
    Gen. No. 33,739.
    Opinion filed January 27, 1930.
    Leesman, Roemer & Sehnell, for plaintiff in error. Crahen, Sullivan, O’Toole & Sullivan, for defendant in error; John F. O’Toole, of counsel.
   Mr. Presiding Justice

MeSurely delivered the opinion of the court.


author: Mr, Presiding Justice McSurely

text:
    Zeenat Bagdadi, administratrix of the estate of Hobour Hussein, deceased, plaintiff in error, v. Chicago Railways Company et al., trading as Chicago Surface Lines, defendants in error.
    Gen. No. 33,805.
    Opinion filed January 27, 1930.
    John A. Bloomingston, for plaintiff in error. Brown, Fox & Blumberg, for defendants in error; Frank L. Kriete, John E. Kehoe, Charles LeRoy Brown and Joseph Harrow, of counsel.
   Mr, Presiding Justice McSurely

delivered the opinion of the court.


text:
    Phil W. Foster, appellant, v. Ward Perry et al., appellees.
    Gen. No. 33,866.
    Opinion filed January 27, 1930.
    J. E. Beach and Wheaton Augur, for appellant. Campbell & Fischer, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Peter Siwinski et al., appellants, v. George Staszak, appellee.
    Gen. No. 33,884.
    Opinion filed January 27, 1930.
    Crahen, Sullivan, O’Toole & Sullivan, for appellants; John F. O’Toole and Wm. G. Worthey, of counsel. Leesman, Boemer & Sehnell, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    John E. Knechtel, defendant in error, v. Charles H. Shapiro et al., defendants, plaintiffs in error. Curtis J. Hooper, plaintiff in error.
    Gen. No. 33,544.
    Opinion filed January 27, 1930.
    Curtis J. Hooper, pro se. Harold O. Mulks, for certain plaintiff in error. Bosenberg, Braude & Zimmerman, for defendant in error; Irving S. Berman, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    F. J. Williams et al., plaintiffs in error, v. Joseph E. Daily et al., defendants in error.
    Gen. No. 33,601.
    Opinion filed January 27, 1930.
    Clark & Clark, for plaintiffs in error; Bussell S. Clark, of counsel. Cooke, Sullivan & Bieks, for defendants in error.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Phillip S. Bloom, appellee, v. The Nathan Vehon Company, appellant.
    Gen, No. 33,607.
    Opinion filed January 27, 1930.
    Rehearing denied February 10, 1930.

      Koven & Rappaport, for appellant; Henry H. Koven, of counsel. John L. Fogle, for appellee; Walter N. Shurtleff, Edward Rothbart and Dwight McKay, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Richard W. Gilliam, plaintiff in error, v. Florence F. Gilliam, defendant in error.
    Gen. No. 33,686.
    Opinion filed January 27, 1930.
    Samuel J. Andalman, for plaintiff in error. Schuyler, Weinfeld & Parker, for defendant in error; Howard D. Moses and Henry E. Jacobs, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    John Mallinger, appellee, v. Carl H. Berggren and Anna Berggren, appellants.
    Gen. No. 33,694.
    Opinion filed January 27, 1930.
    Austin L. Wyman, for appellants. A. S. and E. W. Froehlich, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Stanislaw Lakomy, appellee, v. Frank Rozak and Josephine Rozak, appellants.
    Gen. No. 33,764.
    Opinion filed January 27, 1930.
    William Feldman, for appellants. John F. O’Toole, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Arthur J. Thomas, appellant, v. David Morgans, appellee.
    Gen, No. 33,777.
    Opinion filed January 27, 1930.
    Holland F. FlaHavhan, for appellant; Henry O. Nickel, of counsel. William L. Kelley and Edward McTiernan, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Philip J. Broderick, appellee, v. George Simlesa and Pauline Simlesa, appellants.
    Gen. No. 33,793.

      Opinion filed January 27, 1930.
    Irene M. Lefkow, for appellants. Danaher & Harriott, for appellee; James J. Danaher, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court,


author: Mr, Justice Matchett

text:
    Joseph J. Bobin, appellee, v. R. E. Ford, appellant.
    Gen. No. 33,811.
    Opinion filed January 27, 1930.
    Geo. D. Anthony, for appellant; John E. Wilson, of counsel. No appearance, for appellee.
   Mr, Justice Matchett

delivered the opinion of the court,


text:
    Jennie Cohen, appellee, v. Henry I. Saxton, appellant.
    Gen. No. 33,836.
    Opinion filed January 27, 1930.
    Edward A. McCarthy and Leesman, Roemer & Sehnell, for appellant. Grossberg, Lyon & Brill, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The Fair, appellee, v. Estate Stove Company, appellant.
    Gen. No. 33,718.
    Opinion filed January 27, 1930.
    Moses, Kennedy, Stein & Baehrach, for appellant; Hamilton Moses and Walter H. Moses, of counsel. Dent, Dobyns & Freeman, for appellee. '
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Stanley Pipal, appellee, v. Grand Trunk Western Railway Company, appellant.
    Gen. No. 33,752.
    Opinion filed January 27, 1930.
    Rehearing denied February 10, 1930.
    McCordie, Dent & Freeman, for appellant; Joseph O. MeKiernan, of counsel. Joseph D. Ryan, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Sarah Schmidt, administratrix of the estate of Herman Schmidt, appellee, v. Herman Rocklin, appellant.
    Gen. No. 33,781.
    Opinion filed January 27, 1930.
    Max C. Liss, for appellant. No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Pennsylvania Railroad Company, appellant, v. Roberts & Scharfer Company, appellee.
    Gen. No. 33,799.
    Opinion filed January 27, 1930.
    Rehearing denied February 10, 1930.
    Loesch, Scofield, Loeseh & Richards, for appellant. H. L. Howard, William Greene and Burt A. Crowe, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Benjamin Moore & Company, appellant, v. Casa Bonita Building Corporation, appellee.
    Gen. No. 33,808.
    Opinion filed January 27, 1930.
    England, Dodge & O’Toole, for appellant. Moses H. Kamerman, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Second District.
    Howard Gaddie, appellee, v. William R. Whittaker, appellant.
    Gen. No. 8,029.
    Opinion filed October 10, 1929.
    Rehearing denied February 4, 1930.
    H. D. Morgan and John W. Fling, Jr., for appellant. Floid B. Brian and Clarence W. Heile, for appellee; Brian & McManus and Heyl & Heyl, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    Roselle State Bank, appellee, v. E. J. Basye et al., appellants.
    Gen. No. 7,982.

      Opinion filed October 15, 1929.
    Rehearing denied February 4, 1930.
    Samuel J. Howe, for certain appellant. Fischer & Fischer, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Presiding Justice Boggs

text:
    Frank Pavlik, appellant, v. Joe Menoni and Egidio Mocogni, appellees.
    Gen. No. 8,048.
    Opinion filed October 19, 1929.
    J. Wesley Amundson, for appellant. J. A. Miller, for appellees; Sidney H. Block, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Bertha Glafka, appellant, v. Citizens State Bank of Walnut and John L. Applen, sheriff, appellees.
    Gen. No. 8,105.
    J. J. Ludens and George W. Fox, for appellant. Josef T. Skinner, for appellees.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Eva Fridae, appellant, v. Mike Fridae, appellee.
    Gen. No. 8,113.
    Opinion filed November 15, 1929.
    Pence B. Orr, for appellant. Francis J. Loughran, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Sara P. McBurnie, appellee, v. Ralph N. Bailey, appellant.
    Gen. No. 8,137.
    Opinion filed November 15, 1929.
    Joseph Storey, for appellant. Todd, Morgan, Pendarvis & Arber, for appellee.
   Mr. Presiding Justice

Boggs delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Rosie Williams, plaintiff in error.
    Gen. No. 8,004.

      Opinion filed November 15, 1929.
    Rehearing denied February 4, 1930.
    George T. Liddell, for plaintiff in error. William D. Knight, State’s Attorney, and Alfred B. Louison, Assistant State’s Attorney, for. defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Alex White, plaintiff in error.
    Gen. No. 8,043.
    Opinion filed November 15, 1929.
    Rehearing denied February 4, 1930.
    George T. Liddell, for plaintiff in error. William D. Knight, State’s Attorney, and Alfred B. Louison, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. John Schmidt, alias Jack Smith, plaintiff in error.
    Gen. No. 7,939.
    Opinion filed November 15, 1929.
    Rehearing denied February 4, 1930.
    George T. Liddell, for plaintiff in error. William D. Knight, State’s Attorney, and Alfred B. Louison, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Susan H. Lewis, appellee, v. Farmers’ State Bank of Atkinson et al. appellants.
    Gen. No. 7,997.
    Opinion filed November 15, 1929.
    Joseph L. Shaw, Henry Waterman, Connelly, Weld, Walker, Searle & Crampton, for appellants. Harry. E. Brown and Arthur G. Higgs, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Owen Anderson, administrator of the estate of Everett Leland Lock, deceased, appellee, v. Lee Myers and Raymond Myers, appellants.
    Gen. No. 8,006.

      Opinion filed November 15, 1929.
    Arthur H. Shay, for appellants. M. D. Morahn and Butters & Butters, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    F. H. Borm, appellee, v. Aurora, Elgin & Fox River Electric Company, appellant.
    Gen. No. 8,118.
    Opinion filed January 3, 1930.
    Rehearing denied February 10, 1930.
    Alschuler, Putnam, Flannigen & Johnson, for appellant; Arthur L. Puklin, of counsel. Healy, Beverly & Funk and Charles G. Seidel, for appellee; Paul G. Funk and Charles G. Seidel, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Emmett Hastings, appellee, v. Able Transfer Company, appellant.
    Gen. No. 8,133.
    Opinion filed January 3, 1930.
    Green & Rice, for appellant; Lawrence A. Rice, of counsel. J. A. Miller, for appellee; Sidney H. Block, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Nic Wetzel, appellee, v. Fred K. Nimpfer, appellant.
    Gen. No. 8,148.
    Opinion filed January 3, 1930.
    John R. Bills, for appellant. Hall & Hulse, for appellee; Albert L. Hall and Minard E. Hulse, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Adolph Koch, appellee, v. Illinois Power & Light Company, appellant.
    Gen. No. 8,152.
    Opinion filed January 3, 1930.
    Hardy, Hardy & Hardy, for appellant. R. D. Robinson, for appellee.
   Mr. Presiding Justice Boggs

delivered th^ opinion of the court.


text:
    Mary H. Clarey, defendant in error, v. Wilbur J. Hudler, plaintiff in error.
    Gen. No. 8,040.

      Opinion filed January 3, 1930.
    Hyer & Gill, for plaintiff in error. Knight & Swenson, for defendant in error; James A. Penny, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Joseph Grivetti, plaintiff in error.
    Gen. No. 8,112.
    Opinion filed January 3, 1930.
    D. T. Smiley, for plaintiff in error. V. S. Lumley, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Harry B. Brown, administrator of the estate of Catherine Brown, deceased, appellee, v. The Chicago, Rock Island & Pacific Railway Company, appellant.
    Gen. No. 8,079.
    Opinion filed January 20, 1930.
    Hibbs & Pool, for appellant; Daniel Taylor, of counsel. Butters & Butters, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Fred J. Braid, administrator of the estate of Glen L. Braid, deceased, appellee, v. Osborne Oil Company, appellant.
    Gen. No. 8,142.
    Opinion filed January 20, 1930.
    Knight & Swenson, for appellant; James A. Penny, of counsel. William L. Pierce, Lisle W. Menzimer and Fred H. Smith, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Lena Gill, appellee, v. North American Union, appellant.
    Gen. No. 8,057.
    Opinion filed January 25, 1930.
    Brannan, Maloney & Wooster and James W. Carney, for appellant. Marsh, Lewis & Thompson, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Crawford State Savings Bank, plaintiff in error, v. Royal Indemnity Company, defendant in error.
    Gen. No. 8,078.
    Opinion filed January 25, 1930.
    Edwin D. Lawlor and Ralph F. Potter, for plaintiff in error. Lawrence McNerney, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Board of Trustees of John Stuart Ryburn Memorial Hospital of Ottawa, Illinois, appellees, v. Bree S. Kelly, appellant.
    Gen. No. 8,084.
    Opinion filed January 25, 1930.
    George V. B. Weeks and Richolson, Armstrong & O’Meara, for appellant. T. E. White, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Third District.
    Ora Gridley, appellee, v. John H. Wood et al., American State Bank et al., appellants.
    Gen. No. 8,261.
    Opinion filed January 24, 1929.
    Rehearing denied January 10, 1930.
    Sigmund Livingston, for appellants. A. E. & R. C. De Mange, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Eldredge

text:
    J. N. Moore and Sylvia Moore, trading as Moore Adjustment Company, plaintiffs in error, v. Charles C. Claar, defendant in error.
    Gen. No. 8,310.
    Opinion filed October 23, 1929.
    J. N. Moore and Jinkins & Jinkins, for plaintiffs in error. J. R. Dean, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Oscar Nelson, appellee, v. New Salem State Bank, appellant.
    Gen. No. 8,322.

      Opinion filed October 23, 1929.
    L. T. Granam, for appellant. Capps & Weaver, for appellee; Wm. and Barry Mumford, of counsel.
   Mr. Presiding Justice

Eldredge delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Gilbert Ramsey, appellee, v. The New York, Chicago & St. Louis Railroad Company, appellant.
    Gen. No. 8,328.
    Opinion filed October 23, 1929.
    Rehearing denied January 10, 1930.
    Pope & Driemeyer, for appellant. H. Ernest Hutton, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Winifred Behm, by Charles Behm, her guardian and next friend, appellant, v. City of Farmington, appellee.
    Gen. No. 8,321.
    Opinion filed October 23, 1929.
    Joseph R. Martin and Glenn Ratcliff, for appellant. Claude E. Chiperfield, Burnett M. Chiperfield and Robert B. Chiperfield, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Fourth District.
    Franklin County Building & Loan Association, defendant in error, v. T. I. Galloway and Jennie Galloway, plaintiffs in error.
    Opinion filed July 26, 1929.
    D. F. Moore, for plaintiffs in error. Moses Pulverman and Frank E. Trobaugh, for defendant in error; Tilman B. Cantrell, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Sidney Brown et al., appellants, v. Frank Kienstra et al., appellees.
    Opinion filed July 26, 1929.
    Robert Ferdinand Tunnell, for appellants. Francis J. Manning and S. A. Bleisch, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Bertha Walsh, defendant in error, v. E. E. Moore and Lulu E. Moore, plaintiffs in error.
    Opinion filed September 20, 1929.
    Kramer, Kramer & Campbell, for plaintiffs in error; B. E. Costello, of counsel. Louis Beasley and Edward C. Zulley, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Newhall

text:
    American National Bank of Mt. Carmel, Illinois, plaintiff in error, v. Robert Woolard and Mary M. Woolard, defendants in error.
    Opinion filed October 31, 1929.
    Rehearing denied December 10, 1929.
    Kolb & White, for plaintiff in error. C. H. Schafer and T. H. Creighton, for defendants in error.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Martha Roark, Appellee, v. The National Fire Insurance Company, Appellant.
    Gen. No. 8,338.
    Opinion filed February 3, 1930.
    A. C. & Ben F. Anderson, for appellant.
    Raymond Gr. Real, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellee, Martha Roark, obtained a judgment in the sum of $1,000 against appellant, the National Fire Insurance Company, in an action of assumpsit upon a fire insurance policy. The property insured was household furniture located on a farm.

The only defense in this case is that proofs of loss were not made within 50 days after the fire in accordance with the provisions of the policy. The defense is wholly without merit, as such proofs were waived. The fire occurred November 12, 1928 and a copy of the policy which appellee had was burned in the fire. She immediately notified J. W. Franklin, who had solicited the policy, received the premiums thereon and delivered the same to appellee and later had attached two riders to it. Franklin went with appellee and viewed the ruins of the fire, and on December 18, 1928, at the request of Franklin, she made an itemized list of the personal property destroyed with the value . of each article and made an affidavit as to the truth of the same. She delivered this to Franklin and it was delivered to the adjuster of the company. No objections were ever made by the company, its adjuster or the agent as to the insufficiency of the proof of loss.. This sworn statement did not strictly comply with the form of the proofs of loss required by the terms of the policy, but the statement itself was written by the agent, Franklin, and was procured by him at the request of the adjuster for appellant, who made an investigation, but the amount of the policy was never paid. The property was totally destroyed by the fire and was of a value of over $2,000. An agent of ah insurance company who has the power to solicit insurance, receive and forward applications, receive and deliver policies and collect premiums, even though his agency be confined to the territory in which he operates, is a general agent of the company, and has authority to waive proofs of loss. Citizens’ Ins. Co. v. Stoddard, 197 Ill. 330; Phenix Ins. Co. v. Stocks, 149 Ill. 319; Hancock Mut. Life Co. v. Schlink, 175 Ill. 284; Milwaukee Mech. Ins. Co. v. Schallman, 183 Ill. 213; Citizens’ Ins. Co. v. Stoddard, 197 Ill. 330; Hodges v. Commercial Union Assur. Co., 246 Ill. App. 634; Fray v. National Fire Ins. Co., 255 Ill. App. 209. The defense in this case cannot be sustained and the judgment of the circuit court is affirmed.

Affirmed.


text:
    M. R. Deyo, Trading as Deyo Manufacturing & Construction Company, Appellant, v. Commissioner of Highways of Sheridan, Appellee.
    Gen. No. 8,348.
    Opinion filed February 3, 1930.
    Covey & Woods, Wallace J. Black and Clyde M. West, for appellant.
    Peter Murphy and Harold F. Trapp, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellant brought his action in assumpsit in the circuit court of Logan county against appellee as commissioner of highways of the town of Sheridan in said county to recover the amount due on a certain contract for the purchase of one Bates tractor at the price of $3,900. At the termination of all the evidence in the case the trial court, at the instance of appellee, directed the jury to return a verdict finding no cause of action. Judgment was entered upon this verdict, to reverse which this appeal is taken.

On September 14, 1927, William C. Lohrenz, who was then commissioner of highways of the town of Sheridan and predecessor of the present incumbent and appellee, Louis Berns, entered into a certain written contract for the purchase of the tractor in the name of the township of Sheridan- for the sum of $3,900. One of the terms of the contract provided that before the tractor should be removed from the cars Lohrenz should give two orders bearing six per cent interest per annum from date, each for $1,950, one due May 15,1928, and one May 15, 1929. These orders were executed by Lohrenz but were never signed by the town clerk and it is conceded that the orders themselves were therefore void. Appellant brings this suit for the amount due on the contract itself and the declaration consists of the common counts, only.

Section 50 of the Roads and Bridges Act, Cahill’s St. ch. 121, ¶ 56, provides that the commissioner of highways in each town shall be present at the office of the town clerk annually on the first Tuesday in September of each year for the purpose of determining the tax rate to be certified by him to the county board as therein provided. This section further provides that it shall be the duty of the highway commissioner to determine the taxes necessary to be levied on property within his town or district for road and bridge purposes, and in determining the amount to be levied, shall state separately the several amounts to be levied for the construction of roads, the maintenance of roads; the construction of bridges, the maintenance of bridges, the purchase of machinery, the repairs to machinery, the oiling of roads, and the prevention and extirpation of weeds.

On the first Tuesday of September, 1925, said Lohrenz, as highway commissioner, made his certificate of the road and bridge tax to be levied for the year 1926 in which no levy was made for the purchase of machinery. Likewise, on the second Tuesday of September, 1926, Lohrenz, as highway commissioner for said township, made his certificate of the road and bridge tax of said Town ostensibly for the year 1927, although the certificate itself says that it is for the year 1926, and again in this certificate no amount is mentioned for the purchase of machinery. The date of this certificate is September 7, 1926. Thus, for two years prior to the first Tuesday in September, 1927, no tax levies had been made for the purchase of machinery and there were no funds in the town treasury appropriated for that purpose. On the first Tuesday of September, 1927, the same being September 6, Lohrenz, as highway commissioner, made another certificate of levy for the road and bridge tax of said town ostensibly for the year 1928 or for the fiscal year commencing on the first Tuesday of September, 1927 although the certificate itself states that the levy is made for the year 1927. The itemized amounts to be levied under this certificate are as follows:

For the construction of roads.......... $3,000.00

For the maintenance of roads.............. 1,000.00

For the construction of bridges............ 1,000.00

For the maintenance of bridges............ 500.00

For the purchase of machinery............. 1,000.00

For the repairs to machinery............... 500.00

For the oiling of roads......'..............

For the prevention and extirpation of weeds 469.02

Total ................ 7,469.02

It will be noted that the amount to be levied for the purchase of machinery is $1*000. The contract for the tractor was entered into by Lohrenz and appellant September 14, 1927, and was approved by the county superintendent of highways September 29, 1927. The contract was therefore executed after the levy was made, It is the contention of appellee that a commissioner of highways, being a quasi public corporation, is without power to contract a debt in excess of the funds on hand or taxes already levied and also that the taxes levied for any one specific purpose mentioned in the statute cannot be used or appropriated for any other purpose. It is the contention of appellant that the only purpose of the section of the statute requiring the commissioner of highways to itemize the amounts of the levies for different purposes is to advise the county board in passing upon the levy and that the commissioner of highways had the power to make a contract for any lawful purpose and that it would be valid and binding so long as it did not exceed the aggregate amount levied for road and bridge purposes which in this instance was $7,469.02. In the case of People v. Wabash Ry. Co., 316 Ill. 403, in discussing that provision of the statute requiring the different amounts of the road and bridge tax to be itemized the court said, “This provision is mandatory, and the failure to comply with it is not a mere irregularity but a fatal omission, which renders the tax levy void.” In the case of People v. Chicago, T. H. & S. Ry. Co., 315 Ill. 589, the court held: “This provision is mandatory, and for failure to state the different purposes for which the tax is required, and the amount of each, as prescribed by statute, the road and bridge tax of each of the towns of Beaver and Prairie Green is void.” In this same case in discussing the road and bridge tax of the town of Sheldon where it was stipulated that the 12-eent rate- for road and bridge damages was for the purpose of buying the right-of-way on two roads, it was held: “A tax cannot be levied for one specific purpose and applied to another.” The Supreme Court in some of the. above cases does say that one of the reasons why such levies should be itemized is to give information to the county board of supervisors when the levy is submitted to it for its approval, but in no case does it say that such is the only purpose for requiring them to be itemized. The taxpayers themselvés have some rights to be guarded. It is their privilege to know for what purpose or purposes their moneys are being appropriated by the commissioner of highways and they have the privilege of objecting to any of the items before the board of supervisors. It would be a fraud upon them to hold that a certificate of levy itemizing the amounts to be levied for a certain purpose could be made and a tax collected therefor and the tax used and appropriated for entirely different purposes at the discretion of the commissioner of highways. In the case of Commissioners of Highways v. Newell, 80 Ill. 587, the court said: “With quasi corporations of this character the rule obtains that their power to impose taxes or incur indebtedness will be strictly construed.” In this case it was further held: “It, then, follows that they have no power to legally incur an indebtedness for road and bridge purposes beyond the amount of the taxes already levied for that year. In other words, they can in no one year expend, lawfully, more than the amount levied for that year.” So by analogy the commissioner of highways in the case at bar could "not lawfully contract an indebtedness for machinery beyond the amount which had been levied therefor.

Another cogent reason why this contract should be declared ultra vires is that its payments thereto extend over a period of two years and beyond the term of office of the commissioner. If the commissioner had the legal power to make the present contract on behalf of the town, then he would have had power to incur an indebtedness which might extend over many years and might absorb all the revenues of the town during such period. On the ground of public policy, if for no other reason, in our opinion, such contracts should not be sustained.

It is urged by counsel for appellant that even if the contract cannot be enforced in its entirety, yet appellant is entitled to $1,000, the amount of the levy. This question was not presented nor advanced in the court below and for that reason cannot be raised for the first time in this court.

The judgment of the circuit court is affirmed.

Affirmed,


author: Mr. Presidirg Justice Eldredge

text:
    Lucy E. York, Appellant, v. Central Illinois Mutual Relief Association, Appellee.
    Gen. No. 8,349.

      Opinion filed February 3, 1930.
    Greer & Palmer, for appellant; Kerry I. Greer, Oris Barth and George E. Mártir, of counsel.
    Campbell & Graham, for appellee.
   Mr. Presidirg Justice Eldredge

delivered the opinion of the court.

This case was tried before the court without a jury upon a written stipulation of facts. The jury found the issues joined in favor of appellee, defendant in the case, and entered judgment accordingly. The action is in assumpsit upon a certificate or policy of insurance.

The facts, as they appear from the stipulation, show that the Central Illinois Mutual Belief Association was incorporated under an act entitled, “An act concerning corporations,” approved April 18, 1872 Cahill’s St. ch. 32, ¶ 159 et seq., as a corporation not for a pecuniary profit. John M. York, now deceased, became a member of this association and a benefit certificate was issued to him bearing date, September 24, 1923, and he paid all contributions for death benefits thereunder prior to November 14,1927. An act was passed by the legislature which became in force July 1,1927, Cahill’s St. ch. 73, ¶ 435 (1) et seq., entitled, “An Act to incorporate mutual benefit associations on the assessment plan, intended to benefit the widows, orphans, heirs and devisees of deceased members thereof and members who have received a permanent disability and to provide for and regulate the control of such associations and to provide penalties for violation of the provisions thereof.” Prior to November 14, 1927, at the request of the department of trade and commerce, the Central Illinois Mutual Relief Association incorporated under the Act of 1872, delivered to said department its articles of incorporation and said articles were marked canceled by said department, and prior to November 14, 1927, there was filed in the department of trade and commerce pursuant to the provisions of section 15 of the Act of 1927 an application as follows:

“State of Illinois
County of Champaign — ss.
To the Director of Trade and Commerce, and Superintendent of Insurance:
“We, the undersigned, Chas. W. Nunan
Kenneth Buchanan
E. H. Marriott
L. B. King
constituting a majority of the Board of Directors of The Central Illinois Mutual Relief Association — Illinois, a domestic corporation incorporated and transacting business under ‘An Act concerning corporations,’ approved April 18, 1872, as a corporation not for pecuniary profit, for the purpose of benefiting the widows, orphans, heirs and devisees of deceased member thereof, and members who have received a permanent disability, where the member shall receive no money as profit or otherwise except for permanent disability, do hereby declare our desire to incorporate as a mutual benefit association under An Act of the General Assembly of the State of Illinois, entitled, ‘An Act to Incorporate Mutual Benefit Associations on the assessment plan, intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and members who have received a permanent disability and to provide for and regulate the control of such associations and to provide penalties for violation of the provisions thereof, ’ in force July 1, 1927, and for the purpose of such incorporation, we hereby adopt the following articles of association, to wit:
“1. The name or title by which such association shall be known in law is:
“The Central Illinois Mutual Belief Association (a mutual benefit association).
“2. The principal business office shall be located in the City of Champaign, Ill., County of Champaign, State of Illinois.
“3. All of the assets of existing corporations, herein referred to as the corporation, shall be transferred to the incorporated association herein referred to as the association, and the association shall assume all of the liabilities of the corporation. Likewise, all of the members of the corporation shall, ipso facto, become members of the association and the association shall issue to each such members a certificate of membership, the purpose of the provisions of this section being to effect the continuation of the organization insofar as is possible.
“4. The object for which this association is formed is to provide benefits for the widows, orphans, heirs and devisees of deceased members of the association and members who have received a permanent disability, such benefits to be paid by accumulations, resulting from the assessments levied on the remaining members of the association. The maximum amount of benefits to be paid under the certificates of membership are as follows: . . .
1 ‘ 5. The plan which shall be followed in carrying out the object is as follows, to wit:
“The association shall operate on the post-mortem assessment plan. "Whenever the association shall have been notified of any loss under its certificate of membership, it shall proceed to levy and collect assessments as provided in Sections 10 and 11, which is the Act under which the Association is incorporated. Two general accounts shall be established to be known as the ‘Benefit Account’ and ‘Expense Account.’ The guarantee fund, as hereinafter provided, and all assessments collected from members of the association for the purpose of paying losses incurred under its certificates of membership, shall be placed in the Benefit Account and from such account shall be paid all such losses incurred. No other disbursements shall be made from the Benefit Account and no sums shall be transferred from the Benefit Account to the Expense Account. Into the Expense Account shall be placed all assessments collected from members for the purpose of defraying the expenses of the association and from such account shall be paid all salaries, expenses, fees, taxes, costs of defending or prosecuting suits and all other items, relating to the management of the association. Within six months from the date hereof a guaranteedged that they had executed the same for the purpos- $1.00 per member, shall be accumulated and thereafter such fund shall be maintained as provided in Section 14 of the Act under which the association is incorporated.
“6. The management of the aforesaid Central Illinois Mutual Belief Asso. shall be vested in a board of Five Directors, who shall be elected from and by the members at such times and for such periods not exceeding three years as shall be provided for in the by-laws.
“7. The following persons are hereby selected as the Directors to control and manage said association until its first annual meeting, viz:
Chas. W. Nunan
Kenneth Buchanan
John H. Snyder
Louis B. King
Ezra Marriott.
“8. No person shall become a member of this corporation who is under 1 year or over 70 years of age.
“9. Applications for membership will no ... be required to undergo a medical examination before beiug admitted to membership in this corporation.
Sighed
Chas. W. Nunan
Kenneth Buchanan
E. H. Marriott
L. B. King”
On December 3,1927, York made payment to appellee Death Benefit Assessment No. 27, levied on account of the death of Nellie M. Thompson on October 6,1927 and on account of the death of Allen Duncan on October 9, 1927, both of whom held benefit certificates in the Central Illinois Mutual Belief Association as organized under the act of 1872 and written notice of said assessment was given to the assured, John M. York, by the Central Illinois Mutual Belief Association, the appellee, under date of November 15,1927. On December 30, 1927, there was issued by Central Illinois Mutual Belief Association, appellee, to John M. York a benefit certificate bearing date of December 30, 1927, the same being the certificate on which a recovery in this case is now sought. Accompanying this certificate when it was delivered to York, was the following letter:
“To Our Members
“We herewith hand you the new form of policy which is in accordance with the requirements of the Insurance Department of the State of Illinois. We suggest that you keep the old certificate as well as the new one, for reference.
“There is no change in the amount of the certificate.
Central Illinois Mutual Belief Association
Chas. W. Nunan, Secretary.”

After December 30, John M. York made contributions on account of assessments levied on him in the amount of $6. The only application made by John M. York for a benefit certificate is the one executed for the purpose of obtaining the original certificate issued by the Central Illinois Mutual Belief Association organized under. the act of 1872. John M. York died as a result of suicide September 19, 1928. Proofs of death were duly made as required by the rules of appellee and thereupon appellee tendered to the beneficiary, appellant, a sum of $5 in satisfaction of the amount due, which sum was refused by her and appellee denied any further liability in the premises.

The original application and certificate are dated September 24, 1923 and neither the application nor the certificate contain any provision denying liability in case the member should come to his death by suicide. The certificate is very short and provides that John M. York is a member of the association and upon satisfactory proof of his death the association will pay to Lucy E. York, wife, $1,000, provided that said member has fully complied with the by-laws and regulations of the association.

Section 15 of the act of 1927, Cahill’s St. ch. 73, ¶ 435 (15), is as follows:

“Any existing domestic corporation transacting business under an Act entitled ‘An Act concerning Corporations’ approved April 18, 1872, as a corporation not for pecuniary profit, for the purpose of benefiting the widows, orphans, heirs and devisees of deceased members thereof, etc. . . . ; and all associations engaged in the business of insurance of lives of its members and not subject to any other of the insurance laws of this State shall re-incorporate under its existing corporate name or a corporate name' selected for that purpose in accordance with this Act under the provisions of this Act upon filing with the Director of Trade and Commerce, a declaration of its desire to do so, signed and duly acknowledged by a majority of the board of directors, trustees or managers, together with a certificate of association as required of associations proposing to organize under the provisions of this Act. Upon receipt of such declaration and certificate of association, the Director of Trade and Commerce, shall examine the same and if he shall find that such certificate of association is not inconsistent with the provisions of this Act, he shall cause the same to be recorded in a book to be kept for that purpose and shall furnish the association a certified copy of such declaration and articles of association, which thereupon shall be filed and recorded in the Recorder’s office of the county where the original certificate of such association is recorded, and such corporation shall thereupon be deemed to be incorporated under the provisions of this Act.”

At the same session of the legislature of 1927, an act was passed entitled, “An Act to amend sections 29 and 31 of ‘An Act concerning corporations,’ approved April 18,1872 as amended.” (Session Laws 1927, page 367.) Section 31 of this amendment, Cahill’s St. ch. 32, ¶ 161, provides as follows:

“Associations and societies which are intended to benefit any person or persons or widows, orphans, heirs and devisees of deceased members thereof, and members who have received a permanent disability, and where no annual dues or premiums are required, and where the members shall receive no money as profit or otherwise, except for permanent disability, heretofore incorporated under the provisions of this Act, shall not, after this Act becomes effective, engage in such business other than that they may retain their corporate existence for six months for the sole purpose of winding np their business or re-incorporating under some act, the enforcement of which comes within the jurisdiction of the Department of Trade and Commerce of this State.”

Under the above acts, the Central Illinois Mutual Belief Association as incorporated under the law of 1872 had to do one of two things within six months after July 1,1927, either to wind up its affairs and quit business or to reincorporate under the act of 1927. It was clearly the intention of the legislature to permit such corporations existing under the act of 1872 to reorganize under the act of 1927 if they so desired. This privilege is extended to them as corporations and not to the individual members thereof as such in their personal capacity. The Central Illinois Mutual Belief Association, through its officers and board of directors chose to avail itself of the option extended by the statute, to reincorporate. The declaration filed with the department of trade and commerce is a declaration addressed to the Director of Trade and Commerce and superintendent of insurance and is as follows:

“We the undersigned, Charles W. Nunan, Kenneth Buchanan, E. H. Marriott, L. B. King, constituting a majority of the Board of Directors of the Central Illinois Mutual Belief Association — Illinois, a domestic corporation incorporated and transacting business under £An Act concerning corporations,’ approved April 18, 1872, as a corporation not for pecuniary profit, for the purpose of benefiting the widows, . . . do hereby declare our desire to -incorporate as a mutual benefit association under an Act of the G-eneral Assembly of the State of Illinois, entitled, £An Act to incorporate mutual benefit associations on the assessment plan, intended to benefit the widows, etc.’ enforced July 1,1927, and for the purpose of such incorporation, we hereby adopt the following articles, to-wit, etc.” This was clearly an attempt of the original corporation to reincorpórate as such under the act of 1927. This is further shown by the declaration wherein it is stated that the title of the new corporation shall be the same as the old; the principal business office shall be located in the City of Champaign; that all the assets of the existing corporation shall be transferred to the new corporation; that the new corporation shall assume all the liabilities of the old corporation; and that all the members of the old corporation shall, ipso facto, become members of the new corporation which shall issue to each of the old members a certificate of membership; and also that, “the purpose of the provisions of this section being to effect the continuation of the organization insofar as is possible.”

The new certificate, or policy, was deliver edto John M. York without requiring any new application or health examination. It, however, contained a provision which was not in the original application or certificate, as follows:

“Self destruction within one year from the date hereof, while sane or insane, is a risk not assumed under this certificate and in such event, the liability hereunder shall be limited to the amount of assessments paid by the member.”

John M. York committed suicide within the year following the issuance of the new certificate. The principal question presented for our determip.ati.on is whether the insured was bound by the provision in the new policy denying liability in the event that death should be caused by suicide within one year from the date thereof. The new policy provides: “This certificate and the application therefor shall constitute the entire contract with the member.” No application was required of the insured for the issuance of the new policy. It is contended by appellee that upon the reincorporation of the old company it became an entirely new corporation; that the old contract and the provisions therein became null and void and that the assured, having accepted the new contract was bound by the provisions contained therein. It is a familiar rule of law that as between the insurer and the insured all doubtful provisions of the contract between them will be resolved in favor of the insured. By the articles of incorporation of appellee all the members of the old corporation became ipso facto members of the new corporation and the new corporation assumed all the liabilities of the old corporation. One of the liabilities of the old corporation was to pay to the beneficiary of the insured the sum of $1,000 upon his death and that notwithstanding that his death may have been caused by suicide. Only certificate holders could be members of the corporation and the deceased only became a member of the old corporation by virtue of his certificate of membership or insurance. In our opinion it is a reasonable conclusion that the new corporation intended by “assuming all liabilities” of the old corporation to assume the liabilities to the members of the old corporation as declared in the original certificates issued to the members thereof. The main object of the acts of 1927 herein above mentioned was to place such assessment companies under the direction and control of the director of trade and commerce in regard to the future conduct of its business. Under the. facts as they appear in this case, the reorganized company had no power to arbitrarily nullify contracts made before the reorganization and impose restrictions as to liability in the new certificates which were not embraced in the old ones. As to those who became new members after the organization it could impose such conditions as it deemed best in their certificates subject to the approval of the director of trade and commerce but it had no power to nullify the contracts of the pre-existing members under the facts as shown.

In our opinion, the circuit court erred in holding that the new certificate of membership governed the rights of the beneficiary of the assured and the judgment will therefore be reversed, and as the case was tried before the court without a jury, judgment will be entered in this court in favor of appellant and against appellee in the sum of $1,000 with interest at the rate of 5 per cent per annum from the first day of October, 1928, to the date of this judgment, and that execution issue therefor.

Reversed and judgment here.


text:
    George W. Keller, Appellee, v. Walter A. Maxwell, Appellant.
    Gen. No. 8,359.

      Opinion filed February 3, 1930.
    Whitley & Fitzgerald and Arthur F. Delahunty, for appellant.
    Bedmon & Bedmon, for appellee; Sereno Bodman, of counsel.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This suit is an action on the case to recover damages for personal injuries sustained by George W. Keller, appellee, by í>eing struck by the automobile owned by Walter A. Maxwell, appellant, at or near the intersection of West Green Street and North Main Street in the City of Decatur. The trial resulted in a verdict and judgment in favor of appellee for the sum of $1,500.

The case went to the jury under an amended declaration consisting of four counts, in each of which, it is alleged in substance that on the 20th day of March, 1928, the defendant owned a certain automobile; that on said date said automobile was being operated by one Charles Widick in the City of Decatur, at or near the intersection of West Creen Street with North Main Street, as the agent of defendant, acting for defendant and operating such car in and about the business and affairs of the defendant, which said agent was employed to transact; the plaintiff was proceeding westward with all due care and caution for his own safety on foot across North Main Street along the extended line of the sidewalk on the north side of West Main Street, and the defendant, by Charles Widick, agent, acting within the scope of his employment so carelessly, negligently and improperly managed, operated and controlled said automobile that plaintiff was struck with great violence and thrown upon the street pavement, by means whereof plaintiff was greatly injured, etc.

To the declaration, there were filed by the defendant the general issue and two special pleas. The first special plea denied that defendant was possessed of said automobile which was then and there driven, operated and managed by said Widick, the agent of the defendant, in and about the business and affairs of the defendant. In the second special plea, it is averred that the defendant did not, by his servant or agent, so carelessly and improperly drive and manage said automobile that by and through his agent or servant, the plaintiff was injured. Both of said special pleas further averred that the driver of the automobile at the time and place mentioned in the declaration was not, then and there, the agent or servant of the defendant and was not transacting any business or affairs for the defendant, or driving the automobile with the permission and consent of the said defendant.

For about a month before the date of the accident, the defendant, who was a chiropractic practitioner, had given said Widick chiropractic treatments for some ailment in his neck. Widick was working at this time at the Decatur Auto Rental garage and at the M. & C. Dealers in the city and had washed the automobile of the defendant twice. The defendant kept his car at the Schuyler garage and on the occasions when Widick had washed it, the latter went to the Schuyler garage and drove the automobile about three blocks, once to the Auto Rental garage and once to the M. & C. Dealers and had washed it once, at each place and had returned it to the Schuyler garage. For this work he was given credit on the treatments the defendant had given him. Before the accident in question, the defendant had had his automobile simonized. On Saturday, March 17, the defendant, Widick and several young ladies drove to Moline in the automobile to attend a church convention and they came back to Decatur Sunday evening. On the way back from Moline, Widick told the defendant that his automobile would be pretty dirty when they got back and that if he had time the next day he would clean it up for him. On direct examination, Widick, testified in substance: “I got the key to the automobile on Tuesday; I had some other work to do on Monday and couldn’t get to it; there was nothing much said between us at his office about his automobile; we were talking about the trip ; nothing much was said about the keys, he just got done giving me my treatment, and I was dressing in the dressing room when he laid the key down on the little table in the dressing room and said, ‘I will see you later,’ or something like that; I don’t know just what he did say; I dressed and took the key and went to the garage; I got the car out and started to clean it up and took it up to the Auto Rental because there wasn’t any rags in the car to clean it with; I then drove it up to the Auto Wrecking Company on Water Street to get some polish; I had it ordered for two weeks and it wasn’t in and I didn’t get it; when I found that the polish wasn’t there I went out on Lobar Street in the 1600 block and picked up a couple boy friends I had been running with a good deal and came back toward town; I went to the. Auto Wrecking Company in the Gebhart block on North Water Street to get the polish to use on the car; I then went out to Bari Nelson’s and picked him up and came in Condit Street to Water, south on Water to Packard, west on Packard to Main, south on Main to Green, when I saw Mr. Keller start across the street.” On cross-examination, he testified in substance: “I went up in the north part of town to get my boy friends; I did not have any conversation with the doctor about going after them; he didn’t know I was going after them; I went up in the north part of town to get some polish; it belonged to me; I went to Nelson’s just to see him; I hadn’t seen him for two or three days; the Gebhart block is about the 1000 block north; Schuyler’s Garage, where I got the Maxwell car, is on Jackson street between East Main and Bast Wood Streets; it is at least 14 or 15 blocks from Schuyler’s Garage to the Gebhart block; Nelson lives northeast of the Gebhart block; it is about II blocks east; I returned from Nelson’s the same way I started from the Gebhart block; at Nelson’s house I also got Herman Morrison; he was at the house visiting Nelson; all of us drove in the front seat; I was going right up town; Bari wanted out; it was time to meet his father; I was not taking him anywhere; I was coming back uptown; there was a shorter way to get to Schuyler’s Garage; I knew that the doctor’s car had been recently simonized or polished; he told me when I went to wipe the car off not to put any polish on the car; on this occasion after the trip to Moline I went to the Schuyler Garage to wipe and dust the car off and clean it up; I did not go to wash it; I did not go to the Gebhart block to get any polish to polish the doctor’s car; I did not tell the doctor at the time I took the keys or at any time after I got possession of the car or at the time the keys were delivered to me that I was going to the Gebhart block and going from there on east to pick up two boys; as far as I knew the doctor didn’t know anything about that; I told the Doctor that I would like to clean up his car for the courtesy he had extended to me in taking me to Moline; prior to the time I went to Moline I had washed the car twice; on each occasion I went to the doctor for the keys, and when I washed the car they would collect the price for the car and then pay me for my service; I was working for the Decatur Auto Rental; on each of those occasions I took the car from the Schuyler Garage to the Decatur Auto Rental and brought it back to the garage; it might be three blocks from the garage to the Decatur Auto Rental; I never drove the car about town or anywhere else, and he never told me to drive it anywhere else except over to be washed and back to his garage; the third occasion was the Saturday morning we started to Moline; on a former trial of this case when asked what I was going to do with the polish, I answered that I was going to use it on my car.”

Earl Nelson, one of the boys that Widick took riding with him that afternoon, testified in substance as follows: “I am 21 years of age; in March a year ago I lived at 1631 North Lobar Street; it is in the northeast end of Decatur, one block east of Jasper Street; on March 20, 1928, I saw Widick at my house at about 3:30 p. m.; Herman Morrison was also there; Widick came there in a sedan; he asked us to go to town with him; he said he would bring us back home if we would go to town with him; we got in the car and we drove down Lobar Street to Walnut and down Walnut to Jasper, and down Jasper to Hickory, and down Hickory to Clinton, down Clinton to Grand Avenue, and started through Main Street; we were all riding in the front seat; Widick said he had to have the car back at 5 o’clock; that the doctor didn’t know he had the car; I left the car at the corner of Green and Main Streets which is the place of the collision.”

Herman Morrison testified in substance: “I am 19 years old; I saw Widick on March 20, 1928, at Nelson’s home; he came there in a Studebaker and asked Nelson to come and take a ride and Nelson said, ‘All right’; he said he would take us down town and bring us back; he said he had to be back to town at 5 o ’clock ; that the doctor did not know he had the car out and he had to be back at 5; I left the car at the corner of Green and Main and did not ride in it any further after the injury occurred.”

As a result of the collision, a fender on the defendant’s automobile was bent and Widick drove the automobile to another garage, called up the defendant on the telephone and told him that he had bent the fender on his automobile. The defendant instructed the garage man to fix the fender. Widick did not tell the defendant at this time that he had struck anybody.

The defendant testified in substance: “On the return trip from Moliné, Widick said he would clean my car for me as a courtesy for my taking him to Moline ; on Monday afternoon he told me he could not clean the car that day and that he would be back and clean it tomorrow; he came back the next day and said it was so dark in the garage he couldn’t see to clean it and asked for the keys and I gave him the keys and told him to take the car outside the garage and clean it, leave it there and to give the keys to the garage man ; I told him to take the dust off the outside of the car and clean out the peanut shells that were on the inside; when I received the car back after the accident it had never been cleaned; it was the same as it was when I put it in the garage; the peanut shells were still in it, and the dust was still on the car; at the time there was a dust puff in the car and I told him to dust the car off and clean the peanut shells out of the inside of it, clean off the glass and dust it with this dust puff; he said' he would get some polish and put that on there, and I told him not to do that; that he didn’t have any use for polish; that it had been recently simonized and I didn’t want any polish put on it; I next saw the boy about 5 o’clock; before that he called me over the telephone from Merry’s garage; he wanted me to o. k. the bill for fixing the fender at Merry’s garage; he said he had run into the corner of the garage or something and bent up one of the fenders and wanted to have it fixed, and Mr. Merry wouldn’t fix it unless I would o. k. the bill, and I told him I would o. k. the bill and told him to call Mr. Merry to the phone; I also told him as soon as he had the car fixed to get it to my office as I needed it; it was about 6:30 that afternoon that I learned from him that he had struck anybody; I learned about it before that but not from him but from the boy at Merry’s garage; I asked him how he came to hit the old man and what business he had with the car in that part of town; I asked, him what he was doing with the car up there, and he said he picked up the boys with the car and went joy riding; I asked him if he realized he had taken the car without my knowledge, and he said ‘Yes’; I asked him why he didn’t tell me about it at 5 o’clock, and he said he thought he could fix it up himself; that the old gentleman was in a pretty good humor and he didn’t want me to know anything about it.”

Counsel for appellee seeks to sustain his cause of action on two grounds, first, under the rule of law that if a servant is acting within the scope of his employment and furthering his master’s business, the master is liable for the servant’s negligence even though he has violated appellee’s instructions as to the manner of doing it. Consolidated Ice Mach. Co. v. Keifer, 134 Ill. 481; Lake Shore & M. S. R. Co. v. Brown, 123 Ill. 162; Keedy v. Howe, 72 Ill. 133. Counsel’s second theory of liability is based upon the rule that where a servant has temporarily abandoned his master’s employment and gone on an errand of his own, and then returned to the point from which he abandoned his master’s business, it is then a question of fact as to whether he has then resumed his master’s business and is acting in the course of his employment. Chicago Consolidated Bottling Co. v. McGinnis, 86 Ill. App. 38; Devine v. Ward Baking Co., 188 Ill. App. 588.

Neither one of these propositions of law can have any application to the facts in this case. Counsel for appellee insists that there is no distinction between cleaning and polishing an automobile and state in their argument: “When a man sends his car to be cleaned he expects it to be polished. The indignation of a man whose car was returned to him streaked and dull can be imagined. Polishing is as important an operation as the cleaning of a car.” To this we cannot agree. Cleaning and polishing a car are as separate and distinct operations as cleaning ‘and painting a car. However that may be, the fact that the defendant may have authorized, which the evidence undisputably shows that he forebade, the polishing of the car, such authorization did not include the privilege of driving the car to distant parts of the city to purchase polish and when that was unsuccessful to proceed on a joy ride with a number of friends. If by any manner of means, the authority to Widiek to clean the automobile can be construed to include authority to drive the same to the distant part of the city to purchase polish with which to polish the automobile then that same authority would be limited to the return of the automobile to the place where the polishing was to be done and could not be extended to spending the rest of the afternoon in joy riding around the City of Decatur with his friends. However, the evidence shows unquestionably, both by the testimony of the defendant and of Widick himself, that the latter had no authority to polish the automobile and consequently had no authority to drive the automobile to the Gebhart block for the purpose of obtaining the polish. Widick testified on cross-examination that he did not intend to get the polish for the purpose of polishing the defendant’s automobile and on a former trial of this case testified that he intended to get it to polish his own automobile.

Nor can the cause of action be sustained upon the second theory, that the accident occurred while he .was returning or had returned to the point from which he abandoned his master’s business and therefore becomes a question of fact as to whether he had resumed his master’s business and was acting in.the course of his employment at the time of the accident. The evidence conclusively shows that when the accident happened he was still in the act of enjoying the ride with his friends. He had promised to take them back home or to the place where he called for them and there is no evidence tending to show that he was even attempting, at that time, to return them to their homes. The evidence shows beyond dispute that Widick and his friends were still enjoying their unauthorized ride when the accident happened.

The third, fourth and fifth instructions given on behalf of the plaintiff are abstract propositions of law in which no attempt is made to apply them to the facts in the case. The eighth instruction given on behalf of the plaintiff is particularly' erroneous. By this instruction, the jury are told that if they believe from the evidence that the defendant authorized Widick to clean the ■ automobile then the latter became the agent of the defendant for the purpose of cleaning the automobile and that if Widick drove said automobile to a distant part of the city, to wit, the Gebhart block, for the purpose of obtaining some polish for cleaning said automobile and that after arriving at the Gebhart block he drove said automobile on a mission of his own and that after driving said automobile upon such mission he returned to the zone of the Gebhart block and was returning the automobile to the place where he had gotten the same, and that after he had returned to the Gebhart block or the zone thereof and was returning the automobile he struck the plaintiff, and if the jury believe from all the evidence that he was then acting within the course of his employment the defendant cannot avoid liability on account of the fact that Widick had disobeyed the instructions of the defendant in regard to the matter of cleaning the automobile. From what we have said heretofore, it is clear that this instruction is neither based upon the law nor the facts in the case.

For the reasons stated, the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


text:
    H. L. Smysor, Appellee, v. Clifford Glasscock, Appellant.
    Gen. No. 8,362.
    Opinion filed February 3, 1930.

      John J. Baker, for appellant.
    A. L. Yantis, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

In vacation, during the June,term, A. D. 1928, in the circuit court of Shelby county, a judgment was returned by confession upon a promissory note for the sum of $170.30 in favor of appellee and against appellant. At the next November term, 1928, of said court, appellant made his motion to open up the judgment, for stay of execution and for leave to plead to the merits of the case. In the affidavit filed in support of the motion, it is averred that at the time the judgment was rendered, appellee was indebted to appellant in the sum of $309.85; that the defendant was not in fact indebted to the plaintiff in any sum whatever and that on the other hand plaintiff was indebted to the defendant in excess of the amount of said judgment and costs. Subsequently, appellant obtained leave to file an additional affidavit in support of the motion. The substance of the additional affidavit is, that on or about February 5, 1927, defendant made a verbal contract for the leasing of plaintiff’s farm; that under the terms of said leasing defendant was to pay to the plaintiff as rent for said premises one-half of the corn raised thereon during the crop season of 1927, one-half of the oats raised thereon for said year, and one-half of the wheat raised thereon; that in addition thereto defendant was to pay to the plaintiff the sum of $140 in cash for the pasture land on said premises, provided, however, that as a part of the consideration for the leasing of said lands plaintiff was to repair and rebuild the fences surrounding said pasture lands so that defendant might use the same for the purpose of pasturing his live stock during the term of said leasing; that, conditioned upon the promise and agreement of plaintiff that he would properly fence said pasture lands, defendant gave to plaintiff the note upon which this suit is brought; that defendant paid to plaintiff one-half of all the crops raised on said premises and in every manner complied with the agreements contained in said leasing on his part to be kept, but that plaintiff failed to repair and rebuild the fences around the said pasture lands so that the defendant might use the same for pasturing purposes, whereby said pasture lands were lost to the use of the defendant on account of the fact that he could not use them, whereby the consideration for said note wholly failed. Upon a hearing of the motion, the court overruled the same and refused to open up the judgment to reverse which action this appeal is prosecuted. In the first affidavit filed in support of the motion, the reason advanced in support thereof is that the defendant has a claim for a setoff. A judgment will not be opened up simply to allow the defendant to plead a setoff. State Bank of Mansfield v. Stauffer, 201 Ill. App. 132.

A total failure of consideration of the note is attempted to be set out in the additional affidavit. The alleged promise averred in this affidavit is to do an act to be performed in the future, to wit, to repair or rebuild a fence around the pasture lands. The leading-case on this subject is that of Gage v. Lewis, 68 Ill. 604. In that case the plaintiff promised and agreed with the defendant that if the latter would sign a certain bond the plaintiff would retire from and forever quit the carrying on of a certain wholesale business in Chicago, and would, in no manner, compete with the new firm of which the defendant was to become a member in such business. In an action upon the bond under a plea of failure of consideration the court held: “This case is plainly distinguishable from the class of cases where, in the sale and delivery of personal property, or the purchase of real estate, the title fails, it is held that such failure may be interposed as a defense to a suit brought for the recovery of the purchase money. In those cases the consideration is the title to the property, while here it is the representation and promise of the party to do an act in the future. The principle is clearly and concisely stated in 1 Parsons on Notes and Bills, 203, thus: ‘We must, however, discriminate between a, failure of consideration and a failure of benefit resulting from it. A promises B to do a certain thing, and B makes his note to A in consideration of this promise. Then A fails entirely to perform his promise, but sues B on his note. If B retains A’s promise, or if the contract is such that A is always and permanently held on his promise, B cannot defend against the note on the ground of a failure of consideration; but if B cancels A’s promise, and A accepts this, the contract is so far canceled and annulled, and then the consideration for the note fails. ’ ”

Where the consideration of a promissory note is the promise of the payee to perform a certain act in the future, the consideration does not fail because it is the promise to perform and not the performance which constitutes the real consideration. Stellwagen v. Schmidt, 234 Ill. App. 325, and cases cited; Wood-lawn Security Finance Corp. v. Doyle, 252 Ill. App. 68.

The court did not err in overruling the motion. The judgment of the circuit court of Shelby county is affirmed.

Affirmed.


text:
    Dorothy Louise Bunch, by Goldie May Bunch, her Next Friend, Appellee, v. Louis E. Abbott and Samuel E. Abbott, Trading as Abbott Brothers, Appellants.
    Gen. No. 8,374.
    Opinion filed February 3, 1930.
    Gillespie, Burke & Gillespie, for appellants; Hugh J. Dobbs, of counsel.
    Lester Holman, for appellee; Lee W. Ensel, of counsel.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Dorothy Louise Bunch, plaintiff and appellee, who brought this suit by her mother and next friend, recovered a judgment in the circuit court of Sangamon county in an action on the case for the sum of $536. The injuries complained of were received as a result of a collision between a motor truck driven by the father of appellee in which she was riding and a motor truck driven by a servant of appellants. The accident took place on Cook Street near its intersection with Eleventh Street in the City of Springfield on November 21, 1928. The declaration consists of two counts, in the first of which it is alleged that the plaintiff was riding in a certain automobile truck as a passenger and guest of her father and that the defendants, contrary to the statute of the State, negligently and carelessly drove and operated, through their agent, their said automobile truck at a high, dangerous and excessive rate of speed along and through the closely built up residence district of the City of Springfield, along said street, the rate of speed, being, to wit, 30 miles per hour and that while she was so riding in the automobile truck as a passenger and guest of her father going east on East Cook Street between Eleventh and Twelfth Streets as aforesaid, and while she was using due care for her own safety, the defendants, through their agent, so carelessly and negligently operated and managed their said automobile truck that it ran into and against the automobile truck, in which plaintiff was riding, with great force and violence, thereby knocking the plaintiff against the windshield of the automobile truck in which she was riding and then down to and upon the ground and pavement whereby she was injured, etc. The second count is similar to the first, except that the averment in regard to the speed of the defendants’ motor truck is omitted and in lieu thereof is an allegation of general negligence in the driving of the defendants’ truck. The evidence is very close and conflicting. On the southeast corner of the intersection of Eleventh and Cook Streets was a gasoline filling station operated by W. L. Sickafus and R. W. Sickafus. Across the street, on the northeast corner of the intersection, was another gasoline filling station operated by Harry Mullins. Driveways lead from Cook Street to each filling station and terminate on Eleventh Street. On the north side of Cook Street, a Ford sedan was parked near the north curb and in front of the filling station located on the northeast corner of the intersection. This automobile was being serviced at the time by Harry Mullins, who was operating that filling station. The evidence introduced on behalf of appellee tends to show that she was riding on a 2%-ton truck driven by her father, who was employed by one Tony Enders; that in the cab of the truck were her father and mother and a baby in arms held in the arms of the latter; that appellee was seated between her father and mother; that standing behind the cab on the floor of the truck was her uncle, Chester Painter, brother of her mother; that the truck had crossed Eleventh Street and was proceeding in an easterly direction when the truck driven by an employee of the defendants, proceeding in a westerly direction at a speed between 20 and 25 miles per hour, when about 15 or 20 feet from the parked Ford turned left without giving the signal therefor and headed towards the filling station on the south side of the street (the Sickafus station) going as far as the driveway approaching into that filling station, but as another car was standing in the driveway, the driver of appellants ’ truck, without stopping, turned back to the right, crashing into the truck appellee’s father was driving on the right side as the latter turned from the south half of the street toward the north half to avoid being struck; that the force of the collision precipitated the plaintiff against the metal frame of the windshield and thence out into the street onto the brick pavement.

The evidence for appellants tends to show that the truck driven by their driver was proceeding along Cook Street toward the west; when it approached to within 15 or 20 feet from the parked Ford it was turned to the left to go around the Ford, and then turned back to the right after it had passed the Ford and as it did so collided with the truck driven by the father of appellee and at the time of the collision a part of the latter’s truck was on the north side of the middle line of the street; that the appellants’ truck only swerved to the left when it passed the parked Ford and that it did not attempt to approach the entrance to the Sickafus filling station; that if the truck in which appellee was riding had been south of the center line of Cook Street the accident would not have happened.

' On account of the very conflicting evidence in the case in regard to the alleged negligence of the driver of appellants’ truck, it was important that no substantial error should be committed prejudicial to the defendant’s interests which might influence the jury upon this question. During the examination of prospective jurors, the following occurred:

“Mr. Holman (attorney for plaintiff to prospective juror): Are you connected with or the agent for any insurance company? Mr. Dobbs (attorney for defendants): We object to that. The Court: Objection sustained. Mr. Holman (to another prospective juror in the second panel): Are you an officer, agent, director or stockholder of any insurance company? Mr. Dobbs: We object to that; there is no insurance company in this suit. The Court: Is there an insurance company party to this suit? Mr. Dobbs: There is not. The Court: Objection sustained. Mr. Holman (to another prospective juror in the third panel): You don’t know about the insurance company in this case, do you? Mr. Dobbs: I object to that. There is no question of insurance in this case; that is not a proper interrogation. The Court: Objection sustained.”

Whatever may have been the right of counsel for appellee to ask the first two questions objected to, certainly the third question was highly improper and prejudicial. It practically told the juror that an insurance company was interested in the case. Bishop v. Chicago Junction Ry. Co., 289 Ill. 63; McCarthy v. Spring Valley Coal Co., 232 Ill. 473; Emery Dry Goods Co. v. DeHart, 130 Ill. App. 244; Turner v. Lovington Coal Min. Co., 156 Ill. App. 60.

The third instruction given on behalf of appellee is as follows: ‘ ‘ The Court instructs the jury that while the burden of proof is upon the plaintiff to make out her case by a preponderance or greater weight of the evidence, still, if the jury believe that the evidence in this case preponderates in her favor, although hut slightly, it will be sufficient for you to find in her favor.” This instruction is erroneous and has been so held in many cases. “It opened the door for the jury to take any view of plaintiff’s case which they saw fit to take and to arrive at a verdict for any reason which might seem to them sufficient, without any rule to guide them. . . . The instruction also erroneously told the jury that if they found that the evidence bearing upon plaintiff’s case predominates in her favor, although but slightly, it would be sufficient to find the issues in plaintiff’s favor. This part of the instruction has also been criticised in many cases. It indicated that the preponderance of the evidence was a small matter, and sought to minimize, and thus reduce to the lowest limit, the requirement of a preponderance of the evidence.” Molloy v. Chicago Rapid Transit Co., 335 Ill. 164.

The above instruction was particularly harmful in this case where the evidence as to the negligence of the servant of appellants was so close and conflicting.

For the errors indicated, the judgment of the circuit court of Sangamon county is reversed and the cause remanded.

Reversed and remanded.