text:
    Augusta Heberlein v. Charles Wendt.
    1. Building Contracts — Architects Certificates, When Conclusive. —Where, by a contract, an architect is made the arbiter and judge as to the proper doing of the work, his certificate is conclusive, unless shown to have been mistakenly or fraudulently issued.
    2. Courts of Equity — Governed by Considerations of Right and Justice. — A court of equity is governed mainly by considerations of right.and justice between the parties. It does not disregard legal rights; on the contrary it follows the law, and it may in a proceeding for a mechanic’s lien, allow something for what is deemed insufficient work while' granting a decree for the amount found equitably due.
    3. Certificates of Evidence — Must be Under the Seal and Signature of the Trial Judge. — Under the statute, oral evidence is allowable in chancery cases, and such evidence is to be preserved by the certificate of the judge, which, upon being properly signed and sealed by him, becomes a part of the record.
    Mechanic’s Lien. — Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    Statement. — This suit ivas commenced by appellee to foreclose a mechanic’s lien on certain premises. The 10th day of August, 1898, the parties entered into a written contract by which appellee agreed to furnish material and do all the carpenter work on a six-story and basement building, according to the plans, specifications and drawings made by Eobert S. Smith, architect, to the satisfaction and under the direction of the architect, and also to provide materials fit, proper and sufficient therefor according to the plans and specifications; the building to be completed by October 25, 1898, for $10,000; eighty-five per cent to be paid as the work progressed, the balance when his work should be fully performed and accepted by appellant, time being of the essence of the contract. It was also agreed that before appellee could demand or receive any payment for work done under the contract he should procure a certificate under the hand of the architect, stating the amount • due for work done and materials furnished. The time for completion was extended from time to time by mutual consent, the architect’s final certificate being issued January 8, 1900, for $539, which was the balance of the $10,000 then remaining unpaid.
    Appellant answered the bill, setting up that appellee had not complied with his contract; that appellee had omitted to do various things provided in his contract, by which appellant was damaged to the amount of $5,000.
    Appfellant also filed a cross-bill asking for affirmative relief, alleging specifically, breaches of the contract by which she had been damaged to the amount of $5,000; and also that the architect’s certificate was wrongfully and fraudulently issued by him, well knowing that said appellee was not entitled to it.
    The cause having been heard, the court entered a decree allowing to appellee a lien for $489, and $40 as solicitor’s fees.
    From this decree appellant has appealed.
    . Hampden Kelsey, attorney for appellant.
    Rosenthal, Kurz & Hirsohl, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

By the contract the architect was made the arbiter and judge as to the proper doing of the work, and his certificate is conclusive unless shown to have been mistakenly or fraudulently issued. Store v. Heissler, 120 Ill. 433; Arnold v. Bournique, 44 Ill. App. 199.

Nothing of the kind was made to appear. His judgment may have been faulty, but it does not appear that he miscalculated or acted improperly. And this is true although there were a few slight things to be and which were done after the certificate was issued, and the ■ court also found that a sideboard and a door were not quite up to the requirements of the contract, and allowed appellant $50 on account thereof.

Substantially, the work was done as agreed when the certificate was issued. As to the issue of a certificate under such circumstances see Miles v. Weeks et al., 21 Ill. 561-569.

A court of equity is governed mainly by considerations of right and justice between the parties. It does not disregard legal rights; on the contrary it follows the law; but it may, as the chancellor did, allow something for what he deemed insufficient work while granting a decree for the amount found equitably due.

Appellant urges that the fifteen per cent reserved was not to be paid until the work had been accepted by her. In a court of equity it is not sufficient as a defense that the defendant did not accept; the question is, ought she to have accepted % Was the work such that in equity and good conscience she was bound to accept ? In the present case the court below has found that she ought to have accepted and we see no sufficient reason for setting aside such finding. It is also to be said that appellant took possession of the premises and used them, without, so far as appears, charging the imperfect condition which she alleges and of which she complains. While this is not conclusive it is a circumstance to be taken into consideration.

The contract contemplated alterations from the plans and specifications, as it provided that the owner might make such as she deemed proper and that in case any difference of opinion should arise in relation to the contract, the work to be performed under it, etc., the decision of the architect should be binding on both parties.

The architect did authorize certain changes and in the absence of evidence to the contrary it must be presumed they were ordered with the acquiescence of the owner.

Our attention has not been called to any evidence showing that appellant did not agree to these changes.

The statute allows attorney’s fees and they were awarded in accordance with it.

A motion has been made to dismiss the appeal because the certificate of evidence is not sealed as well as signed by the trial judge.

At common law bills of exception were unknown. They came into being in England by the statute of Westminster, 13th Edward I.

In this State they are creatures of the practice act (R S. Chap. 110, Sec. 60), under which exceptions when signed and sealed become a part of the record.

Originally, oral evidence was not allowable at the hearing of chancery causes. Under our statute permitting this, such evidence is preserved by a certificate of the judge by which it is made a part of the record. Smith v. Newland, 40 Ill. 100; McIntosh v. Saunders, 68 Ill. 128.

If a bill of exceptions, entirely a creature of the statute, can be made and is to be recognized as a part of the record of a cause when it is not authenticated by the seal of the judge, we see no reason why it may not be when it lacks both signature and seal, existing only by virtue of an order of court; if one of the requirements of the statute can be dispensed with why can not two \

We regard the alleged certificate of evidence as insufficiently authenticated. Miller v. Jenkins, 44 Ill. 443; Elder v. Bennett, 79 Ill. App. 335; Higgins v. Hide & Leather Bank, 88 Ill. App. 34; Cudney & Co. v. Martindale, 86 Ill. App. 672.

The decree of the Circuit Court is affirmed.


source: Caselaw Access Project

author: Mr. Justice Waterman

license: Public Domain

text:
    Agostino G. Boggiano v. Chicago Macaroni Mfg. Co. et al.
    1. Officers — Of Corporations, When Entitled to Compensation for Extra Services. — It is well-settled law that an officer of a corporation is not entitled to compensation for the performance of the ordinary duties of his office, in the absence of a prior authorization by the board of directors, but for the performance of duties or services outside of and apart from those imposed upon him by virtue of his office he may recover.

      2. Corporations — Right of a Stockholder to Cumulate His Vote.— The right of a stockholder in a corporation organized under the laws of. this State, to cumulate his vote, is expressly conferred by Sec. 3, Chap. 32 R. S., entitled “ Corporations,” and his motives in doing so can not be inquired into.
    3. Quo Warranto — Officers of Private Corporations. — While the general rule requires trial of the title to office in private corporations to be at law, and by a quo warranto proceeding, when other elements exist in the case which make it proper for a court of equity to intervene, such court will not be deterred from determining the question as to which of the parties are the lawful officers.
    Bill for Belief. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chbtlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed, at appellee’s costs.
    Opinion filed January 21, 1902.
    Statement. — The appellee corporation was engaged in the business of manufacturing and selling macaroni. Its capital stock consisted of 1,0(10 shares of $10 each, of which 501 shares were subscribed for and issued to the appellant, Agostino Boggiano, 498 shares were "subscribed for and issued to G. Ucello, and one share was subscribed for by another party but never paid for or issued to him. At the first meeting of the board of directors, Agostino Boggiano was elected president and treasurer.
    On October 13,1894, Ucello sold all his stock and transferred his certificates to the appellee Frederick P. Bead; who continued to hold them, with the exception of ten shares transferred by him to Anthony G. Boggiano.
    The corporation did not prosper very well, and subsequently the appellee Bead objected to any pay being received by Agostino G. Boggiano' as president, and differences ensued. At a regular "meeting of stockholders called for and held January 4, 1897, all the stockholders were present, Agostino G. Boggiano being chairman and Frederick P. Bead being secretary thereof. Boggiano, Bead and G. Ucello were nominated for directors, and ballots were cast and delivered to Bead, the secretary, who counted them and announced the result of the vote, as follows: Bead, 1,286 votes; G. Ucello, 689 votes, Agostino Boggiano and Anthony G. Boggiano each 511 votes.

      This result was attained through Read cumulating the < votes he was entitled to cast. Boggiano thereupon adjourned the meeting summarily, and a few' days later called another meeting to complete the business of the first meeting. At the adjourned meeting, himself, Read and Anthony G. Boggiano were declared elected directors. Controversy arose between the two sets of officers and this bill was filed.
    Thatcher & Griffen and W. S. Coy, attorneys for appellant.
    Pedrick & Dawson, attorneys for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

The first question argued by appellant is the right of appellant to receive compensation for the performance of duties outside of the office of president, treasurer or director.

It is well settled law that an officer of a corporation is not entitled to compensation for the performance of the ordinary duties of his office, in the absence of a prior authorization by the board of directors. Emporium Real Estate & Manufacturing Co. v. Emrie, 54 Ill. 345; Illinois Linen Co. v. Hough, 91 Ill. 63; Ellis v. Ward, 137 Ill. 509; Brown v. DeYoung, 167 Ill. 549; St. Louis, Alton &. Springfield R. R. Co. v. O’Hara, 177 Ill. 525; Fritz v. Equitable B. & L. Society, 186 Ill. 201.

But for the performance of duties or services outside of and apart from those imposed upon him by virtue of his office he may recover. Above cited cases, and Cheeney v. Lafayette, B. & M. Ry. Co., 68 Ill. 570; Rockford, R. I. & St. Louis R. R. Co. v. Sage, 65 Ill. 329.

The trial court found that Boggiano, while acting as president and treasurer of the corporation, rendered services to it which were outside and beyond his ordinary duties as managing officer, and practically devoted all of his time to the business of the corporation, and that he was equitably entitled to be allowed compensation for a portion thereof, and decreed accordingly. The by-laws of the corporation authorizing salaries to be paid, and the services being rendered under an oral agreement with the only other stockholder and director, that Boggiano should receive pay therefor, we will not disturb the finding of the court in that regard, although the directors never formally authorized the payment to be made to him, the same being reasonable in amount.

We hardly know, from appellant’s brief, whether he contends against that portion of the decree finding that the election of officers at the stockholder’s meeting, January 4, 1897, was complete. We think the decree in that respect is clearly right. The meeting was regularly convened. It could not have been adjourned except by the act of the.' meeting itself. 1 Thompson on Corporations, Sec. 720.

The right of appellee Bead to cumulate his vote is one that is expressly conferred by the statute (Sec. 3, Chap. 32, B. S., entitled Corporations), and his motive in doing so can not be inquired into, his bona, fide ownership of his shares, voted on, being conceded. 3. Thompson on Corporations, Sec. 3870.

Concerning the question of the right of the trial court to inquire into and determine which of two sets of officers are the lawful officers of the corporation, see the case of Garmire v. American Mining Company, 93 Ill. App. 331. It is there held that while the general rule requires trial, of the title to office in a private corporation to be at law, and by a quo warranto proceeding, yet when there exist other elements in the case which make it proper for a court of equity to intervene, that court will not be deterred from acting on the question which of the officers are the lawful officers. Such is the case before us. Nor was there any error in joining the corporation with Bead, the stockholder in the suit. (Bruschke v. Chicago Schuetzen Verein, 145 Ill. 433.)

The part of the decree that orders appellant to pay the fees of the stenographer on the taking of depositions before the master, is erroneous (Schnadt v. Davis, 185 Ill. 476), and in that respect the decree is modified, but in all other respects is affirmed, but at appellees’ costs.


author: Mr. Justice Shepard

text:
    Oscar Sehnert v. Fred W. Koenig.
    1. Names of Actions — Suits Before Justices of the Peace. — In a suit begun before a justice of the peace the form or name of the action is whatever the evidence shows it to be.
    2. Trover— When a Demand is Necessary Before Bringing Suit.— In a suit before a justice of the peace where the proof made shows the action to be in trover a demand must be made before the action can be maintained.
    8. Demand — When, and When Not, Necessary Before Bringing Suit. —Proof of a demand and refusal are necessary in cases where the defendant became in the first instance lawfully possessed of the property in question, and the plaintiff is not able to prove some distinct actual conversion; but where the taking is tortious or an actual conversion is shown, no demand is necessary before bringing suit.
    Trover. — Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed January 21, 1902.
    Walter F. Heinemann, attorney for appellant.
    Emil A. Meyer, attorney for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

An action was begun by appellee before a justice of the peace, and taken by appeal from the judgment there recovered to the Circuit Court, where another recovery was had. In a suit begun before a justice of the peace, the form or name of the action is whatever the evidence shows it to be. Rehm v. Halverson, 94 Ill. App. 627, and cases there cited. The proof made showed the action to be in trover, for the alleged conversion by appellant of a gold watch and chain which appellee testified to having given appellant on a street car to repair. Appellant denied ever havingyeceived the watch and chain. According to the testimony of appellee the appellant, came into possession of the watch and chain rightfully — by delivery of them to him by the appellee personally, under an agreement by appellant to repair the same. Under such circumstances a demand must be made before the action can be maintained.

“ Proof of demand and refusal are necessary where the defendant became, in the first instance, lawfully possessed of the chattel, and the plaintiff is not prepared to prove some distinct, actual conversion. But demand and refusal are unnecessary if the taking is tortious, or if an actual conversion is shown.” Hayes v. Massachusetts Life Ins. Co., 125 Ill. 637.

Ho demand or refusal in this case was proved or attempted. All the cases cited by appellee, that demand is unnecessary, are cases where the taking or withholding was wrongful or tortious. The denial of appellant that he ever had possession of the watch and chain can not be construed as meaning that he tortiously took or tortiously refuses to surrender them.

The judgment must be reversed and the cause remanded.


text:
    Daniel Anderson et al. v. Ole Carlson et al.
    1. Mechanics’ Liens — Illegality of the Builder's Contract as a Defense.— The fact that a building in the city of Chicago is not in all respects erected in strict compliance with the provisions of the ordinances relating to such matters, does not in this case deprive the builder of his remedy under the law relating to mechanics’ liens.
    2. Contracts — Burden of Proving an Illegal Consideration. — A party who alleges as a reason for not fulfilling his promise that such promise was based upon an illegal consideration has upon him the burden of proving such allegations.
    Mechanics’ Liens. — Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    George W. Wilbur, attorney for appellants.
    Deneen & Hamill, attorneys for appellees.
   Mr. Justice Waterman

delivered' the opinion of the court.

Appellant says, “ The main question for the consideration of the court is whether or not appellees can recover upon a contract which is in violation of the ordinances of the city of Chicago. Such ordinances are as binding upon all the parties, as if they were a matter of statutory regulation.” And “ The specifications are not in accordance with the ordinance as to flues, although the plans, if they had been carried out, would have met such requirements, because they provide for flue linings. The evidence shows, however, that the words flue linings ’ were put upon the plans by the architect, not with the expectation of inserting linings in the flues, but for the purpose of enabling the contractor to obtain a permit more easily from the building department.”

Whoever alleges as a reason for not fulfilling his promise that it was based upon an illegal or immoral consideration has upon him the burden of proving such allegations. Douthart, ex’r, etc., v. Condon, 98 Ill. App. 487.

It is conceded that the plans were in accordance with the ordinance. Such being the case a contract to build in accordance with the plans was not a contract to violate the law.

Whatever may have been the design of the architect or his expectation as to “flue linings,” the written contract was not invalid; and by virtue of the statute, appellees, so soon as it was made, became possessed of a mechanic’s lien upon the property to which it applied.

It does not appear that appellants in entering into the contract knew of the ordinance, and consequently it can not be presumed that in entering into it they intended to disobey the law. The presumption ■ of knowledge of the law does not go so far as to raise a presumption that one in merely entering into a valid contract intends to act illegally in carrying it out. Waugh v. Morris, L. R., 8 Q. B. 202-208.

It does appear that in the doing of the work the flue linings were not such as are required by the ordinances of the city, and that to make these linings correspond with the requirements of the ordinance would cost $15.

It is said that by a change made in the plans by the city commissioner of buildings, a certain wall was required to be twelve inches in thickness, instead of nine inches as provided by the contract; and that the wall as built is but nine inches in thickness.

Appellee testified that his attention was not called to this change; nevertheless the court allowed to appellants a deduction of $75 from the sum that by the certificates of the architect appears to be due; such $75 being what it would cost to make the said wall twelve inches thick and the flue linings such as the city ordinance requires. That the nine-inch wall was in violation of the city ordinance does not appear. The existence of ordinances must be proven and this is not accomplished by the mere pleading of them.

It is insisted that the trial court had no jurisdiction to enter a decree in this cause because this court had not jurisdiction to entertain the appeal taken from an order entered March 2, 1896, dismissing the petition.

The objection to the jurisdiction of this court is based upon the insistence that the bond given in attempted compliance with the order of the Circuit Court allowing an appeal was not such as the order required.

If the bond was insufficient, appellants, appellees in that appeal, should have here appeared and moved to dismiss the appeal. Sec. 69 of Chap. 110, R S., provides that no appeal to this court shall be dismissed by reason of informality or insufficiency of the appeal bond,if the party taking the appeal will, within a reasonable time to be fixed by the court, file a good and sufficient bond to be approved by the court.

This court had jurisdiction of the subject-matter and the parties, and its judgment is res judicata in this cause as to all matters before it on such appeal; this includes the sufficiency of the notice of lien filed by petitioner.

As to the merits of the controversy, the doing of the work as agreed, the certificate of the architect was, by the contract, made final and binding. It does not appear that the certificates given by him were mistakenly or fraudulently issued; they consequently are conclusive, however much he may have erred in judgment or however unskillful he may have been. The cause seems to have been tried and disposed of in accordance with equitable principles. The decree of the Circuit Court is affirmed.


text:
    Catherine McGuire et al. v. James H. Gilbert, for use of Kate McGuire, Adm’x, etc.
    1. Short Cause Calendar — Motions to Strike Causes from. — A motion to strike a cause from the short cause calendar for the reason that it was not at issue when the notice and affidavit were filed, as required by the rules, must be made in apt time.
    Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    This is an appeal from a judgment of the Superior Court in a case tried upon the short cause calendar February 19, 1900. Notice to place the cause on the short cause calendar was served on the defendants’ attorney and filed November 23, 1899.
    The defendants moved to strike the cause from the short cause calendar for the reason that the same was not at issue when the notice and affidavit for placing the cause on the short cause calendar were filed as required by Eule 18 of the Superior Court, but this motion was not made until February 19,1900, when the cause was called for trial.
    The court overruled this motion to strike the cause from the short cause calendar and proceeded with the trial. The defendants offered no evidence and a verdict was rendered against them, a motion for a new trial was overruled and judgment entered against the defendants, from which judgment this appeal is taken.
    M. H. Hoey and Albert H. Meads, attorneys for appellants.
    Moran, Mayer & Meyer, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court. .

Had the motion to strike the cause off the short cause calendar been made in apt time it would have been error to deny it; as it was, the motion not having been made for nearly three months, and only when the case was called for trial, it was properly refused. Treftz v. Stahl, 46 Ill. App. 462; Johnson v. Brown, 51 Ill. App. 549; Stewart v. Carbray, 59 Ill. App. 397; Wheatley, Buck & Co. v. Chicago Trust & Savings Bank, 64 Ill. App. 612; Belinski v. Brand, 76 Ill. App. 404. The judgment of the Superior Court is affirmed.


author: Mr. Presiding Justice Freeman

text:
    Chicago & N. W. Ry. Co. v. Eleanor B. Weeks.
    ®AILE0ADS — 4is Carriers of Passengers — What Constitutes One a Passenger. — The relation of carrier and passenger begins only when the holder of a ticket puts himself in charge of the carrier for the purpose of being conveyed to his destination; but if he is passing from the office or place of business of the company where he has purchased his ticket to his seat in the cars on the premises belonging to the company and connected with the railroad, under the direction, expressed or implied, of the agent of the company, given to him as to a passenger with whom the company has made a contract of conveyance, he is, while so passing to the train, a passenger, and as such entitled to a safe opportunity to enter the cars at the proper time.
    2. Same — When a Person Becomes a Passenger. — A person does not become a passenger of a railroad company until he has put himself in charge of the company and has been expressly or impliedly received by the company. It is not enough that such person may have an immediate intention to become apassenger; and if on arriving late at the station he finds that if he takes the time necessary to approach the train he desires to take in the ways openly and obviously provided by the company for safe passage he will not be able to reach it before it starts, and takes a short cut by crossing the tracks, and is injured in consequence, he can not be rightfully considered to have become a passenger.
    3. Same — A Person Intending to Become a Passenger Must Present Himself in a Proper Way. — A person intending to take passage upon a railroad train, who is proceeding without precaution for his safety, toward a point directly in front of an incoming train, does not present himself in a proper way to become a passenger.
    4. Contributory Negligence — Who is Guilty of. — A person who fails to observe ordinary care and blindly walks into a danger which the observance of due care on his part would have enabled him to avoid, is no less guilty of contributory negligence than one who, by the observance of due care, could extricate himself from a danger and fails to make any effort to do so, and by reason of such lack of effort is injured.
    5. Ordinary Care — Duty of a Person Approaching a Railroad Crossing. — A person approaching a railroad crossing is bound to know that it is a place of danger and that he must give that attention to the sights and sounds warning him of approaching trains that men of ordinary caution under like circumstances would give. And if he permits himself to become absorbed in thought about other matters, and consequently becomes oblivious of his surroundings, he will do so at his peril.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed, with a finding of facts.
    Opinion filed January 21, 1902.
    Statement. — This is a suit to recover damages for personal injuries. Appellee suffered the loss of a portion of the right leg below the knee, her foot having been run over by one of appellant’s passenger trains at the Eavenswood station. A jury returned a verdict in her favor, and from the judgment rendered in accordance therewith this appeal is prosecuted.
    The accident occurred May 17, 1898. At that time appellant’s tracks had been recently elevated. The station building at Eavenswood was about in the center of the block between Sunnyside and Wilson avenues. These avenues run east and west at right angles with the railroad, Sunnyside being south and Wilson north of the station, and are spanned by viaducts over which the trains pass. The station platforms extended the whole length of the block from Sunnyside avenue to Wilson avenue, one on each side of the railway tracks, of which there were three. There were steps leading up to each of these platforms from both Wilson and Sunnyside avenues. There were also other steps leading to the platforms from the center. The platform west of . the tracks, where the north-bound suburban trains stopped to let off , and receive passengers, was entirely open, without roof or building of any kind. Extending across the tracks between the platforms and directly in front of the station, was a wide ■ plank walk. Passengers intending to leave or about to take trains were in the habit of crossing the tracks freely from platform to platform at any point, in the same manner as where railway tracks are on a level with the streets. At the time of the accident, however, there was no necessity of so doing, the subways under the viaducts and steps ascending therefrom to either platform, affording a safe means of reaching them without crossing any tracks. One of appellee’s witnesses says:
    “ In going from the depot to take a north-bound train, if you are in the waiting room, the most obvious wav would be to go directly across the tracks, or to go along the platform to one of the avenues, either Wilson or Sunnyside, pass down the steps and pass under the viaduct or approach, and come up on the other side.”
    Appellant runs over its tracks fast express trains which do not stop at Eavenswood, as well as local or suburban trains which do stop. When approaching from a distance, there is, it is said, no noticeable difference in the appearance of these trains, unless attention be given to the speed at which they approach.
    Appellee lives near St. Louis, but she had resided as a student at Evanston, a few miles north of Eavenswood, for something more than two years, graduating there in 1890. At that time she was in the habit of visiting a cousin at Eavenswood, and used to take the local trains back and forth between Eavenswood and Evanston. She returned to Evanston in the spring of 1898 to take post graduate work preparatory to teaching. She had been there about two weeks when the accident occurred. During that time she thinks she had gone to Eavenswood once and perhaps twice.
    The day of the injury appellee bought at Evanston a round trip ticket, and arrived at Eavenswood at about two o’clock p. m. She went from the station to her uncle’s residence, about three and a half blocks east of the railroad. She left the house after five o’clock, accompanied by her cousin, and went toward the station, intending to take a local train to Evanston at 5:40 p. m. Having errands to do, they stopped at several stores near the station, and coming out of one of these near Sunnyside avenue, appellee looked south along the track and saw what she supposed was her train coming in the distance, as she states, “just a black speck and smoke.” It was in fact a fast express, not stopping at Ravenswood. Remarking that it was her train, she bade her cousin and a young lady they had just met “ good-bye,” and ran across the stfeet and up the steps leading from Sunnyside avenue to the platform east of the railway tracks. She states that she did not know at that time of any steps leading from Sunnyside avenue to the west platform, to which she was bound and at which the north-bound suburban trains stopped. That stairway was west of the subway, and not visible to persons on Sunnyside avenue east of the tracks, and no notice was posted to indicate to strangers that it was there. She made no inquiries. There was nothing to obstruct her view, neither smoke nor intervening objects, and it was perfectly light and clear. She says that when she reached the platform at the head of the steps, she glanced in the direction of the approaching train as she went on. She saw it was so far off — she says it looked about two blocks at least — that she thought she had plenty of time, and felt relieved. She went on more slowly toward the west platform, crossing the tracks in a diagonal cdirection, thus turning partly away from the train which was approaching from the south, and directing her own course toward the northwest. When she reached the last track, the one nearest the west platform to which she was going, or was just on the track — she does not remember whether she was on it or just stepping on it — she looked up. She says she does not know what attracted her attention, “ whether it was a whistle or what it was, but I looked up and the train was so close to me that it frightened me terribly. It looked like it was almost on me, and I fell across the tracks, and I just had to drag myself across just as quickly as I could. I don’t remember any particular sensation but just fright. I dragged myself across as quickly as I could, and just the one foot was caught under the train.” She supposed only the sole of her shoe had been struck until she saw that her foot was cut off.
    .It is agreed between the attorneys that the place where she was hurt was about forty feet north of where she started to cross, and it appears that the space between the platforms was about thirty-five feet. The distance appellee traversed, therefore, in crossing, was about equal to the hypothenuse of a right angle triangle, the other two sides of which were respectively about thirty-five and forty feet. If, therefore, instead of going diagonally, she had gone straight across the tracks upon reaching the platform, she would, at the same rate of speed, have had time to get across safely. If the approaching train had been, as she supposed it to be, the local due to leave Eavenswood at 5:40 p. m., instead of the fast express which passed that station five minutes earlier, she could have taken it from the east side of the train as well as from the station platform, there being no gates on the car platforms. In other words there was no necessity for her to cross the track upon which she was injured in order to board a north-bound suburban train. That west platform was not more than an inch or two higher than the tracks, and it was about as easy to board a train from one side as the other.
    It appears from the testimony of the two young ladies who were with appellee when she saw the train approach-» ing, that as she was ascending the steps and just reaching the platform, they called out to her, “ That is the fast train — that is the fast train.” Some boys near by also called to her to. the same effect. Appellee says, however, that she did not hear any such calls, owing probably to the noise of the coming train. Her cousin states that appellee was told when she first saw the train that she would have plenty of time, it was so far off.
    The engineer of the train testifies that he first saw appellee when she was on the east platform at the top of the stairs, and when his train was more than a block away, south of Montrose Boulevard; that she was then running and just leaving that platform; that he thought she was going ahead of the train to the other platform, and he ‘‘ gave her a warning whistle;” gave four or five sharp whistles; that when she was close to the east rail of the middle track he gave another whistle; that she stopped then but started again immediately, and he then gave another whistle, shut off the steam and applied his emergency brakes. He had made no effort to stop before because he had given the warning and expected her to keep out of danger. When he applied the brakes he was just south of the Sunnyside avenue viaduct.
    A. W. Pulver, attorney for appellant; E. E. Osborn and Lloyd W. Bowers, of counsel.
    Darrow & Thompson, attorneys for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

Appellant’s attorney states the contention in the case as follows: “ There were two essentials to the recovery of

the plaintiff in this case. It was necessary for her to show by a preponderance of evidence, first, that her injury was caused by the negligence of the defendant, as alleged in the declaration; and second, it was necessary for her to show by a clear preponderance of evidence that she was, at and just before the time she received the injury, exercising ordinary care for her own safety.

It is conceded by appellee’s attorney that this is “ a correct statement of the law which governs the case,” and it is insisted that these essentials to recovery are met by the evidence.

It is claimed in behalf of appellee that she was a passenger of the defendant railway company when hurt, and that therefore, as said in C. & E. I. R. R. Co. v. Chancellor, 165 Ill. 438, appellant was bound to exercise the highest reasonable and practicable degree of care for her safety. C. & A. R. R. Co. v. Pillsbury, 123 Ill. 9; C. & A. R. R. Co. v. Arnol; 144 Ill. 261. If she did not sustain the relation of passenger or intended passenger, then only ordinary care was required of appellant.” The rule as stated in the Arnol case, above cited, is that “ ordinary carriers of passengers for hire, while not insurers of absolutely safe carriage, are held to the exercise of the highest degree of care and skill practicably consistent with the efficient use and operation of the mode of transportation adopted.”

As to what constitutes one a passenger, so as to entitle him or her to adequate protection when approaching or leaving a train, the decisions are not entirely harmonious. It is said in Busweil on the Law of Personal Injuries, quoted by appellee’s attorneys in their brief, that “the relation of carrier and passenger begins only when the holder of the ticket puts himself in charge of the carrier for the purpose of being conveyed to his destination; but if he is passing from the office or place of business of the company where he purchased his ticket to his seat in the cars on the premises belonging to the company and connected with the railroad, under the direction, expressed or implied, of the agent of the railroad, given to him as to a passenger with whom the railroad has made a contract of conveyance, he is, while so passing to the train, a passenger, and, as such, entitled to a safe opportunity to enter the cars at the proper time.”

We are inclined to agree with appellee’s attorney that this is a correct statement of the general principle by which, in a given case, the question whether a party injured is or is' not entitled to be considered a passenger, must be determined. It must appear that such party has actually put him or herself in charge of the carrier, and has been received under the latter’s direction, express or implied. It is not enough that he has purchased a ticket, nor that he is upon the premises of the railroad company. Both these conditions may, and often do, exist with one who has not at the time placed himself, in any sense, in charge of the carrier or under its direction. It is a matter of common knowledge that parties using suburban trains generally purchase commutation tickets, good for a specified time or number of rides, which are carried on the person at all times. See C. & G. T. Ry. Co. v. Stewart, 77 Ill. App. 66-69. Such persons may be, and doubtless frequently are, upon the premises of a railroad company, and at its stations, when they have no intention whatever of becoming passengers at the time. The same rule is thus stated in I. C. R. R. Co. v. O’Keefe, 168 Ill. 119 : “ One does not become a passenger until he has put himself in charge of the carrier, and has been expressly or impliedly received as such by the carrier;” and it is there said, “ both parties must enter into and be bound by the contract.” Nor is it enough that one may have an immediate intention to become a passenger. If any one arriving late at a station, and finding that if he takes the time necessary to approach the train he desires to take in the ways openly and obviously provided by the railroad company for safe passage he will not be able to reach it before it starts, and takes a short cut, climbing over a fence or other obstruction plainly erected to prevent persons from crossing tracks, and is injured in consequence, he could not be rightfully considered to have become a passenger. Instead of placing himself in charge of the carrier, he would be willfully ignoring the means it had provided for the safety of those who do place themselves in its charge. It does not contract to receive him as a passenger in any such way, either expressly or by implication. This is the view taken in Webster v. Fitchburg R. R. Co., 161 Mass. 298, 300, cited in the O’Keefe case, last above referred to. The Massachusetts court says: “ In the present case, after the arrival of plaintiff’s intestate on the defendant’s premises, there was no time when he presented himself in a proper manner to be carried. He was all the time running rapidly, without precautions for his safety, toward a point directly in front of an incoming train. He did not put himself in readiness to be taken as a passenger and present himself in a proper way;” and it is further said: “The law will not imply a contract by a railroad company to assume responsibility for one as a passenger from such facts as appear in this case.” There the deceased had in his pocket a ten-trip ticket. In Hutchinson on Carriers, Sec. 562, it is said that unless some contract, either express, or implied from the circumstances, can be shown, it is difficult to see how the relation can be established. The mere intention to take passage upon the carrier’s vehicle ought not, certainly, to have that effect, under any circumstances.” The cases, I. C. R. R. Co. v. Treat, 179 Ill. 576; Penn. Co. v. McCaffery, 173 Ill. 169; Chesapeake & Ohio R. Co. v. King, 99 Fed. Rep. 251, cited by appellee’s attorneys, are not in conflict with the views above stated. Our attention has been called, in the briefs filed herein, to C. & E. I. R. R. Co. v. Jennings, 89 Ill. App. 335, .which, it is claimed by appellee’s attorneys, sustains the position that appellee stood to appellant in the relation of passenger when hurt. Since, the briefs in the case before us were filed, however, our Supreme Court has held that the deceased in that case was not received as a passenger, and has reversed the judgment. C. & E. I. R. R. Co. v. Jennings, 190 Ill. 478. In the opinion of the Supreme Court, which contains a very satisfactory discussion of the question, it is said: The company has a right to know that the relation and duty exist, and the passenger must be at some place provided by the company for passengers, or some place occupied and used by them in waiting for or getting on trains.”

In the case at bar appellee was nbt in such position when injured. She was all the time proceeding, without precautions for her safety, toward a point directly in front of an incoming train, and did not present .herself to become a passenger in a proper way. The railroad company had done nothing to invite her to become a passenger “ by rushing into danger in such a way.” Webster v. Fitchburg Railroad, supra. If it be said that the planking laid across between the tracks at the station should be regarded as an invitation to cross, she was not using that planking, but was crossing where no such invitation existed. If she had been on the planking, it is quite possible she might not have stumbled on the rail and fallen, as she did, almost under,, the train, and had she taken the time to go that way, the ■- train would have passed before she could have gotten into danger.

It is argued by appellee’s attorneys that the railroad company was not exercising the highest degree of care, nor even ordinary care, but was guilty of gross negligence. This is shown, it is said, in the speed of the fast train by which appellee was injured — thirty-five or forty miles an hour. Such, speed was, however, permitted by city ordinance, the tracks being elevated. It was sought to introduce the ordinance in evidence, but it was ruled out, erroneously, as we think, upon objection of appellee’s counsel. It was a fact of which persons using or observing the railroad could not have been ignorant, that fast through trains were running over appellant’s tracks at frequent intervals. Appellee’s witnesses testify to the fact and their knowledge of it. She herself states that prior to the elevation of the tracks, when she first went to Evanston, she had frequently gone to Eavenswood, and became acquainted with the way trains ran there. It was yet five minutes before the time when the next local or suburban train which appellee intended to take would be due. There were no grade crossings, no reason that was apparent why fast trains should not be so run. The tracks were elevated with that in view, as may be inferred from the ordinance. It would be impossible for any through line of railroad to conduct its business and accommodate the public without fast trains, and of this we may take judicial notice. This is not a case where a train is run at full speed past a station where a passenger train is receiving and discharging passengers. There was no train there and none was due to stop there for five minutes.

It is said the company should have placed a notice where appellee could see it from the east side of the subway on Sunnyside avenue, to indicate the existence and location of the stairs leading from said avenue to the west platform; that fences should have been placed between the tracks and platforms to prevent persons from crossing there. These are things which might properly be done in the light of the present case. But it is not pointed out in what way their omission constituted negligence per se on the part of appellant. It appears from photographs in evidence that any one standing where appellee stood after ascending the steps to the east platform, could see by simply looking across the tracks that there was a similar stairway the other side of the viaduct and subway which led to Sunnyside avenue from the west platform. It has never been held, so far as we are advised, to be negligence not to erect fences and prevent people crossing tracks at a station where there is, as at Ravenswood, an unobstructed view in either direction along a perfectly straight track, and other means are provided to reach the platforms.

The main ground upon which it is sought to sustain the charge of negligence against appellant, is that the engineer did not at once stop his train or slacken its speed when he first saw appellee as she came up on the east platform, when he believed from her conduct she then intended to cross. The engineer’s statement is that when he saw that she did not stop he gave a warning whistle — four or five sharp whistles — just as she was leaving the platform, running; that appellee did stop when close to the east rail of the middle of the three tracks, and then immediately started again, whereupon he gave another whistle, shut off steam and applied his emergency brakes. He states that he supposed his warning whistle would be sufficient to cause her to stop. He had a right, in our opinion, to so believe. Appellee was then in a position of safety. She was going in a diagonal direction away from the approaching train. According to his statement, and in this he is not contradicted, she did stop, but went ahead again, and then he used every effort to stop his train.

It is stated in appellee’s brief that “the other witnesses in the case, both by the company and by the plaintiff, fully corroborate the main facts of the engineer’s statement.” These facts are not, therefore, in dispute, and do not tend to show, in our judgment, a want of proper care and caution in the operation of the train by the engineer under the circumstances. On the contrary, they indicate that he used such reasonable precautions as the situation then seemed to demand. To charge him with negligence it must appear that he knew, or ought to have known, appellee would place herself in front of bis rapidly moving train, “ at least long enough before the injury inflicted to have enabled him to have formed an intelligent opinion as to bow the injury might be avoided and apply the means.” C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512-520. But the engineer had the right to assume appellee would heed the warning whistle, and not attempt to pass in front of a fast through train which did not stop at that station. She had looked back and seen the train coming. There was no reason apparent to the engineer why she should be in such haste and take the enormous risk of passing in front of what her counsel calls “ a cannon ball,” and which, by exercise of ordinary care, she could have discovered to be a fast train. It is said that appellee believed and had every reason to believe that it was her train just pulling into the station, and that it would stop there, and would be “running slowly or stop altogether at the point where she stopped, and thought she had ample time.” But the engineer had no means of knowing what appellee was thinking, and can not be charged with negligence for want of such knowledge.

It is contended that appellee was in the exercise of ordinary care for her own safety. It is said she acted as ninety-nine persons out of a hundred would have done under like circumstances. Appellee is intelligent and has related the facts as she remembers them. It is not strange, in view of what occurred, that she has not an entirely distinct recollection of every incident preceding the injury. It is doubtless true she was misled by the hastily formed impression that the approaching train was the local instead of the express. She had also a feeling that it was desirable for her to reach the west platform so as to be there ready to take the train when it arrived. But she had seen it approaching, once in the distance and again when she glanced back at it from the platform when it was over a block away. She hurried to pass in front of it, always a dangerous and imprudent thing to do, especially for a lady whose skirts may catch on a rail or cause her to stumble as did appellee. Had she gone straight across, instead of diagonally, she would probably have escaped. Had she not stumbled and fallen on the track, she might have gotten across in safety. She took the chances of such a misfortune. With knowledge of the approaching danger she went blindly on, her back toward the train, governed entirely by hastily formed original impressions, which she made no effort to verify. In this she certainly failed to exercise ordinary care. Taking the chances, she met with an accident — the risk of which she had assumed — and fell across the track in front of the engine, frightened, as she well might be, at the terrible danger. She looked up to see where the train was when she was already on the track in front of it, where, if it was fright that caused her to fall, the fright was the result of her own negligence in failing to look before instead of after she had stepped into such imminent peril. In C., M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248-254, the court, by Mr. J ustice Scholffeld, says : “ One who, failing to observe due care, blindly walks into a danger that the observance of due care would have enabled him to avoid, is no less guilty of contributory negligence than he, who, being able by the observance of due care to extricate himself from danger, fails to make any effort for his personal safety, and because thereof is injured. Abend v. Terre Haute & I. R. Co., 111 Ill. 203. One approaching a railroad crossing is bound to know that it is a place of danger, and he must give that attention to the sights and sounds warning of an approaching train that a man of ordinary caution under like circumstances would give. If he shall permit himself to become absorbed in. thought about other matters, and in consequence oblivious of his present surroundings, he will do so at his peril.” Appellee has suffered a very great misfortune, a severe penalty for momentary thoughtlessness; but the conclusion is, we think, inevitable that she was injured in consequence of her own negligence, and the court must say so as a matter of law. U. S. Express Co. v. McCluskey, 77 Ill. App. 56-59, and cases there cited.

The conclusion stated makes it unnecessary to consider other points raised by counsel. The judgment of the Superior Court must be reversed, with a finding of facts. Eeversed.


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    Francis H. O’Connor v. John Prendergast.
    1. Variance — Pleadings and Proofs. — In an action for personal injuries, under a declaration alleging that the defendant wrongfully and negligently allowed a certain railing around an opening in a sidewalk to remain in bad and unsafe repair, and it became broken and insecurely fastened, by means whereof the plaintiff, who was standing and leaning against said railing, was thrown into the basement below, and “thereby his back was badly hurt and injured, and he was then and there otherwise permanently injured, both in health and body, that he has suffered, and continues to suffer, great pain therefrom, and was, and has been from thence hitherto hindered and prevented from transacting his business and affairs,” it is error to permit the introduction of evidence tending to show that the only serious injury claimed to have been suffered was to his left leg above the knee, and that it had been operated upon three times at different hospitals since the accident.
    2. Pleading — Rules Governing Actions for Personal Injuries. — It is a rule of pleading that whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, the plaintiff must state the particular damage he has sustained or he will not be permitted to give evidence of it, on the trial.
    8. Practice — On Motions for New Trials. — A. party is not bound to read his motion for a new trial to the court in extenso or to comment upon each ground stated in it. Nor is he deemed to have waived the points not read or commented upon, provided he has not in some way or manner deceived the trial court, or in some other way waived such points.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed January 21, 1902.
    C. Porter Johnson and D. I. Jarrett, attorneys for appellant.

      Edward Maher and George Lauder Turnbull, attorneys for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is a suit for personal injuries alleged to have been suffered by appellee in falling into an area opening from the sidewalk adjoining premises of appellant. It is claimed that the railing protecting the area was by appellant’s negligence out of repair and insecurely fastened, by reason of which it broke while appellee was standing on the sidewalk leaning against it. The injuries appellee claims to have suffered by the fall are in the declaration thus stated: “ The plaintiff’s back was then and there badly hurt and injured, and the plaintiff was then and there otherwise permanently injured both in health and body; that he has suffered and continues to suffer great pain therefrom and was and has been from thence hitherto hindered and prevented from transacting his business and affairs.” The other counts also aver an injury to appellee’s back as the specific cause of complaint and each of them states that it was his back which “ was badly hurt and permanently injured.”

Upon the trial, evidence was introduced tending to show that the only serious injury claimed to have been suffered was to the left leg above the knee, and that this had been operated on three times at two different hospitals since the accident. A physician, called as a witness for appellee, testified that he had examined the latter the day before his testimony was given, the examination extending over a period of about twenty minutes, and that he found nothing , wrong with the back except that the patient stated it was very .painful; but that he found a fistulous opening on the lower third of the left thigh connection with the bone, and that this bone is diseased and incurable except by amputation. This testimony was introduced over the repeated objections and exceptions of appellant’s attorney.

It is contended it was erroneous to permit the introduction of this testimony under the declaration, which in no way advised the defendant that appellee claimed to have suffered any special injury except to his back. The contention is well founded. Appellee was only entitled to recover, if at all, upon the case made in his declaration. The defendant was entitled to know from the declaration what the special character of the injury was for which compensation is sought in damages, that he might be enabled to meet the charge. To hold that a party suing for damages, who has led the defendant to suppose recovery is sought chiefly for alleged injuries to the plaintiff’s back, can at the trial utterly ignore the charge in the declaration and spring evidence that he has suffered an injury of an entirely different character, in consequence of which he must suffer amputation of a leg, and thereby recover such damages as a jury may consider adequate for such prospective loss, is at variance no less with the rules of pleading than of fair play. Nor does the general averment that the plaintiff was otherwise internally and permanently injured in health and body,” afford a sufficient basis for such evidence. This general averment is limited and restricted by the special allegation, and the defendant was thereby advised only that he might be required to meet evidence tending to show internal and permanent injuries related to or resulting from the alleged specific injury to the back; such, for example, as might result from the blow or contusion which directly caused the alleged injury to the back." It is true, as stated in W. C. S. R. R. Co. v. Levy, 182 Ill. 525-527, that it is not necessary to allege specially every injury to each part of the body in actions of this character in order to prove them at the trial; but the evidence should tend to show that the injury averred is, “ the natural and proximate cause” of the other injuries for which damages are claimed. It can not be properly claimed that the injury to the back averred in the declaration is in any way the natural and proximate cause or in any way the cause of the injury to the leg sought to be shown by the evidence objected to. When a man specially complains of pain in his back, no one, doctor or layman, expects to find his leg broken. The diseased condition of the leg is not an injury necessarily resulting from the negligence charged in the declaration, nor from the plaintiff’s alleged fall. In Olmstead v. Burke, 25 Ill. 86, it is said: “ It is a rule of pleading that whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then, in order to prevent surprise on the defendant, the plaintiff must state the particular damage he has sustained or he will not be permitted to give evidence of it.” See also, Miles v. Weston, 60 Ill. 361; City of Chicago v. Crooker, 2 Brad. (Ill. App.) 279-283; Myer & Sons Co. v. Davies, 17 Ill. App. 228-230; Shadock v. Plank Road Co., 79 Mich. 7-11; C., C., C. & St. L. v. Eggman, 71 Ill. App. 42-50; Ebsery v. Chicago City Ry. Co., 164 Ill. 518-523.

A plaintiff can not be permitted to specially aver one cause for recovery of damages, and at the trial prove another entirely different, any more than having averred negligence in one respect, he can introduce evidence to prove negligence of an entirely different character.

It is urged by appellee’s attorney that the errors in admission of evidence were not argued in presenting the motion for a new trial, and were thereby waived. It appears from the record that repeated objections to the introduction of this evidence were made at the trial and overruled.

Appellant’s attorney had thus called the court’s attention to his objection so often that he had a right to presume the court had been fully advised, and had definitely and finally determined the point against him. He might very well have felt that to argue it again in extenso, when it had been so repeatedly decided against him, would seem disrespectful. Under these circumstances it was enough to raise it in his written motion, and thus preserve his rights.- In World’s Columbian Exposition v. Bell, 76 Ill. App. 591, 597, we said : A party is not bound to read his motion to the court in extenso, or to comment upon each and every item thereof. Bor is he to be deemed to have waived those points not read or commented upon, provided he has not in some manner deceived the trial court or otherwise waived such points.”

One of the grounds urged upon the motion for a new trial was newly-discovered evidence, the nature of which is shown by affidavits, tending to prove that the diseased condition of appellee’s leg dated back to his boyhood, long prior to the accident complained of, and is to be ascribed to other causes. This showing emphasizes the reason for the rule limiting the right of a plaintiff to introduce evidence except to prove the case made in his declaration.

Other points are discussed in the briefs, which need not now be considered. The judgment of the Circuit Court must be reversed and the cause remanded.


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    Pennsylvania Co. v. Henry R. Bond.
    1. Injunctions — By an Abutting Oumer of the Fee in a Public Street, Restraining the Construction of a Steam Railroad. — An abutting owner of the fee in a public street may enjoin a steam railroad company from constructing and operating its road in such street to the practical exclusion of the public, where no compensation for his interest has been made, even though the railroad company is acting under a city ordinance. (Bond v. Pennsylvania Co., 171 Ill. 508.)
    2. Same — Restraint of Matters Consummated Pendente Lite. — Where it appears that the matters sought to be restrained by an injunction have been consummated since the commencement of the suit and the till is broad enough to entitle the complainant to the relief asked under it, if such matters have been wrongfully accomplished after the commencement of the suit, there is no reason why the decree should not be such as to afford complete relief.
    3. Decrees — When Inoperative. — In a proceeding against a railroad company to enjoin it from laying new tracks, etc., a decree containing a provision that “ if it shall appear that the defendant has or any of its agents, servants or lessors for it have, since the beginning of the suit, laid or caused to be laid, any new tracks on the premises in controversy, then the said company, its officers, agents and lessors, are perpetually restrained from further operating such additional tracks,” is inoperative so far as such portion of the decree is concerned.
    4. Chancery Practice— Where a Defendant Is Precluded from Demurring to an Original Bill as Amended. — Where, after the amendment of a bill, a defendant asks and is granted leave to have his answer to the original bill stand as an answer to the bill as amended, such defendant is precluded from subsequently demurring, except as to new matters set up in the amendment.
    5. Supplemental Bills — When Unnecessary. — A supplemental bill is not required to be exhibited in order to bring before the court facts and circumstances occurring after the filing of the original bill and which bear as evidence upon the facts in issue in the original cause. Where any such new matters are relied upon only to establish the facts in issue in the original cause, they are not to be brought forward by á supplemental bill, for they are not properly supplemental matter.
    6. Practice — Distinction Between Law and Equity Regarding Matters Arising Pendente Lite. — In actions at law, the right to judgment always depends upon the facts as they existed at the commencement of the actions, but such is not the rule in equity. There, the relief to be administered is such as the nature of the case, and the facts as they exist at the close of the litigation, demand. e
    7. Waiver — Of an Error by Failing to Assign it.— An error existing at the time an appeal is prosecuted and which the party appealing had an opportunity to assign and fails to do so, is deemed to have been waived.
    Bill for an Injunction. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tüthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    Statement, — This is an appeal from a decree restraining appellant from laying down or constructing any additional railroad track or tracks upon that portion of Stewart avenue in front of lot 1, block l,in the-United States Bank addition to Chicago, and east of the west thirty-three feet of said avenue, and from erecting any fence or wall lengthwise in said avenue upon or along the east line of the west sixty-six feet thereof, and also from operating any locomotive or cars upon such additional tracks.
    There is a further conditional provision in the decree, that if it shall appear that said Pennsylvania company, or its lessors for it, have, since the beginning of the suit, laid or, caused to be laid any railroad track upon the land in question, or have erected any such fence or wall, then the said defendant is perpetually enjoined from further maintaining or permitting or using such additional tracks or fence, and is directed to remove the same.

      The bill shows that appellee is the owner in fee of lots 1 and 2, block 1, of the United States Bank addition to Chicago, situated at the southeast corner of Twenty-sixth street and Stewart avenue, and that he is also owner of the fee of the east half, or thirty-three feet, of Stewart avenue as originally laid out, so far as said avenue abutted on said lot 1 for a distance of about 232 feet north and south. Appellee complains that appellant, without compensation to complainant as owner of the fee in such part of said avenue, without authority of law, and solely upon the authority of an ordinance of the city of Chicago enacted July 21, 18S7, is about to lay down and operate certain railroad tracks thereon and to otherwise unlawfully obstruct and appropriate that part of said avenue, the fee of which complainant owns. It is stated in the bill that appellant’s railway, consisting originally of two main tracks running along in the west half of Stewart avenue, was owned, prior to July 1,1869, by the Pittsburg, Fort Wayne and Chicago Ry. Co., which company leased the same to the Pennsylvania Bailroad Company July 7,1889, for 999 years; that the lease was subsequently assigned to appellant, which now holds and operates the said railroad; that July 21, 1887, the P., Ft. W. & C. Ry. Co., its lessees and successors, was authorized by city ordinances of that date to construct and operate two additional tracks in Stewart avenue, provided said company should pay the cost of widening said avenue to ninety-nine feet. The additional thirty-three feet added to the width of the avenue for such purpose was, by condemnation proceedings instituted in accordance with an ordinance of February 14, 1888, taken from appellee’s property on the east side of Stewart avenue, and appellee has been duly paid the compensation awarded for the land so taken. The ordinance of July 21, 1887, which granted to the Fort Wayne Company, its lessees and successors, permission and authority to lay down, maintain and operate two additional tracks in Stewart avenue as originally laid out, also provided that besides paying the damages and costs of widening by condemnation proceedings, the company should also grade, curb and macadamize twenty-three of said additional thirty-three feet, build a wooden sidewalk ten feet wide on the east side of said additional thirty-three feet at its own expense, remove old lamp posts, drains and water-pipes, and replace them within said added thirty-three feet, and complete these improvements before it exercised rights under said ordinance. The company was also required to erect and forever maintain at its own expense on the east line of Stewart avenue as it was laid out before the addition of said thirty-three feet to the east side thereof, a substantial fence of wood, iron, brick or stone of such design and size as should be determined by the city department of public works, with suitable gate at street crossings. Upon completion of these improvements the said railway company and its lessees were bj' said ordinance authorized to operate engines and trains at an increased rate of speed. It appears that the effect of these ordinances was to authorize the railroad company to construct and operate two additional tracks in the original Stewart avenue, making four tracks in all, and to fence in such tracks, thus exclusively occupying practically the whole of the original street.
    It appears from the bill that appellant complied with these conditions, paid for the new thirty-three foot addition, for removing water-pipes and hydrants and for constructing new sewers and making the other improvements, stipulated to be done at its own expense.
    The prayer of the bill is that appellant and its lessor may be restrained from proceeding under said ordinance of July 21, 1887, from laying any additional railroad tracks upon Stewart avenue in front of appellee's property, from erecting a fence or wall of any kind along the east side of the west sixtv-six feet of said avenue, and from running locomotives or cars at any increased rate of speed authorized by said ordinance. From the decree in favor of appellee, this appeal is prosecuted.
    Loesch Brothers & Howell, attorneys for appellant; Frank J. Loesch, of counsel.

      Ritchie, Esher & Knobel, counsel for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

The burden of appellee’s complaint as shown by his bill is that appellant is about to take possession, with two additional tracks, of the east thirty-three feet of the west sixty-six feet of that part of Stewart avenue lying in front of his property, and to erect a fence along the east line thereof, without compensation to appellee as owner of the fee. The additional thirty-three feet taken to make the original avenue ninety-nine feet wide was condemned, and was paid for by appellant in accordance with the ordinance of July 21, 1887; but the strip thirty-three feet wide in the middle of the avenue as now constituted, and which appellant sought to appropriate and has since appropriated, has not been condemned nor paid for.

The principal question raised by the bill was determined in Bond v. Pennsylvania Co., 171 Ill. 508. The case was then before the Supreme Court on appeal from an order of the Circuit Court dismissing the bill for want of equity upon demurrer; and the principal question presented by the record and decided by the court was as stated in the opinion (p. 513), “ whether an owner of land abutting upon a public street, who owns the fee in such street subject to the public easement, can enjoin the laying of tracks upon and the use and occupation of such street by a steam railroad company to the practical exclusion of the public from so much of such street as is so occupied, where no compensation to such owner has been ascertained or made, but where such company is acting under authority of an ordinance of the municipality.” It was held that the bill stated a good cause of action, and (p. 517) it was said that “ the railroad, and use of it by appellee (the Pennsylvania Company) being an additional servitude upon the land used as a public street, the fee of which was in appellant (appellee here), appellee must first proceed to condemn appellant’s interest in the street for its own uses before it can lawfully appropriate it.” The case was accordingly sent back to the Circuit Court with directions to overrule the demurrer and proceed with the cause. This has been done, and a decree entered in the Circuit Court which perpetually enjoins appellant, the Pennsylvania Company, from constructing additional tracks upon that part of Stewart avenue in controversy, and from erecting any fence or wall lengthwise thereon, and grants other relief.

It appears from appellant’s answer that the allegations of the bill are conceded to be substantially correct, and there is no dispute as to the material facts. The city ordinance of July 21, 1887, a copy of which is attached as an exhibit to the bill of complaint, granted to the Pittsburgh, Fort Wayne & Chicago Eailway Company, its lessees and successors, permission and authority to lay down, maintain and operate two additional tracks and necessary appurtenances in Stewart avenue as then laid out, sixty-six feet in width, providing the said company (appellant’s lessor) should pay the entire cost of widening the avenue to' ninety-nine feet, and of grading and improving for street purposes the addition so made. Appellant states in its answer to the bill, that it has complied with the conditions of that ordinance and has already paid the sum of $8,073 for improving the additional thirty-three feet added to Stewart avenue, and for the removal of lamp posts, drain and water pipes, taken from the east half of the original street and replaced upon said newly added thirty-three feet; and that it has paid or is about to pay over $76,000 for viaducts constructed by it in accordance with its contract with the city evidenced by said ordinance of July 21, 1887.

It is first contended by appellant’s counsel that as the Pittsburgh, Fort Wayne & Chicago Railway Company is shown by the bill to be the owner and lessor of the railroad operated by appellant, it is therefore a necessary party defendant to the suit. It is said that the privileges granted by the ordinance are granted to the Fort Wayne Company and not to appellant, its lessee. The ordinance shows, however, that the grant is to the Fort Wayne Company, its lessees and successors.” The Fort Wayne Company was originally a party defendant, but has been dismissed from the suit. That was done, however, before the appeal to the Supreme Court. In Bond v. Pennsylvania Co., supra, the court refers (171 Ill., p. 511) to the dismissal of the bill as to all defendants except the Pennsylvania Company, appellant herein, and holds that inasmuch as said appellant had asked leave to have its answer to the original bill stand to the bill as so amended, it was precluded from demurring thereafter except to matter set up in a subsequent amendment. The objection now under consideration comes too late, therefore, in any event, whether well founded or not, and the principle of res adjudicada applies. An error existing at the time an appeal is prosecuted, and which the party appealing had opportunity to assign, is deemed to have been waived. Ogden v. Larrabee, 70 Ill. 512-513; Hook v. Richeson, 115 Ill. 431-444; Champaign County v. Reed, 106 Ill. 389-392; Smyth v. Neff, 123 Ill. 310, 315. It does not appear, however, that the Fort Wayne Company is a necessary party. The grant of the ordinance was equally to its lessee, the appellant. ¡Neither the Pennsylvania Company, a foreign corporation, nor its lessor, the Fort Wayne Company, a domestic corporation, claims any interest in or title to the land in controversy. Appellant admits that it is itself intending to occupy and lay tracks as alleged in the bill, claiming the right to do so by virtue of the ordinance of July 21, 1887. Appellee by bis bill sought to prevent such obstruction and use of the land in question by appellant, the only party apparently of whom he has as yet cause or reason to complain. The objection referred to comes, however, too late, and need not be further considered.

There is a provision, in the decree that “ if it shall appear said defendant company has, or that its officers, agents, servants or lessors for it, have, since the beginning of this suit, laid or caused to be laid,”'any new track or tracks on said premises in controversy, or if they or any of them have erected the fence in question, then “ said company, its officers, agents, servants and attorneys ” are perpetually restrained, not only from further operating or using such additional tracks and from further maintaining, permitting or using any fence upon said avenue in front of appellee’s property, but it is further ordered “ that within thirty days after the entry of a final decree herein, said defendant company shall, and it is hereby ordered and decreed to remove such additional track or tracks and fence from said portion of said avenue along and past said lot one.”

This portion of the decree is doubtless open to objection. By its terms it becomes effective only if it shall appear that these things have been done. How it is • to be determined whether they have been done, the decree does not state. Why counsel should have submitted to the chancellor a decree containing such a condition, especially when the evidence showed the condition had been already fulfilled, we are at a loss to discover. This part of the decree is by its terms inoperative. But the master finds that since the filing of the bill of complaint herein appellant has laid the two additional tracks upon the premises in controversy, and has erected a fence along the east side thereof; that it is now operating trains on said additional tracks, and has virtually appropriated to its exclusive use for railroad purposes the entire sixty-six feet constituting Stewart avenue as originally laid out, in front of appellee’s property. There is no dispute as to the correctness of this finding, and the report is by the decree approved and confirmed. It therefore appears that what the bill sought to restrain has been consummated pendente lite. If the bill is broad enough, and appellee is entitled thereunder to restrain such operation of trains, and to the removal of the tracks wrongfully laid since the suit was begun, no reason appears why the decree should not be such as to afford complete relief.

It is, however, contended in behalf of appellant that to obtain relief for matters occurring since the suit was begun appellant should have filed a supplemental bill containing the necessary allegations. It is true, that matters arising subsequent to the commencement of a suit should ordinarily be set up in a supplemental bill. But in the present case, the bill avers that appellant threatened to do the things in question, viz., lay the additional tracks on prem- , ises, the fee of which is in appellee, operate trains thereon ■ and erect and maintain the fence, and it was to prevent such action, the bill was filed. No new facts, therefore, have arisen since the commencement of the suit, except that appellant has done and is still doing what the bill stated it was about to do. This proof was certainly admissible. It sustained the charge as to appellant’s intention, by showing that such intention had been fulfilled. The decree, therefore, so far as it seeks to restrain the use and directs the removal of the tracks, merely directs the restoration to such extent of the status quo. This is, we think, in the power of the chancellor under the original bill and the prayer for general relief. Supplemental bills are not required to be exhibited in order to bring before the court those facts and circumstances occurring since the filing of the original bill, which bear as evidence upon the facts in issue in. the original cause. “ For if the new facts and circumstances are relied on as evidence only to establish the facts in issue in the original cause, they should not be brought forward by a supplemental bill, for they are not properly supplemental matter.” Story’s Equity Pleadings, Sec. 337. The facts, therefore, appearing properly in evidence and undisputed, it would be superfluous to require them to be set up in a supplemental bill, and equity does not require a useless thing. We know of no reason why, under the prayer for general relief, the decree in this case should not give such relief as the evidence justifies. In Lyster v. Stickney, 12 Fed. Eep. 609, a suit to set aside a conveyance executed under a threat that the defendant would take the life of the plaintiff, leave to file a supplemental bill alleging that in pursuance of such threat, the defendant had taken the plaintiff’s life, was denied to the administrator, the fact being competent as evidence of continuing duress. In Adams v. Dowding, 2 Haddocks, 52-61, it is said that “ where there is no alteration in the interest of the parties, nor any particular circumstance requiring further discovery, but where only a fact has occurred, which might be proved on taking the account prayed by the original bill, and the relief is not varied by the supplemental matter, but the plaintiff might have the relief prayed for by such bill under the original bill, a supplemental bill is improper.” So in the case before us, the complainant is entitled to such relief as is within the scope of his bill under the general prayer for relief. In Brown v. Miner, 128 Ill. 148-157, the complainant was allowed in a foreclosure decree the amount of his advances for taxes paid subsequently to the filing of his bill “ under the general prayer for relief and without filing a supplemental bill.” In Kelly v. Galbraith, 186 Ill. 593, the decree ordered payment of rent which accrued under a lease after the filing of the bill, no supplemental bill having been filed. It is there said: “ Undoubtedly the rule in actions at law is, that the right to judgment depends upon the facts as they exist at the commencement of the action, but such is not the rule in equity. The relief administered in equity is such as the nature of the case, and the facts as they exist at the close of the litigation, demand.” It was held (p. 611) that as the rights of the appellants were in no way prejudiced by the failure to file a supplemental bill the decree would not be reversed. In Pennsylvania Railroad Company’s Appeal, 115 Penn. State Rep.- 514, the bill prayed that the railroad company “may be restrained by injunction from constructing said railway track or maintaining the same upon said public highway,” and for other relief. There was no supplemental bill. The court says: “Ko# remedy is complete that does not require removal of the track laid since the defendants had notice of the action.”

In New Haven Clock Co. v. Kochersperger, 175 Ill. 383-385-395, it is said that where, after a bill for injunction has been filed, and the court acquired jurisdiction of the subject-matter and the parties, the defendant does the act which the bill seeks to enjoin, such act “will be subject to the power of the court to compel a restoration of the status or to enforce such other relief as may be proper.”

It is further contended, as stated by appellant’s counsel, that “ the agreement made by appellee with appellant’s lessor to accept $22,500, in the condemnation suit brought by the city against appellee for his compensation and damages for the land taken for widening Stewart avenue, the entry of judgment in accordance with said agreement, the payment of the judgment by appellant and receipt bv appellee of the money so paid, the payment of large sums of money by the railway companies for land acquired and work performed, all said acts of the city and railway companies being done to the knowledge of appellees in pursuance of the ordinance of July 21, 1887, giving the Fort Wayne Company and its lessees the right to lay additional tracks in Stewart avenue and requiring them to lay out a new street and to build a fence on the east line of old Stewart avenue, will in equity estop appellee from enjoining appellant’s use of Stewart avenue in accordance with said ordinance.”

The condemnation suit in which the compensation paid appellee for what was taken from the frontage of his land to widen Stewart avenue, an additional thirty-three feet, was fixed at $22,500, settled appellee’s claims for compensation and damages for such taking by the city of Chicago. The fact that the amount of the judgment was agreed upon between the parties before it was entered, is of no consequence. It was the judgment, not how the amount was determined, which concluded the parties. That judgment was rendered exclusively for the amount awarded as compensation and damages for the land actually taken in that proceeding. The fact that it was known to appellee when such condemnation proceeding was instituted that the railway companies were to pay whatever judgments were rendered therein against the city, does not change the status nor affect the rights of appellee. The fact that it was also known to the latter that the proceedings were taken in accordance with the arrangement evidenced by the ordinance of July 21, 1887, between the city of Chicago and the railway companies, does not preclude appellee from asserting-his right to be compensated for any other property sought by that arrangement to be taken for the use of the railroads. Appellee was not a party to the arrangement between the city and the companies. He had a right to assume that said companies expected and intended to take such legal proceedings as might be necessary to acquire the right to use the street by condemnation. It does not appear that the $22,500 was paid for anything but compensation for the land actually taken in that proceeding, and nothing has occurred to which our attention has been called, which in equity bars appellee from maintaining his bill.

The original bill sought to declare the ordinance of July 21. 1887, void, but this was stricken out by subsequent amendment, and no such claim is now made.

It is said that at the most appellee was only entitled to an injunction until his easement has been condemned by due process of law, and that hence the perpetual injunction is erroneous. Such injunction, however, would cease to operate whenever appellant acquires a legal right to maintain and use a part of the street in controversy.

Amotion was made here for an attachment against the railroad company, and we are now asked to compel appellant to furnish a supersedeas bond or suffer the consequences ■of disobedience to the injunction. The trial court, however, has full power and the necessary machinery to compel obedience to the decree as affirmed here. Application can be made there for such action as may be necessary.

For the reasons indicated the decree of the Circuit Court •must be affirmed, Avith such modification here as will make it fully operative and eliminate the condition. Decree modified and affirmed.


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    Tecumseh Mutual Life Association v. Cornelia M. Woodman.
    1. Beneficiary Associations — IVo Recovery on a Certificate Not in Force at the Time of the Demise of the Insured. — The beneficiary of a person named in the certificate of an insurance association, who, in his lifetime, allowed his certificate to lapse by reason of his intentional non-compliance with the by-laws of the association, is not entitled to recover.
    Assumpsit, on a certificate of a beneficiary association. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed with a finding of facts.
    Opinion filed January 21, 1902.
    F. M. Williams, attorney for appellant.
    Clark Varnum, attorney for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is a suit upon a certificate of membership issued by appellant to Charles W. Woodman, now deceased. It bears date March 10, 1896, and provides that “ upon the death of said member while this certificate is in force,” appellant will make payment as therein provided by appellee, the wife of said Charles W. Woodman, if living, and the association agrees “ to make assessments to an amount adequate, with its other available funds, to pay all obligations created under this certificate.”

The case was submitted to and tried by the court without a jury. There appears to be no controversy as to the material facts. The deceased was one of the original applicants for membership and paid the original membership fee of $2; but it was stated in behalf of appellant, and not denied by appellee, that he never made any payments of dues or assessments of any kind thereafter. A letter which was sent to the deceased in his lifetime and was read in evidence confirms the statement. The certificate was sent to the deceased by mail the day after its date, with a notice which, after stating that the certificate of membership was inclosed therewith, continued as follows:

“ The first quarterly assessment is now due, and must be paid on or before April 11, 1896. Contingent dues, $L March assessment, $1.61. April assessment, $1.61. May assessment, $1.61. Total, $5.83. To save members the annoyance of paying small amounts frequently, the board of directors have decided to issue assessments quarterly, unless otherwise ordered. Assessments can, however, be paid monthly if the member so desires, or semi-annually or annually. All money must be sent by postoffice order, express money order, or draft. Currency is at your own risk. Notify this office immediately of any change in your address. Pay on receipt of notice, and avoid neglecting it.
Wilson Beooks,
Secretary.”

The by-laws of the appellant association provide that at least one assessment, according to the table of rates, shall be levied each month, and every member shall be required each month to remit the amount of one assessment to the secretary of the association on or before twelve o’clock noon, on the thirtieth day, after notice of said assessment has been mailed to each member by the secretary.” The by-laws also provided for the collection in advance of $4 per annum of contingent dues for each $1,000 of insurance; but these dues could be paid quarterly in advance by the member, if otherwise in good standing, without loss of such standing. The deceased paid no attention to the notice, and neither paid nor offered to pay any dues nor assessments thereafter. There is undisputed evidence showing that the secretary of appellant had several subsequent interviews with Woodman after the expiration of the time limited in the notice, and the latter declined to pay the amounts necessary to make good his membership. The secretary thereupon noted the word “lapsed” on the register of members, opposite the name of the holder of the certificate.

There is a provision in the by-laws of the association that “ any member whose assessment or assessments are not paid within the time specified shall thereby forfeit his claim to membership and have his name stricken from the roll.” This clause is not self-executing. It means only that such non-payment constitutes cause of forfeiture, contemplating future affirmative action by the association to carry it into effect. Northwestern Traveling Men’s Association v. Schauss, 148 Ill. 304-310. It does not appear that any such affirmative action was taken in this case by the directors of the association. But where there has been a breach of the conditions of the contract between the parties, “the insurer is not required in such case to formally declare a forfeiture. It is sufficient to set it up by way of defense when sued for the loss, as was done in this case.” Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354-357.

The question to be determined is whether the certificate of membership was in force at the time of the death of Charles W. Woodman, to whom it was issued. The payments to be made thereunder are by the terms of the certificate payable “ if assured shall have been a member of this association in good standing,” etc. A member is “in good standing,” when he complies with the laws, rules, usages and regulations of the association. Independent Order of Foresters v. Zak, 136 III. 185-188. In McMurray v. Supreme Lodge, 20 Fed. Rep. 107, it is held that a member in arrears for dues and eight assessments is not in good standing. In Biskupski v. Pospisil, 27 N. Y. Supp. 1018, it is said: “ The plaintiff can only recover provided her husband at the time of his death was a member of the defendant order in good standing, and in accordance with its constitution and by-laws, it was obligatory on the plaintiff to prove that at the time of her husband’s death, he was such member.” One who has never complied with such regulations can not be said to be, if indeed he ever became, a member in good standing. If the assured in the present case never paid nor showed any intention to pay any of the dues or assessments or to comply with the laws and regulations of the association in that respect, the mere issue of a certificate of membership in expectation of such compliance can scarcely be regarded as sufficient of itself to constitute him a member in good standing within the meaning of the certificate. In the present case the holder of the certificate made only such payment as was preliminary to the issue of the certificate. "When the latter was sent to him it was accompanied with a notice that the first assessment was due and must be paid on or before the expiration of thirty days. To constitute the assured a member in good standing this assessment would have to be paid, unless some sufficient reason for non-payment appears. He not only failed to make any such payment, but although repeatedly urged both verbally and by letter to make his insurance good, he positively refused to make any payments thereafter of any kind, saying that it was too expensive. If any conduct short of an express formal declaration can indicate complete abandonment of all intention to remain a member and of all claim under the certificate, the conduct of the deceased evidenced such intention. His failure to pay was not accidental nor owing to want of notice, nor a mere oversight. He refused to pay, evidently in pursuance of a deliberately formed intention to abandon all connection with the association and all claims as a member. Refusing to perform the duties, he abandoned the rights of membership. Although frequently urged to reconsider he declined to do so. He died in March, 1898, two years after the issue of the certificate sued upon. It appears that in June, 1897, he had some thought of renewing his membership, and called at the office of the association to inquire what it would cost him to be re-instated. Upon learning from the letter sent in answer to his inquiry that he would be required to submit to a physical examination and pay the back dues and assessments amounting to §38 if he wished to be re-instated as of the age at which he took out the original certificate, he dropped the matter, stating that it would cost too much. He thus recognized that his status was such as to give him no standing as a member, and he must be presumed to have waived any informalities, if such there were in the omission by the association to formally declare his membership forfeited. Hansen v. Supreme Lodge, 140 Ill. 301-305. Ho subsequent notices were sent to the holder of the certificate, and both parties treated the membership as terminated, apparently by mutual consent.

It is urged by appellee’s attorney that the notice sent -with the certificate demanded too much money, and was thus so defective that the assured was under no legal obligation to make the payment. In view of what we have said, such defect, if it existed, must be deemed to have been waived. But we find no such defect. The notice informed him correctly what the monthly assessments were, and that these could be paid monthly or quarterly as the recipient might desire.

It is also urged that the evidence fails to show action by the directors specially levying the assessments mentioned in the notice and fixing the time and manner of payment. But where, as in the case before us, the holder of the certificate refuses to make any payment whatever, not on the ground of insufficient notice, or failure to make a proper levy, but because he has determined to abandon his membership absolutely, all such objections must be deemed to have been waived. In Hansen v. Supreme Lodge, supra, it is said: “ In the application for a re-instatement no objection was made to the notice or any of the proceedings which led to the suspension, and in the absence of objection to the notice when Hansen had an opportunity to make an objection, if any existed, it will be presumed that all objection was waived.”

It appearing that the holder of the certificate sued upon was not a member in good standing, but had of his own volition abandoned his membership in the appellant association long before his death, appellee is not entitled to recover, and the judgment of the Superior Court must be reversed, with a finding of facts.

Finding of Facts. — The court finds that the deceased, Charles W. Woodman, was not a member of the Tecumseh Mutual Life Association in good standing, and had abandoned membership therein prior to his decease; that he had waived all claims under and by virtue of the certificate of membership sued upon in this case, and that both the deceased and the association had treated his membership as terminated by mutual consent.